Wolf v. C.I.A., 01-0729 (RJL).
| Decision Date | 14 July 2004 |
| Docket Number | No. 01-0729 (RJL).,01-0729 (RJL). |
| Citation | 357 F.Supp.2d 112 |
| Parties | Paul WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants. |
| Court | U.S. District Court — District of Columbia |
Daniel S. Alcorn, Falls Church, VA, for Plaintiff.
Diane Marie Sullivan, U.S. Attorney's Office, Washington, DC, for Defendants.
Before the Court are separate motions for summary judgment by Defendants, the Central Intelligence Agency ("CIA") and the Federal Bureau of Investigation ("FBI"). In addition, Plaintiff, Paul Wolf ("Wolf"), has filed a cross-motion for summary judgment against the CIA. After consideration of the parties' submissions and the relevant law, the Court grants the CIA's motion for summary judgment, denies Wolf's cross-motion for summary judgment against the CIA, and denies the FBI's motion for summary judgment.
Wolf, a researcher and writer, brings this action against the CIA and FBI under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, to order the production of records concerning Jorge Elicier Gaitan ("Gaitan"). Pl.'s Compl. ¶ 1. Wolf initially made a FOIA request on September 9, 2000 to the CIA for records concerning Gaitan, a former Colombian presidential candidate who was assassinated in 1948. The CIA responded on September 22, 2000, denying Wolf's request with a "Glomar" response that neither confirmed nor denied the existence of such records.1 The CIA based this response on FOIA Exemptions (b)(1) ("Exemption (b)(1)") and (b)(3) ("Exemption (b)(3)"). Dyer Decl. ¶ 5. A subsequent appeal was denied by the CIA, leading to the present action by the Plaintiff. Dyer Decl. ¶¶ 6-8.
Wolf made a similar request to the FBI for records pertaining to Gaitan on October 27, 2000. Hodes Decl. ¶ 4(a). The FBI responded on November 6, 2000 by requesting either proof of Gaitan's death or a privacy waiver. Id. ¶ 4(b). Wolf submitted proof of Gaitan's death in a letter dated November 12, 2000, which was acknowledged by the FBI in a letter dated December 5, 2000. Id. ¶¶ 4(c-d). After failing to receive a response from the FBI, Wolf filed this action on April 4, 2001. Pl.'s Opp'n to FBI's Mot. for Summ. J. at 3. Then, on May 8, 2001, the FBI Headquarters ("FBIHQ") released 14 pages of documents responsive to Wolf's request. Hodes Decl. ¶¶ 4(c-e). In this response, FBIHQ cited FOIA exemptions (b)(2), (b)(7)(C), and (b)(7)(D) as the basis for withholding other information. Id. ¶ 4(e). On June 12, 2001, after a re-review of the documents, the FBIHQ released Wolf three additional pages in full and four pages that were partially redacted. Id. ¶ 4(f).
In analyzing whether these agencies properly handled Wolf's FOIA request, the Court must determine: (1) whether an adequate search was conducted to locate documents responsive to Wolf's request; (2) whether the FOIA exemptions were properly applied; and (3) whether the agencies properly considered whether exempted documents contained any reasonably segregable material that could be disclosed. With respect to the CIA, there are two additional issues: (1) whether the CIA's "Glomar" response was appropriate under 5 U.S.C. §§ 502(b)(1) and (b)(3) exemptions, and (2) if it was appropriate, whether the CIA waived those exemptions by publicly releasing information responsive to Wolf's request.
FOIA requires federal agencies to make information available to the public. 5 U.S.C. § 552. FOIA's basic purpose reflects "`a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language.'" Dep't of Air Force v. Rose, 425 U.S. 352, 360-61, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting S. Rep. No. 89-813, at 3 (1965)). Although nine exemptions from compelled disclosure are set forth in FOIA, 5 U.S.C. §§ 552(b)(1-9), they "do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act." Rose, 425 U.S. at 361, 96 S.Ct. 1592. In addition, FOIA grants jurisdiction to this Court to enjoin an agency from withholding agency records and to order the production of any agency records that are improperly withheld. 5 U.S.C. § 552(a)(4)(B).
