Morley v. Central Intelligence Agency

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2007 Decided December 7, 2007

No. 06-5382

JEFFERSON MORLEY,
APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY,
APPELLEE

Appeal from the United States District Court
for the District of Columbia
(No. 03cv02545)

James H. Lesar argued the cause and filed the briefs for
appellant.

John C. Truong, Assistant U.S. Attorney, argued the cause
for appellee. With him on the brief were Jeffrey A. Taylor, U.S.
Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
 2

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Journalist Jefferson Morley
appeals the grant of summary judgment to the Central
Intelligence Agency (“CIA”) on his request under the Freedom
of Information Act (“FOIA”) for documents pertaining to
George Joannides, a deceased CIA officer. Although the CIA
disclosed some records, it withheld others pursuant to various
FOIA exemptions. On appeal, Morley contends that the CIA did
not conduct an adequate search or provide an adequate Vaughn
index and that it failed to meet its burden to justify withholding
documents under FOIA exemptions. Upon de novo review, we
reverse the grant of summary judgment. We hold that Morley
met his burden to show that his request falls within an exception
to the Central Intelligence Agency Information Act of 1984
(“CIA Act”), 50 U.S.C. § 431(c)(3), and we remand the case so
that the CIA may search its operational files in response to
Morley’s FOIA request. Additionally, its release of records
pursuant to the John F. Kennedy Assassination Records
Collection Act of 1992 (“JFK Act”), 44 U.S.C. § 2107 note,
does not relieve the CIA of its obligations under the FOIA. On
remand, the CIA must also expand its description of the search
by its component units and supplement its justification for
withholding documents under FOIA Exemptions 2, 5 and 6.

I.

On July 4, 2003, Morley submitted a FOIA request to the
CIA for “all records pertaining to CIA operations officer George
Efythron Joannides (also known as ‘Howard,’ ‘Mr. Howard’ or
‘Walter Newby’).” Letter from Jefferson Morley to Katherine
Dyer, Information and Privacy Coordinator, CIA (July 4, 2003)
(“2003 Letter”), at 1. Morley is a journalist and news editor
who has written about the assassination of President Kennedy.
In his view, information on Joannides could shed new light on
the assassination because of Joannides’ position as the CIA case
 3

officer for the anti-Castro organization known as the Directorio
Revolucionario Estudantil (“DRE”) in 1963. As Morley’s
writing discusses, the DRE had contact with Lee Harvey Oswald
in the months before President Kennedy’s assassination.
Disclosure of CIA records pursuant to his FOIA request will,
Morley contends, help to “complete the historical record of
Kennedy’s assassination, specifically CIA operations that might
have collected intelligence on Oswald.” Appellant’s Br. at 3.

The CIA sent Morley a preliminary response on November
5, 2003, informing him that “CIA records on the assassination
of President Kennedy have been re-reviewed under the
classification guidelines for assassination-related records of the
[JFK Act]” and that such records “have been transferred to the
National Archives and Records Administration (“NARA”) in
compliance with this Act.” Letter from Robert T. Herman,
Information and Privacy Coordinator, CIA, to Jefferson Morley,
at 1 (Nov. 5, 2003). The CIA directed Morley to submit his
request to NARA, supplied him with NARA’s address, and
advised him that records can be electronically searched through
NARA’s website. Id. at 2.

On December 16, 2003, Morley filed a complaint for
injunctive relief, requesting the district court to order the CIA to
make available all documents responsive to his FOIA request.
The CIA filed a motion to stay the proceedings pending its
further processing of Morley’s FOIA request, which the district
court granted on September 2, 2004. By letter of December 22,
2004, the CIA responded to Morley’s FOIA request, enclosing
three documents in their entirety and 112 documents with
redactions pursuant to FOIA Exemptions 1, 2, 3, 5, 6, 7(C), and
7(E). The CIA noted that it had located additional responsive
material that it was withholding in its entirety under FOIA
Exemptions 1, 3, and 6. It also explained that two documents
required consultation with another agency and that 78
documents previously released under the JFK Act were on file
with NARA. The CIA asserted that it could “neither confirm
nor deny the existence of records responsive” to Morley’s
 4

request pertaining to Joannides’ participation in any covert
operation. Letter from Scott Koch, Information and Privacy
Coordinator, CIA, to Jefferson Morley, at 2 (Dec. 22, 2004)
(“2004 Letter”). The CIA later released the two documents
requiring consultation with another agency in segregable form.
Three months later, on May 9, 2005, the CIA sent Morley a
partially redacted document that it had “inadvertently failed to
include” in its earlier response and identified additional material
that was withheld in its entirety under Exemptions 1, 2, 3, 5, 6,
7(C), 7(D), and 7(E). Letter from Scott Koch, Information and
Privacy Coordinator, CIA, to Jefferson Morley (May 9, 2005).

Morley sought discovery from the CIA on February 27,
2005. After the CIA filed a motion for a protective order on
March 24, 2005, the district court referred all discovery disputes
to a magistrate judge. The CIA filed a motion for summary
judgment on November 15, 2005. On February 6, 2006, the
magistrate judge granted the CIA’s motion for a protective order
and directed Morley to file his opposition to the CIA’s summary
judgment motion, which Morley did on March 14, 2006 along
with a cross-motion for summary judgment. On September 29,
2006, the district court granted the CIA’s motion for summary
judgment and denied Morley’s cross-motion. It found that the
CIA had conducted an adequate search, giving deference to the
agency’s decisions as explained in the October 26, 2005
Declaration of Marilyn A. Dorn, the Information Review Officer
for the Directorate of Operations of the CIA (“Dorn
Declaration”), and that the Dorn Declaration and the CIA’s
Vaughn index had adequately justified invocation of the claimed
FOIA exemptions. Morley appeals, and we review the grant of
summary judgment de novo. See Iturralde v. Comptroller of
Currency, 315 F.3d 311, 313 (D.C. Cir. 2003).

II.

Congress enacted the FOIA in order to “‘pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny.’” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
 5

(1976) (quoting Rose v. Dep’t of Air Force, 495 F.2d 261, 263
(2d Cir. 1974)). To prevail on summary judgment, then, the
defending “agency must show beyond material doubt [] that it
has conducted a search reasonably calculated to uncover all
relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705
F.2d 1344, 1351 (D.C. Cir. 1983). “The court applies a
‘reasonableness’ test to determine the ‘adequacy’ of a search
methodology, consistent with congressional intent tilting the
scale in favor of disclosure,” Campbell v. U.S. Dep’t of Justice,
164 F.3d 20, 27 (D.C. Cir. 1998) (quoting Weisberg, 705 F.2d
at 1351), and “impose[s] a substantial burden on an agency
seeking to avoid disclosure” through the FOIA exemptions,
Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973). As such,
exemptions from disclosure must be narrowly construed, id. at
823, and “‘conclusory and generalized allegations of
exemptions’ are unacceptable,” Founding Church of Scientology
of Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 830
(D.C. Cir. 1979) (quoting Vaughn, 484 F.2d at 826).

