Dibacco v. U.S. Department of the Army

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ARON DIBACCO, et al.,

Substitute Plaintiffs for Carl Oglesby,

v. Civil Action No. 87-3349 (CKK)
U.S. DEPARTMENT OF THE ARMY, et
al.,

Defendants.

MEMORANDUM OPINION
(September 26, 2013)

Carl Oglesby filed suit in 1987 challenging several agencies’ responses to a Freedom of

Information Act (“FOIA”) request Mr. Oglesby submitted in August 1985. Since that time, the

case has reached the United States Court of Appeals twice then lay dormant for nearly eleven

years. In December 2011, Aron DiBacco and Barbara Webster, the domestic partner and

daughter of the now-deceased Mr. Oglesby, sought to replace Mr. Oglesby as the Plaintiffs in

this action, which the Court permitted. Only three issues remain for the Court to resolve: (1)

whether the National Security Agency has submitted an adequate Vaughn index; (2) whether the

Central Intelligence Agency and United States Department of the Army conducted an adequate

search for potentially responsive records; and (3) whether the CIA and the Army properly

invoked certain FOIA exemptions. Upon consideration of the pleadings,1 the relevant legal

1
The Court’s analysis focused on the following documents, in chronological order
according to motion: (1) Defs.’ Renewed Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. [240];
Pls.’ Opp’n & Cross-Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. [241]; Parties’ Notices of Filing,
ECF Nos. [243, 244]; Defs.’ Reply & Opp’n to Cross-Mot. (“Defs.’ Reply”), ECF No. [246];
Pls.’ Reply, ECF No. [248]; Defs.’ Sur-Reply, ECF No. [254-1]; (2) Pls.’ Mot. to Compel, ECF
No. [249]; Defs.’ Opp’n, ECF No. [251]; Pls.’ Reply, ECF No. [252]; (3) Defs.’ Mot. for Leave
authorities, and the record as a whole, the Court finds the Defendants have met their burden to

show, through detailed declarations and Vaughn indices, that the CIA and the Army conducted

adequate searches for responsive records, and that the NSA, the CIA, and the Army properly

withheld certain information pursuant to various FOIA exemptions. Accordingly, the

Defendants’ [254] Motion for Leave to File Sur-Reply is GRANTED; the Plaintiffs’ [249]

Motion to Compel Disclosure of Ex Parte Declarations is DENIED; the Defendants’ [240]

Renewed Motion for Summary Judgment is GRANTED; and the Plaintiffs’ [241] Cross-Motion

for Summary Judgment is DENIED.

I. BACKGROUND

Since the early 1970s, [Carl] Oglesby has relentlessly pursued the story of
General Reinhard Gehlen, who served as chief of a Nazi spy ring during World
War II and who allegedly later negotiated an agreement with the United States
which allowed his spy network to continue in existence despite post-war de-
nazification programs. After World War II, his group, then known as the Gehlen
Organization, was reportedly reconstituted as a functioning espionage network
under U.S. command. According to Oglesby, control of the Gehlen Organization
shifted back to the newly-sovereign West German Federal Republic as the BND
(for Bundesnachrichtendienst, or “the Federal Intelligence Service”) after ten
years of U.S. control.

Oglesby v. U.S. Dep’t of Army (“Oglesby II”), 79 F.3d 1172, 1175 (D.C. Cir. 1996). To that end,

between August 21 and September 19, 1985, Carl Oglesby submitted nearly identical Freedom

of Information Act requests to the Central Intelligence Agency, the United States Departments of

the Army and State, the National Security Agency, the Federal Bureau of Investigation, and the

National Archives and Records Administration (“NARA”). Oglesby v. U.S. Dep’t of Army

(“Oglesby I”), 920 F.2d 57, 60 (D.C. Cir. 1990). “[W]ith minor variations,” Oglesby sought the

following records from each agency:

to File Sur-Reply, ECF No. [254]; Pls.’ Resp., ECF No. [255].
2
 (1) records on General Gehlen during the period 1944 through 1956;

(2) records on meetings held at Fort Hunt, Virginia, in the summer of 1945
between General Gehlen and U.S. Army General George Strong and Office of
Strategic Services (“OSS”) officer Allen Dulles;

(3) records on the U.S. Army’s “Operation Rusty,” carried out in Europe between
1945 and 1948;

(4) records on post-war Nazi German underground organizations such as
“Odessa,” “Kamaradenwerk,” “Bruderschaft,” “Werewolves” and “Die Spinne”;

(5) records on the OSS’s “Operation Sunrise” carried out in 1945; and

(6) records on Gehlen's relationship with William J. Donovan and Allen Dulles of
the OSS, records on Operation Rusty and Gehlen collected by the Central
Intelligence Group (“CIG”), and records on the Nazi underground organization
“La Arana.”

Id. The agencies released a total of 384 pages, many with redactions, but withheld other

responsive documents. Id. The Army, CIA, NARA, and NSA denied Mr. Oglesby’s request for

a fee waiver. Id. at 61.

Mr. Oglesby filed suit on December 11, 1987. The District Court, per Judge Norma

Holloway Johnson, granted summary judgment in favor of the Defendants. 5/22/1989 Mem. Op.

& Order. On appeal, the D.C. Circuit found that Oglesby had failed to exhaust his administrative

remedies with respect to his requests to the Army, CIA, FBI, NSA, and NARA, but had

constructively exhausted his administrative remedies concerning his request to Department of

State. Oglesby I, 920 F.2d at 59-60. The court remanded the case, instructing Oglesby to

exhaust his remedies, and leaving for the District Court the issue of whether the Department of

State conducted an adequate search in response to Oglesby’s request. Id.

Following the Oglesby I decision, Oglesby exhausted his administrative remedies, and

once again challenged the Defendants’ responses. Oglesby II, 79 F.3d at 1176. The District

Court granted summary judgment in favor of the Defendants, concluding that each Defendant

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agency conducted an adequate search for documents and properly withheld information pursuant

to various FOIA exemptions. Id. Mr. Oglesby appealed, challenging (1) NARA’s refusal to

grant Oglesby a fee waiver; (2) the adequacy of the searches conducted by the Army, CIA, FBI,

NSA, and State Department; (3) the adequacy of the Vaughn indices submitted by the Army,

CIA, and NSA; and (4) the CIA’s and Army’s withholding of certain responsive documents. Id.

at 1175. The D.C. Circuit agreed that the CIA and the Army failed to show they conducted

adequate searches, and that the CIA, Army, and NSA failed to adequately justify their

withholdings. Id. The court affirmed the District Court in all other respects. Id. Upon remand,

the Army, CIA, and NSA eventually filed a renewed motion for summary judgment. 9/25/97

Mot. for Summ. J., ECF No. [129]. Just short of one year later, Oglesby filed an opposition to

the Defendants’ motion and cross-moved for summary judgment. 9/14/98 Cross Mot., ECF No.

[176].2

On October 8, 1998, President William Clinton signed into law the “Nazi War Crimes

Disclosure Act,” or “NWCDA.” P.L. 105-246, 5 U.S.C. § 552 note. The act “required the U.S.

