Porter v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

MARK PORTER,

Plaintiff,
v. Civil Action No. 10-050 (JEB)
CENTRAL INTELLIGENCE AGENCY,

Defendant.

MEMORANDUM OPINION

Plaintiff Mark Porter brings this action against Defendant Central Intelligence Agency

pursuant to the Freedom of Information Act, 5 U.S.C. § 552. He claims that Defendant has

wrongfully withheld documents that he is entitled to under FOIA. Defendant has now moved for

summary judgment. The Court has reviewed the Motion, Plaintiff’s Opposition, and

Defendant’s Reply.

I. Background

Plaintiff has filed three separate FOIA requests for the same information over the past 14

years. Although the procedural history of these requests is taken from defense evidence, as well

a prior reported judicial decision, it is undisputed. 1

A. The 1997 Request

On July 9, 1997, Plaintiff submitted his initial FOIA request to Defendant seeking “all

reports, results of investigation, surveillance data, internal memorandum or other documents

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While Plaintiff did file an affidavit with his Opposition, it focuses primarily on Plaintiff’s reasons for
filing his FOIA requests in the first place -- i.e., he “believe[s] the surveillance against [him] has been continual,
there was huge interference in [his] life and lively hood that caused harm and impaired [his] ability to proceed in a
timely manner.” Opp., Ex. 1 (Affidavit of Mark Porter) at ¶ 16. Even if the Court could clearly follow what
Plaintiff asserts in his affidavit, none of the assertions contradicts the material facts laid out in Defendant’s attached
declaration discussed herein.

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concerning Mr. Mark S. Porter between the years 1986 and 1991 while Mr. Porter was employed

by Bendix Field Engineering Corporation.” Def’s Mot. for Summary Judgment, Declaration of

Delores M. Nelson at ¶ 9.

In a letter dated October 16, 1997, Defendant informed Plaintiff that, after searching

relevant record systems, it had determined “that there [were] no documents available to him

under FOIA.” Nelson Decl. at ¶ 13. Ten days later, Plaintiff appealed this decision to the

Agency Release Panel. Id. at ¶ 14. The Agency Release Panel affirmed Defendant’s initial

determination and informed Plaintiff by a letter dated April 1, 1998, that he had a right to seek

judicial review of this determination in United States District Court. Id. at ¶ 16.

Following the 1998 letter, Plaintiff took no action for more than seven years. Porter v.

Central Intelligence Agency, 579 F. Supp. 2d 121, 123 (D.D.C. 2008). Finally, on November 7,

2005, his attorney wrote to “request information” regarding the 1997 FOIA inquiry. Id.

Defendant responded on May 23, 2006, by sending a copy of the 1998 letter. Id.

B. The 2006 Request

That August, Plaintiff’s attorney once again appealed Defendant’s 1997 search that found

no documents. Nelson Decl. at ¶ 20. Defendant understood Plaintiff’s appeal to be a second

separate FOIA request for the same material. As such, Defendant expanded the timeframe of the

original search and informed Plaintiff that it would “search for CIA originated records existing

through [September 7, 2006].” Porter, 579 F. Supp. 2d at 123. Defendant’s search produced one

document, which it released to Plaintiff, with redactions, along with an accompanying letter on

October 19, 2006. Id. at 123-24. The letter explained Plaintiff’s right to appeal the

determination within 45 days. Id. at 124. Instead of filing an appeal with Defendant, Plaintiff

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filed an action in this District claiming that he was entitled to the requested information under

FOIA and that Defendant had no basis for denying his request. Id.

Shortly thereafter, Defendant filed a motion to dismiss or, in the alternative, for summary

judgment. Id. at 122. Judge Gladys Kessler granted Defendant’s motion for summary judgment

on September 30, 2008, holding that: (1) Plaintiff’s letter could not serve as an appeal of the

1998 letter because the six-year statute of limitations had run; and (2) assuming Plaintiff’s May

2006 letter was a new FOIA request, he had failed to exhaust his administrative remedies. Id. at

127, 129. This ruling terminated that case.

C. The 2009 Request

On January 15, 2009, Plaintiff sent his third FOIA request to Defendant, again seeking

“information regarding Mr. Mark Porter.” Nelson Decl. at ¶ 25. After acknowledging receipt,

Defendant informed Plaintiff by letter on March 27, 2009, that it interpreted his request as a

“request for an updated search.” Id. at ¶ 28. As a result, Defendant explained that it would limit

its search to the timeframe from his last request, September 7, 2006, to the date of the letter,

March 27, 2009. Id. Finally, Defendant informed Plaintiff that it would be unable to complete

the process in the statutory 20-day limit, and he could treat this decision as a denial and appeal to

the Agency Release Panel. Id. Plaintiff did not appeal at that time, so Defendant proceeded with

the updated search. Id.