A. Standard
As a threshold matter, we conclude that the CIA properly
processed Morley’s request under the traditional standards of the
FOIA, rather than the less restrictive standards of the JFK Act.
In enacting the JFK Act, Congress declared that “all
Government records concerning the assassination of President
John F. Kennedy should carry a presumption of immediate
disclosure,” in part because the FOIA, “as implemented by the
executive branch, has prevented the timely public disclosure” of
these records. JFK Act § 2(a)(2), (a)(5). The JFK Act required
that all assassination records be transmitted to NARA to
comprise its JFK Assassination Records Collection. Id. § 4.
The JFK Act also established the Assassination Records Review
Board (“Review Board”) to determine whether agency
documents constitute assassination records and to render
decisions on whether a particular record qualifies for
postponement of disclosure. Id. § 7(i). Upon expiration of the
Review Board’s operations on September 30, 1998, the CIA,
NARA, and the Review Board signed a Memorandum of
 6

Understanding (“MOU”) providing that the CIA will transmit to
the JFK Collection at NARA a number of specifically identified
documents, along with “[a]ny other non-duplicate assassination-
related records created or discovered by the CIA after
September 30, 1998.” Memorandum of Understanding
Regarding Continuing Obligations of the CIA Under the JFK
Act, at 3 (Sept. 30, 1998).

In Assassination Archives & Research Center v.
Department of Justice, 43 F.3d 1542, 1544 (D.C. Cir. 1995)
(“AARC I”), the court determined that “[t]he JFK Act and the
FOIA are separate statutory schemes with separate sets of
standards and separate (and markedly different) enforcement
mechanisms. There is no evidence that Congress intended that
the JFK Act standards be applied to FOIA review of documents
involving the Kennedy assassination.” The court stated that
FOIA requesters could not skirt the JFK Act’s procedures in
order to capitalize on its substance. See id.

Morley maintains that the termination of Review Board
operations and the creation of the MOU distinguish his case
from AARC I because there the court rejected efforts to “secure
immediate judicial application of the substantive standards of
the JFK Act without having to wait for the Act’s procedures to
run their course.” Id. at 1543. Now that they have, Morley
asserts that the MOU should govern his request for documents.
But the MOU provides its own enforcement mechanism for
procuring relevant documents from the CIA; Morley can no
more sidestep these procedures than he could those of the JFK
Act, see id. at 1545. Notably, the MOU neither mentions the
FOIA nor addresses the release of relevant documents to FOIA
requesters; it merely provides that the appropriate records shall
be released to NARA. If Morley has identified new
assassination-related records, then NARA can seek their release
pursuant to the MOU. To the extent that Congress sought to
remedy the executive branch’s overzealous shielding of
assassination-related records under the FOIA, the JFK Act and
the MOU supply the process by which to obtain these
 7

documents. Morley cannot invoke this Congressional purpose
to “engraft[]” “the concerns of the JFK Act . . . onto FOIA
requests,” Minier v. CIA, 88 F.3d 796, 802 (9th Cir. 1996).
Accordingly, the CIA properly conceived of Morley’s FOIA
request as requiring application of FOIA standards, and we turn
to Morley’s challenges to the adequacy of the CIA’s search and
Vaughn index and to the CIA’s invocation of FOIA exemptions
to withhold documents.

B. Adequacy of the Search
“[I]n adjudicating the adequacy of the agency’s
identification and retrieval efforts, the trial court may be
warranted in relying upon agency affidavits.” Founding Church
of Scientology, 610 F.2d at 836. However, such reliance is only
appropriate when the agency’s supporting affidavits are
“‘relatively detailed’ and nonconclusory and . . . submitted in
good faith.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)
(quoting Vaughn, 484 F.2d at 826). “Even if these conditions
are met the requester may nonetheless produce countervailing
evidence, and if the sufficiency of the agency’s identification or
retrieval procedure is genuinely in issue, summary judgment is
not in order.” Founding Church of Scientology, 610 F.2d at 836.
The district court found that Dorn’s declaration “described in
great detail” the CIA’s actions in response to Morley’s FOIA
request, Mem. Op. Sept. 29, 2006 at 8, and concluded, “mindful
of the deference due agency decisions in this context,” id. at 9,
that the CIA’s search was adequate. The district court did not
specifically address the individual contentions that Morley raises
regarding the adequacy of the CIA’s search. We turn to these
enumerated issues.

1. Search of Operational Files. The CIA admits that it did
not search its operational files for records responsive to
Morley’s request. See Dorn Declaration ¶ 97. Operational files
are exempt from FOIA disclosure under the CIA Act, 50 U.S.C.
§ 431(a), and generally include records “which document the
conduct of foreign intelligence or counterintelligence
operations,” id. § 431(b)(1). Morley, however, contends that
 8

because the Senate Select Committee to Study Governmental
Operations with Respect to Intelligence Activities (“Church
Committee”) and the House Select Committee on Assassinations
(“HSCA”) investigated DRE activities in 1963, his FOIA
request falls under an exception in the CIA Act.

Section 431(c) of the CIA Act provides that:

[E]xempted operational files shall continue to be
subject to search and review for information
concerning . . . (3) the specific subject matter of an
investigation by the congressional intelligence
committees, the Intelligence Oversight Board, the
Department of Justice, the Office of General Counsel
of the Central Intelligence Agency, the Office of
Inspector General of the Central Intelligence Agency,
or the Office of the Director of National Intelligence
for any impropriety, or violation of law, Executive
order, or Presidential directive, in the conduct of an
intelligence activity. [emphasis added]

For exception (3) to apply, the plain text directs that three
questions must be answered in the affirmative. First, does the
Church Committee or the HSCA qualify as “congressional
intelligence committees” under the CIA Act? The CIA does not
challenge that the two committees qualify as intelligence
committees, and treating the Church Committee as such appears
to be consistent with congressional intent.1 The Church

1
Originally, the exception in the CIA Act provided that
operational files should be searched when a FOIA request concerned
“the specific subject matter of an investigation by the intelligence
committees of the Congress.” Pub. L. No. 98-477, § 701(c)(3), 98
Stat. 2209 (1984). The legislative history of the CIA Act indicates
that the Church Committee qualifies as “intelligence committees of the
congress” within the meaning of § 431(c)(3). See H.R. Rep. NO.
98-726, at 29 (1984), reprinted in 1984 U.S.C.C.A.N. 3741, 3767.
 9