Government to locate, declassify, and release in their entirety, with few exceptions, remaining

classified records about war crimes committed by Nazi Germany and its allies.” Nazi War

Crimes & Japanese Imperial Gov’t Records Interagency Working Group (“IWG” or “the

working group”), Final Report to the United States Congress 1 (Apr. 2007). To oversee the

implementation of NWCDA and the Japanese-Imperial Government Disclosure Act of 2000, the

President created an Interagency Working Group, consisting of the Archivist of the United

States, designated representatives of the FBI, the CIA, the National Security Council, the U.S.

2
Pleadings and orders submitted prior to 2006 are not on the electronic docket, but can
be located in the case file maintained by the Clerk of Court.

4
Holocaust Memorial Museum, and the Departments of Defense, Justice, and State, as well as

three public members. Id. Although General Gehlen is not considered a Nazi war criminal, “the

CIA pledged to acknowledge the intelligence relationship with General Gehlen in records

processed for release under the [NWCDA].” Id. at 48. Accordingly, “the CIA approved the

release of the 2,100-page Army Gehlen file, and in addition released nearly 2,100 pages of

materials relating to Gehlen from its own files as well as files on many of Gehlen’s personnel

and agents—including the operational information in all of these files.” Id.

While the parties’ cross-motions were pending, the Defendants submitted a declaration

from William H. McNair, the Information Review Officer for the Directorate of Operations for

the CIA, indicating that the Director of Central Intelligence declassified the relationship between

the United States Government and the Gehlen Organization. Pls.’ Opp’n, Ex. 1 (McNair Decl.)

at ¶ 9. In light of the declassification, the CIA indicated it needed to reprocess its previous

releases to Oglesby and its referrals to the CIA from other agencies “because additional

information may now be appropriate for release.” 10/31/00 Status Report, ECF No. [211], at 3.

Unsure of what effect the declassification might have on the Defendants’ motion for summary

judgment with respect to the NSA and the Army, the Defendants withdrew the pending motion

for summary judgment. Id. at 6. Oglesby noted that his cross-motion may also be moot due to

the classification. 11/17/00 Order, ECF No. [214], at 2. The Court thus ordered the Defendants

to file a status report by no later than December 11, 2000, indicating “how much time is needed

to complete its review of responsive material” and “how much time is needed to prepare and file

a Vaughn declaration and accompanying motion for summary judgment.” Id.

Pursuant to the Court’s November 2000 Order, the Defendants submitted a status report

indicating that “recent CIA searches conducted in response to the portion of the plaintiff’s FOIA

5
request regarding General Gehlen have resulted in locating approximately 251 boxes of material,

and 2,901 folders, with documents that likely contain records regarding General Gehlen.”3

12/11/00 Status Report, ECF No. [215], at 1-2. The Defendants explained that “CIA reviewers

processing documents for release under the NWCDA [would] be most familiar with the material

at issue in plaintiff’s FOIA request,” therefore the CIA proposed “incorporate[ing] the

processing of plaintiff’s FOIA request into the processing of the documents to be reviewed

pursuant to the NWCDA.” Id. at 2. The Defendants suggested this approach would benefit Mr.

Oglesby because “the CIA [would] release responsive documents to the plaintiff as they [were]

released under the NWCDA, instead of waiting until all documents are processed,” as was the

CIA’s general procedure in FOIA cases. Id. The Defendants estimated that the processing of all

responsive documents under the NWCDA would be completed ‘within a year,” but that

“additional documents that go beyond the scope of the Act—which the CIA anticipates

locating—will also need to be processed.” Id. Accordingly, the CIA requested two years in

which to complete its review of documents and to file a Vaughn index. Id. at 3. The parties

discussed many of the issues raised in the Defendants’ status report during a status hearing on

January 9, 2001. Noting that many of the documents were likely to be in German and thus need

translating before processing, the Court asked the Defendants to submit a further status report in

approximately three weeks. 1/9/01 Tr. 18:21-19:2. The Court anticipated that the Defendants

would file additional status reports as the documents were being processed, but advised

Plaintiffs’ counsel that if he was dissatisfied with the pace at which documents were be reviewed

or produced, he should contact the Court and request another status hearing. Id. 20:15-21.

3
During the status hearing on January 9, 2001, the Defendants estimated that the 251
boxes might contain between 251,000 and 775,000 pages of material. 1/9/01 Tr. 4:15-23.
6
 In a further status report submitted on February 5, 2001, the Defendants explained that

the CIA had identified “numerous code words associated with Gehlen and the Gehlen

Organization, and conducted a search of the applicable records systems using these code words,”

identifying “a potential universe of over 25,000 responsive documents.” 2/5/01 Status Report,

ECF No. [216] at 2. The CIA intended to conduct another search “within the next two months”

using additional search terms. Id. at 3-4. The agency estimated that the review of all potentially

responsive documents, including referrals to other agencies as necessary, would take two years

to complete, “but because of the many variables, the CIA suggest[ed] that it provide interim

status reports on the CIA’s Progress every four to six months.” Id. at 4. The Court did not issue

any orders in response to the February 2001 status report. In fact, between February 2001 and

December 2011, neither party submitted any documentation to the Court, save notice of change

of addresses for counsel and notices of substitution of counsel for the Defendants.

Nearly eleven years after the Defendants’ last status report, the Plaintiffs filed a motion to

substitute Mr. DiBacco and Ms. Webster as Plaintiffs, which Judge James E. Boasberg granted in

his capacity as the motions Judge. 12/1/11 Mot., ECF No. [224]; 1/5/12 Minute Order. The

Plaintiffs then moved to compel the Defendants to, among other things, describe the searches

conducted for potentially responsive documents, provide copies of all draft status reports created

after February 2001, provide copies of all Vaughn indices submitted to the Plaintiffs since

February 2001, “[l]ist and provide copies of all correspondence which was sent to Carl Oglesby

or his attorney regarding this case subsequent to the February 5, 2001 status report,” and “[l]ist

and provide copies of all records released pursuant to this lawsuit subsequent to the February 5,

2001 status report.” Pls.’ Mot. to Compel, ECF No. [227]. Once the Plaintiff’s motion was fully

briefed, the case was randomly reassigned to the undersigned. 5/30/12 Reassignment of Civil

7
Case, ECF No. [237]. The Court promptly denied the Plaintiff’s motion to compel, and ordered

the parties to submit a proposed briefing schedule for dispositive motions. 5/30/12 Minute

Order. The Court adopted the parties’ suggested schedule, and the motions are now ripe for

consideration by the Court.

II. LEGAL STANDARD

Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, 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 (1976) (citation omitted). Congress remained sensitive to

the need to achieve balance between these objectives and the potential that “legitimate

governmental and private interests could be harmed by release of certain types of information.”

Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir.