Defendant’s Information Management Services division is the gatekeeper for all FOIA

requests made to the CIA. Id. at ¶ 6. Because Defendant’s record systems are decentralized and

compartmentalized, IMS must first determine which systems are likely to possess records

responsive to a particular request. Id. at ¶ 7-8. An experienced IMS professional therefore

analyzes each request and determines which databases to search. Id. at ¶ 7. The point person for

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each database is then informed of the request, and he determines the best method for searching

the records for responsive documents. 2 Id. Having determined the likely repositories for

responsive documents, Defendant had both the National Clandestine Service (“NCS”) and the

Directorate of Support (“DS”) perform searches by inputting Plaintiff’s name, variants thereof,

and Plaintiff’s Social Security number into databases capable of searching by the relevant

identifiers. Id. at ¶ 30. No matching records were identified. Id.

Defendant informed Plaintiff on May 28, 2009, that its updated search had failed to

produce any documents additional to those related to Plaintiff’s previous FOIA requests. Id. at ¶

31. This letter also informed Plaintiff that Defendant had interpreted his request as a request for

an updated search, and that Plaintiff could appeal this decision within 45 days. Id. Plaintiff

appealed on the grounds that the search was inadequate. Id. at ¶ 32.

In response to Plaintiff’s appeal, IMS again directed both NCS and DS to search their

records for responsive documents. Id. at ¶ 34. Both components performed searches according

to the identifiers and again found no matching documents. Id. As a result, Defendant informed

Plaintiff on November 19, 2009, that, despite “diligent searches of the appropriate records at the

appellate level,” it was unable to locate any responsive documents. Id. at ¶ 35. Defendant’s

letter informed Plaintiff of his right to seek judicial review. Id.

Plaintiff then filed this action on January 8, 2010, claiming that: (1) Defendant had

wrongfully withheld agency records from him; and (2) Defendant had not performed an adequate

search pursuant to FOIA. Compl. at ¶¶ 13-14.

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A detailed explanation of the records maintenance is set out below in Section III(B).

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II. Legal Standard

Rule 12(b)(6) provides for the dismissal of an action where a complaint fails “to state a

claim upon which relief can be granted.” When the sufficiency of a complaint is challenged

under Rule 12(b)(6), the factual allegations presented in it must be presumed true and should be

liberally construed in plaintiff’s favor. Leatherman v. Tarrant Cty. Narcotics & Coordination

Unit, 507 U.S. 163, 164 (1993). Where, as here, the Court must consider “matters outside the

pleadings” to reach its conclusion, a motion to dismiss “must be treated as one for summary

judgment under Rule 56.” FED. R. CIV. P. 12(d); see Yates v. District of Columbia, 324 F.3d

724, 725 (D.C. Cir. 2003).

Summary judgment may be granted if “the movant shows that there is no genuine dispute

as to any material fact and the movant is entitled to judgment as a matter of law.” FED. R. CIV.

P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.

Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). “A party asserting that a fact cannot be or is

genuinely disputed must support the assertion by citing to particular parts of materials in the

record.” FED. R. CIV. P. 56(c)(1)(A). The moving party bears the burden of demonstrating the

absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

“[A] material fact is ‘genuine’ . . . if the evidence is such that a reasonable jury could return a

verdict for the nonmoving party” on an element of the claim. Liberty Lobby, Inc., 477 U.S. at

248. Factual assertions in the moving party’s affidavits or declarations may be accepted as true

unless the opposing party submits his own affidavits, declarations, or documentary evidence to

the contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA cases typically and appropriately are decided on motions for summary judgment.

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Bigwood v.

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United States Agency for Int'l Dev., 484 F. Supp. 2d 68, 73 (D.D.C. 2007). In a FOIA case, the

Court may grant summary judgment based solely on information provided in an agency’s

affidavits or declarations if they are relatively detailed and when they describe “the documents

and the justifications for nondisclosure with reasonably specific detail, demonstrate that the

information withheld logically falls within the claimed exemption, and are not controverted by

either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit

Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or declarations are

accorded “a presumption of good faith, which cannot be rebutted by ‘purely speculative claims

about the existence and discoverability of other documents.’” SafeCard Servs., Inc. v. Sec. &

Exch. Comm’n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.