Committee was the predecessor to the Senate Select Committee
on Intelligence, which is specifically named in the definition of
“congressional intelligence committees,” 50 U.S.C. § 401a(7);
the permanent body was created on the recommendation of the
Church Committee.2 Moreover, according to evidence proffered
by Morley, Congress created the HSCA to follow up on the
Church Committee recommendation that Congress investigate
further “why Oswald’s contacts with the DRE . . . had been
examined so superficially.” Decl. of G. Robert Blakey, ¶¶ 9, 10.
(June 27, 2006). However, it was the House Select Committee
on Intelligence (“Pike Committee”), not the HSCA, that gave
rise to the Permanent Select Committee on Intelligence of the
House of Representatives. See Lt. Gerald F. Reimers II, Foreign
Intelligence Surveillance Act, 4 J. Nat’l Security L. 55, 74
(2000). It matters not, however, that the HSCA does not
necessarily fall within the definition of a congressional
intelligence committee for purposes of § 431(c), for the Church
Committee does and that is sufficient for the exception to apply.

Second, does Morley’s request concern “the specific subject

However, the Intelligence Authorization Act of 2003, Pub. L. No.
107-306, § 353(b)(10), 116 Stat. 2383, 2402, struck the term
“intelligence committees of the Congress” and substituted
“congressional intelligence committees,” defining this phrase as “(A)
the Select Committee on Intelligence of the Senate; and (B) the
Permanent Select Committee on Intelligence of the House of
Representatives,” 50 U.S.C. § 401a(7).
2
The Church Committee Final Report states: “This
experience underscores the need for an effective legislative oversight
committee which has sufficient power to resolve such fundamental
conflicts between secrecy and democracy.” Select Committee to
Study Governmental Operations with Respect to Intelligence
Activities (“Church Committee”), Foreign and Military Intelligence,
S. Rep. No. 94-755, Book I, at 424 (1976). The Senate Select
Committee on Intelligence was established by S. Res. 400, 94th Cong.,
122 Cong. Rec. 4754 (1976).
 10

matter of an investigation by the congressional intelligence
committees”? 50 U.S.C. 431(c)(3). The legislative history of
the CIA Act indicates that “[t]he specificity requirement in the
phrase ‘specific subject matter of the investigation’ tailors the
scope of information remaining subject to the FOIA process to
the scope of the specific subject matter of the investigation.”
H.R. Rep. No. 98-726, at 31 (1984), reprinted in 1984
U.S.C.C.A.N. 3741, 3769. In fact, the scope of the Church
Committee investigation specifically encompassed operations of
the CIA and other federal agencies in investigating the
assassination. See Church Committee, The Investigation of the
Assassination of President John F. Kennedy: Performance of the
Intelligence Agencies, S. Rep. No. 94-755, Book V, at 1 (1976).
Significantly, the Church Committee found that “the CIA
inquiry [] was deficient on the specific question of the
significance of Oswald’s contacts with pro- and anti-Castro
groups for the many months before the assassination.” Id. at 6.
Morley proffers evidence that Joannides had access to relevant
information concerning the assassination through his
connections with the DRE. As the DRE’s CIA case officer
between 1962 and 1964 (a fact that the CIA neither denies nor
confirms), Morley maintains that Joannides would have been
central to the CIA’s inquiry into Oswald’s contacts with that
particular anti-Castro group.

The CIA contends that this congressional investigation does
not trigger § 431(c)(3) because it was not specifically about
Joannides. See Appellee’s Br. at 16; Oral Arg. Tape at 21:37,
22:13 (Oct. 22, 2007). This restrictive reading of the statute is
foreclosed by its literal meaning. See Gen. Dynamics Land Sys.,
Inc., v. Cline, 540 U.S. 581, 600 (2004); Skidmore v. Swift &
Co., 323 U.S. 134 (1944). Congress chose to use the word
“concerning” in § 431(c), “a broadly inclusive term,” ACLU v.
Dep’t of Defense, 351 F. Supp. 2d 265, 272 (S.D.N.Y. 2005),
that precludes the interpretation offered by the CIA.

In support of its proposition, the CIA relies on the only
opinion by a circuit court of appeals to address § 431(c)(3). In
 11

Sullivan v. CIA, 992 F.2d 1249, 1255 (1st Cir. 1993), the First
Circuit held that the exception was inapplicable because “[i]t is
simply not enough that information which bore in some remote
way on the request surfaced in the course of an official
investigation.” In that case, the court addressed a FOIA request
pertaining to the disappearance of the requester’s father while
allegedly on an airborne CIA-sponsored mission to drop
propaganda over Cuba. The court construed the exception to
require more than “a congressional investigation that touches on
CIA conduct in a particular incident or region,” id. at 1254.
Sullivan addressed a situation substantially different from
Morley’s case. Joannides has more than a “remote” relationship
to the purpose of the investigation, according to Morley’s
evidence, as he was the case officer for an anti-Castro group that
had documented contacts with Oswald.

We hold that the requirement of § 431(c)(3) that a FOIA
request concern “the specific subject matter of an investigation”
is satisfied where the investigating committee would have
deemed the records at issue to be central to its inquiry. This
interpretation is supported by the legislative history of the CIA
Act, which indicates that information that merely “surfaced in
the course of the investigation” should not trigger the §
431(c)(3) exception. H.R. Rep. No. 98-726, at 31. Morley does
not seek information that bears only a “remote” relationship to
the investigation by the Church Committee, but rather
information central to the committee’s “direct investigation.”
Sullivan, 992 F.2d at 1255. The Church Committee posed a
targeted inquiry investigating the performance of the
intelligence agencies surrounding a particular event. The role of
individual CIA officers during this event was key to such an
inquiry, information that the committee would have sought out
rather than merely happened upon. Even the CIA recognizes
that the focus of the committee’s investigation was the
relationship between organizations like the DRE and the
Kennedy assassination. See Appellee’s Br. at 16. The evidence
proffered by Morley indicates that Joannides was in a position
of central importance to such an investigation and was thus
 12

covered by its “specific subject matter.”

Third, was the investigation “for any impropriety, or
violation of law, Executive order, or Presidential directive, in the
conduct of an intelligence activity”? 50 U.S.C. § 431 (c)(3).
The inclusion of the word “impropriety” alongside “violation of
law” suggests that Congress intended the terms to apply broadly;
the misconduct need not amount to illegality. This requirement
is satisfied when a congressional investigation is spawned by
alleged improprieties and seeks to uncover them. The Church
Committee investigation meets this criteria because it sought to
assess the performance of the intelligence agencies in
conducting their own investigations of the assassination; in fact,
the Church Committee found that the CIA was “deficient” in its
performance, further indicating that it was specifically
investigating the possibility of CIA “impropriety.” Such an
investigation implicates Joannides, who, according to Morley’s
proffers, was a figure central to the CIA’s investigation both
before and after the assassination, and someone who may have
been directly implicated in the CIA’s alleged deficiencies.

