Stalcup v. Central Intelligence Agency

United States Court of Appeals
For the First Circuit

No. 13-2329

THOMAS STALCUP,

Plaintiff, Appellant,

v.

CENTRAL INTELLIGENCE AGENCY,

Defendant, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. F. Dennis Saylor, IV, U.S. District Judge]

Before

Howard, Lipez and Barron,
Circuit Judges.

Richard K. Latimer for appellant.
Patrick G. Nemeroff, Attorney, Department of Justice, with
whom Stuart F. Delery, Assistant Attorney General, Carmen M. Ortiz,
United States Attorney, Michael Sady, Assistant United States
Attorney and Leonard Schaitman, Attorney, were on brief, for
appellee.

October 6, 2014
 HOWARD, Circuit Judge. Though clouded by an airline

disaster and claims of a government cover-up, this case ultimately

turns on a relatively straightforward question: must the

government release certain information? Plaintiff-Appellant Thomas

Stalcup brought this Freedom of Information Act ("FOIA") suit

against the Central Intelligence Agency ("CIA"), seeking two

documents from an investigation into the crash of TWA Flight 800.

Stalcup also sought the names of the eyewitnesses interviewed

during the investigation. The district court rejected Stalcup's

requests, concluding that FOIA permitted the agency to withhold the

sought-after material. Because we agree with each of the district

court's conclusions, we affirm its decision to grant summary

judgment for the CIA.

I.

On July 17, 1996, TWA Flight 800 exploded in mid-air and

crashed eight miles south of Long Island, New York. Pursuant to

its obligations under 49 C.F.R. § 800.3(a), the National

Transportation Safety Board ("NTSB") launched an investigation into

the tragedy. The Board quickly arrived at three possible

explanations for the crash: a bomb, a missile, or a mechanical

failure.

Given the possibility of criminal or terrorist activity,

the FBI joined the probe. A central component of the Bureau's task

was to interview eyewitnesses. Many of the 244 individuals who

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were interviewed described a streak of light rising up to the plane

just before the explosion. Given the consistency of that

narrative, the FBI asked the CIA to analyze the accounts and

explore the likelihood of a missile strike.

The CIA reviewed the eyewitness reports along with raw

flight and radar data. It concluded that the eyewitnesses had not

seen a missile soaring towards the plane but, instead, had observed

the burning aircraft in various stages of dismantling. On March

28, 1997, the CIA passed this analysis along to the FBI, which

ultimately reached the same conclusion. In November 1997, the CIA

publicized these results in a video entitled: "TWA Flight 800: What

Did the Eyewitnesses See?"

As new data emerged, the CIA continued its work. For

instance, in 1998 it produced a 17-page draft report analyzing new

radar tracking data ("Analysis of Radar Tracking"). At that time,

it also created an 18-page draft report assessing the plane's

flight path ("Dynamic Flight Simulation"). Both documents

contained recommendations to the agency about how the newly

acquired data should impact the analysis. In 1999, the CIA relayed

this new evaluation to a NTSB-sponsored group studying the

eyewitness accounts.

On August 23, 2000, the investigation, which had been the

largest and most expensive in the NTSB's history, reached its

terminus. The Board adopted the CIA's assessment of the eyewitness

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accounts and concluded that a mechanical explosion in the center

wing fuel tank had caused the crash. The NTSB distributed a final

report detailing these findings.

A decade later, theorizing that the CIA was covering up

that the true cause of the crash was a missile strike, Stalcup sent

the CIA a letter requesting "copies of all data, images, video,

documents and/or other information related to or a product of the

CIA's involvement in the TWA Flight 800 investigation." He also

asked for the "'Technical Analysis Briefing: TWA Flight 800'. . .;

. . . all eyewitness documents, reports, videos, images, and/or

audio provided to the CIA . . . [and] any and all correspondence .

. . regarding the CIA's . . . analysis of the eyewitness evidence."

The CIA first disclosed twenty-five documents that it had

previously released in response to a similar FOIA request.

