Assassination Archives and Research v. C.I.A.

• Decision Date: 24 October 2001
• Docket Number: No. 99-525 EGS 37-1 57-1.,99-525 EGS 37-1 57-1.
• Citation: 177 F.Supp.2d 1
• Parties: ASSASSINATION ARCHIVES AND RESEARCH CENTER, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

177 F.Supp.2d 1

ASSASSINATION ARCHIVES AND RESEARCH CENTER, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.

No. 99-525 EGS 37-1 57-1.

United States District Court, District of Columbia.

October 24, 2001.

Amended Order Filed October 25, 2001.

COPYRIGHT MATERIAL OMITTED

Gordon Michael Harvey, Esquire, United States Attorney's Office, Washington, DC.

James H. Lesar, Esquire, Washington, DC.

MEMORANDUM OPINION

SULLIVAN, District Judge.

In February 1993, Plaintiff, the Assassination Archives and Research Center ("AARC"), filed a Freedom of Information Act ("FOIA") request with Defendant, the Central Intelligence Agency. Plaintiff seeks the release of a five-volume set on "Cuban Personalities," which was compiled in November 1962 by the Office of Biographic Registry in the CIA's Office of Central Reference ("Compendium"). See Am. Cmpl. at ¶ 4. The document is a compendium of "personality profiles on specific individuals, and biographic data on other individuals." Declaration of Herbert Briick ("Brick Decl."), ¶ 19.

AARC sought a fee waiver for the copying costs associated with the search for the document. Id. The CIA acknowledged the receipt of AARC's FOIA request, but refused to waive the copying fees. Compl. at 4-5. AARC's appeal of the waiver decision was denied by the CIA in August 1993. AARC filed the instant lawsuit on February 26, 1999. On February 8, 2000, this Court directed the CIA to waive copying fees associated with AARC's request.

Following the resolution of the fee waiver dispute, the CIA began processing AARC's request for the Compendium. On March 21, 2000, the CIA informed AARC by letter that the document sought was exempt from disclosure under exemptions (b)(1) and (b)(3) of FOIA. On March 28, 2000, AARC appealed the CIA's determination through the CIA's internal appeal system. The CIA has acknowledged that appeal, but has not issued a determination.¹

Pending before the Court are cross-motions for summary judgment pursuant to Fed.R.Civ.P. 56. In its motion for summary judgment and reply brief, the CIA relies on two declarations by Herbert Briick, its Information Review Officer for the Directorate of Intelligence. See Def.'s Mot. for Sum. Judg., Exhibit 1; Def.'s Opp'n to Pl.'s Cross-Motion for Sum. Judg. & Reply in Support of Def.'s Mot. for Sum. Judg. ("Def.'s Opp'n"), Exhibit A. In support of its motion for summary judgment and in opposition to defendant's, AARC submits two declarations by Professor John M. Newman. See Pl.'s Mot. for Sum. Judg., Decl. of John M. Newman; Pl.'s Reply to Def.'s Opp'n to Pl.'s Cross-Motion for Sum. Judg. ("Pl.'s Reply"), Second Decl. of John M. Newman. AARC has also produced exhibits, including lists of catalogued information publicly available on Cuban personalities and sample biographies of Cuban individuals, released pursuant to the JFK Act. See Pl.'s Reply, Attachs. 1-5. The Court has considered the parties' motions, oppositions and replies, and the applicable statutory and case law. For the following reasons, the Court GRANTS defendant's motion for summary judgment, and DENIES plaintiff's motion for summary judgment.

Discussion

I. Standard of Review

Summary judgment should be granted pursuant to Fed.R.Civ.P. 56 only if no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling upon a motion for summary judgment, the Court must view the evidence in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); Bayer v. United States Dep't of Treasury, 956 F.2d 330, 333 (D.C.Cir.1992). Likewise, in ruling on cross-motions for summary judgment, the court shall grant summary judgment only if one of the moving parties is entitled to judgment as a matter of law upon material facts that are not genuinely disputed. Rhoads v. McFerran, 517 F.2d 66, 67 (2d Cir.1975).

