Porup v. Cent. Intelligence Agency

JENS PORUP, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, Defendant.

Case No. 17-cv-72 (CRC)

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

March 16, 2020

MEMORANDUM OPINION

It has been nearly 45 years since the Church Committee exposed the Central Intelligence Agency's ("CIA") participation in plots to assassinate several foreign leaders in the 1960s and since President Ford responded by issuing the first of a series of executive orders prohibiting the U.S. government from engaging in assassination. Yet, curiosity in that chapter of the CIA's history—and speculation that it might not have closed—apparently continues.

Plaintiff Jens Porup lodged a Freedom of Information Act ("FOIA") request seeking any documents in the CIA's files discussing the agency's use of poison to carry out assassinations. After initially declining to process Porup's request, the agency produced responsive documents with withholdings under several FOIA exemptions. Production now complete, the CIA moves for summary judgment. Porup opposes on the ground that the agency is liable for engaging in an unlawful "pattern or practice" of refusing to adjudicate FOIA requests for records concerning activities that the CIA may not legally undertake. He also challenges narrow aspects of the agency's searches and withholdings. Finding no genuine dispute of material fact as to Porup's remaining challenges, the Court will grant the Government's motion and close the case.

I. Background

On May 1, 2015, Mr. Porup submitted a FOIA request to the CIA seeking "[a]ny and all documents relating to CIA use of poison for covert assassination." Am. Compl. ¶ 17; Gov. Mot. Summ. J., Exh. 1 at 2 [hereinafter "FOIA Correspondence"]. Porup later clarified that his request "refer[red] to the CIA from its inception to its present day." FOIA Correspondence 8. The CIA issued a "final response" on May 21, 2015, in which it directed Porup to "[p]lease refer to Executive Order 12333 which describes the conduct of intelligence activities, citation 2.11, which pertains to the prohibition on assassinations." Id. at 2.¹

Porup sent a dozen follow-ups, in which he claimed that the agency's response "contradict[ed] material that is already in the public record"—specifically, the agency's purported public acknowledgement that it had engaged in covert assassinations in response to the 1975 investigation of the Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities ("Church Committee"). Id. at 5, 7; Am. Compl. ¶¶ 6-8, 22. The agency construed these follow-ups as requests for an appeal, which it declined to process. FOIA Correspondence 10, 12.

On January 12, 2017, Porup filed suit in this Court seeking declaratory and injunctive relief under FOIA. The CIA reassessed Porup's request and determined that responsive records, predating the 1981 government-wide prohibition on assassination, may exist. Gov. Mot. Summ. J., Exh. 2 ¶ 8 [hereinafter "Shiner Decl."]. Based on a broadened reading of Plaintiff's request,the agency determined that 39 documents that were initially deemed nonresponsive were in fact potentially responsive. Id. ¶¶ 8, 14-15, 19.

During processing, the CIA realized that 22 of those documents, owned by the National Archives and Records Administration ("NARA"), were set to be included in a separate government-wide declassification effort pursuant to the President John F. Kennedy Assassination Records Collection Act of 1992, 42 U.S.C. § 2107 (note). Id. ¶ 19. After NARA posted these documents on its public website, the CIA processed the remaining 17 potentially responsive records. The CIA released some 2,000 pages of documents in full or in part to Porup and withheld the rest under FOIA Exemptions 1, 3, and 6. Def. Mot. Summ. J. 3. The Government then moved for summary judgment.

II. Legal Standard

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). In deciding a motion for summary judgment, the Court assumes the truth of the non-movant's evidence and draws all reasonable inferences in the non-movant's favor. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).

Under FOIA, agencies are generally required to make "promptly available" records that are "reasonably describe[d]" in a request that "is made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." 5 U.S.C. § 552(a)(3)(A). "To prevail on summary judgment, . . . the defending 'agency must show beyond material doubt [ ] that it has conducted a search reasonably calculated to uncover all relevant documents.'" Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Weisberg v. DOJ, 705 F.2d 1344, 1351 (D.C. Cir. 1983)).

