Assassination Archives & Research Ctr., Inc. v. Cent. Intelligence Agency

• Decision Date: 17 July 2018
• Docket Number: Case No. 1:17-cv-00160 (TNM)
• Citation: 317 F.Supp.3d 394
• Parties: ASSASSINATION ARCHIVES AND RESEARCH CENTER, INC., Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

317 F.Supp.3d 394

ASSASSINATION ARCHIVES AND RESEARCH CENTER, INC., Plaintiff,

v.CENTRAL INTELLIGENCE AGENCY, Defendant.

Case No. 1:17-cv-00160 (TNM)

United States District Court, District of Columbia.

Signed July 17, 2018

James H. Lesar, Law Office of James H. Lesar, Silver Spring, MD, Daniel S. Alcorn, Law Office of Daniel S. Alcorn, McLean, VA, for Plaintiff.

Damon William Taaffe, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

TREVOR N. MCFADDEN, United States District Judge

The Assassination Archives and Research Center challenges the Central Intelligence Agency's response to its Freedom of Information Act (FOIA) request for all records related to the CIA's research into assassination attempts against Adolf Hitler, plus any records related to the resulting search itself. After a search effort, the CIA found only one non-search-related document, and concluded that any other pertinent documents had likely been given to the National Archives. I conclude that the CIA has met its burden of showing that the search was adequate and that its redactions were proper under FOIA. Accordingly, the CIA's Motion for Summary Judgment will be granted and Assassination Archives' Motion for Summary Judgment will be denied.

I. BACKGROUND

Invoking FOIA and the President John F. Kennedy Assassination Records Collection Act of 1992 (JFK Records Act), 44 U.S.C. § 2107 note (1992), Assassination Archives seeks records pertaining to the CIA's research into plots to assassinate Adolf Hitler. Compl. ¶ 16. As part of its original FOIA request, the Assassination Archives attached a 1963 memorandum summarizing a Joint Chiefs of Staff briefing, which mentioned that "the plot to kill Hitler" was "being studied in detail," as a historical parallel to the CIA's then-ongoing efforts to overthrow Fidel Castro. ECF 1-1 at 7. The first request, sent in August 2012, asked for: (1) "all records on or pertaining to the CIA's 1963 study of plots to assassinate Adolf Hitler," and (2) "all records on or pertaining to communications by Allen Dulles regarding plots to assassinate Adol[f] Hitler" during Dulles's relevant periods of service in the Office of Strategic Services (a precursor to the CIA), or the CIA itself. Compl. Ex. 1, ECF No. 1-1. After the CIA said that no responsive records could be found, Assassination Archives sent an amended request in October 2012. Compl. ¶ 16. That request sought:

(1) All records on or pertaining to any plot to assassinate Adolf Hitler, including, but not limited to, all records in any way reflecting or referencing the CIA's study in 1963 of plots to assassinate Hitler....

(2) All records on or pertaining to communications by or with Allen Dulles regarding plots to assassinate Adol[f] Hitler during Dulles's service in the Office of Policy Coordination (OPC), the Office of Strategic Services (OSS), and the Central Intelligence Agency (CIA).

(3) All index entries or other records reflecting the search for records responsive to this request in its original or amended form, including search times used with each of the components searched.

Compl. Ex. 2. Assassination Archives again told the CIA, on June 5, 2015, that a search had revealed no responsive records. Compl. ¶ 18. But in November 2015, Assassination Archives received a third response from the CIA stating that the letter was "sent ... in error" and that the FOIA request was still under review. Id.

After consulting with historical staff about where potentially responsive records might be found, the CIA's search eventually led to one responsive record: a 69-page Propagandist's Guide to Communist Dissensions from 1964 (Propagandist's Guide). Pl.'s Mem. In Support of Pl.'s Mot. Summ. J. (Pl.'s Mot. Summ. J.) 8. The CIA produced a redacted version of the Propogandist's Guide, and redacted versions of five internal communications related to the FOIA search itself. Id. Both parties now seeks summary judgment, urging opposite conclusions as to the adequacy of the CIA's search, and the legality of its redactions.

