Stalcup v. Cent. Intelligence Agency
| Decision Date | 06 October 2014 |
| Docket Number | No. 13–2329.,13–2329. |
| Citation | 768 F.3d 65 |
| Parties | Thomas STALCUP, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellee. |
| Court | U.S. Court of Appeals — First Circuit |
OPINION TEXT STARTS HERE
Richard K. Latimer for appellant.
Patrick G. Nemeroff, Attorney, Department of Justice, with whom Stuart F. Delery, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Michael Sady, Assistant United States Attorney and Leonard Schaitman, Attorney, were on brief, for appellee.
Before HOWARD, LIPEZ and BARRON, Circuit Judges.
Though clouded by an airline disaster and claims of a government cover-up, this case ultimately turns on a relatively straightforward question: must the government release certain information? Plaintiff–Appellant Thomas Stalcup brought this Freedom of Information Act (“FOIA”) suit against the Central Intelligence Agency (“CIA”), seeking two documents from an investigation into the crash of TWA Flight 800. Stalcup also sought the names of the eyewitnesses interviewed during the investigation. The district court rejected Stalcup's requests, concluding that FOIA permitted the agency to withhold the sought-after material. Because we agree with each of the district court's conclusions, we affirm its decision to grant summary judgment for the CIA.
On July 17, 1996, TWA Flight 800 exploded in mid-air and crashed eight miles south of Long Island, New York. Pursuant to its obligations under 49 C.F.R. § 800.3(a), the National Transportation Safety Board (“NTSB”) launched an investigation into the tragedy. The Board quickly arrived at three possible explanations for the crash: a bomb, a missile, or a mechanical failure.
Given the possibility of criminal or terrorist activity, the FBI joined the probe. A central component of the Bureau's task was to interview eyewitnesses. Many of the 244 individuals who were interviewed described a streak of light rising up to the plane just before the explosion. Given the consistency of that narrative, the FBI asked the CIA to analyze the accounts and explore the likelihood of a missile strike.
The CIA reviewed the eyewitness reports along with raw flight and radar data. It concluded that the eyewitnesses had not seen a missile soaring towards the plane but, instead, had observed the burning aircraft in various stages of dismantling. On March 28, 1997, the CIA passed this analysis along to the FBI, which ultimately reached the same conclusion. In November 1997, the CIA publicized these results in a video entitled: “TWA Flight 800: What Did the Eyewitnesses See?”
As new data emerged, the CIA continued its work. For instance, in 1998 it produced a 17–page draft report analyzing new radar tracking data (“Analysis of Radar Tracking”). At that time, it also created an 18–page draft report assessing the plane's flight path (“Dynamic Flight Simulation”). Both documents contained recommendations to the agency about how the newly acquired data should impact the analysis. In 1999, the CIA relayed this new evaluation to a NTSB-sponsored group studying the eyewitness accounts.
On August 23, 2000, the investigation, which had been the largest and most expensive in the NTSB's history, reached its terminus. The Board adopted the CIA's assessment of the eyewitness accounts and concluded that a mechanical explosion in the center wing fuel tank had caused the crash. The NTSB distributed a final report detailing these findings.
A decade later, theorizing that the CIA was covering up that the true cause of the crash was a missile strike, Stalcup sent the CIA a letter requesting “copies of all data, images, video, documents and/or other information related to or a product of the CIA's involvement in the TWA Flight 800 investigation.” He also asked for the “ ‘Technical Analysis Briefing: TWA Flight 800’...; ... all eyewitness documents, reports, videos, images, and/or audio provided to the CIA ... [and] any and all correspondence ... regarding the CIA's ... analysis of the eyewitness evidence.”
The CIA first disclosed twenty-five documents that it had previously released in response to a similar FOIA request. Unsatisfied with the CIA's response, Stalcup brought this FOIA action. 5 U.S.C. § 552. The complaint, filed in the District of Massachusetts, asked the court to order the CIA to disclose additional material. As the litigation progressed, the CIA provided Stalcup with forty-nine documents, a DVD, eighty-nine partially-redacted documents, and fourteen documents created by other agencies. The agency also filed a Vaughn index with the court detailing its redactions and withholdings.
