MORLEY v. CENTRAL INTELLIGENCE AGENCY
06-5382. No.
Argued Oct. 22, 2007 . -- December 07, 2007
Before: HENDERSON,
ROGERS and TATEL, Circuit Judges.
With
him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney. James H. Lesar argued
the cause and filed the briefs for appellant.John C. Truong, Assistant U.S.
Attorney, argued the cause for appellee.
Journalist Jefferson Morley appeals the grant
of summary judgment to the Central Intelligence Agency (“CIA ”) on his request 2107 note, does not relieve the CIA of its obligations
under the FOIA. On remand, the CIA must also expand its
description of the search by its component units and supplement its
justification for withholding documents under FOIA Exemptions 2, 5 and 6. Additionally, its release of records pursuant
to the John F. Kennedy Assassination Records Collection Act of 1992 (“JFK
Act”), 44 U.S.C. § 431(c)(3), and we
remand the case so that the CIA may search its
operational files in response to Morley's FOIA request. We hold that Morley met his burden to show
that his request falls within an exception to the Central Intelligence Agency
Information Act of 1984 (“CIA Act”), 50 U.S.C. § Upon de novo review, we reverse the grant of
summary judgment. On appeal, Morley
contends that the CIA did not conduct an
adequate search or provide an adequate Vaughn index and that it failed to meet
its burden to justify withholding documents under FOIA exemptions. Although the CIA disclosed some
records, it withheld others pursuant to various FOIA exemptions. under the Freedom of Information Act (“FOIA”)
for documents pertaining to George Joannides, a deceased CIA officer.
I.
Appellant's Br. CIA records pursuant to
his FOIA request will, Morley contends, help to “complete the historical record
of Kennedy's assassination, specifically CIA operations that might
have collected intelligence on Oswald.” As Morley's writing discusses, the DRE had contact with Lee
Harvey Oswald in the months before President Kennedy's assassination. In his view, information on Joannides could
shed new light on the assassination because of Joannides' position as the CIA case officer for the
anti-Castro organization known as the Directorio Revolucionario Estudantil (“DRE ”) in 1963. Letter from Jefferson Morley to Katherine
Dyer, Information and Privacy Coordinator, CIA (July 4, 2003 ) (“2003 Letter”), at 1. Morley is a
journalist and news editor who has written about the assassination of President
Kennedy. On July 4, 2003 , Morley submitted a FOIA request to the CIA for “all records
pertaining to CIA operations officer George Efythron Joannides
(also known as ‘Howard,’ ‘Mr. Howard’ or ‘Walter Newby’).”
The CIA direct The CIA sent Morley a
preliminary response on November 5, 2003 , informing him that “CIA records on the
assassination of President Kennedy have been re-reviewed under the
classification guidelines for assassination-related records of the [JFK Act]”
and that such records “have been transferred to the National Archives and
Records Administration (“NARA CIA , to Jefferson Morley,
at 1 (Nov. 5, 2003 ). ed Morley to submit Id. NARA NARA NARA
Letter
from Scott Koch, Information and Privacy Coordinator, CIA , to Jefferson Morley
(May 9, 2005 ). Three months later, on May 9, 2005, the CIA sent Morley a
partially redacted document that it had “inadvertently failed to include” in
its earlier response and identified additional material that was withheld in
its entirety under Exemptions 1, 2, 3, 5, 6, 7(C), 7(D), and 7(E). The CIA later released the
two documents requiring consultation with another agency in segregable form. Letter from Scott Koch, Information and
Privacy Coordinator, CIA , to Jefferson Morley,
at 2 (Dec. 22, 2004 ) (“2004 Letter”). The CIA noted that it had
located additional responsive material that it was withholding in its entirety
under FOIA Exemptions 1, 3, and 6. It also explained that two documents
required consultation with another agency and that 78 documents previously
released under the JFK Act were on file with NARA CIA asserted that it
could “neither confirm nor deny the existence of records responsive” to
Morley's request pertaining to Joannides' participation in any covert
operation. By letter of December 22, 2004 , the CIA responded to Morley's
FOIA request, enclosing three documents in their entirety and 112 documents
with redactions pursuant to FOIA Exemptions 1, 2, 3, 5, 6, 7(C), and 7(E). The CIA filed a motion to
stay the proceedings pending its further processing of Morley's FOIA request,
which the district court granted on September
2, 2004 . On December 16, 2003 , Morley filed a complaint for injunctive
relief, requesting the district court to order the CIA to make available all
documents responsive to his FOIA request.
