Moore v. Cent. Intelligence Agency

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ROBERT MOORE, et al., Plaintiffs . v. CENTRAL INTELLIGENCE AGENCY, Defendant.

No. 1:20-cv-1027-RCL

United States District Court, District of Columbia

July 28, 2022

MEMORANDUM OPINION

HON ROYEE C. LAMBERTH UNITED STATES DISTRICT JUDGE

Plaintiffs Robert Moore, Jana Orear, Christianne O'Malley, and Mark Sauter seek disclosure of certain Korean War-era prisoner-of-war records held by the Central Intelligence Agency ("CIA") pursuant to the Freedom of Information Act ("FOIA"). After failing to receive a satisfactory response from the CIA, plaintiffs filed this action. Compl., ECF No. 1. Now, both parties move for summary judgment. CIA Mot. for Summ. J. ("CIA Mot."), ECF No. 21; Plaintiffs' Mot. for Summ. J. ("Pls.' Mot."), ECF No. 25. Plaintiffs also move for in camera review of certain contested documents. ECF No 26.

As explained below, the Court will DENY plaintiffs' motion for summary judgment and GRANT IN PART and DENY IN PART defendant's motion for summary judgment. The Court will DENY without prejudice both motions for summary judgment with respect to the adequacy of the CIA's search for records and ORDER defendant to supplement the record regarding the adequacy of the search. The Court will GRANT defendant's motion for summary judgment and DENY plaintiffs' motion for summary judgment with respect to (1) defendant's Exemption 1, 3 and 6 withholdings; and (2) the CIA's segregability analysis. The CIA issued a Glomar response to several of plaintiffs' FOIA requests. The Court will GRANT summary judgment to the CIA regarding five of the requests, DENY both summary judgment motions as to two of the requests, and ORDER defendant to (1) identify any records related to request 1 and (2) supplement the record as to request 17. Finally, the Court will DENY plaintiffs' motion for in camera review.

I. BACKGROUND

United States Air Force Captain Harry Cecil Moore was shot down over North Korea on June 1, 1951 during the Korean War. Compl. 2-3. Captain Moore was taken prisoner and transported to the former Soviet Union, where he was interrogated. Id. at 2. Eight months after Captain Moore was shot down over North Korea, the Chief of Naval Personnel wrote to a fellow naval officer “that there [was] a possibility that Captain Moore survived and is now a prisoner of war.” Id. But it was not until 2002 that the government revealed to Captain Moore's relatives that Moore had survived the crash and had been a prisoner of war in the former Soviet Union. Id. at 3.

On November 25, 2019, plaintiffs submitted a FOIA petition to the CIA with twenty-one individualized requests for information. Compl. ¶ 8. After they received no response, this action was filed on April 20, 2020. Compl. at 1. On October 7, 2020, the CIA issued its first response to plaintiffs' requests. ECF No. 21-1 at ¶ 17. The CIA then periodically produced documents before issuing its final response on November 16, 2021. Id. ¶ 18-24. Ultimately, the CIA produced six documents in full, twenty-nine in part, and withheld four documents in full. Id. ¶ 25. The CIA withheld and redacted certain documents based on FOIA Exemptions 1, 3, and 6. Vaughn Index, ECF No. 22-1; Decl, of Vanna Blaine (“Blaine Decl.”), ECF 21-2.

II. LEGAL STANDARDS

A. The Freedom of Information Act

The FOIA provides an avenue for anyone to request—and receive—the disclosure of government records. 5 U.S.C. § 552. “FOIA mandates a ‘strong presumption in favor of disclosure.'” A. C.L. U. v. U.S. Dep't of Just., 655 F.3d 1, 5 (D.C. Cir. 2011) (quoting Nat 'I Ass 'n of Home Builders v. Norton, 309 F.3d 26,32 (D.C. Cir. 2002)). Therefore, “agencies may withhold only those documents or portions thereof that fall under one of nine delineated statutory exemptions.” Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 845 (D.C. Cir. 2010). But because the FOIA mandates a presumption of disclosure, an agency withholding material pursuant to FOIA exemptions “bears the burden of showing that withheld material falls within the asserted exemption.” Id. (citing 5 U.S.C. § 552(a)(4)(B)).

