McGehee v. Central Intelligence Agency, Civ. A. No. 80-2997.

• Decision Date: 19 January 1982
• Docket Number: Civ. A. No. 80-2997.
• Citation: 533 F. Supp. 861
• Parties: Fielding M. McGEHEE, III, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.
• Court: U.S. District Court — District of Columbia

533 F. Supp. 861

Fielding M. McGEHEE, III, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.

Civ. A. No. 80-2997.

United States District Court, District of Columbia.

January 19, 1982.

Katherine A. Meyer and David C. Vladeck, Washington, D. C., for plaintiff.

John H. E. Bayly, Jr., Asst. U. S. Atty., Washington, D. C., for defendant.

MEMORANDUM

GASCH, Senior District Judge.

This case concerns a Freedom of Information Act (FOIA) request made by a freelance journalist for CIA documents about the People's Temple in Guyana. The CIA identified 84 documents as responsive to the request: 26 were withheld in their entirety, 18 were released with deletions, and 12 were completely released. Of the remaining 28 documents, 27 originated with the State Department and one with the FBI. The CIA claims that the plaintiff must pursue these documents from the originating agencies and that these agencies, which are not named in the complaint, will respond directly to the plaintiff. The Court now has before it defendant's motions (1) for summary judgment, (2) for partial dismissal (as to the 28 documents originating with other agencies), (3) for a protective order, and (4) to strike certain paragraphs from the affidavit of Fielding M. McGehee, and (5) plaintiff's motion for in camera inspection.

BACKGROUND

In a letter dated December 6, 1978, the plaintiff wrote to the CIA requesting access to documents in the following categories:

1. The People's Temple which was founded in Indianapolis in the 1960's and which had subsequent addresses in Ukiah, Redwood Valley and San Francisco, California, and Jonestown, Guyana;

2. The Agricultural Project, or People's Temple Agricultural Project in Jonestown, Guyana;

3. Jonestown, Guyana;

4. The late Rev. James Jones, minister of The People's Temple;

5. The late Carolyn Moore Layton, who died in Jonestown on November 19, and who has been described by several newspapers as the coordinator of The People's Temple in Rev. Jones' absence;

6. Information on The People's Temple "defectors," "hit squads," and "assassination teams."

The CIA acknowledged this request, asked for a commitment to pay fees for search and copying, and noted that because the topics of the request were not "subjects of foreign intelligence interest, the likelihood of us locating any significant amount of material is remote." The plaintiff later agreed to modify his request to include only documents relating to the People's Temple.

On October 23, 1980, the plaintiff notified the defendant that he deemed the CIA's failure to act upon his FOIA request by that date a denial of his request and formally appealed that denial. This suit was filed on November 21, 1980, and on May 5, 1981, pursuant to this Court's Order of March 3, 1981, the CIA released, in whole or in part, 30 of the 84 documents that it had determined to be responsive to the plaintiff's FOIA request.

DISCUSSION

A. Summary Judgment.

In any FOIA case, the Court is to "determine the matter de novo, and ... the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). However, in matters where national security or classified records are involved, the Court must accord substantial weight to the affidavits presented by the agency. E.g., Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); Hayden v. NSA, 608 F.2d 1381, 1384 (D.C.Cir.1979), cert. denied, 446 U.S. 937, 100 S.Ct. 2156, 64 L.Ed.2d 790 (1980); Ray v. Turner, 587 F.2d 1187, 1194 (D.C.Cir.1978). Under well established precedent in this Circuit, a court may grant summary judgment in a FOIA case if the agency affidavits "describe the documents and justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, supra, 656 F.2d at 738; cf. Ray v. Turner, supra, 587 F.2d at 1194.

In this case, the three affidavits submitted by the defendants are complete, provide reasonable detail under the circumstances, and demonstrate with reasonable precision which exemptions have been relied upon to withhold information. The plaintiff has failed to produce any persuasive evidence to contradict the affidavits, and the attempts of counsel to portray the agency's delay in this case as "bad faith," even if not rebutted by the Bacon Affidavit, are not supported by anything more than conjecture about the agency's motivation.¹ Consequently, the Court finds no need to allow the plaintiff to engage in further discovery. See Military Audit Project v. Casey, supra, 656 F.2d at 750-52; Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir. 1978), cert. denied, 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980). Moreover, the Court sees no reason to exercise its discretion to require in camera review of these documents; and for reasons that will be more fully developed below, summary judgment for the defendant on the issues of the scope of the search and exemptions (b)(1) and (b)(3) is appropriate.