See
Iturralde v. Comptroller of Currency, 315 F.3d 311, 313 (D.C.Cir.2003). Morley appeals, and we review the grant of
summary judgment de novo. It found that the CIA had conducted an
adequate search, giving deference to the agency's decisions as explained in the
October 26, 2005 Declaration of Marilyn A. Dorn, the Information Review Officer
for the Directorate of Operations of the CIA (“Dorn Declaration”),
and that the Dorn Declaration and the CIA 's Vaughn index had
adequately justified invocation of the claimed FOIA exemptions. On September
29, 2006 , the district court granted the CIA 's motion for summary
judgment and denied Morley's cross-motion. On February 6, 2006 , the magistrate judge
granted the CIA 's motion for a protective order and directed
Morley to file his opposition to the CIA 's summary judgment
motion, which Morley did on March 14, 2006 along with a
cross-motion for summary judgment. After the CIA filed a motion for a
protective order on March 24, 2005 , the district court
referred all discovery disputes to a magistrate judge. The CIA filed a motion for
summary judgment on November 15, 2005 . Morley sought discovery from the CIA on February 27, 2005 .
II.
As
such, exemptions from disclosure must be narrowly construed, id. at 823, and “ ‘conclusory and
generalized
allegations of exemptions' are unacceptable,” Founding Church of Scientology of
Wash., D. C., Inc. v. Nat'l Sec. Agency, 610 F.2d 824, 830 (D.C.Cir.1979)
(quoting Vaughn, 484 F.2d at 826). “The court applies a ‘reasonableness' test to determine the ‘adequacy’
of a search methodology, consistent with congressional intent tilting the scale
in favor of disclosure,” Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 27
(D.C.Cir.1998) (quoting Weisberg, 705 F.2d at 1351), and “impose[s] a
substantial burden on an agency seeking to avoid disclosure” through the FOIA
exemptions, Vaughn v. Rosen, 484 F.2d 820, 828 (D.C.Cir.1973). Weisberg v. U.S. U.S.
Standard A.
As a threshold matter, we conclude that the CIA properly processed
Morley's request under the traditional standards of the FOIA, rather than the
less restrictive standards of the JFK Act. In enacting the JFK Act, Congress
declared that “all Government records concerning the assassination of President
John F. Kennedy should carry a presumption of immediate disclosure,” in part
because the FOIA, “as implemented by the executive branch, has prevented the
timely public disclosure” of these records. Memorandum of
Understanding Regarding Continuing Obligations of the CIA Under the JFK Act, at
3 (Sept. 30, 1998 ). Upon expiration of the Review Board's
operations on September 30, 1998, the CIA , NARA , and the Review Board
signed a Memorandum of Understanding (“MOU”) providing that the CIA will transmit to the
JFK Collection at NARA a number of
specifically identified documents, along with “[a]ny other non-duplicate
assassination-related records created or discovered by the CIA after September 30,
1998.” 7(i). Id. Id. NARA
In Assassination Archives & See id. The court stated that FOIA requesters could not skirt the JFK
Act's procedures in order to capitalize on its substance. There is no evidence that Congress intended
that the JFK Act standards be applied to FOIA review of documents involving the
Kennedy assassination.” Research Center
Accordingly,
the CIA properly conceived of Morley's FOIA request
as requiring application of FOIA standards, and we turn to Morley's challenges
to the adequacy of the CIA 's search and Vaughn
index and to the CIA 's invocation of FOIA
exemptions to withhold documents. Morley cannot invoke this Congressional purpose to “engraft[ ]” “the concerns
of the JFK Act ․ onto FOIA
requests,” Minier v. CIA , 88 F.3d 796, 802 (9th Cir.1996). Notably, the MOU neither mentions the FOIA nor addresses the
release of relevant documents to FOIA requesters; it merely
provides that the appropriate records shall be released to NARA NARA CIA ; Morley can no
more sidestep these procedures than he could those of the JFK Act, see id. at
1545. Now that they have,
Morley asserts that the MOU should govern his request for documents. Id.
Adequacy of the Search B.
We turn
to these enumerated issues. The district court
did not specifically address the individual contentions that Morley raises
regarding the adequacy of the CIA 's search. The district court found that Dorn's
declaration “described in great detail” the CIA 's actions in response
to Morley's FOIA request, Mem. Op. Sept.
29, 2006 at 8, and concluded, “mindful of the deference due agency
decisions in this context,” id. at 9, that the CIA 's search was
adequate. Founding Church of Scientology CIA , 607 F.2d 339, 352
(D.C.Cir.1978) (quoting Vaughn, 484 F.2d at 826). However, such reliance is only appropriate
when the agency's supporting affidavits are “ ‘relatively detailed’ and
nonconclusory and ․ submitted
in good faith.” Founding Church of Scientology
Morley,
however, contends that because the Senate Select Committee to Study
Governmental Operations with Respect to Intelligence Activities (“Church
Committee”) and the House Select Committee on Assassinations (“HSCA”)
investigated DRE activities in 1963, his FOIA request falls
under an exception in the CIA Act. 431(b)(1). 431(a), and generally include records “which document the conduct
of foreign intelligence or counterintelligence operations,” id. § Operational files are exempt from FOIA
disclosure under the CIA Act, 50 U.S.C. § See Dorn Declaration ¶ 97. The CIA admits that it did
not search its operational files for records responsive to Morley's request. Search of Operational Files. 1.