1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA

“requires federal agencies to make Government records available to the public, subject to nine

exemptions for categories of material.” Milner v. Dep’t of Navy, 131 S.Ct. 1259, 1261-62

(2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the act.” Rose, 425

U.S. at 361. For this reason, the “exemptions are explicitly made exclusive, and must be

narrowly construed.” Milner, 131 S.Ct. at 1262 (citations omitted).

When presented with a motion for summary judgment in this context, the district court

must conduct a “de novo” review of the record, which requires the court to “ascertain whether

the agency has sustained its burden of demonstrating that the documents requested . . . are

exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515

F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its

response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden

8
by means of affidavits, but only if they contain reasonable specificity of detail rather than merely

conclusory statements, and if they are not called into question by contradictory evidence in the

record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted).

“If an agency’s affidavit describes the justifications for withholding the information with specific

detail, demonstrates that the information withheld logically falls within the claimed exemption,

and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad

faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil

Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted).

“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the

exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d

504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings,

the discovery materials on file, and any affidavits or declarations “show[] 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). With these principles in mind, the Court turns to the merits of the parties' cross-

motions for summary judgment.

III. DISCUSSION

A. Miscellaneous Motions

Over a month after filing their Opposition and Cross-Motion, and three days after

submitting their Reply in support of their Cross-Motion, the Plaintiffs filed a motion seeking to

compel the Defendants to disclose four ex parte, classified declarations submitted to the Court in

support of the Defendants’ 1997 renewed motion for summary judgment. Pl.’s Mot. to Compel

at 1. The Plaintiffs cite no legal basis on which the Court may order the Defendants to declassify

and disclose the declarations. Furthermore, the unclassified declarations submitted by the

9
Defendants in support of the same motion indicate the classified declarations were maintained in

the possession of the United States Attorney’s Office, but would be available to the Court for

review at the Court’s request. There is no indication that the Court ever sought to review the

declarations or took possession of the classified declarations, and the Court never ruled on the

Defendants’ motion, which was subsequently withdrawn. On the present record, the unclassified

declarations submitted on the issues identified in the Plaintiffs’ motion to compel appear

sufficient to enable the Plaintiffs to respond to the Defendants’ motion for summary judgment.

Absent any legal basis for ordering the Defendants to review and possibly disclose classified

pleadings, the Plaintiffs’ motion to compel is denied.

The Defendants have also moved for leave to file a surreply. The Plaintiffs do not

oppose the motion, but have asked for additional time to file a response to the surreply. In light

of the numerous arguments raised for the first time in the Plaintiffs’ reply brief in support of their

cross-motion—most if not all of which could have and should have been raised in their initial

motion—a surreply from the Defendants would be useful to the Court in resolving the parties’

dispositive motions. However, a further response from the Plaintiffs would be neither useful nor

equitable. Therefore, the Defendants’ motion for leave to file a surreply is granted, and the

Court shall file the Defendants’ proposed surreply in resolving the parties’ cross-motions.

B. Parties’ Cross-Motions for Summary Judgment

The Defendants move for summary judgment regarding all outstanding issues as to the

responses to Oglesby’s FOIA request by the CIA, the Army, and the NSA. The Court begins

with the Plaintiffs’ objections to a report relied on by the CIA and the Army to explain how

records were processed under the NWCDA. Turning to the claims against the CIA, the Court

finds the CIA conducted an adequate search for records, and no genuine dispute remains as to the

10
CIA’s use of certain FOIA exemptions to justify withholding certain information from the

records produced to the Plaintiffs. With respect to the Army, the Court finds the Army’s

decision to transfer its records to the National Archives and Records Administration as part of

NWCDA review process was not suspect, therefore the Army is entitled to summary judgment

on the grounds it has not wrongfully withheld any responsive records. Finally, the Plaintiffs fail

to raise a genuine dispute as to the adequacy of the Vaughn declaration submitted by the NSA.

Accordingly, the Court grants summary judgment in favor of the Defendants on all outstanding

claims.

Initially, the Plaintiffs take issue with the Defendants’ reliance on the IWG Report to

establish the scope of documents reviewed in connection with the NWCDA. Federal Rule of

Evidence 803(8) provides, in relevant part, that a record or statement of a public office is not

excluded under the rule against hearsay so long as the record (A) sets out the office’s activities or

a matter observed while under a legal duty to report, and (B) neither the source of information

nor other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)-(B). The

Plaintiffs do not dispute that because the IWG Report was created pursuant to the group’s legal

obligation to report to Congress, the report satisfies the requirements of Rule 803(8)(A). Pub. L.

105-246 § 2(c)(3) (requiring the IWG to “submit a report to Congress . . . describing all such

records, the disposition of such records, and the activities of the [IWG] and agencies under this

section”). However, the Plaintiffs contend the report is unreliable because of the following

statement from the cover letter accompanying the report:

In order to avoid further delay of the release of this report, members of the IWG
did not seek unanimous agreement on a single “official” version of their
declassification effort. Instead, this report presents the larger issues that arose
while affording participants an opportunity to present personal or institutional
perspectives on issues important to them and to those whom they represent.

11
 These appear in a separate chapter at the end of the report

IWG Report at v (Apr. 2007 Ltr. from A. Weinstein). Nothing in this statement “raises

concerns” regarding the trustworthiness of the report as the Plaintiffs suggest. If an agency or

IWG member disagreed with the description of the agency’s response to the NWCDA provided

in the report, they could address those issues in the final chapter report. For example, Elizabeth

Holtzman, one of the public members of the IWG, indicates that although the CIA was reluctant

to declassify large swaths of documents, but “is not in full compliance with the law and is giving

[the IWG] all the material [the IWG] believe[s] is relevant” under the NWCDA. Id. at 93. The

Plaintiffs offer no other evidence to suggest the IWG Report description of the processing of

documents by the Army or the CIA is not credible. Therefore, the Court finds the IWG Report to

be proper non-hearsay evidence pursuant to Rule 803(8).4

Citing Federal Rule of Civil Procedure 56(e), the Plaintiffs’ also suggest the report cannot

be used as evidence regarding the adequacy of the Defendants’ searches because the report was

not made under oath. Pls.’ Cross-Mot. at 19-20. It appears the Plaintiffs intended to cite Rule

56(b)(4), which provides that “[a]n affidavit or declaration used to support or oppose a motion

must be made on personal knowledge, set out facts that would be admissible in evidence, and

show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P.

56(b)(4). Nothing in Rule 56 requires that evidence be submitted only in the form of an

affidavit, so long as the evidence can be presented in a form that would be admissible at trial.