1. The Adequacy of the CIA's Search.

Two aspects of the CIA's search have been questioned by the plaintiff: which files were searched and whether the CIA selected a proper date as the cut-off for the search. As to the first aspect, the defendant's original Vaughn affidavit claimed that "a thorough search was conducted to ensure that plaintiff's request received the fullest consideration." Affidavit of Louis J. Dube, ¶ 2. Subsequent to the October 28, 1981 hearing on this matter, the CIA filed the affidavit of John E. Bacon, which describes in detail the general process the CIA uses to search for documents requested pursuant to FOIA and in particular describes the process used in the instant case.²

Although the CIA's responses to FOIA requests are overseen by a single department, the Information and Privacy Division (IPD), the record system is decentralized, diverse, and compartmentalized.³ Bacon Affidavit, ¶ 7. Each of the various components within the CIA keeps its records separately and indexes documents in a way that is most efficient in light of its own intelligence responsibilities.⁴ Id. ¶ 4. Accordingly, a detailed description of the recordkeeping system or the indices would reveal details of the classified intelligence activities carried on by that agency. Cf. Baez v. Department of Justice, 647 F.2d 1328, 1336-37 (D.C.Cir.1980) (affidavits need not be so particularized as to reveal intelligence sources and defeat the purpose of FOIA exemption). The handling of FOIA requests at the CIA is unique in that the search and review must be conducted by intelligence officers with specialized knowledge and experience. Bacon Affidavit, ¶ 6. The McGehee FOIA request required no less than seven different components of the CIA to search their records.⁵ Because the agency had received an earlier request which covered a broader range of similar subjects, the McGehee request was treated as a subset of the earlier request.⁶

The Bacon Affidavit adequately describes how each of the seven components of the CIA searched their files, and only two brief illustrations of the comprehensive nature of these searches need be given here. One component, NFAC/OCR, conducted three computer runs and expended 2½ hours in its search; another component spent approximately ten man-hours, conducted several computer runs and checked various indices by hand. See Bacon Affidavit, ¶¶ 19, 29. The CIA claims to have searched every system that reasonably could be expected to contain documents responsive to plaintiff's request, and the Court finds no reason to doubt this statement. See id. ¶¶ 19, 23, 29, 31.

Although the plaintiff has raised several objections to the search methods outlined in the Bacon Affidavit, these objections can be disposed of summarily. First, the plaintiff claims that in agreeing to narrow the scope of his FOIA request he was "unfairly misled" by the CIA. This contention is clearly without merit. Although the affidavit of Mr. McGehee does indicate that he was told that narrowing the request would expedite response to the request, he admits that he was told that searches of other files would probably not turn up any other documents anyway. Thus, it is pure speculation to say that narrowing of the request resulted in the CIA's overlooking any documents. Moreover, a letter from plaintiff's counsel to the CIA indicates that the request was narrowed at Mr. McGehee's request. See Exhibit C to Plaintiff's Opposition to Defendant's Motion for Summary Judgment. The choice to narrow the search was the plaintiff's, and he must live with consequences of that choice.

Second, the plaintiff objects to the defendant's treating of his request as a "subset" of an earlier request for information "on Jim Jones and Peoples Temple." Plaintiff contends that this treatment of his request leads to "the obvious conclusion ... that the CIA did not process plaintiff's request by searching files on Jim Jones." Reply to Defendant's Supplemental Memorandum, at 3. To the Court this treatment would suggest quite the opposite conclusion: because plaintiff's request was a subset of a larger file on both Jim Jones and the People's Temple, any responsive documents indexed under Jim Jones would have been released to the plaintiff.

Third, the plaintiff contends that a CIA letter to another FOIA requester suggests that the CIA's response to plaintiff did not include searches for documents on Jonestown, the assassination of Leo J. Ryan, and Reverend James W. Jones. The Bacon Affidavit, ¶ 32, refutes this claim, and the Court is unable to understand how the simple statement that the CIA has received requests for information about Jonestown, the assassination of Leo J. Ryan, or other topics in any way suggests that a thorough search for documents responsive to plaintiff's request was not carried out.

The adequacy of an agency's search...