of the CIA Act provides that: Section 431(c)
[E]xempted operational files shall continue to
be subject to search and review for information concerning ․ (3) the specific subject matter of
an investigation by the congressional intelligence committees, the Intelligence
Oversight Board, the Department of Justice, the Office of General Counsel of
the Central Intelligence Agency, the Office of Inspector General of the Central
Intelligence Agency, or the Office of the Director of National Intelligence for
any impropriety, or violation of law, Executive order, or Presidential
directive, in the conduct of an intelligence activity. [emphasis added]
First,
does the Church Committee or the HSCA qualify as “congressional intelligence
committees” under the CIA Act? The CIA does not challenge
that the two committees qualify as intelligence committees, and treating the
Church Committee as such appears to be consistent with congressional intent. For exception (3) to apply, the plain text
directs that three questions must be answered in the affirmative. 1 401a(7);
the permanent body was created on the recommendation of the Church
Committee. The Church Committee
was the predecessor to the Senate Select Committee on Intelligence, which is
specifically named in the definition of “congressional intelligence
committees,” 50 U.S.C. § 2 431(c), for the Church Committee does and that is
sufficient for the exception to apply. It matters not, however, that the HSCA does not necessarily fall within
the definition of a congressional intelligence committee for purposes of § See Lt. Gerald F. Reimers II, Foreign
Intelligence Surveillance Act, 4 J. Nat'l Security L. 55, 74 (2000). However, it was the House Select Committee on
Intelligence (“Pike Committee”), not the HSCA, that gave rise to the Permanent
Select Committee on Intelligence of the House of Representatives. (June
27, 2006 ). Decl. of G. Robert
Blakey, ¶¶ 9, 10. Moreover, according to
evidence proffered by Morley, Congress created the HSCA to follow up on the
Church Committee recommendation that Congress investigate further “why Oswald's
contacts with the DRE ․ had been examined so superficially.”
See
Gen. Dynamics Land Sys., Inc., v. Cline, 540 U.S. Br. Arg. 21:37 , 22:13 (Oct. 22, 2007 ). 431(c)(3) because it
was not specifically about Joannides. The CIA contends that this
congressional investigation does not trigger § & 431(c), “a broadly inclusive
term,” ACLU v. Dep't of Defense, 351 F.Supp.2d 265, 272 (S.D.N.Y.2005), that
precludes the interpretation offered by the CIA . Congress chose to use the word “concerning”
in § Co. , 323 U.S.
Joannides has more than a “remote”
relationship to the purpose of the investigation, according to Morley's
evidence, as he was the case officer for an anti-Castro group that had
documented contacts with Oswald. Sullivan addressed a situation substantially different from
Morley's case. In that case, the
court addressed a FOIA request pertaining to the disappearance of the
requester's father while allegedly on an airborne CIA -sponsored mission to
drop propaganda over Cuba CIA conduct in a particular incident or region,”
id. at 1254. In Sullivan v. CIA , 992 F.2d 1249, 1255
(1st Cir.1993), the First Circuit held that the exception was inapplicable
because “[i]t is simply not enough that information which bore in some remote
way on the request surfaced in the course of an official investigation.” 431(c)(3). In support of its proposition, the CIA relies on the only
opinion by a circuit court of appeals to address §
The evidence
proffered by Morley indicates that Joannides was in a position of central
importance to such an investigation and was thus covered by its “specific
subject matter.” See Appellee's Br. CIA recognizes that the
focus of the committee's investigation was the relationship between
organizations like the DRE and the Kennedy
assassination. The role of
individual CIA officers during this event was key to such an
inquiry, information that the committee would have sought out rather than merely
happened upon. The Church Committee
posed a targeted inquiry investigating the performance of the intelligence
agencies surrounding a particular event. Sullivan, 992 F.2d at 1255. Morley does not seek information that bears only a “remote” relationship
to the investigation by the Church Committee, but rather information central to
the committee's “direct investigation.” H.R. Rep. No. 98-726, at 31, 1984 U.S.C.C.A.N. at 3769. 431(c)(3) exception. This interpretation is supported by the
legislative history of the CIA Act, which indicates
that information that merely “surfaced in the course of the investigation”
should not trigger the § 431(c)(3) that a FOIA
request concern “the specific subject matter of an investigation” is satisfied
where the investigating committee would have deemed the records at issue to be
central to its inquiry. We hold that the
requirement of §
Such an
investigation implicates Joannides, who, according to Morley's proffers, was a
figure central to the CIA 's investigation both
before and after the assassination, and someone who may have been directly
implicated in the CIA 's alleged
deficiencies. The Church Committee
investigation meets this criteria because it sought to assess the performance
of the intelligence agencies in conducting their own investigations of the
assassination; in fact, the Church Committee found that the CIA was “deficient” in
its performance, further indicating that it was specifically investigating the
possibility of CIA “impropriety.” This requirement is satisfied when a
congressional investigation is spawned by alleged improprieties and seeks to
uncover them. The inclusion of the
word “impropriety” alongside “violation of law” suggests that Congress intended
the terms to apply broadly; the misconduct need not amount to illegality. 431(c)(3). 50 U.S.C. § Third, was the
investigation “for any impropriety, or violation of law, Executive order, or
Presidential directive, in the conduct of an intelligence activity”?
