Larson v. Department of State

• Decision Date: 08 May 2009
• Docket Number: No. 06-5112.,06-5112.
• Parties: Meredith LARSON, et al., Appellants v. DEPARTMENT OF STATE, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

565 F.3d 857

Meredith LARSON, et al., Appellants v. DEPARTMENT OF STATE, et al., Appellees.

No. 06-5112.

United States Court of Appeals, District of Columbia Circuit.

Argued September 5, 2008.

Decided May 8, 2009.

Appeal from the United States District Court for the District of Columbia (No. 02cv01937).

Tania Beth Rose argued the cause and filed the brief for appellants.

Joshua P. Waldman, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Gregory G. Katsas, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Leonard Schaitman, Attorney. Elizabeth J. Shapiro, Attorney, entered an appearance.

Before: SENTELLE, Chief Judge, and HENDERSON and KAVANAUGH, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

Pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, the plaintiffs seek to compel the release of documents pertaining to violence they or their loved ones suffered in Guatemala in the 1970s and 1980s. The National Security Agency ("NSA") and the Central Intelligence Agency ("CIA") withheld, in whole or in part, certain records responsive to the plaintiffs' requests under FOIA Exemptions 1 and 3, and the district court upheld the withholdings in granting summary judgment for the agencies. Despite the plaintiffs' arguments that they are entitled to the documents and that the agencies did not adequately explain why the records should be withheld, we agree with the district court that the withheld documents are exempt from disclosure under FOIA Exemptions 1 and 3, and that the agencies sufficiently detailed the reasons for their nondisclosure. The plaintiffs also challenge the responsiveness of the Department of State ("DOS") to one of their FOIA requests and the district court's decision not to view the withheld documents in camera. We affirm the judgment of the district court on these issues as well.

I

The plaintiffs in this case each independently sought information about past violence in Guatemala from government agencies pursuant to FOIA. "FOIA mandates broad disclosure of government records to the public, subject to nine enumerated exemptions." Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007) (citation omitted). Exemption 1 protects matters "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Exemption 3 covers matters "specifically exempted from disclosure by statute," provided that such statute leaves no discretion on disclosure or "establishes particular criteria for withholding or refers to particular types of matters to be withheld." Id. § 552(b)(3). These exemptions cover not only the content of protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption. Wolf, 473 F.3d at 374. Agency refusal to confirm or deny the existence of records responsive to a request is known as a Glomar response. Id. (citing Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C.Cir.1976), which concerned the existence of records regarding a ship named Hughes Glomar Explorer).

As relevant here, plaintiff Meredith Larson submitted a FOIA request to the NSA, seeking documents relating to a violent attack she suffered in Guatemala in 1989, the organization she worked with in Guatemala, and her subsequent visits to the country and meetings with Guatemalan and United States government officials. In response to Larson's request, the NSA released to her four documents in full and eight documents in part, making redactions pursuant to FOIA Exemptions 1 and 3.

Plaintiff Thomas Henehan, a Maryknoll priest, made a FOIA request of NSA regarding a 1976 plane crash that killed a fellow Maryknoll priest working as a missionary in Guatemala. Henehan requested all documents relating to the crash and the priest's death, including records about threats to and investigations of the Maryknoll Fathers, copies of the original 1995 FOIA file created in response to another priest's request, and information about Guatemalan troop movement in the Ixcan region at the time of the crash. The NSA released thirty-six documents to Henehan—six in full and thirty in part¹—and advised him that, pursuant to FOIA Exemptions 1 and 3, it was withholding 137 responsive documents that pertained only to Guatemalan troop movement and not to the priest.

Plaintiff Patricia Kerndt also requested documents from the NSA regarding the 1976 plane crash and the death of her sister, who was a passenger on board the plane. The NSA found one responsive document, which it withheld in full under FOIA Exemptions 1 and 3. The NSA informed Kerndt that although the document indicated that a plane crashed on the date in question, it did not contain any information about the passengers, the cause of the crash, who may have been responsible, or any government actions.

