Oglesby v. U.S. Dept. of Army

• Decision Date: 26 March 1996
• Docket Number: No. 94-5408,94-5408
• Citation: 79 F.3d 1172
• Parties: Carl OGLESBY, Appellant, v. The UNITED STATES DEPARTMENT OF the ARMY, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1172

79 F.3d 1172

316 U.S.App.D.C. 372

Carl OGLESBY, Appellant, v. The UNITED STATES DEPARTMENT OF the ARMY, et al., Appellees.

No. 94-5408.

United States Court of Appeals, District of Columbia Circuit.

Argued Feb. 27, 1996.

Decided March 26, 1996.

Appeal from the United States District Court for the District of Columbia (No. 87cv03349). James H. Lesar, Washington, DC, argued the cause and filed the briefs, for appellant.

Sherri L. Evans, Assistant United States Attorney, argued the cause, for appellees, with whom Eric H. Holder, Jr., United States Attorney, and R. Craig Lawrence, Assistant United States Attorney, were on the briefs.

Before WALD, WILLIAMS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

WALD, Circuit Judge:

This case marks yet another stage in Carl Oglesby's decade-long effort to retrieve World War II vintage documents about a Nazi general from six government agencies under the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA" or "Act"). Oglesby, a professional writer and lecturer with a special interest in the politics of clandestine services, submitted his original FOIA requests in 1985 to the Department of the Army ("Army"), the Central Intelligence Agency ("CIA"), the Federal Bureau of Investigation ("FBI"), the National Archives and Records Administration ("NARA"), the National Security Agency ("NSA"), and the Department of State ("State"). Dissatisfied with the responses he received from the agencies, he filed suit in federal court. The district court granted summary judgment for the defendants, but this court vacated that decision in 1990, with instructions for Oglesby to exhaust his administrative remedies. Oglesby v. Dep't of Army, 920 F.2d 57 (D.C.Cir.1990). Several years later, having exhausted those remedies without receiving what he considered a satisfactory response, Oglesby returned to the district court, where the judge again ruled in favor of the agencies. Oglesby v. U.S. Dep't of Army, Memorandum Opinion, No. 87-cv-3349 (D.D.C. Nov. 2, 1994) ("Mem. Op."). Once again, Oglesby has appealed to this court, this time challenging one agency's refusal to grant him a fee waiver for his search, and several agencies' allegedly inadequate searches, incomplete Vaughn indices, and impermissible exemption justifications. Oglesby raises three specific claims: (1) that the statute specifically authorizing NARA to set fees for document production is not exempt from FOIA's mandatory fee-waiver provision, and therefore NARA was obligated to waive or reduce the fees for Oglesby's search; (2) that Army, CIA, and NSA failed to submit adequate Vaughn indices and that Army and CIA also failed adequately to justify the exemptions on which they based their decisions to withhold certain responsive documents; and (3) that Army, CIA, FBI, NSA and State failed to demonstrate that they had conducted adequate searches in response to Oglesby's request. Because we find that Army, CIA, and NSA have failed adequately to justify their withholdings, and Army and CIA have failed to justify the adequacy of their searches, we remand once again for further explanation on these points. With respect to all claims against the other three defendants, we affirm the district court.

I. BACKGROUND

Since the early 1970s, Oglesby has relentlessly pursued the story of General Reinhard Gehlen, who served as chief of a Nazi spy ring during World War II and who allegedly later negotiated an agreement with the United States which allowed his spy network to continue in existence despite post-war de-nazification programs. After World War II, his group, then known as the Gehlen Organization, was reportedly reconstituted as a functioning espionage network under U.S. command. According to Oglesby, control of the Gehlen Organization shifted back to the newly-sovereign West German Federal Republic as the BND (for Bundesnachrichtendienst, or "the Federal Intelligence Service") after ten years of U.S. control.

More than ten years ago, Oglesby submitted FOIA requests to six government agencies, seeking records pertaining to Gehlen and certain post-WWII Nazi organizations. Oglesby sent identical requests to Army, CIA, NSA, State, and NARA. The five requests sought the following information:

(a) Records of World War Two German General REINHARD GEHLEN and on his relationship with any United States officials during the period 1944 through 1956.

(b) Records of the meetings held at Fort Hunt, Virginia, in the summer of 1945 between the aforesaid GEHLEN and American officials including U.S. Army General GEORGE V. STRONG and Office of Strategic Services officer ALLEN WELSH DULLES.