FOIA also contains a set of exceptions to an agency's general obligation to provide government records to the public. See 5 U.S.C. § 552(b). FOIA "mandates a strong presumption in favor of disclosure," and its "statutory exemptions, which are exclusive, are to be 'narrowly construed.'" Nat'l Ass'n of Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). The government therefore bears the burden of establishing that the claimed FOIA exemptions apply. ACLU v. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). It may satisfy this burden through declarations by agency personnel that describe the justifications for its withholdings in "specific detail, demonstrat[ing] that the information withheld logically falls within the claimed exemption." Id. Agency affidavits will not warrant summary judgment if the plaintiff puts forth contrary evidence or demonstrates the agency's bad faith. Id.

III. Analysis

The parties have narrowed the scope of the disputed issues to: (1) Porup's claim that the CIA has engaged in an unlawful "pattern or practice" of categorically refusing to process certain FOIA requests; (2) Porup's two narrow challenges to aspects of the adequacy of the CIA's searches; and (3) Porup's challenge to the CIA's withholdings under Exemption 3 and the National Security Act. The Court will consider each issue in turn.

A. "Pattern or Practice"

Porup first alleges that the CIA "maintain[s] a pattern or practice of refusing to process requests regarding conduct in which it claims it does not and cannot engage." Am. Compl. ¶¶ 14, 26. According to Porup, the CIA has, over the last twelve years, responded to a wide variety of FOIA requests—spanning requests for information concerning "what measures were taken over the last two years to stop cocaine trafficking from Col[o]mbia to the U.S." to "covertactivities conducted within the United States of America"—with a form response indicating that it was legally prohibited from engaging in the type of conduct that would be implicated by the records sought, without conducting a search for a responsive records. Id. ¶¶ 15-16.² Porup claims that such "[a] policy, practice, or standard operating procedure of uniformly refusing to even process a properly described FOIA request (to say nothing of refusing to process an administrative appeal) is in violation of FOIA." Id. ¶ 27.

FOIA permits injunctive relief for "a claim that an agency policy or practice will impair the party's lawful access to information in the future." Payne Enterprises, Inc. v. United States,837 F.2d 486, 491 (D.C. Cir. 1988) (emphasis omitted). Plaintiffs seeking to make out a so-called "pattern or practice claim" must establish that "an agency's refusal to supply information evidences a policy or practice of delayed disclosure or some other failure to abide by the terms of the FOIA." Id.; see also Muttitt v. Dep't of State, 926 F. Supp. 2d 284, 293 (D.D.C. 2013). The focus of the "policy or practice" doctrine is "wholly unjustified" agency conduct, as opposed to "merely isolated mistakes by agency officials." Payne Enterprises, 837 F.2d at 489, 491 (emphasis added); see also Judicial Watch, Inc. v. Dep't of Homeland Sec., 895 F.3d 770, 778 (D.C. Cir. 2018); Cause of Action Inst. v. Eggleston, 224 F. Supp. 3d 63, 74 (D.D.C. 2016); Scudder v. CIA, 281 F. Supp. 3d 124, 129 (D.D.C. 2017).

The Government argues that Porup's "pattern or practice" claim is mooted by new "internal guidance" that was issued by the agency after his initial FOIA request but prior to his filing of this lawsuit. Shiner Decl. ¶ 18. That guidance "generally instruct[s] that the Agency should not decline to process requests solely because they pertain to activities or issues that are beyond the scope of the Agency's primary mission." Id. Mr. Porup concedes that the agency's new policy, if sufficiently supported by the record, would moot his "pattern or practice" claim. See Pl. Opp. 6-7. He complains, however, that there is insufficient evidence of the new policy. See id. at 7-10.

"A case might become moot if subsequent events ma[ke] it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). When "the intervening event is of the defendant's own doing," courts must "examine whether the defendant's voluntary cessation of the challenged action truly renders the case moot." Am. Freedom Def. Initiative v.WMATA, 901 F.3d 356, 362 (D.C. Cir. 2018), cert. denied, 139 S. Ct. 2665 (2019) (internal quotation marks and alterations omitted). Generally, that will only be the case where "the party urging mootness demonstrates that '(1) there is no reasonable expectation that the alleged violation will recur,' and '(2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation.'" Nat'l Black Police Ass'n v. District of Columbia, 108 F.3d 346, 349 (D.C. Cir. 1997) (quoting Los Angeles Cty. v....