Mobley v. Cent. Intelligence Agency

• Decision Date: 07 February 2013
• Docket Number: 11–2073(BAH).,Civil Action Nos. 11–2072
• Citation: 924 F.Supp.2d 24
• Parties: Sharif MOBLEY, et al., Plaintiffs, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.
• Court: U.S. District Court — District of Columbia

924 F.Supp.2d 24

Sharif MOBLEY, et al., Plaintiffs,

v.CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

Civil Action Nos. 11–2072, 11–2073(BAH).

United States District Court,

District of Columbia.

Feb. 7, 2013.

Kelly Brian McClanahan, National Security Counselors, Arlington, VA, for Plaintiffs.

Judson Owen Littleton, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM OPINION

BERYL A. HOWELL, District Judge.

The plaintiffs, Sharif Mobley and his wife Nzinga Islam,¹ bring these two related actions against four federal government agencies—the Central Intelligence Agency (“CIA”) and the Departments of State, Defense, and Justice—pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act, 5 U.S.C. § 552a (collectively “FOIA/PA”). The plaintiffs filed FOIA/PA requests seeking access to, inter alia, all records relating to themselves, in an apparent effort to shed light upon the arrest of Mobley in Sana'a, Yemen on January 26, 2010, and his subsequent incarceration there. All four defendants provided final determinations regarding the plaintiffs' requests, some of which included the release of responsive records to the plaintiffs, and the plaintiffs now challenge the defendants' handling of the plaintiffs' requests on a number of grounds. The defendants contend that they have satisfied their obligations under the FOIA and the Privacy Act, and consequently they have moved for summary judgment on the plaintiffs' claims. ²

I. BACKGROUND

On January 26, 2010, Mobley was “abducted” from the streets of Sana'a, Yemen and held in the custody of the Yemeni government for several weeks, during which time he was allegedly questioned by U.S. agents and given medical attention for wounds he suffered during his abduction. See Decl. of Cori A. Crider (“Crider Decl.”) ¶¶ 8–10, 26–41, 47–48, ECF No. 24–1 (No. 11–2072). Mobley “is now alleged to have tried to escape from the Jumhori Hospital where he was held incommunicado, shooting two guards, one fatally.” See id. ¶ 50. Mobley remains in Yemeni custody on murder charges and faces a potential death sentence. See id. ¶ 53.

On July 22, 2010, after all of these events transpired, Mobley filed, through counsel, a FOIA/PA request with defendants Department of Defense (or “Defense”), Department of State (or “State”), and Department of Justice (or “Justice”), as well as to the Department of Homeland Security, which is not a party to these related actions. See Decl. of Sheryl L. Walter (“First Walter Decl.”) ¶ 4, ECF No. 24 (Aug. 1, 2012) (No. 11–2072); id. Ex. 1, ECF No. 24–1 (No. 11–2072). This request sought records relating to:

1. Mr. Mobley's abduction from the streets of Sana'a, Yemen on January 26, 2010.

2. U.S. agencies' involvement in that disappearance.

3. U.S. agencies' interrogation of Mr. Mobley in incommunicado detention in Yemen, at a time when he was suffering torture and/or cruel, inhuman, and degrading treatment (CIDT).

4. The wider pattern of U.S.-sponsored sweeps and proxy detention in Yemen from January 2010, of which Mr. Mobley's seizure is a part.

First Walter Decl. Ex. 1, at 2. The request clarified that Mobley was requesting “all records in any way relating to, pertaining to, or mentioning himself by any and all persons or entities, including all persons acting on behalf of the United States.” Id. Additionally, the request provided sixteen categories of records intended “to elucidate the sorts of records in the likely possession of the targeted agencies.” Id. These categories included, inter alia, “[a]ny records ... created from November 2009 ... between the federal government and the government of Yemen regarding Mr. Mobley,” including “[r]ecords discussing whether Mr. Mobley was a target of intelligence interest” and “[a]ll records created after January 1, 2010, relating to visits of U.S. agents ... to Mr. Mobley” in the hospital or in prison. See id. at 4–5. The July 22, 2010, request also sought expedited processing and a fee waiver. See id. at 6–7. On August 15, 2011, both of the plaintiffs filed a separate FOIA/PA request with the CIA seeking “all Central Intelligence Agency (‘CIA’) records about Mr. Mobley and Ms. Islam.” Supp. Decl. of Michele L. Meeks (“Second Meeks Decl.”) Ex. 2, at 1, ECF No. 49–2 (May 25, 2012) (No. 11–2072). This request referred to Mobley's July 22, 2010 request “only for reference purposes” and clarified that “the scope of this request is for all CIA records about Mr. Mobley and Ms. Islam.” Id.³