Language in Sullivan that suggests that the Church
Committee did not investigate CIA “impropriety, or violation of
law” was unnecessary to its holding and limited by its context.
The First Circuit stated that the Church Committee’s inquiry fell
outside of the exception because it “was not a direct
investigation into CIA wrongdoing,” despite the fact that “there
were instances in which the Committee searched for agency
misconduct.” 992 F.2d at 1255. However, once the First Circuit
concluded that information about the requester’s father had only
a tenuous relationship to the Church Committee’s investigation,
and thus did not concern “the specific subject matter of an
investigation,” it had no need to reach the issue of whether the
Church Committee investigated CIA impropriety. Further,
Sullivan acknowledges that the Church Committee “considered
American operations against Castro and, inevitably, their
legality.” Id. An investigation of an illegal agency operation
satisfies the dictates of § 431(c)(3), and thus our holding that the
 13

Church Committee investigated agency “impropriety, or
violation of law” is not in tension with Sullivan.

For these reasons, we hold that Morley’s FOIA request
meets the § 431(c)(3) criteria for mandating the search of the
CIA’s operational files under the FOIA. Because the CIA did
not search these files, we remand the case to the district court so
that the CIA may do so.

2. Search of Records Released to NARA. Morley also
correctly contends that the search was inadequate because the
CIA did not search records that had been transferred to NARA
pursuant to the JFK Act. The Supreme Court has held that “an
agency has [] ‘withheld’ a document under its control when, in
denying an otherwise valid request, it directs the requester to a
place outside of the agency where the document may be publicly
available.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,
150 (1989).

The FOIA has a “settled policy” of “‘full agency
disclosure.’” Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d
1060, 1064 (D.C. Cir. 1988) (quoting S. Rep. No. 89-813, at 3
(1965)), aff’d, 492 U.S. 136. Congress has authorized only nine
categories of exemption from this policy, and practical
considerations that documents exist in another forum outside of
the agency is not amongst them. “[A] categorical refusal to
release documents that are in the agency’s ‘custody’ or ‘control’
for any reason other than those set forth in the Act’s enumerated
exceptions would constitute ‘withholding.’” McGehee v. CIA,
697 F.2d 1095, 1110 (D.C. Cir. 1983) (quoting Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-
51 (1980)). Because the CIA does not deny that it has retained
copies of the records transferred to NARA and concedes that
some transferred records are likely to be responsive, it was
obligated to search those records in response to Morley’s FOIA
request.

The same holds true for the 1,100 CIA documents contained
 14

in the protected collection at NARA. The JFK Act provides for
the postponement of disclosure given “clear and convincing
evidence” of enumerated circumstances requiring secrecy. JFK
Act § 6; see also id. § 2(a)(7). The CIA confirms that “1,100
documents are located in NARA’s protected collection, and will
be released in 2017.” Dorn Decl. ¶ 29 n.5. Although the CIA
asserts on appeal that it “is not required to search these
documents . . . because the ‘postponed collection’ under the JFK
Act is not reasonably likely to contain information responsive to
[Morley]’s request,” Appellee’s Br. at 19, this post hoc
explanation cannot make up for the Dorn Declaration’s silence.
See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.,
463 U.S. 29, 50 (1983). The CIA did not distinguish between
the protected and unprotected records when it directed Morley
to the NARA collection, instead indicating that the JFK
Collection as a whole is likely to contain responsive documents.
Moreover, even if the protected records could be withheld under
one of the FOIA exemptions, that does not absolve the CIA of
its duty to identify responsive documents, claim the relevant
exemptions in the Vaughn index, and explain its reasoning for
withholding the documents in its affidavit. Indeed, the JFK Act
itself indicates that release of records to NARA does not absolve
agencies of their duties under the FOIA: “Nothing in this Act
shall be construed to eliminate or limit any right to file requests
with any executive agency or seek judicial review of the
decisions pursuant to [the FOIA].” JFK Act § 11(b).

In sum, the blanket statement in the Dorn Declaration that
the CIA did not search records made available through NARA
does not warrant summary judgment on this aspect of Morley’s
FOIA request. On remand the district court shall direct the CIA
to search these documents.

3. Search for “Missing” Documents. Morley is less
persuasive in contending that the search was inadequate because
there are certain documents that he suspects the CIA has in its
possession but withheld. First, Morley’s FOIA request sought
“[a]ll records in the Office of General Counsel pertaining to the
 15

selection of George Joannides as liaison to the [HSCA] in May
1978.” 2003 Letter at 2. Morley relies on a passage in a book
written by Scott Breckinridge, the former General Counsel of
the CIA, that refers to “George J.” who was chosen as the
agency’s liaison to the HSCA. Morley also states in his sworn
declaration that the CIA’s meetings with Joannides “were
undoubtedly memorialized by one or more of the participants.”
Decl. of Jefferson Morley ¶ 13 (Apr. 25, 2005). This is hardly
proof that such documents exist. See Weisberg v. U.S. Dep’t of
Justice, 745 F.2d 1476, 1487 (D.C. Cir. 1984). But even if
citations to Morley’s own affidavit were sufficient to show that
files pertaining to Joannides’ selection as liaison once did exist,
“failure of an agency to turn up one specific document in its
search does not alone render a search inadequate.” Iturralde,
315 F.3d at 315. Paragraph 44 of the Dorn Declaration states
that the CIA directed the Office of General Counsel to search its
relevant database and that responsive documents were released
to Morley.

Second, Morley contends that the CIA has failed to produce
the “daily diary” of its activity concerning the HSCA. Again
Morley relies on his declaration and asserts in his brief that it
“strains credulity” to think that the documents that he seeks do
not exist. Appellant’s Br. at 28. This assertion amounts to
nothing more than “mere speculation that as yet uncovered
documents might exist,” which is not enough to “undermine the
determination that the agency conducted an adequate search for
the requested records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C.
Cir. 2004).

Third, Morley notes that the CIA did not disclose any of the
monthly progress reports filed by Joannides while he was the
case officer for the DRE. Morley relies on the fact that the
monthly reports of the DRE case officers’ both before and after
Joannides’ assignment are available at NARA. The CIA’s brief
explains in a footnote that it addressed these “missing” monthly
reports in a memorandum to the Review Board’s Executive
Director: “The memorandum states that notwithstanding rather
 16

extensive efforts, searches conducted by the Agency failed to
locate any of the reports that appear to be missing [between]
December 1962 [and] April 1964 and provided background
which may explain the lack of such reports for this time period.”
Appellee’s Br. at 23 n.6 (internal citations omitted).