II. LEGAL STANDARDS

To prevail on a motion for summary judgment, a movant must show that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) ; see also Celotex Corp v. Catrett , 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). FOIA requires federal agencies to "disclose information to the public upon reasonable request unless the records at issue fall within specifically delineated exemptions." Judicial Watch, Inc. v. FBI , 522 F.3d 364, 365-66 (D.C. Cir. 2008). Thus, a FOIA defendant is entitled to summary judgment if it shows that there is no genuine dispute about whether "each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act's inspection requirements." See Weisberg v. Dep't of Justice , 627 F.2d 365, 368 (D.C. Cir. 1980). Courts decide the "vast majority" of FOIA cases on motions for summary judgment. See Brayton v. Office of United States Trade Rep. , 641 F.3d 521, 527 (D.C. Cir. 2011).

To show that any unproduced documents are unidentifiable, a defendant must show "a good faith effort to [ ] search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. Dep't of the Army , 920 F.2d 57, 68 (D.C. Cir. 1990). In other words, the defendant must "demonstrate beyond material doubt that its search was reasonably calculated to uncover all relevant documents." Nation Magazine v. Customs Serv. , 71 F.3d 885, 890 (D.C. Cir. 1995). The touchstone of the analysis is the reasonableness of the search, not the records produced. Mobley v. CIA , 806 F.3d 568, 583 (D.C. Cir. 2015). An agency may exercise discretion in crafting its search to meet this standard, and does not have to search every system if additional searches are unlikely to produce any marginal return. See Campbell v. Dep't of Justice , 164 F.3d 20, 28 (D.C. Cir. 1998). Searching for records requires "both systemic and case-specific exercises of discretion and administrative judgment and expertise," and is "hardly an area in which the courts should attempt to micro-manage the executive branch." Schrecker v. Dep't of Justice , 349 F.3d 657, 662 (D.C. Cir. 2003). To prove the reasonableness of its search, an agency can submit a "reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched." Oglesby , 920 F.2d at 68. Agency declarations enjoy "a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents." SafeCard Servs. Inc. v. S.E.C. , 926 F.2d 1197, 1201 (D.C. Cir. 1991).

To show that any unproduced documents are exempt from FOIA, an agency may file "affidavits describing the material withheld and the manner in which it falls within the exemption claimed." King v. Dep't of Justice , 830 F.2d 210, 217 (D.C. Cir. 1987). Courts review the applicability of FOIA exemptions de novo but give "substantial weight to detailed agency explanations" of national security concerns related to FOIA disclosures. Id.

III. ANALYSIS

A. The CIA Conducted an Adequate and Reasonable Search

The CIA relies on declarations by Antoinette B. Shiner to establish the adequacy of its search. See Third Supp. Decl. of Antoinette B. Shiner at 2-4, ECF No. 25-1 (3d Supp. Shiner Decl.); Second Supp. Decl. of Antoinette B. Shiner (2d Supp. Shiner Decl.), ECF No. 19-2. Ms. Shiner describes the CIA's exhaustive search in this manner:

[I]nformation management professionals ("IMS") conducted searches of the Directorate of Analysis ("DA"); Directorate of Operations ("DO"), including its operational files; the Office of the Director, the Director's Action Center, the Office of the General Counsel, the Office of Congressional Affairs, the Center for the Study of Intelligence (which is part of the CIA's Talent Center) and the CIA's history staff office. These directorates and offices were selected on the basis that they would potentially contain the historical studies and the documentary materials sought by Plaintiffs. For each of these offices, IMS personnel identified the specific database and files that would potentially contain the types of records responsive to Plaintiffs' request—i.e., the searches included all relevant office databases, Agency share drives, and archival records-for memoranda, correspondence and any other records responsive to the request at issue. Keyword searches ... were targeted to retrieve records from each database and set of files that contained those terms. In cases where records provided references to additional responsive documents, IMS professionals followed up on those leads and conducted additional searches based on those terms or references. No other offices were deemed likely to maintain responsive documents.

... Moreover, Agency personnel consulted with the CIA's history staff, who are very knowledgeable about the Agency's holdings with respect to the request's subject matter. In fact, the Agency's Chief Historian was personally consulted. He advised on Agency-wide searches and personally conducted searches of history staff files for any reference to studies of anti-Hitler plots dating from the 1963 time frame, as referenced very briefly in the "JCS Memo" or "Higgins Memorandum," attached to Plaintiffs' complaint and opposition. The Chief Historian did not locate any additional responsive records (apart from the one document that had already been released to Plaintiffs) and opined that, due to the age of the subject matter and narrow scope of Plaintiffs' request focusing on anti-Hitler plots, there would not be many responsive documents and anything related to assassination studies would likely be found at the National Archives.

...