B. Summary Judgment

A court may grant summary judgment where “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). FOIA cases are usually decided on summary judgment motions. Defs. of Wildlife v. U.S. Border Patrol, 623 F.Supp.2d 83, 87 (D.D.C. 2009). Where the party seeking disclosure challenges an agency's withholding of records, “the agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates that each document that falls within the class requested ... is wholly exempt from [the FOIA's] disclosure requirements.” Shapiro v. Dep't of Just., 34 F.Supp.3d 89, 94 (D.D.C. 2014) (citing Moayedi v. U.S. Customs & Border Prot., 510 F.Supp.2d 73, 78 (D.D.C. 2007). An agency meets this burden if any combination of its Vaughn Index, affidavits, or declarations “describe the 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.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). An agency's justifications will be upheld if they are “logical” or “plausible.” Wolf v. Cent. Intel. Agency, 473 F.3d 370, 375 (D.C. Cir. 2007) (citations omitted).

Furthermore, a court deciding summary judgment motions “must make specific findings” as to whether any “reasonably segregable portion of a record” is non-exempt and releasable “[b]efore approving the application of a FOIA exemption.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007) (citing 5 U.S.C. § 552(b)). A court must also determine whether an agency has shown “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 v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).

If an agency affidavit or declaration is “conclusory,” “contradicted in the record[,]” or there is “evidence in the record of agency bad faith,” then summary judgment is not appropriate and a court may grant in camera review as a “last resort.” Hayden v. Nat'I Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979). The Court has “‘broad discretion' to decide whether in camera review is necessary.” 100 Reporters LLC v. U.S. Dep't of Just., 248 F.Supp.3d 115, 166 (D.D.C. 2017) (citation omitted).

III. DISCUSSION

The CIA withheld records under FOIA Exemptions 1, 3, and 6. In support of its motion for summary judgment, it argues that all documents withheld in whole or in part fall within a proper FOIA exemption and that there is no genuine dispute of material fact. See CIA Mot. 1. In response, plaintiffs argue (1) that the CIA failed to adequately search all records as required under the FOIA; (2) that the CIA improperly applied Exemptions 1,3, and 6 of the FOIA; (3) that the CIA did not conduct a proper segregability analysis; and (4) that the nature of the controversy is such to make in camera review by the Court appropriate. See Pls.' Mot. 3-13, 23-28; ECF No. 26. Below, the Court will first address the adequacy of the search. Then, it will review the CIA's withholdings under the FOIA exemptions and determine whether the CIA performed an adequate segregability analysis. Finally, the Court will consider the plaintiffs' request for in camera review of certain documents.

A. The Adequacy of the CIA's Search

To succeed on its motion for summary judgment, the CIA “must show that it made a good faith effort to search for the requested records.” Khatchadourian v. Def. Intel. Agency, 453 F.Supp.3d 54, 66 (D.D.C. 2020) (quoting Oglesby, 920 F.2d at 68). While an agency is not required to search every record system, the agency must set forth facts (typically in an affidavit) to establish that no other record system was likely to produce responsive documents. Id. (citing Rep. Comm, for Freedom of Press v. FBI, 877 F.3d 399, 402 (D.C. Cir. 2017)). Plaintiffs maintain that the CIA has failed to do so. Pls.' Mot. 3.

In response, the CIA declined to address this burden. Instead, it contends that it does not need to address the adequacy of its search for records because plaintiffs waived the issue. CIA Reply 2. In an affidavit, it explains that plaintiffs and the CIA held a telephone conference to determine the issues to be presented to the Court. Aff. of Darrell Valdez (“Valdez Aff.”) ¶ 7, ECF No. 31-1. In his sworn declaration, CIA counsel Valdez asserts: “In order to narrow the issues to be presented to the Court, I specifically asked [plaintiffs' counsel] Mr. Clarke what issues the plaintiffs had with the Defendant's responses, and Mr. Clarke stated that the plaintiffs were only challenging ‘the redactions and withholdings.'” Id. Following the conference, CIA counsel filed a status report on behalf of the CIA. ECF No. 20. CIA counsel sent the status report draft to opposing counsel who confirmed that the representation was “perfect.” Valdez Aff. ¶ 8-9. But plaintiffs' counsel contests this representation in a dueling affidavit. Aff. of John Clarke (“Clarke Aff.”) ¶ 1, ECF No. 38-1. Clarke says that the plaintiffs never agreed to narrow their objections or waive a challenge to the adequacy of the CIA's search. Id.

That status report could have waived the search—if it included language that indicated waiver. But this Court's review of the status report shows that it lacks language that would indicate waiver of the adequate search issue. Waiver is indicated when terms like “narrow” or “withdraw” are used. See, e.g, Am. Ctr. for Law &...