4
In a footnote in their Reply brief, the Plaintiffs imply that certain statements in the IWG
are not admissible because they are not “factual findings.” Pls.’ Reply at 4 n.2. The Plaintiffs
appear to be referring to Federal Rule of Evidence 803(8)(A)(iii), which provides that in a civil
case or against the government in a criminal case, “factual findings from a legally authorized
investigation” are not barred as hearsay. The Defendants do not rely on subsection (iii) to
establish the admissibility of the IWG report, making the Plaintiffs’ argument irrelevant.
12
 1. Central Intelligence Agency’s Search for Responsive Records

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material

doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” Valencia-

Lucena v. U.S. Coast Guard, 180 F.3d 321, 390 (D.C. Cir. 1999) (citation omitted). “At

summary judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search

terms and the type of search performed, and averring that all files likely to contain responsive

materials (if such records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514

(citation omitted). “The agency cannot limit its search to only one or more places if there are

additional sources that are likely to turn up the information requested.” Valencia-Lucena, 180

F.3d at 391 (citation omitted). Ultimately, the adequacy of a search is “determined not by the

fruits of the search, but by the appropriateness of [its] methods.” Iturralde v. Comptroller of the

Currency, 315 F.3d 311, 315 (D.C. Cir. 2003) (citation omitted).

A five person team from the CIA conducted a page-by-page review of 1.2 million pages

of OSS records, that is, records from the wartime and immediate post-war period. Defs.’ Ex. D

(IWG CIA Excerpt) at 45. The CIA “opened its OSS records in their entirety,” and consulted

with foreign governments to clarify the sensitivity of foreign government information rather than

automatically withholding such information, as was the CIA’s usual practice. Id. Utilizing

search terms suggested by historians and staff from the CIA and IWG, as well as interviews with

former OSS and CIA personnel, the agency also conducted searches of electronic and manual

indices of the CIA-era records (post-1947). Id. The CIA conducted a line-by-line

declassification review of the relevant files, and conducted further searches based on information

located within the files being reviewed. Id. at 45-46. Prior to 2005, the CIA utilized a narrow

definition of relevance, and “maintained that files were subject to the act[] only if they contained

13
either direct information about war crimes or information suggesting that there were grounds to

believe that the subject was involved in war crimes, acts of persecution, or looting.” Id. at 47.

Under this approach, the CIA declassified and released approximately 50,000 pages of

documents. Id. at 49. However, in February 2005 the CIA shifted course, and agreed to, among

other things, “[d]eclassify information on individuals connected to the Nazis whether war

criminals or not,” “[d]eclassify and release operational project files where Nazis were involved,”

and “[u]ndertake additional searches that the IWG historians or CIA thought necessary.” Id. at

50. As a result, the agency revised the redactions to 47,400 pages, and released over 65,000 new

pages. Id. All told, the agency released approximately 114,200 pages of CIA-era records.

Defs.’ Ex. E (First Lutz Decl.) ¶ 13.5 On May 14, 2012, the CIA provided plaintiffs’ counsel

with seven disks containing all CIA records released pursuant to the NWCDA. Id. ¶ 12. The

cover letter provided with the disks explained how the records were organized and identified

where on the disks records relating to Reinhard Gehlen and the Gehlen Organization’s

relationship to the United States Government could be located. Id.

In order to comply with the NWCDA, the CIA conducted a search for records far more

expansive than searches usually undertaken in responding to FOIA requests. All directorates

were instructed to search for relevant documents, using both name and codeword searches. For

example, with respect to documents concerning General Gehlen, the CIA searched for files

retrievable by name, in addition to conducting searches for codewords, aliases, and cryptonyms

for Gehlen and his organization. First Lutz Decl. ¶ 16. Ultimately the CIA released

approximately 2,100 pages of material relating to Gehlen. Id. ¶ 17. Ms. Lutz avers that, based

5
Martha Lutz is the Chief of the Litigation Support Unit for the Central Intelligence
Agency. First Lutz Decl. ¶ 1.
14
on the breadth and thoroughness of the CIA’s search for responsive documents, the searches

performed in response to the NWCDA were reasonably calculated to discover any records

responsive to Oglesby’s request. Id. ¶ 18.

The Plaintiffs raise a number of objections to the search performed by the CIA, none of

which have merit. First, the Plaintiffs note that in its December 11, 2000, status report, the CIA

explained that it anticipated locating documents potentially responsive to Oglesby’s request that

were beyond the scope of the NWCDA. 12/11/00 Status Report at 2. Ms. Lutz explains that this

statement was based on CIA’s initial, narrow interpretation of its obligations under the NWCDA

insofar as the CIA believed it would not be required to produce documents relating to General

Gehlen under the NWCDA because General Gehlen is not considered a war criminal. Defs.’

Reply Ex. D (Second Lutz Decl.) ¶ 4. In 2005, the CIA elected to review and declassify

information regarding all Nazis (not just war criminals), including operational files concerning

those Nazis. Id. (emphasis added). “As a result, all Gehlen related records responsive to

Oglesby’s request fell within the scope of NWCDA and all were released in whole or in part

under the NWCDA and provided to Plaintiffs.” Id. The Plaintiffs fail to raise a genuine issue of

material fact with respect to the scope of Oglesby’s request vis a vis the CIA’s release of

documents pursuant to the NWCDA.

Second, the Plaintiffs take issue with the fact that the Lutz Declaration does not explicitly

indicate that the records of all directorates were searched. Pls.’ Cross-Mot. at 30-31. Ms. Lutz

explained in her initial declaration that “[a]ll CIA records are maintained by one of four

directorates and the independent offices and other entities under the Director, Central

Intelligence Agency (D/CIA): the National Clandestine Service (NCS), Directorate of

Intelligence (DI), Directorate of Science and Technology (DS&T), Directorate of Support (DS),

15
and the Director’s Area.” First Lutz Decl. ¶ 14. “All directorates were tasked to search for such

records, with the CIA’s Nazi War Crimes Task Force overseeing the search and review of these

records.” Id. ¶ 15 (emphasis added). Moreover, the NWCDA

expressly precluded agencies from invoking Sec. 701(a) of the National Security
Act of 1947, as amended, which exempts operational files designated by the
Director of the CIA from the search and review requirements of the FOIA. Thus,
CIA’s records search under the NWCDA included searches of all operational files
reasonably likely to contain responsive information. Indeed, the majority of the
records located were from operational files.

Second Lutz Decl. ¶ 7. Thus, the Plaintiffs’ argument lacks merit.

Third, the Plaintiffs argue that the CIA’s failure to release any documents regarding

meetings between the United States and General Gehlen at Fort Hunt demonstrates the CIA’s

search was inadequate. Pls.’ Cross-Mot. at 15-16. To be clear, Oglesby did not request all

records concerning Fort Hunt; rather he requested only “records on meetings held at Fort Hunt,

Virginia, in the summer of 1945 between General Gehlen and U.S. Army General George Strong

and Office of Strategic Services (“OSS”) officer Allen Dulles.” The D.C. Circuit addressed this

precise argument:

Appellant also contends that the search was unreasonable because the agency did
not find responsive documents that appellant claims must exist, namely,
documents concerning the meeting at Fort Hunt. However, appellant provides no
proof that these documents exist and his own conviction that the Fort Hunt
meeting was of such importance that records must have been created is pure
speculation. Such hypothetical assertions are insufficient to raise a material
question of fact with respect to the adequacy of the agency’s search.