However, the CIA’s failure to provide a similar explanation
in its affidavit or provide the memorandum itself to Morley
makes it impracticable for the court to review the adequacy of
its search. It does not suffice for purposes of summary judgment
that the CIA has written a memorandum to NARA that “may
explain” the lack of responsive documents; rather, the court
must be able to ascertain if it has explained the records’ absence.
In Weisberg v. U.S. Department of Justice, 627 F.2d 365, 369
(D.C. Cir. 1980), the court stated that the FBI agent’s affidavit

assert[ed] no personal knowledge that the [record]
really was discarded, so [one] permissible inference is
that [the agent] is incorrect in his belief and that the
[record] remains somewhere in the FBI’s domain. A
factual question thus persists, and it was inappropriate
for the District Court to undertake to resolve it at the
stage of summary judgment.

The evidence here similarly indicates that there is a factual
question as to whether or not the “missing” monthly reports still
exist. Although the CIA indicates these documents are
responsive, it has provided neither Morley nor the court with an
explanation regarding the reports’ whereabouts. Cf. Maynard v.
CIA, 986 F.2d 547, 565 (1st Cir. 1993). On remand the CIA
must supplement its explanation.

4. Search of Other Files. The Dorn Declaration never
addresses Morley’s request that the CIA search its “soft files.”
Although the CIA states in its brief that “soft” files were
included in its search, see Appellee’s Br. at 14, this post hoc
explanation cannot make up for the fact that the CIA provided
an inadequate description of its search in its response to Morley
 17

and in the Dorn Declaration. However, to the extent Morley
also contends that the search was inadequate because the CIA
failed to search records referenced in the responsive documents
that were released, Steinberg v. U.S. Department of Justice, 23
F.3d 548, 552 (D.C. Cir. 1994), is dispositive:

[M]ere reference to other files does not establish the
existence of documents that are relevant to appellant’s
FOIA request. If that were the case, an agency
responding to FOIA requests might be forced to
examine virtually every document in its files,
following an interminable trail of cross-referenced
documents like a chain letter winding its way through
the mail. [] FOIA clearly does not impose this burden
upon federal agencies . . . .

5. Adequacy of CIA’s Description. Morley is correct
that the CIA failed to describe its search adequately. The Dorn
Declaration does not “explain in reasonable detail the scope and
method of the search conducted by the agency [sufficient] to
demonstrate compliance with the obligations imposed by the
FOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).
Dorn states that the “CIA produced records that were a product
of a reasonable, diligent and thorough search.” Dorn Decl. ¶ 43.
But Dorn provides little more than conclusory adjectives and
does not provide sufficient detail for the court itself to determine
the search’s adequacy.

The Declaration incorporates a general explanation of how
the agency responds to all FOIA requests, and after describing
how a single FOIA request must be divvied up between multiple
component units within the CIA, Dorn states that “each
component must then devise its own search strategy, which
includes identifying which of its records systems to search as
well as what search tools, indices, and terms to employ.” Id. ¶
13. But the two brief paragraphs in the Declaration explaining
the search itself, Dorn Decl. ¶ 43-44, provide no information
about the search strategies of the components charged with
 18

responding to Morley’s FOIA request. Dorn merely identifies
the three directorates that were responsible for finding
responsive documents without “identify[ing] the terms searched
or explain[ing] how the search was conducted” in each
component. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68
(D.C. Cir. 1990). Neither does Dorn provide any indication of
what each directorate’s search specifically yielded. See, e.g.,
Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 891 (D.C.
Cir. 1995). The remainder of the Declaration describes only
basic CIA policy regarding FOIA responses and a description of
the CIA’s correspondence with Morley. Consequently, the
Declaration’s terse treatment of the CIA’s efforts to locate
documents that were responsive to Morley’s FOIA request lacks
the detail “necessary to afford a FOIA requester an opportunity
to challenge the adequacy of the search and to allow the district
court to determine if the search was adequate in order to grant
summary judgment.” Oglesby, 920 F.2d at 68.

In view of Morley’s various concerns about the adequacy of
the CIA’s search, and the CIA’s response with a “single,
conclusory affidavit,” Perry, 684 F.2d at 128, that generally
asserts adherence to the reasonableness standard, the Dorn
Declaration is insufficient to carry the CIA’s burden on
summary judgment to “prove[] that no substantial and material
facts are in dispute and that [it] is entitled to judgment as a
matter of law.” Nat’l Cable Television Assoc. v. FCC, 479 F.2d
183, 186 (D.C. Cir. 1973). On remand, the CIA must expand its
description of the search it conducted. Because the CIA
inadequately explained its search, we need not address Morley’s
objection that the court should not defer to the Dorn Declaration
in view of the CIA’s alleged bad faith.

C. Adequacy of Vaughn index
Morley further challenges the sufficiency of the Vaughn
index because it does not identify the specific exemption
invoked to justify each redaction in the released documents.
The court has provided repeated instruction on the specificity
required of a Vaughn index. In King v. U.S. Department of
 19

Justice, 830 F.2d 210 (D.C. Cir. 1987), the court stated that
“when an agency seeks to withhold information, it must provide
‘a relatively detailed justification, specifically identifying the
reasons why a particular exemption is relevant and correlating
those claims with the particular part of a withheld document to
which they apply,’” id. at 219 (quoting Mead Data Cent., Inc. v.
U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).
The court held that a “[c]ategorical description of redacted
material coupled with categorical indication of anticipated
consequences of disclosure is clearly inadequate.” Id. at 224.
At the same time, in Judicial Watch, Inc. v. Food & Drug
Administration, 449 F.3d 141, 147 (D.C. Cir. 2006), the court
stated that “[w]e have never required repetitive, detailed
explanations for each piece of withheld information – that is,
codes and categories may be sufficiently particularized to carry
the agency’s burden of proof.” The court observed that
“[e]specially where the agency has disclosed and withheld a
large number of documents, . . . particularity may actually
impede court review and undermine the functions served by a
Vaughn index.” Id. In holding that the Vaughn index was
adequate, the court noted the index included eleven categories
of information describing the nature of each record. Id. at 146-
47.