Cent. Intelligence Agency, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

The FOIA, 5 U.S.C. § 552, seeks “to open agency action to the light of public scrutiny,”

Dep’t of Air Force v. Rose, 425 U.S. 352, 372 (1976), and to “ensure an informed citizenry, vital

to the functioning of a democratic society, needed to check against corruption and to hold the

governors accountable to the governed.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214,

242 (1978). To further this end, “each agency, upon any request for records which (i) reasonably

describes such records and (ii) is made in accordance with published rules stating the time, place,

fees (if any), and procedures to be followed, shall make the records promptly available to any

person.” See 5 U.S.C. § 552(a)(3)(A). If an agency denies a FOIA request, a federal district

court has the authority to enjoin the agency from withholding agency records and to order the

production of any agency records upon a showing that: (1) the records are in fact agency records,

(2) the records have been withheld, and (3) the withholding is improper. See 5 U.S.C. §

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552(a)(4)(b); Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150 (1980).

It is the burden of the agency to show that one of the three elements is not met.

There is no dispute that no applicable records were found in Defendant’s searches. The

question, however, is whether that is because Defendant improperly curtailed its search.

Plaintiff’s challenge here is to both the time restrictions Defendant placed on the search and the

adequacy of the search itself.

“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, 325 (D.C. Cir. 1999) (quoting Truitt v. Dep’t of

State, 897 F.2d 540, 542 (D.C. Cir. 1990)); see also Steinberg v. U.S. Dep’t of Justice, 23 F.3d

548, 551 (D.C. Cir. 1994). To meet its burden, the agency may submit affidavits or declarations

that explain in reasonable detail the scope and method of the agency’s search. Perry v. Block,

684 F.2d 121, 126 (D.C. Cir. 1982). In the absence of contrary evidence, such affidavits or

declarations are sufficient to demonstrate an agency’s compliance with the FOIA. Id. at 127. If

the record “leaves substantial doubt as to the sufficiency of the search, summary judgment for

the agency is not proper.” Truitt, 897 F.2d at 542.

A. Time Limitations

Having previously conducted searches in response to two substantively similar FOIA

requests from Plaintiff, Defendant limited the search in this case to records between September

7, 2006, and March 27, 2009. Nelson Decl. at ¶ 28. This period represents the time between

Plaintiff’s second request and Defendant’s acceptance of his third request. Because Plaintiff did

not himself limit the scope of the search in his FOIA request, he now argues that Defendant has

“unilaterally narrowed the scope of the search.” Opp. at 10. Defendant’s response on this issue

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is threefold: (1) Defendant gave Plaintiff ample notice of its decision to limit the timeframe of

the search; (2) Defendant’s decision was reasonable; and (3) even if Defendant acted improperly,

Plaintiff has failed to exhaust his administrative remedies on this issue. Reply at 7-10.

1. Notice of the Time Limitation

Plaintiff twice received notice that Defendant was limiting the dates of its search. Nelson

Decl. at ¶¶ 28, 31. After receiving Plaintiff’s 2009 FOIA request, Defendant first informed

Plaintiff in a letter dated March 27, 2009, that it understood his request as one for an “updated

search.” Id., Ex. 19. The letter continues: “Our updated search will be for CIA-originated

documents existing from 7 September 2006, the date of our previous acceptance letter, through

the date of this acceptance letter.” Id. Later, as part of its final response, Defendant again

informed Plaintiff of the limited timeframe of its search, stating, “Our processing included an

updated search . . . from 7 September 2006 through the date of our acceptance letter . . . .” Id.,

Ex. 20. Plaintiff did not at any time object to Defendant’s time limitation before filing this

action.

Plaintiff argues that Defendant nonetheless was on notice that “Mr. Porter was seeking all

information about himself not limited to time.” Opp. at 16. Yet Plaintiff fails to direct the Court

to any record evidence supporting this point. As the non-moving party, Plaintiff’s Opposition

must consist of more than mere unsupported allegations or denials. See FED. R. CIV. P. 56(e);

Celotex Corp., 477 U.S. at 324. Plaintiff appears to argue that, because he did not cabin his

FOIA request himself, Defendant was on notice that he did not want a limited timeframe for his

search. But this argument is unpersuasive in the face of Defendant’s record evidence

demonstrating that it informed Plaintiff not once, but twice, that it understood his request to be a

request for an updated search. Even construing the evidence in the light most favorable to

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Plaintiff, Defendant’s belief that Plaintiff had acquiesced by his silence in the scope of the search

was reasonable.