Oglesby I, 920 F.2d at 68 n.13. The only new evidence6 proffered by the Plaintiffs is two articles

6
The “evidence” cited by the Plaintiffs for the proposition that transcripts of bugged
conversations from General Gehlen’s quarters pre-dates Oglesby I, thus the Court assumes this
information was presented to the D.C. Circuit. Pls.’ Cross-Mot. at 16. In any event, the
Plaintiffs failed to provide either of the documents cited on page 16 to the Court in connection
with the present motion practice.

16
published in 2006 and 2011, reporting that Fort Hunt was used as a secret prison camp where

German scientists and soldiers were incarcerated and interrogated during World War II. Pls.’

Ex. 4 (Petula Dvorak, A Covert Chapter Opens for Fort Hunt Veterans, Wash. Post, Aug. 20,

2006); Pls.’ Ex. 5 (Emma Brown, GWU Professor Extracted Nazi Secrets, Wash. Post, July 19,

2011, at B5). Neither article supports the contention that documents regarding the specific

meeting identified in Mr. Oglesby’s request exist, and fall far short of creating a genuine issue of

fact with respect to the adequacy of the CIA’s search for documents.

Finally, the Plaintiffs argue the CIA should be required to conduct additional searches for

the terms “Fort Hunt,” “P.O Box 1142,”7 and “GO,” an abbreviation for the Gehlen

Organization. As set forth above, the Plaintiffs failed to raise a genuine issue as to whether

records exist regarding the specific meetings at Fort Hunt at issue in the Plaintiffs’ request, thus

there is no reason to believe searching for the terms “Fort Hunt” and/or “P.O. Box 1142” would

be likely to locate additional responsive documents. Nor do the Plaintiffs offer any evidence to

suggest a search for the term “GO” would uncover responsive documents not located by previous

searches. Accordingly, the Court finds the CIA has met its burden to show that the agency’s

search was reasonably calculated to uncover all relevant documents.

2. Central Intelligence Agency’s Withholdings

As the Vaughn index attached to Ms. Lutz’s declaration indicates, the CIA withheld

certain information pursuant to FOIA exemptions (b)(1) and (b)(3). See Attach. to First Lutz

Decl. Counsel for the Plaintiffs objected to the CIA’s Vaughn index on the grounds counsel was

unable to correlate the entries on the index to the records provided to counsel. Pls.’ Cross-Mot.

at 40. Although the Defendants argue that the Plaintiffs could have utilized the initial Vaughn

7
P.O. Box 1142 was the codename for Fort Hunt. See Pls.’ Exs. 4, 5.
17
index using the letter that accompanied the disks containing the documents provided by the CIA.

Defs.’ Reply at 16-17. Nevertheless, the CIA provided a revised Vaughn index, including

references to the relevant pdf numbers on the disks. Second Lutz Decl. ¶ 9. The CIA also

provided a supplemental index addressing the 66 documents discussed by the Plaintiffs for the

first time in their motion to compel. Defs.’ Opp’n to Mot. to Compel, Ex. A (Fourth Lutz Decl.)

¶ 7. Therefore, the Court considers whether the CIA is entitled to summary judgment in light of

the revised and supplemental Vaughn indices.

Exemption (b)(1) provides that agencies may withhold any information “(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). Exemption (b)(3) permits an agency to withhold

information “specifically exempted from disclosure by statute (other than section 552b of this

title),” if the relevant statute

(A) (i) requires that the matters be withheld from the public in such a manner
as to leave no discretion on the issue; or

(ii) establishes particular criteria for withholding or refers to particular
types of matters to be withheld; and

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.

Id. § 552(b)(3). The Court addresses each of the exemptions in turn.

a. Exemption (b)(1)

The CIA identifies four categories of information that it contends is properly classified

and thus exempt from disclosure under FOIA exemption (b)(1): (1) the true names of covert CIA

employees; (2) names of clandestine human intelligence sources and information that could be

used to identify clandestine human intelligence sources; (3) cities and countries in which the CIA
18
maintained covert installations; and (4) information regarding specific intelligence methods,

including cover mechanisms. First Lutz Decl. ¶ 29. Ms. Lutz determined that the withheld

information “is currently and properly classified” pursuant to Executive Order 12958, the

Executive Order in effect at the time the CIA’s NWCDA task force reviewed the documents and

decided the information should remain classified. Id. ¶ 21. “Summary judgment may be granted

on this issue on the basis of agency affidavits [only] if they contain reasonable specificity of

detail rather than merely conclusory statements, and ... they are not called into question by

contradictory evidence in the record or by evidence of agency bad faith.” Public Citizen v. Dep’t

of State, 276 F.3d 634, 644 (D.C. Cir. 2002).

The Plaintiffs contend that Ms. Lutz’s declaration is insufficient to justify the agency’s

use of FOIA exemption (b)(1) because Ms. Lutz does not aver that the information is properly

classified under Executive Order 13526. Executive Order 13526, signed by President Barack

Obama on December 29, 2009, currently governs classification decisions. This Order defines

“classified information” to include “information that has been determined pursuant to this order

or any predecessor order to require protection against unauthorized disclosure.” E.O 13256

§ 6.1(i).

A district court may, upon request by an agency, permit the agency to apply a
superceding [sic] executive order during the pendency of FOIA litigation.
However, absent a request by the agency to reevaluate an exemption 1
determination based on a new executive order, the district court may not require
the agency to apply the new order; instead, the court must evaluate the agency's
decision under the executive order in force at the time the classification was
made. This rule prevents undue delay and burden in the resolution of FOIA
claims by introducing an element of finality into agency decisionmaking.

Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 29 (D.C. Cir. 1998) (citations omitted). The

Campbell court explained that the relevant question is whether the 2009 Executive Order “calls

prior classification decisions under the [prior] Order into question.” Id. Like the superseding
19
order in Campbell, Executive Order 13256 “does not permit FOIA litigants to reopen

classification decisions finalized before the Order’s effective date” because the superseding

Order “defines classified information to include information classified under prior orders,” and

“does not contain any provision that requires an agency to reconsider classification decisions in

pending FOIA litigation.” Id.

The Plaintiffs cite Campbell for the proposition that “D.C. Circuit cases have consistently

held that where a case has been remanded to [sic] district court, review should occur under the

new executive order.” Pls.’ Cross-Mot. at 33. The Campbell court rejected the FBI’s declaration

as insufficient to justify its use of exemption (b)(1), and noted that

In preparing a new declaration on remand, the FBI’s new declarant . . .
presumably must re-review the redactions and withholdings. This rule is
consistent with our reasoning in Lesar: when an agency has completed a FOIA
review, principles of finality weigh against ordering a new review under a new
order, but when a court orders a new review on other grounds, respect for the
President’s authority to define national security priorities requires that the new
review proceed under current law rather than the superceded law of a prior
administration.

Id. at 31 (citing Lesar v. U. S. Dep’t of Justice, 636 F.2d 472 (D.C. Cir. 1980)). Here, the D.C.

Circuit did not instruct the Court to reevaluate the CIA’s classification decisions upon remand.

