Sullivan v. C.I.A., 92-2234

• Decision Date: 09 April 1993
• Docket Number: No. 92-2234,92-2234
• Citation: 992 F.2d 1249
• Parties: Sherry Ann SULLIVAN, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellee. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1249

992 F.2d 1249

Sherry Ann SULLIVAN, Plaintiff, Appellant, v. CENTRAL INTELLIGENCE AGENCY, Defendant, Appellee.

No. 92-2234.

United States Court of Appeals First Circuit.

Heard April 9, 1993.

Decided May 26, 1993.

James H. Lesar, with whom David L. Sobel, Washington, DC, and Mark Zaid, Albany, NY, were on brief, for plaintiff, appellant.

Robert M. Loeb, Atty., Appellate Staff, Civil Div., U.S. Dept. of Justice, with whom Stuart M. Gerson, Asst. Atty. Gen., Washington, DC, Richard S. Cohen, U.S. Atty., Augusta, ME, and Leonard Schaitman, Atty., Civil Div., Washington, DC, were on brief, for defendant, appellee.

Before BREYER, Chief Judge, SELYA and STAHL, Circuit Judges.

SELYA, Circuit Judge.

Invoking the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1988), plaintiff-appellant Sherry Ann Sullivan requested information from nine federal agencies. Her curiosity unslaked by the meager responses to her request, she sued. The federal district court ordered the agencies to explain their search methodologies in greater detail and reviewed some withheld documents in camera. Finding no FOIA violations, the court granted summary judgment in favor of all defendants.

Ms. Sullivan appeals with respect only to the Central Intelligence Agency (CIA). ¹ She limits her argument to the adequacy of the CIA's file search and the applicability of the President John F. Kennedy Assassination Records Collection Act of 1992 (JFK Act), Pub.L. No. 102-526, 106 Stat. 3443 (1992). After "indulging all reasonable inferences in [appellant's] favor," Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990), as the summary judgment standard necessitates, we affirm.

I. A POSSIBLE MISSION

Appellant's father, Geoffrey Sullivan, and his quondam colleague, Alexander Rorke, were last seen on September 24, 1963, leaving Cozemel, Mexico in a twin-engine Beechcraft airplane. Though the pair filed a flight plan for Tegucigalpa, Honduras, they never arrived. A search ensued, but neither the aircraft nor its occupants were found.

In later years, appellant grew determined to solve the mystery of her father's disappearance. On the basis of interviews and an inspection of declassified government documents, appellant surmised that Rorke and her father were engaged in a CIA-sponsored mission to drop propaganda (or perhaps something more sinister) over Cuba. Despite appellant's suspicions, the CIA steadfastly refused to acknowledge that it employed either man at any time.

Undaunted, appellant requested that the CIA provide her with documents about the missing men. The agency perused its non-operational files, finding no data about Geoffrey Sullivan and a few, apparently inconsequential, documents relating to Rorke. When the agency balked at searching its operational files, appellant instituted the instant action.

II. THE FOIA CLAIM

We begin by exploring the intersection between FOIA and the CIA Information Act of 1984, 50 U.S.C. §§ 431-432 (1988). We then apply the statutory framework to the case at bar.

A. Statutory Structure.

In general, FOIA requires that upon due inquiry every federal agency "shall make [requested] records promptly available to any person." 5 U.S.C. § 552(a)(3). This broad command is hedged by nine exemptions. See 5 U.S.C. § 552(b). Although these exemptions cover much of what typically might be found in CIA operational files, ² FOIA does not give the CIA carte blanche to refrain from producing documents merely because it is an intelligence agency. Consequently, the CIA had to divert trained intelligence officers to search its entire file system in response to FOIA requests, notwithstanding the relatively limited number of non-exempt documents likely to be culled. See S.Rep. No. 305, 98th Cong., 1st Sess. 6-7 (1983). To curb the inefficiencies inherent in applying standard FOIA requirements to the arcane realm of the CIA, Congress, acting pursuant to its reserved power to insert additional FOIA exemptions in other statutory enactments, see 5 U.S.C. § 552(b)(3); see also CIA v. Sims, 471 U.S. 159, 167-68, 105 S.Ct. 1881, 1886-87, 85 L.Ed.2d 173 (1985) (acknowledging that the CIA Information Act creates FOIA exemptions); Maynard v. CIA, 986 F.2d 547, 555 (1st Cir.1993) (similar), passed the CIA Information Act.