The Morley Vaughn index contains many of the same
categories as in Judicial Watch, including an identification
number, the document’s subject, and the date. Although the
CIA has not matched each redaction with a specific exemption,
its Vaughn index does identify the exemptions claimed for each
individual document. In Judicial Watch the index and the
agency affidavit worked in tandem, the court validating the
index because it “tied each individual document to one or more
exemptions, and the [agency’s] declaration linked the substance
of each exemption to the documents’ common elements.” Id. at
147. The released portion of the document supplements the
Vaughn index, so that “[t]he released content of the documents
served to illuminate the nature of the redacted material.” Id. at
145. As described below in discussing several of the claimed
 20

FOIA exemptions, the Dorn Declaration is less fulsome in tying
together the exempted documents and justifying their
withholding. Still, the descriptions of the documents in the
Vaughn index, while categorical and with little variation from
page to page, convey enough information for Morley and the
court to identify the records referenced and understand the basic
reasoning behind the claimed exemptions. Summary judgment
was therefore appropriate on the adequacy of the CIA’s Vaughn
index.

D. Segregability
Morley notes that the district court failed to address the
segregability of the withheld documents. The FOIA requires
that “[a]ny reasonably segregable portion of a record shall be
provided to any person requesting such record after deletion of
the portions which are exempt.” 5 U.S.C. § 552(b). “[T]he
District Court had an affirmative duty to consider the
segregability issue sua sponte.” Trans-Pac. Policing Agreement
v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).
Thus, “a district court clearly errs when it approves the
government’s withholding of information under the FOIA
without making an express finding on segregability.” PHE, Inc.
v. Dep’t of Justice, 983 F.2d 248, 252 (D.C. Cir. 1993). The
district court’s failure to fulfill this responsibility requires a
remand.

E. Exemptions
Exemption 1 provides that the disclosure provisions of the
FOIA do not apply to matters that are “(A) specifically
authorized under criteria established by an Executive order to be
kept secret in the interest of national defense or foreign policy
and (B) are in fact properly classified pursuant to such Executive
order.” 5 U.S.C. § 552(b)(1). The CIA relies on Executive
Order 12,958, “Classified National Security Information,” 60
Fed. Reg. 19,825 (Apr. 17, 1995), in exempting certain material.
Morley makes three points: (1) The Dorn Declaration makes
only conclusory statements about national security threats under
Exemption 1; (2) The passage of time since the Cold War no
 21

longer warrants protection of documents concerning the CIA’s
operations in Cuba; and (3) The CIA has already released to
NARA the same kind of information he seeks under the JFK
Act, undercutting any potential damage to national security that
the CIA currently claims.

Dorn’s justification for the invocation of Exemption 1 is
terse. She briefly identifies the two categories of the Executive
Order under which information was classified – “intelligence
activities . . . , intelligence sources or methods, or cryptology”
and “foreign relations or foreign activities of the United States,
including confidential sources.” Dorn Decl. ¶ 48. She then
restates the Executive Order’s standard for classifying certain
information “which reasonably could be expected to cause
damage to the national security.” Id.

Although the court has “consistently maintained that vague,
conclusory affidavits, or those that merely paraphrase the words
of a statute, do not allow a reviewing judge to safeguard the
public’s right of access to government records,” Church of
Scientology of Cal., Inc. v. Turner, 662 F.2d 784, 787 (D.C. Cir.
1980) (per curiam), the text of Exemption 1 itself suggests that
little proof or explanation is required beyond a plausible
assertion that information is properly classified. Morley’s
argument for declassification does not overcome the
“substantial weight” the court must accord “to an agency’s
affidavit concerning the details of the classified status of the
disputed record.” Military Audit Project v. Casey, 656 F.2d 724,
738 (D.C. Cir. 1981) (emphasis in original) (internal quotation
marks omitted). Furthermore, where courts have called for more
detailed explanations of the potential dangers to national
security that justify the use of Exemption 1, see, e.g., Oglesby v.
U.S. Dep’t of Army, 79 F.3d 1172, 1184 (D.C. Cir. 1996);
Church of Scientology, 662 F.2d at 787, they have conflated
Exemption 1 and Exemption 3, which also deals with national
security concerns. Upon considering the CIA’s more thorough
discussion of the national security implications in Exemption 3,
we conclude that, taken together, the Dorn declaration made a
 22

proper showing under Exemption 1.

As for Morley’s assertion that this kind of information has
already been released under the JFK Act, the only evidence he
proffers is a declaration by John M. Newman, Professor of
History at the University of Maryland. Notably, in
Assassination Archives & Research Center v. CIA (“AARC II”),
334 F.3d 55, 59 (D.C. Cir. 2003), the court rejected a nearly
identical declaration by Newman. In that case, the court noted
that the previously disclosed material must be “as specific as”
the sought material. Id. at 60. “Prior disclosure of similar
information does not suffice; instead, the specific information
sought by the plaintiff must already be in the public domain by
official disclosure. The insistence on exactitude recognizes ‘the
Government’s vital interest in information relating to national
security and foreign affairs.’” Wolf v. CIA, 473 F.3d 370, 378
(D.C. Cir. 2007) (emphasis in original) (citation omitted).
Newman’s declaration at most proves that “[a]ll of this kind of
information has been revealed” under the JFK Act. Decl. of
John M. Newman ¶ 9 (Mar. 5, 2006). Unable to point to
specific information that was previously released and is now
withheld, Morley’s challenge to the CIA’s reliance on
Exemption 1 fails.

Exemption 2 protects from disclosure records that are
“related solely to the internal personnel rules and practices of an
agency.” 5 U.S.C. § 522(b)(2). In Schwaner v. Department of
Air Force, 898 F.2d 793 (D.C. Cir. 1990), the court identified a
two-step process for determining if records fall within
Exemption 2: “‘First, the material withheld should fall within
the terms of the statutory language.’” Id. at 794 (quoting
Founding Church of Scientology of Wash., D.C., Inc. v. Smith,
721 F.2d 828, 830 n.4 (D.C. Cir. 1983)). Second, “[i]f so, the
agency may defeat disclosure by proving that either ‘disclosure
may risk circumvention of agency regulation,’” id. (quoting
Rose, 425 U.S. at 369), “or ‘the material relates to trivial
administrative matters of no genuine public interest,’” id. at 794
(quoting Founding Church of Scientology, 721 F.2d at 830 n.4).
 23

Notably, “[t]his exemption does not shield information on the
sole basis that it is designed for internal agency use.”
Fitzgibbon v. U.S. Secret Serv., 747 F. Supp. 51, 56 (D.D.C.
1990) (citing Schwaner, 898 F.2d at 794, 796).

