Institute for Policy Studies v. Cent. Intelligence Agency

• Decision Date: 14 August 2012
• Docket Number: No. 06–cv–960 (RCL).,06–cv–960 (RCL).
• Citation: 885 F.Supp.2d 120
• Parties: INSTITUTE FOR POLICY STUDIES, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

885 F.Supp.2d 120

INSTITUTE FOR POLICY STUDIES, Plaintiff,

v.CENTRAL INTELLIGENCE AGENCY, Defendant.

No. 06–cv–960 (RCL).

United States District Court,

District of Columbia.

Aug. 14, 2012.

Andrea C. Ferster, Andrea C. Ferster, Washington, DC, Brian Gaffney, Kelly Franger, Lippe Gaffney Wagner LLP, San Francisco, CA, for Plaintiff.

Fred Elmore Haynes, U.S. Attorney's Office, Washington, DC, for Defendant.

MEMORANDUM OPINION

ROYCE C. LAMBERTH, Chief Judge.

This Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq., case comes before the Court on defendant's Motion [23] for Summary Judgment, plaintiff's Motion [32] for Summary Judgment, defendant's Opposition to Plaintiff's Motion for Summary Judgment and Motion to Strike Declaration and Defendant's Supplement to Motion for Summary Judgment [41], plaintiff's Opposition to Defendant's Supplement to Motion for Summary Judgment and Reply to Defendant's Opposition to Plaintiff's Cross–Motion for Summary Judgment [70], Supplemental Memorandum in Support of Defendant's Motion for Summary Judgment [83], and plaintiff's Surreply to Defendant's Final Summary Judgment Brief and Supplemental Memorandum [92]. Upon consideration of the filings, the entire record herein and the relevant law, the Court will GRANT in part and DENY in part defendant's Motion [23] for summary judgment and GRANT in part and DENY in part plaintiff's Motion [32] for summary judgment.

I. BACKGROUNDA. FOIA Requests

On June 1, 2004, the Institute for Policy Studies (“IPS”) sent a FOIA request to the CIA requesting the release of all records that mention or relate to the Columbian Organization known as “PEPES” or the Perseguidos por Pablo Escobar, People Persecuted by Pablo Escobar, Pablo Escobar, and/or the death of Pablo Escobar. Declaration of Paz Y Mino (“Paz Y Mino Decl.”) ¶ 4; Declaration of Marilyn A. Dorn (“Dorn Decl.”) ¶ 22. The CIA responded to the request on June 29, 2004 by assigning a reference number of F–2004–01528 and notified IPS that it was providing “previously released records” that were “located in a search conducted on behalf of a previous requestor” using the terms “pepes” and “Escobar.” Paz Y Mino Decl. ¶ 8; Dorn Decl. ¶ 23. Defendant also included a fee schedule and two Vaughn Indices along with the documents it provided stating plaintiff would be charged at ten cents a page for pages in excess of the first 100 pages. Id. In response to defendant's search, plaintiff filed an administrative appeal on October 13, 2004. Paz Y Mino Decl. ¶ 11. Defendant failed to respond to IPS's appeal within the twenty day statutory timeframe and on February 16, 2005, plaintiff sent a letter to the CIA requesting a response to its October 13, 2004 appeal. Paz Y Mino Decl. ¶ 13; Dorn Decl. On April 6, 2005, plaintiff wrote to defendant, urging the resolution of this matter and stated that if defendant failed to respond to their request by performing a proper search free of charge then plaintiff would seek “judicial remedies.” Paz Y Mino ¶ 19. As defendant did not make a determination on plaintiff's appeal, plaintiff filed suit in this court on May 23, 2006. Pl. Mot. Sum. J. at 2. After the litigation commenced, defendant provided plaintiff with additional records on December 15, 2006, free of charge. First Dorn Decl. ¶ 30.