The Information Act addressed the problem by excusing the CIA from searching its operational files in response to most FOIA requests. Operational files, i.e., files that memorialize the conduct and means of the government's foreign intelligence and counterintelligence efforts, see 50 U.S.C. § 431(b), are the most sensitive of the CIA's records and, thus, the most likely to need an extra measure of protection. Recognizing, however, that operational files can be highly informative, Congress carefully carved out three areas in which requestors, notwithstanding the statutory bar, might nonetheless receive materials. Specifically, the CIA must search such files and produce relevant information if a document request is

(1) [from] United States citizens ... who have requested information on themselves ...; [or]

(2) [regarding] any special activity the existence of which is not exempt from disclosure under [FOIA]; [or]

(3) the specific subject matter of an investigation by the intelligence committees of the Congress, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the [CIA], the Office of Inspector General of the [CIA], or the Office of the Director of Central Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of any intelligence activity.

50 U.S.C. § 431(c). In sum, then, the statutory exceptions are for first-party requests, special activity requests, and requests that focus on investigations of improprieties in intelligence-gathering activities.

B. Applying the Exceptions.

Although appellant asserts that her information request implicates each of the three exceptions quoted above, we think none of them apply in this case. We explain briefly.

1. First-Party Requests. Restricting this aspect of her appeal to the information she solicits about her father, Ms. Sullivan asseverates that the CIA must search its operational files for responsive documents because section 431(c)(1), properly interpreted, requires the agency, on request, to produce information about the requestor's next-of-kin. We disagree.

Appellant arrives at her rather curious reading of the statute by a two-step pavane. She says, first, that the statute is vague as to rights of next-of-kin; and second, that the legislative history resolves the uncertainty in her favor. We find neither step to be consistent with the rhythm of the Information Act.

Section 431(c)(1) is anything but murky. The statute's language limits the exclusion to "United States citizens ... who have requested information on themselves." 50 U.S.C. § 431(c)(1). While appellant suggests that, in context, the word "themselves" is ambiguous, we are confident that the word's common meaning--"those identical ones that are they," Webster's Third New International Dictionary 2370 (1986)--is not only palpably plain but is also anathematic to appellant's rendition of the exception. The lack of ambiguity entirely undermines Ms. Sullivan's position. Courts will only look behind statutory language in the rare case where a literal reading must be shunned because it would produce an absurd outcome, see, e.g., Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 454, 109 S.Ct. 2558, 2566, 105 L.Ed.2d 377 (1989) ("Where the literal reading of a statutory term would compel an odd result, [courts] must search for other evidence of congressional intent....") (citation and internal quotation marks omitted), or when the legislature has otherwise blown an uncertain trumpet. See Morales v. Trans World Airlines, Inc., --- U.S. ----, ----, 112 S.Ct. 2031, 2036, 119 L.Ed.2d 157 (1992); FMC Corp. v. Holliday, 498 U.S. 52, 56-58, 111 S.Ct. 403, 407, 112 L.Ed.2d 356 (1990); see also United States v. Aversa, 984 F.2d 493, 499 n. 8 (1st Cir.1993) (en banc) (reiterating that where statute is clear, further hermeneutics are unnecessary) (collecting cases). Here, reading the statute literally produces a perfectly plausible result and the clarity of the statutory command is stunning. That ends the matter: if Congress had wished to create a right for next-of-kin, it could--and, we think, would--have done so explicitly.

The second step of appellant's section 431(c)(1) pavane is equally bollixed. The legislative history of the Information Act reinforces rather than weakens the unrelievedly narrow construction of the first-party exception that the statutory language portends. See, e.g., S.Rep. No. 305, at 17-18. While some members of Congress apparently believed that the CIA would treat next-of-kin requests "generously," id. at 18, such generosity was obviously meant to be a matter of grace. The Senate Report states unequivocally: "This legislation does not give next-of-kin a right to request information about a deceased person." Id. at 17. The predictions of individual senators to the effect that an agency, once empowered, will act with greater generosity than it is obliged to exhibit cannot serve to overwhelm the letter of the law.

We have said enough. Neither the text of section 431(c)(1) nor its legislative history support a right of access to CIA operational files for next-of-kin requestors. Hence, appellant cannot wield the first-party exception as a wedge to loosen the restrictions that safeguard CIA operational files.

2. Special Activity Requests. Appellant's next claim is that the CIA must produce the information she seeks because her request relates to a "special activity" within the purview of 50 U.S.C. § 431(c)(2). In this instance, the statute's language provides relatively scant guidance, other than to mandate that, in addition to having a special activity linkage, the material...