The Dorn Declaration provides only a single sentence of
explanation regarding the agency’s reason for withholding
documents under this exemption: “There is no public interest in
the disclosure of such internal procedures and clerical
information that would justify the administrative burden that
would be placed upon CIA.” Dorn Decl. ¶ 51. This statement
seems to place the burden on Morley to assert a public interest
before such information will be released. Indeed, the district
court, after determining that the withheld information is
“sufficiently related to the internal concerns of [the] agency,”
concluded that Morley’s arguments were “unavailing” because
he “failed to provide a scintilla of evidence to show how release
of information pertaining to purely personnel rules and practices
of the CIA . . . would shed light on the alleged activities of Mr.
Oswald or the CIA’s knowledge thereof.” Mem. Op. Sept. 29,
2006 at 14. However, it is the agency’s burden to establish that
the information withheld is too trivial to warrant disclosure. See
5 U.S.C. 552(a)(4)(B); Tax Analysts, 492 U.S. at 142 n.3. The
Vaughn index for the nine documents withheld under this
exemption adds little insight into whether the type of
information deemed exempt is trivial, vaguely referring only to
“CIA internal organizational data” and “internal Agency
regulations and practices.” The CIA “has failed even to suggest
any . . . reason or need to keep secret” the administrative routing
information and internal data. Fitzgibbon, 747 F. Supp. at 57.
Morley need not produce dispositive evidence that there is a
public interest in this information; he need only provide
evidence of a genuine issue of material fact, and in the face of
the agency’s complete lack of evidence regarding this
exemption, he has done so. On remand the district court shall
direct the CIA to supply the explanation necessary to meet its
burden.
 24

Exemption 3 covers records that are “specifically exempted
from disclosure by statute . . . provided that such statute (A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552(b)(3). The CIA
explains that some records are properly withheld under the
National Security Act and the CIA Act. See 50 U.S.C. §§ 403g,
403-1(i). Certainly, the Dorn Declaration gives a much more
elaborate description on Exemption 3 than it does in relation to
any other issue in the case, providing the court substantial
insight into the CIA’s reasons for protecting intelligence sources
and methods along with other internal information. Indeed,
Dorn draws causal connections between the release of certain
kinds of information and the danger to national security that
would result, satisfying the CIA’s obligation to identify the
“particularized harm that could be expected to occur from
production of the requested information.” Church of
Scientology, 662 F.2d at 785.3 This information “provide[s] the

3
The Dorn Declaration includes most of the features noted in
Church of Scientology, where

[t]he affidavits include[d] a lengthy general
discussion of the adverse consequences that could
flow from releasing the information withheld. The
release of any particular document, the CIA warned,
could lead to one or more of the following harmful
results: breaching agreements with foreign
intelligence services, refusal of intelligence sources
to share information in the future, revelation of
intelligence-gathering methods, and disclosure of the
identity of foreign or CIA intelligence operatives
either directly or by inference from the content of the
information. The affidavits assert that release of a
message’s content could lead to the revelation of its
source, since certain types of information are known
 25

kind of detailed, scrupulous description that enables a District
Court judge to perform a searching de novo review,” id. at 786.

Morley’s assertions regarding specific documents that
should have been released are to no avail. In Ass’n of Retired
Rail Road Workers v. U.S. Rail Road Retirement Board, 830
F.2d 331, 336 (D.C. Cir. 1987), the court explained that
“Exemption 3 differs from other FOIA exemptions in that its
applicability depends less on the detailed factual contents of
specific documents; the sole issue for decision is the existence
of a relevant statute and the inclusion of withheld material
within the statute’s coverage.” It is particularly important to
protect intelligence sources and methods from public disclosure.
See CIA v. Sims, 471 U.S. 159, 167-69 (1985). Given the
special deference owed to agency affidavits on national security
matters, Morley’s specific challenges to various documents are
insufficient to show that summary judgment on Exemption 3
was inappropriate.

However, the CIA’s unsubstantiated Glomar response, see
Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976), is not
similarly sufficient. In response to Morley’s FOIA request, the
CIA stated: “With respect to that portion of your request seeking
records regarding Mr. Joannides [sic] participation in any covert
project, operation, or assignment, unless of course previously
acknowledged, the CIA can neither confirm nor deny the
existence or nonexistence of records responsive to your
request.” 2004 Letter at 2. The only question before the court
is whether the Dorn Declaration “explained in reasonably
specific detail the danger to intelligence sources and methods if
the existence of responsive records were disclosed,” Wolf, 473
F.3d at 373. Within its explanation of its withholding of

to be in the possession of only a few.

662 F.2d at 786.
 26

intelligence sources under Exemption 3, the CIA asserts that
“[a]n official acknowledgment of [clandestine activity] could
jeopardize the source’s career, family or even his life.” Dorn
Decl. ¶ 57. But this is the only allusion to the need for a Glomar
response in the CIA’s affidavit and it is not linked to the Glomar
response. On remand, the CIA must substantiate its Glomar
response with “reasonably specific detail.”

Exemption 5 excludes from mandatory release “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). The CIA
withheld only two documents under this exemption.

In Coastal States Gas Corp. v. Department of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980), the court established the
standard for review of agency claims under Exemption 5: “To
test whether disclosure of a document is likely to adversely
affect the purposes of the privilege, courts ask themselves
whether the document is so candid or personal in nature that
public disclosure is likely in the future to stifle honest and frank
communication within the agency.” But the opacity of the
CIA’s explanation does not permit the court to apply the test.
“[I]t is enough to observe that where no factual support is
provided for an essential element of the claimed privilege or
shield, the label ‘conclusory’ is surely apt.” Senate of P.R. v.
U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987)
(emphasis in original).

The Declaration’s only statement of relevance is that “[a]s
shown in the attached Vaughn index, CIA has properly invoked
Exemption (b)(5) to withhold information protected by the
deliberative-process privilege from only two documents.” Dorn
Decl. ¶ 85. The first document exempted under this privilege is
denied in full, and the Vaughn index explains, “the document
contains recommendations – concerning the waiver of certain
reinvestigation methods – that are protected by the deliberative
process privilege.” The second document was partially released,
 27

and the list of reasons for the various exemptions in the Vaughn
index includes “material that is predecisional and deliberative in
nature.”

In order for the court to determine if information is
“deliberative” it must “reflect the personal opinions of the writer
rather than the policy of the agency.” Coastal States Gas, 617
F.2d at 866. “Factual material that does not reveal the
deliberative process is not protected by this exemption.” Paisley
v. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983) (citing EPA v. Mink,
410 U.S. 73, 89-91 (1973)), vacated in part on other grounds,
724 F.2d 201 (D.C. Cir. 1984). The minimal information given
in the affidavit and Vaughn index provide the court with no way
of knowing if the CIA has properly applied this standard in
exempting material from the two records identified. Moreover,
“[t]o ascertain whether the documents at issue are pre-
decisional, the court must first be able to pinpoint an agency
decision or policy to which these documents contributed.” Id.
at 698. The CIA has provided no hint of a final agency policy
its “predecisional” material preceded. According to Morley, the
CIA has deleted the identities of the author and recipient in the
document that was partially released, giving the court little
indication about the nature of the records withheld. See
Appellant’s Br. at 50. “The identity of the parties to the
memorandum is important; a document from a subordinate to a
superior official is more likely to be predecisional, while a
document moving in the opposite direction is more likely to
contain instructions to staff explaining the reasons for a decision
already made.” Coastal States Gas, 617 F.2d at 868.