Nonetheless, Stalcup demanded more. He requested unredacted versions of the 1998 Analysis of Radar Tracking document (only the technical data, graphs, and certain headings were initially provided); the 1998 Dynamic Flight Simulation analysis (only the headings had been released); and the names of the eyewitnesses interviewed by the FBI.
In due course, the CIA moved for summary judgment, which the district court granted. The court concluded that the agency had properly withheld the requested documents under the deliberative process exemption of the law, 5 U.S.C. § 552(b)(5) (hereinafter “exemption 5”), and had appropriately redacted the eyewitness names pursuant to the law enforcement exemption of the act, 5 U.S.C. § 552(b)(7)(C) (hereinafter “exemption 7(C)”). The court also rejected Stalcup's contentions that disclosure of the information was required in light of alleged government misconduct. Finally, the court concluded that the CIA had performed an adequate search in response to the FOIA request. This timely appeal followed.
We review a district court's grant of summary judgment in a FOIA case de novo. Moffat v. U.S. Dep't of Justice, 716 F.3d 244, 250 (1st Cir.2013). Accordingly, we draw all reasonable inferences in favor of the non-moving party, and will only affirm the district court's decision if no genuine dispute of material fact exists and a party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56.
FOIA is an important tool in holding the government accountable because it provides citizens a means to “know what their government is up to.” Carpenter v. U.S. Dep't of Justice, 470 F.3d 434, 437 (1st Cir.2006) (internal quotation marks and citation omitted). By establishing a presumption in favor of agency disclosure, Congress aimed to “expose the operations of federal agencies to public scrutiny.” Providence Journal Co. v. U.S. Dep't of Army, 981 F.2d 552, 556 (1st Cir.1992). The need for transparency, however, must be balanced with the goal of the “efficient administration of government.” Carpenter, 470 F.3d at 438. Accordingly, Congress provided a number of exemptions that permit an agency to withhold certain documents from release. To fulfill the broad purposes of FOIA, we construe these exemptions narrowly. FBI v. Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982) (citation omitted).
Two exemptions take center stage in this appeal: exemption 5, the deliberative process exemption, and exemption 7(C), the law enforcement exemption. We note at the outset that the Ninth Circuit has recently addressed a nearly identical challenge to the exact materials at issue here. Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964 (9th Cir.2009). After an in camera review, that court determined that the government had properly withheld the material. Though we are not bound by that conclusion, and would independently arrive at the same result based on this record alone, we do find Lahr to be persuasive. After considering the Ninth Circuit's thoughtful analysis, the CIA's extensive declaration in this case, and the absence of any viable argument to the contrary, we are left satisfied that the CIA's response to the FOIA request accorded with the law.
Exemption 5 of FOIA, the deliberative process exemption, permits an agency to withhold “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). It thus generally exempts from disclosure documents containing work product, attorney-client correspondence, or material that is otherwise “privileged in the civil discovery context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 154, 95 S.Ct. 1504, 44 L.Ed.2d 29 (1975). The government carries the burden of establishing the applicability of the exemption and must show: (1) that the withheld material is an inter- or intra- agency memorandum—an uncontested issue here; (2) that the document is deliberative; and (3) that it is predecisional. Providence Journal Co., 981 F.2d at 557.
The government asserts that it properly withheld the 1998 Analysis of Radar Tracking and the 1998 Dynamic Flight Simulation under the exemption. Stalcup, however, contends that the documents are neither deliberative nor predecisional. Though the analysis intersects at times, the two criteria are distinct prongs and must be examined separately.
To satisfy the “deliberative” element of the exception, a document must reflect “the give-and-take of the consultative process.” Petroleum Info. Corp. v. U.S. Dep't of Interior, 976 F.2d 1429, 1434 (D.C.Cir.1992) (citations and internal quotation marks omitted). More specifically, the document must: “(i) form[ ] an essential link in a specified consultative process, (ii) reflect[ ] the personal opinions of the writer rather than the policy of the agency, and (iii) if released, ... inaccurately reflect or prematurely disclose the views of the agency.” Providence Journal Co., 981 F.2d at 559 (internal quotation marks and citations omitted). Conversely, a document “consisting only of compiled factual material or purely factual material contained in deliberative memoranda and severable from its context” is subject to disclosure. EPA v. Mink, 410 U.S. 73, 87–88, 93 S.Ct. 827, 35 L.Ed.2d 119 (...
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