431(c)(3), and thus our holding that the
Church Committee investigated agency “impropriety, or violation of law” is not
in tension with Sullivan. Id. CIA impropriety. 992 F.2d at 1255. The First Circuit stated that the Church
Committee's inquiry fell outside of the exception because it “was not a direct
investigation into CIA wrongdoing,” despite
the fact that “there were instances in which the Committee searched for agency
misconduct.” Language in Sullivan
that suggests that the Church Committee did not investigate CIA “impropriety, or
violation of law” was unnecessary to its holding and limited by its context.
431(c)(3) criteria for mandating the search of
the CIA 's operational files under the FOIA. Because
the CIA did not search these files, we remand the case
to the district court so that the CIA may do so. For these reasons, we hold that Morley's FOIA
request meets the §
Because
the CIA does not deny that it has retained copies of
the records transferred to NARA and concedes that
some transferred records are likely to be responsive, it was obligated to
search those records in res McGehee v. CIA , 697 F.2d 1095, 1110
(D.C.Cir.1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press,
445 U.S. 136, 150-51, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980)). “[A] categorical refusal to release documents
that are in the agency's ‘custody’ or ‘control’ for any reason other than those
set forth in the Act's enumerated exceptions would constitute ‘withholding.’ ” Congress has authorized only nine categories
of exemption from this policy, and practical considerations that documents
exist in another forum outside of the agency is not amongst them. Tax Analysts v. U.S. Dep't of Justice, 845
F.2d 1060, 1064 (D.C.Cir.1988) (quoting S.Rep. No. 89-813, at 3 (1965)), aff'd,
492 U.S. 136, 109 S.Ct. 2841, 106 L.Ed.2d 112. The FOIA has a “settled policy” of “ ‘full agency disclosure.’ ” ponse to Morley's FOIA request.
11(b). Indeed, the JFK Act itself indicates that release of records to NARA CIA of its duty to
identify responsive documents, claim the relevant exemptions in the Vaughn
index, and explain its reasoning for withholding the documents in its
affidavit. The CIA did not distinguish
between the protected and unprotected records when it directed Morley to the NARA U.S. CIA confirms that “1,100
documents are located in NARA CIA asserts on appeal that it “is not required to search these
documents ․ because the ‘ postponed
collection’ under the JFK Act is not reasonably likely to contain information
responsive to [Morley]'s request,” Appellee's Br. at 19, this post hoc
explanation cannot make up for the Dorn Declaration's silence. 2(a)(7). 6; see also id. § JFK Act § The same holds true for the 1,100 CIA documents contained
in the protected collection at NARA
On
remand the district court shall direct the CIA to search these
documents. In sum, the blanket
statement in the Dorn Declaration that the CIA did not search
records made available through NARA
Paragraph 44 of the Dorn Declaration states
that the CIA directed the Office of General Counsel to
search its relevant database and that responsive documents were released to
Morley. Iturralde, 315 F.3d at
315. But even if citations
to Morley's own affidavit were sufficient to show that files pertaining to
Joannides' selection as liaison once did exist, “failure of an agency to turn
up one specific document in its search does not alone render a search inadequate.”
See Weisberg v. U.S. Apr. 25, 2005 ). 2003 Letter at 2.
Morley relies on a passage in a book written by Scott Breckinridge, the former
General Counsel of the CIA , that refers to
“George J.” who was chosen as the agency's liaison to the HSCA. Morley also
states in his sworn declaration that the CIA 's meetings with
Joannides “were undoubtedly memorialized by one or more of the participants.” First, Morley's FOIA request sought “[a]ll
records in the Office of General Counsel pertaining to the selection of George
Joannides as liaison to the [HSCA] in May 1978.” Morley is less persuasive in contending that the search was
inadequate because there are certain documents that he suspects the CIA has in its possession
but withheld. Search for “Missing”
Documents. 3.
Wilbur
v. CIA , 355 F.3d 675, 678 (D.C.Cir.2004). This assertion amounts to nothing more than
“mere speculation that as yet uncovered documents might exist,” which is not
enough to “undermine the determination that the agency conducted an adequate
search for the requested records.” Appellant's Br. CIA has failed to produce
the “daily diary” of its activity concerning the HSCA. Again Morley relies on
his declaration and asserts in his brief that it “strains credulity” to think
that the documents that he seeks do not exist.
Appellee's Br. CIA did not disclose any of the monthly progress
reports filed by Joannides while he was the case officer for the DRE . Morley relies on the
fact that the monthly reports of the DRE case officers' both
before and after Joannides' assignment are available at NARA CIA 's brief explains in a
footnote that it addressed these “missing” monthly reports in a memorandum to
the Review Board's Executive Director: “The memorandum states that
notwithstanding rather extensive efforts, searches conducted by the Agency
failed to locate any of the reports that appear to be missing [between]
December 1962[and] April 1964 and provided background which may explain
the lack of such reports for this time period.”