To the contrary, the D.C. Circuit upheld the CIA’s application of exemption (b)(1) with respect

to the documents listed in the Vaughn index, and only remanded the case to the extent the CIA

failed to include certain documents in the index in the first place. Oglesby II, 79 F.3d at 1182-

83.

For the first time in their Reply, the Plaintiffs suggest that Executive Order 13256 should

govern the use of exemption (b)(1) in this case because Ms. Lutz’s review of the documents took

place while Executive Order 13256 was in effect. The D.C. Circuit explained

20
 when an agency first receives a FOIA request, it may wish to reevaluate its initial
classification decision to determine whether the materials requested require
declassification or reclassification at a higher level, if circumstances so dictate.
The agency looks to the procedures and substantive criteria contained in the
Executive Order then in force rather than those found in the Executive Order
under which the initial classification decision was made. On review, the court
should also assess the documents according to the terms of the Executive Order
under which the agency made its ultimate classification determination.

Lesar, 636 F.2d at 480. The agency made its ultimate determination regarding the documents at

issue in this case between 2005 and 2007. Second Lutz Decl. ¶ 8. Thus, the question for the

Court is whether the agency properly determined the information was classified and thus exempt

from disclosure under the Executive Order in force during that time frame, namely Executive

Order 12958. Ms. Lutz’s declarations provides support for the agency’s position, but the agency

reached a final determination with respect to this information years before the litigation reached

this stage.

With respect to the substance of the agency’s application of exemption (b)(1), the

Plaintiffs proffer only two arguments. First, the Plaintiffs argue that the agency failed to take

into consideration “the passage of time.”8 The D.C. Circuit rejected this argument once before:

Oglesby has not demonstrated that an agency's national security concerns
automatically disappear with the passage of time, and therefore has not rebutted
the affidavits stating that the material had been reviewed at the time of the
request, and had been determined to pose a current threat to national security if
released.

Oglesby II, 79 F.3d at 1183. The Plaintiffs once again have “merely made the naked assertion

that the passage of time renders the national security claims questionable.” Id.

8
Apart from the Plaintiffs’ disagreement regarding what Executive Order controls the
classification decision, the Plaintiffs fail to articulate how Ms. Lutz’s declarations have been
“controverted by contrary evidence.” Pls.’ Reply at 15.
21
 As long as an agency declares through its affidavits that the responsive material
has been reviewed to assure the continuing accuracy of its original classification,
and that a determination has been made that the withheld information still poses a
security risk if released, the mere passage of time is not a per se bar to reliance on
exemption 1.

Id. This is particularly true in this case, where much of the information withheld under

exemption (b)(1) may expose locations and techniques still utilized by the agency. Second, for

the first time in their Reply the Plaintiffs argue that the documents were not properly classified

under Executive Order 12958 because they do not contain the classification markings required

by section 1.7 of that Order. Pls.’ Reply at 9. Section 1.7(f) of Executive Order 12958

specifically provides that “[i]nformation assigned a level of classification under this or

predecessor orders shall be considered as classified at that level of classification despite the

omission of other required markings.” The documents at issue in this case were marked

according to the requirements in place at the time the documents were initially classified,

generally between 1951 and 1954. Third Lutz Decl., ECF No. [254-2], ¶ 9. Ms. Lutz’s

unrebutted declaration establishes with a reasonable level of specificity that the information at

issue was properly classified and marked under Executive Order 12958, and thus was properly

withheld under FOIA exemption (b)(1). Therefore, the agency is entitled to summary judgment

on this issue.

b. Exemption (b)(3)

Invoking FOIA exemption (b)(3), the CIA argues that it properly withheld certain

information as provided by the National Security Act of 1947, as amended, 50 U.S.C.

§ 3024(i)(1), and the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507. The National

Security Act provides that “[t]he Director of National Intelligence shall protect intelligence

sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). “The Director may

22
only delegate a duty or authority given the Director under this subsection to the Principal Deputy

Director of National Intelligence.” Id. § 3024(i)(3). The relevant provision of the CIA Act

provides that the CIA shall be exempt from disclosing “the organization, functions, names,

official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. § 3507.

The Plaintiffs argue that because the National Security Act vests the power to protect

intelligence sources and methods in the Director of National Intelligence, the CIA cannot rely on

this statute to withhold information regarding intelligence sources and methods pursuant to FOIA

exemption (b)(3). Judge Beryl A. Howell thoroughly analyzed this issue and ultimately rejected

an identical argument in Mobley v. CIA, 924 F. Supp. 2d 24 (D.D.C. 2013). For the reasons

stated by Judge Howell in Mobley, 924 F. Supp. 2d at 53, and as recognized by the D.C. Circuit

in Larson v. Department of State, 565 F.3d 857, 862 (D.C. Cir. 2009), the Court finds that

agencies other than the Director of National Intelligence may rely upon the National Security Act

to withhold information regarding intelligence sources and methods pursuant to FOIA exemption

(b)(3). The Plaintiffs do not otherwise challenge the CIA’s use of exemption (b)(3). Based on

the detailed description of the information withheld pursuant to this exemption provided in the

First Lutz Declaration, the Court finds there is no genuine dispute that the CIA properly invoked

FOIA exemption (b)(3) in this case.

3. Army’s Search for Responsive Records

During the initial stages of this litigation, the Army produced an estimated 1,240 pages of

information to Oglesby. See generally Third Nichols Decl., Attach. B., ECF No. [124].9 Prior to

the enactment of the NWCDA, the Army had transferred most of its World War II combat and

9
Mr. Nichols, then the Chief of the Freedom of Information/Privacy Office for
INSCOM, submitted the declaration in support of the Defendants’ motion for summary judgment
in 1997. Third Nichols Decl., ECF No. [124], ¶ 1.
23
operational documentation to NARA. Defs.’ Ex. A (IWG Report, Army Excerpt) at 52. Thus,

the Army’s response to the NWCDA focused on the classified intelligence and

counterintelligence records maintained by the Intelligence and Security Command (“INSCOM”)

Investigative Records Repository at Fort Meade, Maryland. Id. These “IRR” files generally

concerned three topics: (1) “foreign personnel and organizations”; (2) “intelligence and

counterintelligence sources”; and (3) “counterintelligence security investigations.” Id. The

records were comprised of 13,000 reels of 35mm microfilm (holding approximately 1.3 million

files), and approximately 460,000 individual paper files, all of which had to be searched. Id. In

order to process the documents,

the Army scanned the microfilm to create digitized images of the files, which it
then searched electronically for relevant files using the 60,000 Names List. The
Army then reviewed and declassified the files identified as relevant and turned
them over to the National Archives as digitized images. Simultaneously, IRR
staff conducted a manual review of the files that the Army still maintained in
paper form.

Id. at 54. Between 2000 and 2001, the Army provided NARA with over 20,000 digitized and

paper files located in response to searches for individuals on the Names List. Id. “While the vast

majority of the files were declassified in full, the Army had redacted limited portions, primarily

foreign government information or intelligence sources and methods.” Id. “After it finished

digitizing its files, IRR staff undertook further searches as the IWG staff, IWG historians, and

other participating agencies identified additional relevant names, projects, and operations that

came to their attention during the course of their work.” Id. The Army eventually transferred

copies of all 1.3 million microfilm files to NARA. Defs.’ Ex. B (Murphy Decl.) ¶ 12(d). The

Army did not retain any copies of the files transferred to NARA. Defs.’ Reply Ex. B (Second

Dorris Decl.) ¶ 5.

