Morley v. C.I.A.
| Decision Date | 07 December 2007 |
| Docket Number | No. 06-5382.,06-5382. |
| Citation | 508 F.3d 1108 |
| Parties | Jefferson MORLEY, Appellant v. CENTRAL INTELLIGENCE AGENCY, Appellee. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia, (No. 03cv02545).
James H. Lesar argued the cause and filed the briefs for appellant.
John C. Truong, Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Jeffrey A. Taylor, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
Before: HENDERSON, ROGERS and TATEL, Circuit Judges.
Opinion for the Court filed by Circuit Judge ROGERS.
Journalist Jefferson Morley appeals the grant of summary judgment to the Central Intelligence Agency ("CIA") on his request under the Freedom of Information Act ("FOIA") for documents pertaining to George Joannides, a deceased CIA officer. Although the CIA disclosed some records, it withheld others pursuant to various FOIA exemptions. 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. Upon de novo review, we reverse the grant of summary judgment. 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. § 431(c)(3), and we remand the case so that the CIA may search its operational files in response to Morley's FOIA request. Additionally, its release of records pursuant to the John F. Kennedy Assassination Records Collection Act of 1992 ("JFK Act"), 44 U.S.C. § 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.
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')." 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. 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. As Morley's writing discusses, the DRE had contact with Lee Harvey Oswald in the months before President Kennedy's assassination. Disclosure of 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." Appellant's Br. at 3.
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") in compliance with this Act." Letter from Robert T. Herman, Information and Privacy Coordinator, CIA, to Jefferson Morley, at 1 (Nov. 5, 2003). The CIA directed Morley to submit his request to NARA, supplied him with NARA's address, and advised him that records can be electronically searched through NARA's website. Id. at 2.
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. 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. 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 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. The 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. Letter from Scott Koch, Information and Privacy Coordinator, CIA, to Jefferson Morley, at 2 (Dec. 22, 2004) ("2004 Letter"). The CIA later released the two documents requiring consultation with another agency in segregable form. 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). Letter from Scott Koch, Information and Privacy Coordinator, CIA, to Jefferson Morley (May 9, 2005).
Morley sought discovery from the CIA on February 27, 2005. 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. 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. On September 29, 2006, the district court granted the CIA's motion for summary judgment and denied Morley's cross-motion. 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. Morley appeals, and we review the grant of summary judgment de novo. See Iturralde v. Comptroller of Currency, 315 F.3d 311, 313 (D.C.Cir.2003).
Congress enacted the FOIA in order to "`pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (quoting Rose v. Dep't of Air Force, 495 F.2d 261, 263 (2d Cir.1974)). To prevail on summary judgment, then, the defending "agency must show beyond material doubt [] that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). "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). 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).
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. JFK Act § 2(a)(2), (a)(5). The JFK Act required that all assassination records be transmitted to NARA to comprise its JFK Assassination Records Collection. Id. § 4. The JFK Act also established the Assassination Records Review Board ("Review Board") to determine whether agency documents constitute assassination records and to render decisions on whether a particular record qualifies for postponement of disclosure. Id. § 7(i). 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." Memorandum of Understanding Regarding Continuing Obligations of the CIA Under the JFK Act, at 3 (Sept. 30, 1998).
In Assassination Archives & Research Center v. Department of Justice, 43 F.3d 1542, 1544 (D.C.Cir.1995) ("AARC I"), the court determined that The court stated that FOIA requesters could not skirt the JFK Act's procedures in order to capitalize on its substance. See id.
Morley maintains that the termination of Review Board operations and the creation of the MOU distinguish his case from AARC I because there the...
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