In
Weisberg v. U.S. Department of Justice, 627 F.2d 365, 369 (D.C.Cir.1980), the
court stated that the FBI agent's affidavit It does not suffice for purposes of summary judgment that the CIA has written a memorandum
to NARA that “may explain” the lack of responsive
documents; rather, the court must be able to ascertain if it has explained the
records' absence. However, the CIA 's failure to provide
a similar explanation in its affidavit or provide the memorandum itself to
Morley makes it impracticable for the court to review the adequacy of its
search.
A
factual question thus persists, and it was inappropriate for the District Court
to undertake to resolve it at the stage of summary judgment. assert[ed] no personal knowledge that the
[record] really was discarded, so [one] permissible inference is that [the
agent] is incorrect in his belief and that the [record] remains somewhere in
the FBI's domain.
On
remand the CIA must supplement its explanation. Cf. Maynard v. CIA , 986 F.2d 547, 565
(1st Cir.1993). Although the CIA indicates these
documents are responsive, it has provided neither Morley nor the court with an
explanation regarding the reports' whereabouts. The evidence here similarly indicates that there is a factual
question as to whether or not the “missing” monthly reports still exist.
However, to the extent Morley also contends
that the search was inadequate because the CIA failed to search
records referenced in the responsive documents that were released, Steinberg v.
U.S. Department of Justice, 23 F.3d 548, 552 (D.C.Cir.1994), is dispositive: Although the CIA states in its brief
that “soft” files were included in its search, see Appellee's Br. at 14, this
post hoc explanation cannot make up for the fact that the CIA provided an
inadequate description of its search in its response to Morley and in the Dorn
Declaration. The Dorn Declaration
never addresses Morley's request that the CIA search its “soft
files.” Search of Other Files.
4.
[ ] FOIA clearly does not impose this
burden upon federal agencies․ If that were the case, an agency responding
to FOIA requests might be forced to examine virtually every document in its
files, following an interminable trail of cross-referenced documents like a
chain letter winding its way through the mail. [M]ere reference to other files does not establish the existence
of documents that are relevant to appellant's FOIA request.
But
Dorn provides little more than conclusory adjectives and does not provide
sufficient detail for the court itself to determine the search's adequacy. Dorn Decl. ¶ 43. Dorn states that the “CIA produced records that
were a product of a reasonable, diligent and thorough search.” The Dorn Declaration does not “explain in
reasonable detail the scope and method of the search conducted by the agency
[sufficient] to demonstrate compliance with the obligations imposed by the
FOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C.Cir.1982). Morley is correct that the CIA failed to describe
its search adequately. Adequacy of CIA 's Description. 5.
Oglesby, 920 F.2d at 68. Consequently, the Declaration's terse
treatment of the CIA 's efforts to locate
documents that were responsive to Morley's FOIA request lacks the detail
“necessary to afford a FOIA requester an opportunity to challenge the adequacy
of the search and to allow the district court to determine if the search was
adequate in order to grant summary judgment.” The remainder of the Declaration describes only basic CIA policy regarding FOIA
responses and a description of the CIA 's correspondence with
Morley. See, e.g., Nation
Magazine v. U.S. Customs Serv., 71 F.3d 885, 891 (D.C.Cir.1995). Neither does Dorn provide any indication of
what each directorate's search specifically yielded. Oglesby v. U.S. Id. CIA , Dorn states that
“each component must then devise its own search strategy, which includes
identifying which of its records systems to search as well as what search
tools, indices, and terms to employ.”
Because
the CIA inadequately explained its search, we need
not address Morley's objection that t On remand, the CIA must expand its
description of the search it conducted. Nat'l Cable Television Assoc. v. FCC, 479 F.2d 183, 186
(D.C.Cir.1973). In view of Morley's
various concerns about the adequacy of the CIA 's search, and the CIA 's response with a
“single, conclusory affidavit,” Perry, 684 F.2d at 128, that generally asserts
adherence to the reasonableness standard, the Dorn Declaration is insufficient
to carry the CIA 's burden on summary judgment to “prove[ ] that no
substantial and material facts are in dispute and that [it] is entitled to judgment as a
matter of law.” he court should not defer to the Dorn Declaration in view of
the CIA 's alleged bad faith.
Adequacy of Vaughn index C.
At the
same time, in Judicial Watch, Inc. v. Food Id. Id. Id.
Summary
judgment was therefore appropriate on the adequacy of the CIA 's Vaughn index. Still, the descriptions of the documents in
the Vaughn index, while categorical and with little variation from page to
page, convey enough information for Morley and the court to identify the
records referenced and understand the basic reasoning behind the claimed
exemptions. As described below in
discussing several of the claimed FOIA exemptions, the Dorn Declaration is less
fulsome in tying together the exempted documents and justifying their
withholding. Id. Id. CIA has not matched each
redaction with a specific exemption, its Vaughn index does identify the
exemptions claimed for each individual document. The Morley Vaughn index contains many of the same categories as in
Judicial Watch, including an identification number, the document's subject, and
the date.
Segregability D.