2. Reasonableness of the Time Limitation

Even if the Court could find that Plaintiff’s silence here did not signal agreement in the

scope of the search, Defendant’s decision to limit the time period was independently reasonable,

given that this was Plaintiff’s third request for the same information. When a plaintiff has

submitted multiple FOIA notices for largely the same information, courts have found agencies’

decisions to limit the timeframe of the searches not unreasonable. See Rein v. U.S. Patent &

Trademark Office, 553 F.3d 353, 363-64 (4th Cir. 2009) (finding that agency’s decision to use

date of prior similar requests as starting point for new similar request “not inherently

unreasonable” and “a practical common-sense approach”). Here, Plaintiff had sent two similar

FOIA requests in the past 14 years. Nelson Decl. at ¶¶ 9, 17. In each case, the agency had

searched its records for the information sought by Plaintiff. Id. at ¶¶ 13, 22. Plaintiff has

submitted neither evidence nor persuasive argument to support its position that the time

limitation was unreasonable or that documents not previously located might crop up on this

occasion. Defendant, therefore, has carried its burden that the time limitation was reasonable in

response to Plaintiff’s third similar request. As such, there is no genuine issue as to this material

fact, and summary judgment is appropriate, even when construing the evidence most favorably

for the Plaintiff.

3. Exhaustion

Yet, were this Court to find that the search was improperly limited in time, Plaintiff

would still not prevail. His challenge would fail because he has not exhausted his administrative

remedies on this issue.

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 Plaintiffs are generally required to exhaust their administrative remedies before filing a

suit in federal court. See Hidalgo v. FBI, 344 F.3d 1256, 1258 (D.C. Cir. 2003); Oglesby v.

United States Dep’t of the Army, 920 F. 2d 57, 61 (D.C. Cir. 1990). Although exhaustion is not

a jurisdictional requirement, Wilbur v. CIA, 355 F.3d 675, 677 (D.C. Cir. 2004), a court may

nonetheless dismiss a case if a plaintiff fails to exhaust his administrative remedies if “the

purposes of exhaustion” and the “particular administrative scheme” support denying judicial

review to the plaintiff. Hidalgo, 344 F.3d at 1259; see also Oglesby, 920 F.2d at 61 (“[C]ourts

usually look at the purpose of exhaustion and the particular administrative scheme in deciding

whether they will hear a case or return it to the agency for further processing.”) (citing McKart v.

United States, 395 U.S. 185, 193 (1969)). The purposes of exhaustion include “preventing

premature interference with agency processes, affording the parties and the courts the benefit of

the agency’s experience and expertise, or compiling a record which is adequate for judicial

review.” Hidalgo, 344 F.3d at 1259 (internal citations omitted).

In this case, FOIA’s specific administrative procedures, clear deadlines for processing

requests, and detailed provisions on appeal all suggest that FOIA is an administrative scheme

that not only requires exhaustion of administrative remedies, but, moreover, permits a court to

dismiss a case when a plaintiff fails to exhaust his administrative remedies. Id. at 1259 (citing

Sinito v. United States Dep’t of Justice, 176 F.3d 512, 516 (D.C. Cir. 1999)); Oglesby, 920 F.2d

at 61-62 (citing Dettmann v. United States Dep’t of Justice, 802 F.2d 1472, 1477 (D.C. Cir.

1986)). Indeed, “[i]t goes without saying that exhaustion of remedies is required in FOIA cases.”

Spannaus v. U.S. Dep’t of Justice, 824 F.2d 52, 58 (D.C. Cir. 1987)

Here, Defendant requires appeals to be filed with the Agency Release Panel within 45

days of the agency’s initial determination. Wilbur, 355 F.2d at 677 (citing 32 C.F.R. § 1900.42).

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And Plaintiff did, in fact, appeal the agency’s final determination that no matching records were

found. But Plaintiff limited his appeal to the “adequacy of the search,” Nelson Decl., Ex. 21,

which Defendant could reasonably infer covered only the methods, not the timeframe, of the

search. At no point during the appeal process did Plaintiff ever aver that he was appealing the

timeframe of the search. FOIA’s detailed administrative scheme required Plaintiff to exhaust his

administrative remedies on this issue. Because he failed to do so, summary judgment on this

issue is consistent with the purposes of exhaustion and FOIA’s detailed administrative scheme.