The first agency to respond to the plaintiffs was the CIA. In a letter dated September 20, 2011, the CIA notified the plaintiffs that although, “[a]fter a thorough search of the appropriate records system,” the agency was “able to locate responsive material,” the material “must be denied in its entirety on the basis of ... PA exemptions (j)(1) and (k)(1), and FOIA exemptions (b)(1) and (b)(3).” Second Meeks Decl. Ex. 3, at 1, ECF No. 49–3 (No. 11–2072). The CIA's first letter also stated that “[w]ith respect to responsive records that would reveal a classified connection to the CIA ... the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request.” Id. The CIA's refusal to confirm or deny the existence of responsive records was “pursuant to FOIA exemptions (b)(1) and (b)(3), and PA exemptions (j)(1) and (k)(1).” Id. On January 11, 2012, however, the CIA sent the plaintiffs “amended final response letters,” which clarified that the initial response letter “contained inaccuracies,” and the amended letters “correctly reported that the CIA's search for records that would reflect an open or otherwise acknowledged connection to Plaintiffs produced no responsive records.” Decl. of Michele L. Meeks (“First Meeks Decl.”) ¶ 13, ECF No. 39 (May 25, 2012) (No. 11–2072).

The next agency to respond to Mobley's request was the State Department. ⁴ On December 13, 2011, State granted Mobley's request for expedited processing. See First Walter Decl. ¶ 9. State notified Mobley on February 6, 2012, based upon the nature of the request, that “the offices that were reasonably likely to have responsive documents were the Central Foreign Policy Records, the Bureau of Diplomatic Security, the Office of Passport Services, the Office of Overseas Citizens Services, and the American Embassy in Sana'a.” ⁵Id. ¶ 19; see also id. Ex. 8, ECF No. 24–8 (No. 11–2072). Additionally, “based on information from other responsive documents, [State] also subsequently searched the Office of Legal Adviser.” First Walter Decl. ¶ 19. From December 20, 2011 to May 25, 2012, State notified Mobley by letter each time searches of these components had been completed, and State either released the responsive records or notified Mobley of the reason for withholding records or portions thereof. See id. ¶¶ 11–16; see also id. Exs. 7–13, ECF Nos. 24–7 to 24–13 (No. 11–2072).

The searches performed by State ultimately yielded 293 total records responsive to Mobley's request. First Walter Decl. ¶ 35. 165 of these records were released to Mobley in full, 75 of the records were released in part with certain portions redacted, and 42 of the records were withheld in full. Id. The documents that were withheld from release, either in whole or in part, were withheld pursuant to one or more of the following: FOIA Exemptions 1, 5, 6, and 7(C); and PA Exemptions (d)(5), (k)(1), and (k)(2). See id. ¶¶ 36–53. The remaining eleven records were referred to the Department of the Army (in particular the Office of the Provost Marshal General (“OPMG”)) on March 5, 2012, for their review and direct response to Mobley, and all of these eleven records were eventually withheld in full by the OPMG, pursuant to FOIA Exemption 1 and PA Exemption (k)(1). Id. ¶ 35; see also FAC ¶¶ 21–24; Decl. of John G. Hargitt (“First Hargitt Decl.”) ¶¶ 4, 6, ECF No. 36–1 (June 25, 2012) (No. 11–2072). Mobley also filed a separate FOIA request with the OPMG on June 25, 2012, seeking any responsive records beyond the eleven records that had already been referred by State to the OPMG. See FAC ¶ 31. In response, the OPMG expedited the request and issued a final determination on July 19, 2012, identifying one responsive record and withholding it in full, pursuant to FOIA Exemption 1 and PA Exemption (k)(1). Id. ¶¶ 31–32; see also Decl. of John G. Hargitt (“Second Hargitt Decl.”) ¶ 6, ECF No. 42–5 (Aug. 30, 2012) (No. 11–2073).

The final agencies to provide a final response to Mobley were Defense and Justice. Beginning with Defense, Mobley's counsel clarified with Defense that he only believed that Defense possessed records responsive to line items 10, 14, and 15 of his FOIA/PA request. See FAC ¶¶ 11–12.⁶ Defense then referred this request to the Defense Intelligence Agency (“DIA”), which is a component of Defense and was “most likely ... to have potentially received intelligence reports stemming from the alleged interrogations of Mr. Mobley by ‘Khan from DOD’ or any other government agent or agency.' ” FAC ¶ 13; see also Decl. of Alesia Y. Williams (“First Williams Decl.”) ¶ 6, ECF No. 20 (June 18, 2012) (No. 11–2073). On May 11, 2011, the DIA granted expedited processing of Mobley's request because “news articles suggestedthat plaintiff Sharif Mobley was facing trial in a capital case in Yemen.” First Williams Decl. ¶ 7. The DIA then “conducted a search to determine if [the DIA] was in possession of any open-source news articles that referenced plaintiffs generally or the criminal matter concerning plaintiff Sharif Mobley in Yemen.” Id. ¶ 8. Although this search yielded responsive records, “these articles were part of the general news monitoring performed by other members of the Intelligence Community” and therefore “the DIA FOIA Office referred each of these open-source news articles to the agency that originated the distribution with the request that the distributor respond directly to the plaintiffs.” Id. Despite the expedited status...