The
district court's failure to fulfill this responsibility requires a remand. PHE, Inc. v. Dep't of Justice, 983 F.2d 248,
252 (D.C.Cir.1993). Thus, “a district
court clearly errs when it approves the government's withholding of information
under the FOIA without making an express finding on segregability.” “[T]he District Court had an affirmative duty
to consider the segregability issue sua sponte.” Trans-Pac. Policing Agreement
v. U.S.
Exemptions E.
Morley
makes three points: (1) The Dorn Declaration makes only conclusory statements
about national security threats under Exemption 1; (2) The passage
of time since the Cold War no longer warrants protection of documents
concerning the CIA 's operations in Cuba; and (3) The CIA has already
released to NARA the same kind of information he seeks under the JFK Act, undercuttin The CIA relies on Executive
Order 12,958, “Classified National Security Information,” 60 Fed.Reg. 19,825 (Apr. 17, 1995 ), in exempting certain material. 552(b)(1). 5 U.S.C. § Exemption 1 provides
that the disclosure provisions of the FOIA do not apply to matters that are
“(A) specifically authorized under criteria established by an Executive order
to be kept secret in the interest of national defense or foreign policy and (B)
are in fact properly classified pursuant to such Executive order.” g any
potential damage to national security that the CIA currently claims.
Id. She then restates the Executive Order's standard for classifying
certain information “which reasonably could be expected to cause damage to the
national security.” Dorn Decl. ¶ 48. She briefly identifies the two categories of
the Executive Order under which information was classified-“intelligence activities
․, intelligence sources or
methods, or cryptology” and “foreign relations or foreign activities of the United States
Upon
considering the CIA 's more thorough
discussion of the national security implications in Exemption 3, we conclude
that, taken together, the Dorn declaration made a proper showing under
Exemption 1. Furthermore, where
courts have called for more detailed explanations of the potential dangers to
national security that justify the use of Exemption 1, see, e.g., Oglesby v.
U.S. Dep't of Army, 79 F.3d 1172, 1184 (D.C.Cir.1996); Church of
Scientology, 662 F.2d at 787, they have conflated Exemption 1 and Exemption 3, which
also deals with national security concerns. Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981)
(emphasis in original) (internal quotation marks omitted). Morley's argument for declassification does
not overcome the “substantial weight ” the court must accord “to an
agency's affidavit
concerning the details of the classified status of the disputed record.” Although the court has “consistently
maintained that vague, conclusory affidavits, or those that merely paraphrase
the words of a statute, do not allow a reviewing judge to safeguard the
public's right of access to government records,” Church of Scientology of Cal.,
Inc. v. Turner, 662 F.2d 784, 787 (D.C.Cir.1980) (per curiam), the text of
Exemption 1 itself suggests that little proof or explanation is required beyond
a plausible assertion that information is properly classified.
Notably, in Assassination Archives As for Morley's assertion that this kind of
information has already been released under the JFK Act, the only evidence he
proffers is a declaration by John M. Newman, Professor of History at the University of Maryland CIA 's reliance on
Exemption 1 fails. Newman's declaration
at most proves that “[a]ll of this kind of information has been revealed” under
the JFK Act. Decl. of John M. Newman ¶ 9 (Mar. 5, 2006 ). Wolf v. CIA , 473 F.3d 370, 378
(D.C.Cir.2007) (emphasis in original) (citation omitted). The insistence on exactitude recognizes ‘the
Government's vital interest in information relating to national security and
foreign affairs.’ ” “Prior disclosure of
similar information does not suffice; instead, the specific information
sought by the plaintiff must already be in the public domain by official
disclosure. Id. Research Center CIA (“AARC II”), 334 F.3d
55, 59 (D.C.Cir.2003), the court rejected a nearly identical declaration by
Newman.
Fitzgibbon v. U.S. U.S.
The CIA “has failed even See 5 U.S.C. 552(a)(4)(B); Tax Analysts, 492
U.S. CIA internal
organizational data” and “internal Agency regulations and practices.” However, it is the agency's burden to
establish that the information withheld is too trivial to warrant disclosure. Mem. Op. Sept.
29, 2006 at 14. Indeed, the district
court, after determining that the withheld information is “sufficiently related
to the internal concerns of [the] agency,” concluded that Morley's arguments
were “unavailing” because he “failed to provide a scintilla of evidence to show
how release of information pertaining to purely personnel rules and practices
of the CIA ․ would shed light on the alleged activities of Mr. Oswald or the CIA 's knowledge
thereof.” This statement seems
to place the burden on Morley to assert a public interest before such
information will be released. The Dorn Declaration
provides only a single sentence of explanation regarding the agency's reason
for withholding documents under this exemption: “There is no public interest in the
disclosure of such internal procedures and clerical information that would justify the
administrative burden that would be placed upon CIA .” Dorn Decl. ¶ 51. On
remand the district court shall direct the CIA to supply the
explanation necessary to meet its burden. Morley need not produce dispositive evidence that there is a
public interest in this information; he need only provide evidence of a
genuine issue of material fact, and in the face of the agency's complete lack
of evidence regarding this exemption, he has done so. Fitzgibbon, 747 F.Supp. at 57. to suggest any ․ reason or need to keep secret” the administrative routing
information and internal data.