(c) Records of the U.S. Army "Operation Rusty," carried out in Europe between 1945 and 1948.

(d) Records of post-war Nazi German underground organizations such as ODESSA, KAMARADENWERK, BRUDERSHAFT, WEREWOLVES and DIE SPINNE.

(e) Records of OSS "Operation Sunrise" in 1945.

Joint Appendix ("J.A.") 39. The sixth request, submitted to the FBI, sought only requests (a) and (b) above. J.A. 64.

Two years later, dissatisfied with the responses he had received from the agencies, Oglesby initiated legal proceedings, first in the district court, and then in the Court of Appeals. With respect to five of the six defendants, this court held that Oglesby had not exhausted his administrative remedies. Oglesby, 920 F.2d at 65. However, finding that the precise exhaustion procedure required under FOIA had not previously been laid out with sufficient clarity, we permitted Oglesby an opportunity to appeal within each agency and thereafter refile his suit. With respect to the sixth defendant, State, the court reversed the district court's decision that the agency had successfully demonstrated the adequacy of its FOIA search. Id. at 59-60.

On remand, Oglesby exhausted his administrative remedies and, still dissatisfied, refiled in the district court. At some point during the proceedings, each of the agencies submitted at least one affidavit regarding the method and results of the search it conducted pursuant to Oglesby's request. These affidavits also describe--with varying degree of detail--the documents the agencies found but refused to disclose, and the FOIA exemptions on which the agencies based their refusals to release information. Once again, the district court determined that the searches were adequate and the exemptions were justified, and granted summary judgment in favor of the defendants. Oglesby now appeals that decision.

II. DISCUSSION

The Freedom of Information Act requires agencies to comply with requests to make their records available to the public, unless the requested records fit within one or more of nine categories of exempt material. 5 U.S.C. § 552(a), (b). If a document contains exempt information, the agency must still release "any reasonably segregable portion" after deletion of the nondisclosable portions. Id. § 552(b). Although the Act makes public disclosure of nonexempt material mandatory, it also expressly permits agencies, in many circumstances, to charge certain reasonable fees to help defray the cost of compliance with their FOIA responsibilities. Id. § 552(a)(4)(A). However, in certain instances, where the dissemination of information will benefit the public, FOIA requires the responsive agencies to waive or reduce the fees they charge the requestor. Id. § 552(a)(4)(A)(iii).

This court has held that the Act also requires an agency in possession of material it considers exempt from FOIA to provide the requestor with a description of each document being withheld, and an explanation of the reason for the agency's nondisclosure. See, e.g., King v. DOJ, 830 F.2d 210, 224 (D.C.Cir.1987) ("[T]he agency affidavits must ... disclos[e] as much information as possible without thwarting the exemption's purpose."); Vaughn v. Rosen, 484 F.2d 820 (D.C.Cir.1973). The description and explanation the agency offers should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection. See, e.g., King, 830 F.2d at 223. This requirement serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision.

In this case, Oglesby first claims that NARA violated the mandates of FOIA when it refused to grant him a fee waiver for his search. Second, he alleges that several of the defendant agencies provided him with inadequate descriptions of the responsive documents they had located, and that two agencies further failed to justify their reliance on certain FOIA exemptions. Finally, Oglesby argues that the agencies have not sufficiently demonstrated that the searches they conducted in response to his request were "reasonably calculated to uncover all relevant documents," as required under FOIA. Truitt v. Dep't of State, 897 F.2d 540, 542 (D.C.Cir.1990).

A. NARA's Fee Statute and FOIA's Fee Waiver

FOIA's fee provision, 5 U.S.C. § 552(a)(4)(A), requires agency regulations to provide for the setting of reasonable charges for document searches, duplication and review. The Act also contains a provision waiving the agency's fees for searches requested for certain noncommercial purposes:

Documents shall be furnished without any charge or at a charge reduced below the [reasonable standard charges] if disclosure of the 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). However, a few paragraphs later, the Act states:

Nothing in [this provision] shall supersede fees chargeable under a statute specifically providing for setting the level of fees for particular types of records.

5 U.S.C. § 552(a)(4)(A)(vi) ("subsection (vi)").

NARA claims that subsection (vi) works as an exception not only to FOIA's fee provisions,...