Once the files were transferred to NARA, the NARA staff conducted searches using a
24
variety of keywords, outlined in paragraphs 13, 15, and 16 of the Declaration of Martha Wagner

Murphy, the Chief of the Special Access and Freedom of Information Branch, Research

Services, for NARA. Murphy Decl. ¶ 1. The searches did not locate any responsive records

regarding the relevant meetings at Fort Hunt, id. ¶ 14, but NARA located a number of other

responsive documents, which are listed in paragraph 17 of Ms. Murphy’s Declaration. Ms.

Murphy indicates that “electronic image files identified [in the declaration] are available for

public inspection at NARA’s headquarters,” but if the Plaintiffs agreed to pay duplication fees,

the files would be copied and mailed to the Plaintiffs. Id. ¶ 18. INSCOM also searched its

remaining hard copy and electronic files but failed to locate any documents responsive to

Oglesby’s request. Defs.’ Reply Ex. B (Second Dorris Decl.) ¶ 6.

The Plaintiffs argue the Army’s search was inadequate, for two reasons. First, the

Plaintiffs note that the declaration submitted by Bradley Dorris, the Director of the Freedom of

Information Act/Investigative Records Repository Office at INSCOM, states that “[t]he records

most likely responsive” to Oglesby’s request would have been in the IRR at INSCOM, but does

not state that all responsive documents were likely to be located at the IRR. Defs.’ Ex. C (Dorris

Decl.) ¶ 6. Mr. Dorris subsequently clarified that

The records which would be responsive to the FOIA requests would have been in
the Investigative Records Repository at INSCOM. However, all of these records
were transferred to NARA. I am unaware of any other locations of any records
related to the subject FOIA request. Due to the fact that the requested records
were intelligence files in nature, the only location the documents would be located
would be at INSCOM. INSCOM is the only Army intelligence records
repository. The files would not be retained by any other Army agencies.

Second Dorris Decl. ¶ 7. The Plaintiffs suggest that Mr. Dorris’s “credibility is damaged” due to

the change in his supplemental declaration. Pls.’ Reply at 4. If Mr. Dorris had submitted a new

declaration merely parroting the relevant standard, the Court might agree that the supplemental

25
declaration would be insufficient. But Mr. Dorris’s second declaration goes beyond mere

recitation, and describes why, based on the nature of the information requested by Oglesby, any

responsive documents would have been maintained in the IRR files transferred to NARA. The

Plaintiffs offer no evidence to contradict or call into question Mr. Dorris’s supplemental

statement that any documents responsive to the Plaintiffs’ request would likely be found in the

IRR files.10

Second, the Plaintiffs argue that the Army’s transfer of documents to NARA violated the

Freedom of Information Act. “The FOIA provides a claimant with a remedy only against an

agency that has ‘improperly withheld’ a record.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197,

1201 (D.C. Cir. 1991) (quoting 5 U.S.C. § 552(a)(4)(B)). Thus, “[i]f the agency is no longer in

possession of the document, for a reason that is not itself suspect, then the agency is not

improperly withholding that document and the court will not order the agency to take further

action in order to produce it.” Id. (emphasis added). Here, the Army’s transfer of documents is

anything but suspicious. The NWCDA specifically ordered that agencies make relevant

documents available to the public at the National Archives and Records Administration. Pub. L.

105-246 § 2(c)(1). The Army did not transfer only those documents potentially responsive to

Oglesby’s request, rather it transferred all combat and operational files related to World War II.

Second Dorris Decl. ¶ 5. Moreover, NARA conducted an extensive search for responsive

documents, and has made those documents available for the Plaintiffs to review or copy (at the

10
The Plaintiffs note that Martha Murphy averred that “the most likely untapped location
for finding Army documents responsive to the NWCDA” were the IRR files. Murphy Decl. ¶
10. The scope of information to be reviewed under the NWCDA was broader than and in some
ways distinct from the topics identified in Mr. Oglesby’s request. Without more, Ms. Murphy’s
statement is not inconsistent with Mr. Dorris’s averments regarding where documents responsive
to Oglesby’s request were likely to be located.
26
Plaintiffs’ expense). This is not a situation in which the agency destroyed documents or

otherwise made them unavailable to the requesting party. Cf. Chambers v. Dep’t of Interior, 568

F.3d 998, 1004 (D.C. Cir. 2009) (“Thus, summary judgment is inappropriate, as the Government

all but acknowledged, if, viewing all inferences in a light most favorable to Chambers, a triable

issue exists as to whether Murphy (or any one [sic] else at Interior) intentionally destroyed the

appraisal Chambers requested.”). The fact that the Army produced over 1,420 pages of

information to Oglesby prior to 1997 and did not transfer the IRR files to NARA until nearly

sixteen years after the receipt of Oglesby’s request undermines any suggestion that the transfer

was motivated by a desire to avoid complying with the Army’s statutory obligations under the

FOIA. Drawing all inferences in favor of the Plaintiffs, no reasonable trier of fact could find that

the Army destroyed or attempted to prevent the Plaintiffs from accessing documents relevant to

Oglesby’s request by transferring all World War II related files to NARA. The record indicates

the motivation behind the Army’s transfer of documents is not itself suspect. Therefore, the

Army is entitled to summary judgment on the grounds it has not improperly withheld any records

responsive to Oglesby’s request.

4. National Security Agency’s Vaughn Declaration

After conducting a search for potentially responsive documents, the National Security

Agency identified fifteen documents containing information responsive to Oglesby’s Request.

See generally Defs.’ Ex. G (Grantham Decl.) ¶¶ 14-42. Four of the documents were released in

their entirety by the NSA to Oglesby, two documents were withheld in their entireties, one

document was referred to the Army for review, and the remaining documents were produced

with redactions. Id. In support of its motion for summary judgment following Oglesby I, the

NSA submitted two declarations from Michael Smith, then the Director of Policy for the

27
National Security Agency, describing in very general terms the withheld information and the

bases for the withholdings. Defs.’ Ex. F (NSA Decls.) at 1-6, 13-16. The D.C. Circuit found

Mr. Smith’s declarations to be inadequate to justify the withholdings, noting that the declarations

contain

only sweeping and conclusory assertions that the agency withheld the documents
because they contained material which could reasonably be expected to cause
damage to national security. The affidavits offer no functional description of the
documents; NSA has failed to disclose the types of documents, dates, authors,
number of pages, or any other identifying information for the records it has
withheld.

Oglesby II, 79 F.3d at 1183. The D.C. Circuit remanded the Oglesby’s claim against the NSA to

this Court, and indicated the Court “should order NSA to submit an index describing the

documents to the greatest extent possible without disclosing information that must be protected.”

Id.