Given
the special deference owed to agency affidavits on national security matters,
Morley's specific challenges to various documents are insufficient to show that
summary judgment on Exemption 3 was inappropriate. See CIA v. Sims, 471 U.S.
On
remand, the CIA must substantiate its Glomar response with
“reasonably specific detail.” But this is the only
allusion to the need for a Glomar response in the CIA 's affidavit and it is
not linked to the Glomar response. Dorn Decl. ¶ 57. Within its
explanation of its withholding of intelligence sources under Exemption 3, the CIA asserts that “[a]n
official acknowledgment of [clandestine activity] could jeopardize the source's
career, family or even his life.” 2004 Letter at 2. The only question before the court is whether
the Dorn Declaration “explained in reasonably specific detail the danger to
intelligence sources and methods if the existence of responsive records were
disclosed,” Wolf, 473 F.3d at 373. In response to Morley's FOIA request, the CIA stated: “With respect to
that portion of your request seeking records regarding Mr. Joannides [sic]
participation in any covert project, operation, or assignment, unless of course previously
acknowledged, the CIA can neither confirm
nor deny the existence or nonexistence of records responsive to your request.” However, the CIA 's unsubstantiated
Glomar response, see Phillippi v. CIA , 546 F.2d 1009, 1011
(D.C.Cir.1976), is not similarly sufficient.
The CIA withheld only two
documents under this exemption. 552(b)(5). Exemption 5 excludes from mandatory release
“interagency or intra-agency memorandums or letters which would not be
available by law to a party other than an agency in litigation with the
agency.” 5 U.S.C. §
Senate of P.R. v. U.S. Dep't of Justice, 823
F.2d 574, 585 (D.C.Cir.1987) (emphasis in original). “[I]t is enough to observe that where no
factual support is provided for an essential element of the claimed privilege
or shield, the label ‘conclusory’ is surely apt.” But the opacity of the CIA 's explanation does
not permit the court to apply the test. In Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854,
866 (D.C.Cir.1980), the court established the standard for review of agency claims
under Exemption 5: “To test whether disclosure of a document is likely to adversely
affect the purposes of the privilege, courts ask themselves whether the
document is so candid or personal in nature that public disclosure is likely in
the future
to stifle honest and frank communication within the agency.”
The Declaration's only stateme The second
document was partially released, and the list of reasons for the various
exemptions in the Vaughn index includes “material that is predecisional and
deliberative in nature.” The first document
exempted under this privilege is denied in full, and the Vaughn index explains,
“the document contains recommendations-concerning the waiver of certain
reinvestigation methods-that are protected by the deliberative process
privilege.” Dorn Decl. ¶ 85. nt of relevance is that “[a]s shown in the
attached Vaughn index, CIA has properly invoked
Exemption (b)(5) to withhold information protected by the deliberative-process
privilege from only two documents.”
Coastal States Gas, 617 F.2d at 868. “The identity of the parties to the memorandum
is important; a document from a subordinate to a superior official is more
likely to be predecisional, while a document moving in the opposite direction is more
likely to contain instructions to staff explaining the reasons for a decision
already made.” See Appellant's Br. CIA has deleted the
identities of the author and recipient in the document that was partially
released, giving the court little indication about the nature of the records
withheld. The CIA has provided no hint
of a final agency policy its “predecisional” material preceded. Id. CIA has properly applied
this standard in exempting material from the two records identified. Paisley v. CIA , 712 F.2d 686, 698
(D.C.Cir.1983) (citing EPA v. Mink, 410 U.S.
Because the Dorn declaration and Vaughn index
fail to provide “specific and detailed proof that disclosure would defeat,
rather than further, the purposes of FOIA,” Mead Data Cent., 566 F.2d at 258,
on remand the CIA must supply at least “the minimal information
necessary to make a determination,” Coastal States Gas, 617 F.2d at 862.
Wash. Post Co. v. U.S. Dep't of Health “Exemption 6's requirement that disclosure be
‘clearly unwarranted’ instructs us to ‘tilt the balance (of disclosure
interests against privacy interests) in favor of disclosure.’ ” 552(b)(6). 5 U.S.C. § Exemption 6 provides
that agencies need not disclose “personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of
personal privacy.” & This exemption creates a “heavy burden”; indeed, “under
Exemption 6, the presumption in favor of disclosure is as strong as can be
found anywhere in the Act.” Id.
In
National Ass'n of Retired Federal Employees v. Horner, 879 F.2d 873, 877
(D.C.Cir.1989), the court stated, To the extent the CIA suggests that the
privacy interest in biographical information is self-evident, it is mistaken. Despite its burden to show that withholding is
necessary, the CIA has failed even to
articulate the privacy interest in the records, let alone demonstrate that such
privacy interests meet the standard for an agency's withholding under Exemption
6. This falls well below the information provided to the court in Judicial
Watch, which upheld withholding documents under Exemption 6. There, the court
noted that the agency's declaration “fairly asserted abortion-related violence
as a privacy interest for both the names and addresses of persons and businesses
associated with [the abortion pill],” id. at 153, and balanced that privacy
interest against the public interest in disclosure.
