DiBacco v. U.S. Army

• Citation: 795 F.3d 178
• Decision Date: 31 July 2015
• Docket Number: No. 13–5353.,13–5353.
• Parties: Aron DIBACCO and Barbara Webster, Appellants v. UNITED STATES ARMY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

795 F.3d 178

Aron DIBACCO and Barbara Webster, Appellants

v.UNITED STATES ARMY, et al., Appellees.

No. 13–5353.

United States Court of Appeals, District of Columbia Circuit.

Argued Dec. 12, 2014.

Decided July 31, 2015.

James H. Lesar argued the cause and filed the briefs for appellants.

Fred Elmore Haynes, Assistant U.S. Attorney, argued the cause for appellees. With him on the brief were Ronald C. Machen Jr., U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: GARLAND, Chief Judge, and ROGERS and MILLETT, Circuit Judges.

Opinion

Opinion for the Court filed by Circuit Judge MILLETT.

MILLETT, Circuit Judge:

Removing the cloak from the cloak-and-dagger business of spying can be a lengthy and arduous process. Understandably so, given the competing needs to protect national security and to ensure appropriate governmental transparency. The 30–year odyssey of this Freedom of Information Act case attests to the complex twists and turns that the disclosure process can take.

In 1985, Carl Oglesby filed a request under the Freedom of Information Act with six federal agencies, seeking information on Reinhard Gehlen, a former Nazi general through whom the United States engaged in clandestine espionage after World War II. Thirty years, an intervening Act of Congress, and two appeals later, more than ten thousand pages of documents have been released and the quest for information has narrowed substantially. With Mr. Oglesby's passing in 2011, his daughter, Aron DiBacco, and partner, Barbara Webster, have now taken up Oglesby's cause. In this third appeal, DiBacco and Webster challenge the adequacy of the Army's and CIA's searches for and disclosures of documents, as well as the CIA's justification for withholding certain information on national security grounds.

The district court concluded that the Army and CIA have done what the Freedom of Information Act requires. We agree, except that we must remand for the district court to address in the first instance DiBacco's and Webster's challenges to redactions in a batch of records that the Army disclosed to them while this appeal was pending.

IStatutory Framework

The Freedom of Information Act

Congress enacted the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, to promote the “broad disclosure of Government records” by generally requiring federal agencies to make their records available to the public on request. Department of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988) (internal quotation marks omitted). But Congress also “realized that legitimate governmental and private interests could be harmed by release of certain types of information.” Id. (internal quotation marks omitted). Accordingly, FOIA “balance[s] the public's need for access to official information with the Government's need for confidentiality,” Weinberger v. Catholic Action of Hawaii, 454 U.S. 139, 144, 102 S.Ct. 197, 70 L.Ed.2d 298 (1981), by exempting nine categories of records from disclosure, see 5 U.S.C. § 552(b). While those exemptions “must be narrowly construed,” Milner v. Department of Navy, 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011) (internal quotation marks omitted), they still must be given “meaningful reach and application,” John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989).

FOIA Exemptions 1 and 3 are at issue in this case. Exemption 1 authorizes the withholding of “matters” that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” if they “are in fact properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1).

Exemption 3 excludes “matters” that are “specifically exempted from disclosure by statute” if that statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue” or “establishes particular criteria for withholding or refers to particular types of matters to be withheld[.]” 5 U.S.C. § 552(b)(3). Courts have held that a provision of the National Security Act of 1947, which calls for the Director of National Intelligence to protect “intelligence sources and methods from unauthorized disclosure,” 50 U.S.C. § 3024(i)(1), is a valid Exemption 3 statute. CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985) ; accord Larson v. Department of State, 565 F.3d 857, 865 (D.C.Cir.2009).

Under FOIA, agencies may charge reasonable fees to help defray their costs in responding to a FOIA request, but they must waive or reduce their fees if disclosure of the requested information “is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.”5 U.S.C. § 552(a)(4)(A)(iii).

When an agency subject to FOIA receives a request for records, it must determine within twenty days whether to comply with that request and, once it does, must immediately notify the requester of its determination and reasoning.