Like other cases, summary judgment is appropriate in FOIA case when the "pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In particular, a court shall grant summary judgment in favor of an agency claiming that it has met its FOIA obligations, if the agency meets its burden of showing that there is no genuine issue of material fact, even when the underlying facts are viewed in the light most favorable to the requester. Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1350 (D.C.Cir.1983) (Weisberg IV). To do so, it "must prove that each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Nat'l Cable Television Ass'n v. FCC, 479 F.2d 183, 186 (D.C.Cir.1973). Although this Court reviews agency FOIA determinations de novo, it must "accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Ray v. Turner, 587 F.2d 1187, 1194 (D.C.Cir.1978). Therefore, for Defendant's motion for summary judgment to succeed, the agency's affidavits must demonstrate the adequacy of the search conducted and describe "the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exception, and are not controverted by either contrary evidence in the record nor by evidence of bad faith." Military Audit Project, 656 F.2d at 738. There being no credible issue as to the adequacy of the CIA's search, the Court will focus on the exceptions relied upon by the agency.
Exemption (b)(1) of FOIA exempts from disclosure 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." 5 U.S.C. § 552(b)(1). Here, the CIA has cited Executive Order 12958, which states that an agency may respond to a FOIA request by refusing to confirm or deny the existence of requested information when the fact of its existence or nonexistence is itself classified. Mem. in Supp. of CIA's Mot. for Summ. J. at 5; Exec. Order No. 12958 § 3.7(a), 60 Fed.Reg. 19,825 (Apr. 17, 1995). The Order permits classification of foreign government information, intelligence activities (including special activities), intelligence sources or methods, and foreign relations or foreign activities of the United States, including confidential sources. Exec. Order No. 12958 at § 1.5(b-d). In addition, the agency may only classify the information if "the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify or describe the damage." Id. at § 1.2(a)(4). In reviewing a classification decision, the agency's affidavit is accorded substantial weight and this Circuit has required little more than a showing that the agency's rationale is logical. Washington Post v. U.S. Dep't of Defense, 766 F.Supp. 1, 7 (D.D.C.1991) (citing Halperin v. CIA, 629 F.2d 144, 148 (D.C.Cir.1980)).
In this case, the CIA has met the deferential standard for applying Exemption (b)(1) by showing a number of possible ways in which disclosure of the existence or nonexistence of records could damage national security. Because the FOIA request concerned whether the CIA has gathered intelligence on a particular foreign national, acknowledging the existence of such records could reveal intelligence sources and methods and information harmful to foreign relations. Dyer Decl. ¶¶ 9-10. Indeed, "[t]he CIA, in operating in foreign nations, engages in activities that, if disclosed, would constitute and confirm serious violations of local law."2 Id. ¶ 12. Moreover, disclosure could possibly reveal information about the CIA's intelligence interests or activities that could threaten national security. Id. ¶ 13. Human intelligence sources could be dissuaded from cooperating because later disclosure could constitute a serious danger to their own lives as well as their families'. Id. ¶ 14. Additionally, disclosure could reveal general CIA methods of information gathering (which could be magnified if a foreign intelligence service submitted FOIA requests). Id. ¶¶ 18-21. Because a covert interest in an individual constitutes an intelligence activity, source, or method, see id. ¶ 25, an official acknowledgement that the CIA maintains information concerning a covert relationship with a particular foreign national could adversely affect relations with a foreign government because that government might believe that the CIA has collected intelligence information on or recruited one of its citizens or resident aliens. Id. ¶ 27. These assertions sufficiently show that the agency acted appropriately in its application of Exemption (b)(1). The Court accordingly finds that the CIA has shown with reasonably specific detail that disclosing the existence or nonexistence of records pertaining to Gaitan would threaten national security, and thus it has met its burden under Executive Order 12958.3
Exemption (b)(3) of FOIA exempts from disclosure matters that are "specifically exempted from disclosure by statute provided that such...
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