We are thus left with circuit precedent
establishing only that the disclosure of names and addresses is not inherently
and always a significant threat to the privacy of those listed; whether it is a
significant or a de minimis threat depends upon the characteristic(s) revealed
by virtue of being on the particular list, and the consequences likely to
ensue.
See
Wash. Post, 690 F.2d at 261 (quoting Rose, 425 U.S. CIA must show that
disclosure would constitute a “clearly unwarranted” invasion of personal
privacy. As the CIA has failed to explain
the extent of the privacy interest or the consequences that may ensue from
disclosure, summary judgment was inappropriate.
Exemption 7(E) protects from disclosure
records or information compiled for law
enforcement purposes, but only to the extent that the production of such law
enforcement records or information ․ (E) would disclose techniques and procedures for law enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement investigations
or prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law.
See
Mittleman v. Office of Pers. Mgmt., 76 F.3d 1240, 1243 (D.C.Cir.1996) (per
curiam). Background
investigations conducted to assess an applicant's qualification, such as the CIA 's “clearance and
investigatory processes,” inherently relate to law enforcement. In its discussion of Exemption 7(E), the Dorn
Declaration asserts: “The information that has been withheld could reasonably be
expected to provide insight into CIA Security
Center's clearance and investigatory processes, as well as certain techniques
and procedures used by law enforcement agencies in coordination with CIA during those
processes.” 552(b)(7). 5 U.S.C. §
Morley
thus fails to show summary judgment in favor of the CIA was inappropriate on
Exemption 7(E). Agencies must apply
the correct standards when claiming FOIA exemptions, but they need not parrot
the statutory language in doing so. It is self-evident that information revealing security clearance
procedures could render those procedures vulnerable and weaken their
effectiveness at uncovering background information on potential candidates. Furthermore, although the CIA only mentions that
release of this information could “provide insight” into the security clearance
procedure, not that it “could be expected to risk circumvention” of that
procedure, we refrain from adopting an overly formalistic approach that would
require the agency's response to mirror the statutory text. Tax Analysts v. IRS , 294 F.3d 71, 79
(D.C.Cir.2002). “[A]n agency may seek
to block the disclosure of internal agency materials relating to guidelines,
techniques, sources, and procedures for law enforcement investigations and
prosecutions, even when the materials have not been compiled in the course of a
specific investigation.” The CIA 's security clearance
techniques involve a general process applied to all background investigations
of its officers.
The
district court also shall make the requisite segregability determination. On remand, the district court shall direct
the CIA to search its operational files and the
records released to NARA Campbell CIA properly used the
FOIA as the governing standard in responding to Morley's request for documents,
presented an adequate Vaughn index, and supported its withholding of material
pursuant to FOIA Exemptions 1, 3 and 7(E), we reverse the grant of summary judgment
to the CIA and remand the case to the district court.
FOOTNOTES
1Originally, the
exception in the CIA Act provided that
operationa . 401a(7). 353(b)(10), 116 Stat. 2383, 2402, struck the
term “intelligence committees of the Congress” and substituted “congressional
intelligence committees,” defining this phrase as “(A) the Select Committee on
Intelligence of the Senate; and (B) the Permanent Select Committee on Intelligence of the
House of Representatives,” 50 U.S.C. § However, the
Intelligence Authorization Act of 2003, Pub.L. No. 107-306, § See H.R. Rep. NO. 98-726, at 29 (1984),
reprinted in 1984 U.S.C.C.A.N. 3741, 3767. 431(c)(3). The legislative history
of the CIA Act indicates that the Church Committee
qualifies as “intelligence committees of the congress” within the meaning of § 701(c)(3), 98 Stat. 2209 (1984). Pub.L. No. 98-477, § l files should be searched when a FOIA request
concerned “the specific subject matter of an investigation by the intelligence
committees of the Congress.”
2 The Senate Select
Committee on Intelligence was established by S. Res. 400, 94th Cong., 122 Cong.
Rec. 4754 (1976). Select Committee to
Study Governmental Operations with Respect to Intelligence Activities (“Church
Committee”), Foreign and Military Intelligence, S.Rep. No. 94-755, Book I, at
424 (1976). The Church Committee
Final Report states: “This experience underscores the need for an effective legislative
oversight committee which has sufficient power to resolve such fundamental conflicts
between secrecy and democracy.” .
3 The affidavits assert
that release of a message's content could lead to the revelation of its source,
since certain types of information are known to be in the possession of only a
few.662 F.2d at 786. The release of any
particular document, the CIA warned, could lead to
one or more of the following harmful results: breaching agreements with foreign
intelligence services, refusal of intelligence sources to share information in
the future, revelation of intelligence-gathering methods, and disclosure of
the identity of foreign or CIA intelligence
operatives either directly or by inference from the content of the information.
The Dorn Declaration
includes most of the features noted in Church of Scientology
ROGERS, Circuit Judge:
Opinion for the Court filed by Circuit Judge
ROGERS.
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