Plaintiff Adriana Portillo-Bartow submitted FOIA requests to the NSA and the CIA, seeking documents relating to the 1981 abduction and disappearance of her family in Guatemala. The CIA found four responsive documents, none of which mentioned members of Portillo-Bartow's family, and withheld them under Exemptions 1 and 3. The NSA issued a Glomar response to Portillo-Bartow's request, stating that it could not confirm or deny the existence of responsive records pursuant to FOIA Exemptions 1 and 3.

Plaintiff Lisel Holdenried made a FOIA request of the DOS for all documents concerning the 1983 murder of her father in Guatemala. Her request, made in 2002, also stated: "Please be aware that Ms. Holdenried made a request for documents in 1995, and received some documentation. However, some documentation was not submitted to her. Please regard this as a renewed request." The DOS had decided Holdenried's appeal of its response to the 1995 request in 1998. In response to her 2002 request, the DOS found thirty-six responsive documents and released them all to Holdenried in full. The DOS advised Holdenried that it had released some of those thirty-six documents to her in response to her 1995 FOIA request, and that the information she sought was now publicly available on the DOS website.

In an effort to obtain the withheld and redacted documents from the defendant agencies, the plaintiffs filed this suit in the district court. The agencies moved for summary judgment and along with their motions filed affidavits regarding their responses to the FOIA requests, including Vaughn indices describing the withheld documents and explaining why the withheld information fell under the claimed exemptions. See Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973). The district court declined the NSA's offer to provide a supplemental classified declaration ex parte in camera regarding the agency's Glomar response to Portillo-Bartow because there was no evidence of agency bad faith and the agency's affidavit was sufficiently detailed to permit meaningful review of the claim of exemption. After reviewing the affidavits and all the parties' motions and materials, the district court granted summary judgment for the NSA and the CIA on the claims currently before us, concluding that FOIA Exemptions 1 and 3 protected the withheld material from disclosure. The court also granted summary judgment for the DOS on Holdenried's claim, concluding that the DOS conducted a reasonable search given the search parameters Holdenried provided. The plaintiffs now appeal.

II

An agency that has withheld responsive documents pursuant to a FOIA exemption can carry its burden to prove the applicability of the claimed exemption by affidavit, and we review the agency's justifications therein de novo. Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 926 (D.C.Cir.2003); 5 U.S.C. § 552(a)(4)(B). "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Miller v. Casey, 730 F.2d 773, 776 (D.C.Cir.1984) (quotation omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears `logical' or `plausible.'" Wolf, 473 F.3d at 374-75 (quoting Gardels v. CIA, 689 F.2d 1100, 1105 (D.C.Cir.1982), and Hayden v. NSA, 608 F.2d 1381, 1388 (D.C.Cir.1979)).

FOIA Exemptions 1 and 3 are independent; agencies may invoke the exemptions independently and courts may uphold agency action under one exemption without considering the applicability of the other. Gardels, 689 F.2d at 1106-07. Although Exemption 1 or 3 alone would likely be sufficient to uphold the agencies' withholdings in this case, we affirm the district court's judgment that both exemptions apply to the documents in question.

A

The CIA withheld from Portillo-Bartow four intelligence cables that report detailed descriptions of information obtained from a particular CIA source and provide general information about the source. Regarding each cable the CIA explained that "[o]nly certain people would have been in a position to know the information contained in the cable. This information, when combined with the time period and information outside the cable, could provide enough clues to allow some individuals to determine who provided the information to the CIA. In other words, it could disclose the identity of the CIA source." McNair Decl. Ex. 1 at 6-7. The CIA concluded that no meaningful information could be segregated from the cables for release.

The CIA claims that the cables are exempt from disclosure under FOIA Exemption 1 because they are currently properly classified pursuant to Executive Order 12958 as information...