In a suit brought to compel production pursuant to FOIA, where there are cross-motions for summary judgment, an agency is entitled to summary judgment "if no material facts are in dispute and if it demonstrates `that each document that falls within the class requested either has been produced ... or is wholly exempt from the Act's inspection requirements.'" Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C.Cir.2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978)); see Billington v. United States Dep't of Justice, 233 F.3d 581, 583-84 (D.C.Cir.2000); Summers v. Dep't of Justice, 140 F.3d 1077, 1080 (D.C.Cir. 1998). On the other hand, summary judgment is appropriate for a FOIA plaintiff when the requested material, "even on the agency's version of the facts, falls outside the proffered exemption." Petroleum Inf. Corp. v. United States Dep't of Interior, 976 F.2d 1429, 1433 (D.C.Cir.1992). The cross-motions for summary judgment pending before the Court present no genuinely disputed material facts that would preclude summary judgment.

II. Factual Background

The parties do not dispute the nature of the document sought by AARC, nor the fact that it has not previously been disclosed. The Compendium was compiled in 1962 by the Office of Biographic Registry at CIA and represents a five-volume "compilation of personality profiles of, or biographic data on, a number of Cuban individuals." Briick Decl. at ¶¶ 14, 19. The Compendium includes non-classified biographies, which are as a general rule based on open source information, and profiles that are marked SECRET because they rely on information collected clandestinely. Id. at ¶ 19. According to the Briick Declaration, "[t]his compendium, in its entirety, is classified SECRET because its disclosure would reveal those individuals in whom CIA had an intelligence interest and would provide leads to identifying the intelligence sources who or which acquired the information." Id. The CIA has concluded that release of the Compendium is likely to damage national security because such disclosure can be reasonably expected to result in the identification of CIA intelligence interests and loss of intelligence sources. Id.

AARC does not dispute the Briick Declaration's assertion that "the CIA has never released this document, nor has it ever released any portion of the document in any form at any time, whether as part of the President John F. Kennedy Assassination Records Collection Act of 1992 or otherwise." See Pl.'s Reply at 2; Supp. Briick Decl. at ¶ 7. Rather, AARC argues that the CIA has "previously released the same information in disclosing records pursuant to the [JFK Act]." Pl.'s Reply at 2; see also Second Newman Decl. at ¶ 2 (describing how the CIA has released detailed information on hundreds of Cuban personalities).

Briick's supplemental declaration asserts that pursuant to a written delegation of authority in accordance with Executive Order 12,958, he is authorized to classify and declassify information at the "Top Secret" level. See Supp. Briick Decl. at ¶ 2. He is also authorized to review classified CIA information and to make a determination as to whether such information is exempt from "automatic declassification" provisions of section 3.4 of the executive order. Id. While AARC, in its Motion and Opposition, argued that only the Secretary is authorized to declassify information, AARC did not, in its reply brief, contradict Mr. Briick's representations as to his authority. Further, the Court takes notice of Sections 1.4 and 3.1(c) of Executive Order 12,959, which permit agency heads to delegate classification and declassification authority. Exec. Order 12,958, §§ 1.4, 3.1(c).²

III. Freedom of Information Act

Plaintiffs seek release of the Cuban Volumes pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. FOIA requires federal agencies to comply with requests to make records available to the public, unless the requested records fall within one or more of nine categories of exempt material. Id. § 552(a), (b). If a document contains exempt information, the agency is obligated to release "any reasonably segregable portion" after deletion of the nondisclosable portions. Id. § 552(b).

This Court reviews de novo the agency's determination that it has fulfilled its obligations under FOIA. 5 U.S.C. § 552(a)(4)(B); Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir. 1994); Hayden v. Nat'l Security Agency, 608 F.2d 1381, 1384 (D.C.Cir.1979). The burden is on the agency to demonstrate that it has acted properly in withholding information. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 150-51, 109 S.Ct. 2841, 106 L.Ed.2d 112; Hayden, 608 F.2d at 1384. Exemptions must be narrowly interpreted to give effect to the strong Congressional intent of favoring disclosure. John Doe Agency v. John Doe Corp., 493 U.S. 146, 151-52, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989); H.R.Rep. No. 1497, 89th Cong., 2d Sess., 6 (1966), U.S.Code Cong. & Admin. News 1966, pp. 2418, 2423 (noting the need "to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy"). However, in a case concerning questions of national security, such as this one, the D.C. Circuit has instructed district courts to give "substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Salisbury v. United States, 690 F.2d 966, 970 (D.C.Cir. 1982); see Taylor v. Dep't of the Army, 684 F.2d 99, 109 (D.C.Cir.1982) (requiring "utmost deference" to affidavits by military intelligence officers).

The D.C. Circuit has held that FOIA requires that an agency claiming that material is exempt from exposure provide the requestor with a description of each document withheld and an explanation of the...