B. Procedural History

Plaintiff filed its complaint on May 23, 2006, alleging a failure to conduct an adequate search, failure to provide all responsive records, failure to reply to FOIA appeals, improper withholding, and an improper denial of a fee waiver. On February 21, 2007, defendant gave plaintiff its supplemental response to plaintiff's initial FOIA request and included an updated Vaughn Index with their latest search. Second Dorn Decl. ¶ 5. This search included records that originated with other agencies which, per standard operating procedure, defendant referred to the other agencies, the Drug Enforcement Administration (“DEA”) and Department of State (“DOS”), respectively. First Dorn Decl. ¶ 8. On April 13, 2007, defendant moved for summary judgment, arguing that they supplemented the previous search with a search of both the Directorate of Intelligence and the Director of the CIA Area for files on PEPES, that they correctly did not run a search for Pablo Escobar under a Glomar response, and a number of exemptions under the FOIA statute. On June 13, 2007, plaintiff filed its own motion for summary judgment, challenging the sufficiency of defendant's search, undue delay by defendant with the referral of records to other agencies, and broadly claiming exemptions while failing to properly describe the justifications. Plaintiff also requested declaratory relief for the defendant's failure to respond to the original appeal within twenty days and defendant's denial of a request for public interest fee waiver. Plaintiff also alleged that defendant violated the Administrative Procedure Act by failing to respond to FOIA appeals in a timely manner.

II. ANALYSISA. Legal Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment must be granted when “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Moreover, summary judgment is properly granted against a party who “after adequate time for discovery and upon motion ... fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's evidence as true. Anderson, 477 U.S. at 255, 106 S.Ct. 2505. A nonmoving party, however, must establish more than “the mere existence of a scintilla of evidence” in support of its position. Id. at 252, 106 S.Ct. 2505.

FOIA cases are typically and appropriately decided on motions for summary judgment. See, e.g. Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir.1993); Rushford v. Civiletti, 485 F.Supp. 477, 481 n. 13 (D.D.C.1980). In a FOIA case, a court may award summary judgment to an agency upon the agency's showing that it conducted a search “reasonably calculated to uncover all relevant documents.” Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). The adequacy of the search is measured by a standard of reasonableness, which must be decided on a case by case basis. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990). The question is whether the search itself was adequate notwithstanding the fact that other responsive documents may exist. Steinberg v. United States Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). An agency is not required to search every record system, but must conduct a good faith, reasonable search of those record systems likely to possess the requested information. Oglesby v. United States Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990).

FOIA requires agencies of the federal government to release records to the public upon request, unless one of the nine statutory exemptions applies. See NLRB v. Sears Roebuck & Co., 421 U.S. 132, 136, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975); 5 U.S.C. § 552(b). To prevail in a FOIA case, the plaintiff must show that an agency has (1) improperly (2) withheld (3) agency records. United States Dep't of Justice v. Tax Analysts, 492 U.S. 136, 142, 109 S.Ct. 2841, 106 L.Ed.2d 112 (1989).

Once an agency has provided adequate affidavits, the burden shifts back to the plaintiff to demonstrate a lack of good faith search. In order to show that a search was adequate, defendant must demonstrate beyond a material doubt that its search was “ ‘reasonably calculated to reveal responsive documents.’ ” Nation Magazine, Washington Bureau v. U.S. Customs Serv., 71 F.3d 885, 890 (D.C.Cir.1995); Truitt, 897 F.2d at 542 ( quoting Weisberg v. United States Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983)(Weisberg II)).

The agency carries the burden of demonstrating that it “made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. To meet this burden, the agency may submit nonconclusory affidavits or declarations that explain in reasonable detail the scope and method of the agency's search. Steinberg v. U.S. Dep't of Justice, 23 F.3d 548, 551 (D.C.Cir.1994). Such affidavits or declarations “are accorded 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. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C.Cir.1981)).

Courts measure reasonableness by examining the method of the search, not by determining whether additional responsive documents might potentially exist. Cleary, Gottlieb, Steen & Hamilton v. Dep't of Health and Human Servs., 844 F.Supp. 770, 777 n. 4 (D.D.C.1993) (citing Meeropol v. Meese, 790 F.2d 942, 952–53 (D.C.Cir.1986)). “Mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search.” SafeCard, 926 F.2d at 1201

B. Plaintiff's Motions to Strike Declarations

Before turning to the adequacy of defendant's search and withholdings, the Court first addresses plaintiff's motions to strike portions of the declarations of Marylin Dorn, Elizabeth Culver, William Little, and Ralph DiMaio. Plaintiff has moved to strike portions of these declarations for lack of personal knowledge and failure to support statements with...