B. Adequacy of the Search Itself

Having found the timeframe of the search reasonable or, in the alternative, not ripe for

review, the Court now turns to Defendant’s argument that the content of the search itself was

adequate. Plaintiff argues that Defendant has not carried its burden to submit record evidence

with enough detail to support summary judgment. Opp. at 11.

The adequacy of an agency's search for documents requested under FOIA is judged by a

standard of reasonableness and depends upon facts of each case. Weisberg v United States Dep’t

of Justice, 755 F.2d 1476, 1485 (D.C. Cir 1984). Defendant must demonstrate beyond a material

doubt that its search “was reasonably calculated to uncover all relevant documents.” Truitt, 897

F.2d at 542. Defendant may satisfy this burden by submitting declarations that explain in

reasonable detail the scope and method of the agency’s search. Perry, 684 F.2d at 126.

To meet its burden, Defendant submitted the Declaration of Delores M. Nelson, Chief of

the Public Information Programs for IMS at the CIA. She first sets forth the agency’s rationale

for the direction of the search. Id. at ¶ 29. Nelson explains that Defendant’s IMS division is the

gatekeeper for all FOIA requests made to the CIA. Id. at ¶ 6. Because Defendant’s record

systems are decentralized and compartmentalized, IMS must first determine which systems are

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likely to possess records responsive to a particular request. Id. at ¶¶ 7-8. Once the likely

databases were identified, a point person for each database was informed of the request and

determined the best method for searching those records for responsive documents. Id. at ¶ 7.

In this case, IMS determined that responsive records, if any, would reside in the National

Clandestine Service or the Directorate of Support because these components cover the

circumstances in which an individual is likely to come into contact with Defendant. Id. at ¶ 29.

NCS maintains records “relating to foreign individuals who are of foreign intelligence or foreign

counterintelligence interest to the CIA, either because of their actual, apparent, or potential

association with foreign intelligence or counterintelligence activities, or because they are of

actual or potential use to the CIA.” Id. DS maintains “records relating to current and former

applicants for CIA employment; CIA staff and contract employees; personal services

independent contractors and industrial contractors; military and civilian personnel detailed to the

CIA; individuals of security interest to CIA; persons of, or contemplated for, substantive

affiliation with, or service to, the CIA; persons on whom the CIA has conducted or is conducting

an investigation; and federal, civilian, and military personnel with whom the CIA conducts

liaison.” Id.

Having determined the likely databases for responsive documents, Defendant then

searched both NCS and DS by inputting Plaintiff’s name, variants thereof, and Plaintiff’s Social

Security Number into databases. Id. at ¶ 30. These databases are capable of searching by the

relevant identifiers. Id. The searches resulted in no matching documents. Id.

The Nelson Declaration therefore lays out in detailed fashion: (1) the files that were

searched; (2) the reasons for searching those files; (3) the search terms employed; and (4) the

search method used. In response, Plaintiff argues that, because Defendant previously produced

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one document under a similar FOIA request, the absence of that document in response to this

request demonstrates that the search was too limited in scope. Opp. at 18. But Plaintiff fails to

recognize that, given the more recent timeframe of the search, it is unsurprising that this older

document was not uncovered. In addition, the fact that responsive documents once existed does

not mean that they remained in Defendant’s custody or that Defendant had a duty to retain them,

and the agency’s failure to turn up a particular document -- or mere speculation that as yet

uncovered documents might exist -- will not undermine an otherwise adequate search. See

Wilbur, 355 F.3d at 678. Plaintiff, moreover, does not argue that other specific databases should

have been searched; even if he had, there is no requirement that an agency search every record

system in response to a FOIA request, but only those records that are likely to have responsive

documents. Oglesby, 920 F.2d at 68. Ultimately, Plaintiff never claims what documents he even

believes might exist.

As a result, even when construing the evidence in the light most favorable to Plaintiff, the

Court finds that there is no genuine issue as to the adequacy of the search. The Nelson

Declaration makes clear that the search was reasonable and thorough both in time and method.

Summary judgment is therefore appropriate in this case.

IV. Conclusion

Because there are no genuine issues as to any material fact, the Court ORDERS that

Defendant’s Motion for Summary Judgment is GRANTED.

SO ORDERED.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: April 21, 2011

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