5 U.S.C. § 552(a)(6)(A)(i). Upon receipt of that determination, the requester may administratively appeal the agency's decision, and the agency must decide the appeal within twenty days. See id. § 552(a)(6)(A)(ii). Exhaustion of that administrative appeal process is a prerequisite to seeking judicial relief, unless the agency has not responded within the statutory time limits. See id. § 552(a)(6)(C) ; Oglesby v. Department of Army (Oglesby I), 920 F.2d 57, 61–62 (D.C.Cir.1990).

Federal district courts have jurisdiction under FOIA “to enjoin [an] agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B). In a FOIA suit, the burden is “on the agency to sustain its action,” and the district court must “determine the matter de novo. ” Id.

The Nazi War Crimes Disclosure Act

Congress enacted the Nazi War Crimes Disclosure Act (“Disclosure Act”), Pub.L. No. 105–246, 112 Stat. 1859 (1998) (codified as amended at 5 U.S.C. § 552 note), to spur disclosure of millions of pages of government records from the World War II era. See Nazi War Crimes & Japanese Imperial Government Records Interagency Working Group, Final Report to the United States Congress 1 (April 2007) (“Interagency Report”). To that end, the Disclosure Act required federal agencies to “locate, identify, inventory, recommend for declassification, and make available to the public at the National Archives and Records Administration,” with few exceptions, any remaining classified records concerning war crimes committed by Nazi Germany and its allies. Pub.L. No. 105–246, § 2(c)(1).

The Disclosure Act also directed the President to establish the “Nazi War Criminal Records Interagency Working Group,” Pub.L. No. 105–246, § 2(b)(1), composed of various high-level government officials and three members of the public. The Working Group was tasked with coordinating agencies' efforts to fulfill the Disclosure Act's mandate. See Interagency Report, at 1.¹ Those efforts led to the declassification and public release of over 8.5 million pages of World War II and post-war records. See Interagency Report, at 2.

Factual and Procedural Background

General Reinhard Gehlen served as Hitler's senior military intelligence officer on the Eastern Front. See Oglesby I, 920 F.2d at 60. After the war, Gehlen became an intelligence asset for the United States, secretly agreeing to operate an extensive spy network in Europe under United States command. See id. at 60. Gehlen operated this spy network, known as the Gehlen Organization, until 1956, at which point it became part of the newly formed intelligence service of the Federal Republic of Germany. Gehlen led the latter until his retirement in 1968. Interagency Report, at 11, 13, 30, 48; CIA Biographic Sketch on General Reinhard Gehlen, NWC–002652 (declassified and approved for release under the Disclosure Act in 2001), J.A. 1084–1085.

Carl Oglesby was a journalist interested in the intelligence relationship between the United States and Gehlen. His rounds of effort over many years to obtain information under FOIA contributed materially to the disclosure of the Gehlen Organization's covert relationship with the federal government.

Round One

In 1985, Oglesby submitted FOIA requests seeking information on that relationship to six federal agencies: the Department of the Army, the Department of State, the Federal Bureau of Investigation, the Central Intelligence Agency, the National Archives and Records Administration, and the National Security Agency (“NSA”). See DiBacco v. Department of Army, 983 F.Supp.2d 44, 49 (D.D.C.2013). Oglesby specifically sought:

(i) Records of World War II German General Reinhard Gehlen and his relationship with any United States officials during the period 1944 through 1956;

(ii) Records of the meetings held at Fort Hunt, Virginia, in the summer of 1945 between Gehlen and American officials including U.S. Army General George V. Strong and Office of Strategic Services officer Allen Welsh Dulles;

(iii) Records of U.S. Army “Operation Rusty,” carried out in Europe between 1945 and 1948;

(iv) Records of post-war Nazi German underground organizations such as Odessa, Kamaradenwerk, Bruderschaft, Werewolves, and Die Spanne; and

(v) Records of the Office of Strategic Services' “Operation Sunrise” in 1945.

Complaint ¶¶ 5, 23, 34, 40, 57, 63; J.A. 54 (request to CIA); J.A. 79 (request to FBI); J.A. 97 (request to National Archives); see also Oglesby v. Department of Army (Oglesby II), 79 F.3d 1172, 1175–1176 (D.C.Cir.1996). Oglesby also sought a waiver of search and copying fees from each agency under 5 U.S.C. § 552(a)(4)(A). Oglesby I, 920 F.2d at 60.

The agencies collectively released 384 pages of documents (many redacted) in response, invoking various FOIA exemptions as a basis for...