Because the Dorn declaration and Vaughn index fail to
provide “specific and detailed proof that disclosure would
defeat, rather than further, the purposes of FOIA,” Mead Data
Cent., 566 F.2d at 258, on remand the CIA must supply at least
“the minimal information necessary to make a determination,”
Coastal States Gas, 617 F.2d at 279.

Exemption 6 provides that agencies need not disclose
 28

“personnel and medical files and similar files the disclosure of
which would constitute a clearly unwarranted invasion of
personal privacy.” 5 U.S.C. § 552(b)(6). “Exemption 6’s
requirement that disclosure be ‘clearly unwarranted’ instructs us
to ‘tilt the balance (of disclosure interests against privacy
interests) in favor of disclosure.’” Wash. Post Co. v. U.S. Dep’t
of Health & Human Servs., 690 F.2d 252, 261 (D.C. Cir. 1982)
(quoting Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir. 1975)).
This exemption creates a “heavy burden”; indeed, “under
Exemption 6, the presumption in favor of disclosure is as strong
as can be found anywhere in the Act.” Id.

Morley does not contest that the biographical information
withheld qualifies as personnel, medical, or similar files.
Rather, he objects to the district court’s determination that the
information withheld constitutes a clearly unwarranted invasion
of personal privacy. The Dorn Declaration does not sufficiently
respond to this claim. After finding that the records qualify as
personnel or similar files, Dorn merely assumes the exempt
status of the records. Dorn states that “because its disclosure
would constitute a clearly unwarranted invasion of the personal
privacy of third parties, it is subject to (b)(6) protection,” Dorn
Decl. ¶ 87, neglecting any analysis of the “clearly unwarranted
invasion” criterion. Dorn then asserts that there is “no
overriding public interest” in these records. Id. ¶ 88.
Significantly, she applies the wrong standard: “Even if some
minuscule public interest could be found in disclosing the third-
party information at issue, the balance would still tilt
dramatically against disclosure.” Id. ¶ 88. Dorn’s circular
reasoning only further highlights her failure to substantiate the
asserted privacy interest: “Disclosure of this personal
information would certainly violate the personal privacy of these
third parties. Because the privacy interests involved will clearly
outweigh the negligible public interest in disclosure, I have
determined that the information should not be disclosed.” Id. ¶
89.

Despite its burden to show that withholding is necessary,
 29

the CIA has failed even to articulate the privacy interest in the
records, let alone demonstrate that such privacy interests meet
the standard for an agency’s withholding under Exemption 6.
This falls well below the information provided to the court in
Judicial Watch, which upheld withholding documents under
Exemption 6. There, the court noted that the agency’s
declaration “fairly asserted abortion-related violence as a
privacy interest for both the names and addresses of persons and
businesses associated with [the abortion pill],” id. at 153, and
balanced that privacy interest against the public interest in
disclosure. To the extent the CIA suggests that the privacy
interest in biographical information is self-evident, it is
mistaken. In National Ass’n of Retired Federal Employees v.
Horner, 879 F.2d 873, 877 (D.C. Cir. 1989), the court stated,

We are thus left with circuit precedent establishing
only that the disclosure of names and addresses is not
inherently and always a significant threat to the privacy
of those listed; whether it is a significant or a de
minimis threat depends upon the characteristic(s)
revealed by virtue of being on the particular list, and
the consequences likely to ensue.

As the CIA has failed to explain the extent of the privacy
interest or the consequences that may ensue from disclosure,
summary judgment was inappropriate. On remand, the CIA
must show that disclosure would constitute a “clearly
unwarranted” invasion of personal privacy. See Wash. Post, 690
F.2d at 261 (quoting Rose, 425 U.S. at 378 n.16).

Exemption 7(E) protects from disclosure

records or information compiled for law enforcement
purposes, but only to the extent that the production of
such law enforcement records or information . . . (E)
would disclose techniques and procedures for law
enforcement investigations or prosecutions, or would
disclose guidelines for law enforcement investigations
 30

or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law.

5 U.S.C. § 552(b)(7). In its discussion of Exemption 7(E), the
Dorn Declaration asserts: “The information that has been
withheld could reasonably be expected to provide insight into
CIA Security Center’s clearance and investigatory processes, as
well as certain techniques and procedures used by law
enforcement agencies in coordination with CIA during those
processes.” Background investigations conducted to assess an
applicant’s qualification, such as the CIA’s “clearance and
investigatory processes,” inherently relate to law enforcement.
See Mittleman v. Office of Pers. Mgmt., 76 F.3d 1240, 1243
(D.C. Cir. 1996) (per curium).

The CIA’s security clearance techniques involve a general
process applied to all background investigations of its officers.
“[A]n agency may seek to block the disclosure of internal
agency materials relating to guidelines, techniques, sources, and
procedures for law enforcement investigations and prosecutions,
even when the materials have not been compiled in the course
of a specific investigation.” Tax Analysts v. IRS, 294 F.3d 71,
79 (D.C. Cir. 2002). Furthermore, although the CIA only
mentions that release of this information could “provide insight”
into the security clearance procedure, not that it “could be
expected to risk circumvention” of that procedure, we refrain
from adopting an overly formalistic approach that would require
the agency’s response to mirror the statutory text. It is self-
evident that information revealing security clearance procedures
could render those procedures vulnerable and weaken their
effectiveness at uncovering background information on potential
candidates. Agencies must apply the correct standards when
claiming FOIA exemptions, but they need not parrot the
statutory language in doing so. Morley thus fails to show
summary judgment in favor of the CIA was inappropriate on
Exemption 7(E).

Accordingly, although the CIA properly used the FOIA as
 31

the governing standard in responding to Morley’s request for
documents, presented an adequate Vaughn index, and supported
its withholding of material pursuant to FOIA Exemptions 1, 3
and 7(E), we reverse the grant of summary judgment to the CIA
and remand the case to the district court. On remand, the district
court shall direct the CIA to search its operational files and the
records released to NARA and to supplement the description of
its search and the explanation for withholding material pursuant
to Exemptions 2, 5, and 6. See Campbell, 164 F.3d at 31. The
district court also shall make the requisite segregability
determination.