The NSA now submits a detailed declaration executed in February 1997 by Gary L.

Grantham who at that time was the Acting Director of Policy for the NSA. Grantham Decl. ¶ 1.

Mr. Grantham’s declaration describes each of the fifteen documents in detail, including the

number of pages, agency responsible for drafting the document, the title of each document (if

applicable), and a detailed description of the factual information released and withheld from each

document. See, e.g., id. ¶¶ 17-19. Grantham’s declaration identifies how many pages were

found to be non-responsive, how many pages were withheld in their entirety, and how many

pages were released in part. E.g., id. ¶ 17. Finally, where appropriate, Grantham avers that the

withheld information was properly classified pursuant to Executive Order 12958, and that release

of the information could be expected to lead to the unauthorized disclosure of intelligence

sources, methods, and foreign government information. E.g., id. ¶ 19. The NSA also submitted

a declaration from Diane M. Janosek, the Deputy Associate Director for Policy and Records for
28
the NSA, signed in December 2012. Defs.’ Ex. H (Janosek Decl.) ¶ 1. Ms. Janosek explains that

the information withheld from the documents at issue in the Grantham declaration, “was and

remains currently and properly classified [] in accordance with [Executive Order] 13526.” Id.

¶¶ 3, 20.

The Plaintiffs’ opposition and cross-motion omits any reference to the Grantham

declaration or the Defendants’ motion for summary judgment with respect to the NSA’s

withholdings, and on that basis alone the Court may grant this portion of the Defendants’ motion.

Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003)

(“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive

motion and addresses only certain arguments raised by the defendant, a court may treat those

arguments that the plaintiff failed to address as conceded.”). For the first time in their Reply, the

Plaintiffs raise four arguments in opposition to the NSA’s motion, none of which are persuasive.

First, the Plaintiffs argue that the Grantham Declaration is inadequate because it does not

contain a Vaughn Index. This argument is nonsensical. The Grantham Declaration attached to

the Defendants’ Renewed Motion for Summary Judgment filed on December 14, 2012, describes

in detail each of fifteen documents identified by the NSA as containing information responsive to

Oglesby’s request. Second, the Plaintiffs further suggest the Grantham Declaration is

insufficient because “the NSA has made other releases which appear to consist of documents not

part of the [Grantham Declaration].” Pls.’ Reply at 22. Specifically, the Plaintiffs point to a

letter from the NSA to counsel for Mr. Oglesby dated January 17, 1992, which, as part of

Oglesby’s administrative appeal of the NSA’s response to his request, explains that certain

portions of a document have been withheld as non-responsive or as exempt. Pls.’ Reply Ex. B

(1/17/92 Ltr. & Attach.). The letter attaches eighteen pages with markings indicating certain

29
redactions were for non-responsive information, while other redactions omitted exempt

information. See generally id. at 3-20. The pages come from at least two different documents,

and on their face correlate with portions of documents 3 and 5 as set forth in the Grantham

declaration. Cf. Pls.’ Reply Ex. B at 4 (dated June 14, 1954) with Grantham Decl. ¶ 20; cf. Pls.’

Reply Ex. B at 8 with Grantham Decl. ¶¶ 26-27. The Plaintiffs failed to proffer a sufficient basis

from which the Court could conclude the Grantham declaration failed to reference any of the

documents produced (even in part) to Oglesby.

Third, the Plaintiffs contend that the Grantham declaration is inadequate because it was

signed in 1997 and thus does not establish that release of the withheld information today could

reasonably be expected to cause damage to national security. Pls.’ Reply at 22. This argument

completely ignores the Janosek Declaration, executed in December 2012, which explains both

that the withheld information is properly classified under the Executive Order that has governed

classification since 2009, and that release of the information in the present could reasonably be

expected to damage national security. Janosek Decl. ¶¶ 3, 20.

Fourth and finally, the Plaintiffs seem to suggest that the “‘document-by-document’ review

performed by Grantham . . . is [inconsistent] with the rigors of the segregability analysis

required.” Pls.’ Reply at 23. “An agency cannot justify withholding an entire document simply

by showing that it contains some exempt material.” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir.

213) (citation omitted). “[E]ven if the agency establishes an exemption, it must nonetheless

disclose all reasonably segregable, nonexempt portions of the requested record(s).” Roth v. U.S.

Dep’t of Justice, 642 F.3d 1161, 1167 (D.C. Cir. 2011) (citation omitted); see also 5 U.S.C.

§ 552(a)(4)(B). The agency is entitled to a presumption that it complied with the obligation to

disclose reasonable segregable material. Hodge, 703 F.3d at 583. The Plaintiffs offer no

30
evidence to rebut Grantham’s averment that all reasonably segregable information has been

produced to the Plaintiffs. The fact that the “major redactions have been made” to some of the

pages produced to Oglesby is not at all surprising given the subject matter of the documents; one

could reasonably expect that details of the United States’ signal intelligence would properly

remain classified years after any particular document was created. Moreover, the Grantham

Declaration reflects the fact that in reviewing the documents for purposes of drafting the

declaration, Mr. Grantham determined additional information in four documents was segregable,

and released it to Mr. Oglesby. Grantham Decl. ¶¶ 34, 36, 38, 40. The extent of the redactions

itself is insufficient to overcome the presumption that the NSA complied with its segregability

obligations. Hodge, 703 F.3d at 582.

In sum, the Grantham declaration adequately describes the documents the NSA

determined contained information responsive to Oglesby’s request, the nature of the documents,

as well as the information released to and withheld from Oglesby. Combined with the Janosek

Declaration’s averment that the information remains properly classified as of the filing of the

Defendants’ present motion, and that release of the information reasonably could be expected to

harm national security, the Court finds the NSA has adequately justified its withholdings.

IV. CONCLUSION

For the foregoing reasons, the Court finds the Defendants are entitled to summary

judgment on all remaining issues. In the context of complying with the Nazi War Criminal

Disclosure Act, the CIA conducted an adequate search for records responsive to Oglesby’s FOIA

request. The Plaintiffs failed to create a genuine issue of material fact as to the adequacy of the

CIA’s Vaughn index, including the CIA’s use of FOIA exemptions (b)(1) and (b)(3). The

Army’s decision to transfer all of its World War II related files from the Army’s Intelligence and

31
Security Command’s Investigative Records Repository to the National Archives and Records

Administration was not suspect, and thus the Army did not wrongfully withhold any relevant

documents. Finally, the Plaintiffs failed to create a genuine issue of material fact as to the

adequacy of the Vaughn declaration submitted by the National Security Agency. Accordingly,

the Defendants’ [254] Motion for Leave to File Sur-Reply is GRANTED; the Plaintiffs’ [249]

Motion to Compel Disclosure of Ex Parte Declarations is DENIED; the Defendants’ [240]

Renewed Motion for Summary Judgment is GRANTED; and the Plaintiffs’ [241] Cross-Motion

for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum

Opinion.

/s/
COLLEEN KOLLAR-KOTELLY
UNITED STATES DISTRICT JUDGE

32