Unsatisfied with the CIA's response, Stalcup brought this FOIA

action. 5 U.S.C. § 552. The complaint, filed in the District of

Massachusetts, asked the court to order the CIA to disclose

additional material. As the litigation progressed, the CIA

provided Stalcup with forty-nine documents, a DVD, eighty-nine

partially-redacted documents, and fourteen documents created by

other agencies. The agency also filed a Vaughn index with the

court detailing its redactions and withholdings.

Nonetheless, Stalcup demanded more. He requested

unredacted versions of the 1998 Analysis of Radar Tracking document

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(only the technical data, graphs, and certain headings were

initially provided); the 1998 Dynamic Flight Simulation analysis

(only the headings had been released); and the names of the

eyewitnesses interviewed by the FBI.

In due course, the CIA moved for summary judgment, which

the district court granted. The court concluded that the agency

had properly withheld the requested documents under the

deliberative process exemption of the law, 5 U.S.C. §

552(b)(5)(hereinafter "exemption 5"), and had appropriately

redacted the eyewitness names pursuant to the law enforcement

exemption of the act, 5 U.S.C. § 552(b)(7)(C)(hereinafter

"exemption 7(C)"). The court also rejected Stalcup's contentions

that disclosure of the information was required in light of alleged

government misconduct. Finally, the court concluded that the CIA

had performed an adequate search in response to the FOIA request.

This timely appeal followed.

II.

We review a district court's grant of summary judgment in

a FOIA case de novo. Moffat v. U.S. Dep't of Justice, 716 F.3d

244, 250 (1st Cir. 2013). Accordingly, we draw all reasonable

inferences in favor of the non-moving party, and will only affirm

the district court's decision if no genuine dispute of material

fact exists and a party is entitled to judgment as a matter of law.

Fed. R. Civ. P. 56.

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 III.

FOIA is an important tool in holding the government

accountable because it provides citizens a means to "know what

their government is up to." Carpenter v. U.S. Dep't of Justice,

470 F.3d 434, 437 (1st Cir. 2006) (internal quotation marks and

citation omitted). By establishing a presumption in favor of

agency disclosure, Congress aimed to "expose the operations of

federal agencies to public scrutiny." Providence Journal Co. v.

U.S. Dep't of Army, 981 F.2d 552, 556 (1st Cir. 1992). The need

for transparency, however, must be balanced with the goal of the

"efficient administration of government." Carpenter, 470 F.3d at

438. Accordingly, Congress provided a number of exemptions that

permit an agency to withhold certain documents from release. To

fulfill the broad purposes of FOIA, we construe these exemptions

narrowly. FBI v. Abramsom, 456 U.S. 615, 630 (1982) (citation

omitted).

Two exemptions take center stage in this appeal:

exemption 5, the deliberative process exemption, and exemption

7(C), the law enforcement exemption. We note at the outset that

the Ninth Circuit has recently addressed a nearly identical

challenge to the exact materials at issue here. Lahr v. Nat'l

Transp. Safety Bd., 569 F.3d 964 (9th Cir. 2009). After an in

camera review, that court determined that the government had

properly withheld the material. Though we are not bound by that

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conclusion, and would independently arrive at the same result based

on this record alone, we do find Lahr to be persuasive. After

considering the Ninth Circuit's thoughtful analysis, the CIA's

extensive declaration in this case, and the absence of any viable

argument to the contrary, we are left satisfied that the CIA's

response to the FOIA request accorded with the law.

A. Exemption 5: The Deliberative Process Exemption

Exemption 5 of FOIA, the deliberative process exemption, permits

an agency to withhold "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). It thus generally exempts

from disclosure documents containing work product, attorney-client

correspondence, or material that is otherwise "privileged in the civil

discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132,

149, 154 (1975). The government carries the burden of establishing

the applicability of the exemption and must show: (1) that the

withheld material is an inter- or intra- agency memorandum -- an

uncontested issue here; (2) that the document is deliberative; and

(3) that it is predecisional. Providence Journal Co., 981 F.2d at

557.

The government asserts that it properly withheld the 1998

Analysis of Radar Tracking and the 1998 Dynamic Flight Simulation

under the exemption. Stalcup, however, contends that the documents

are neither deliberative nor predecisional. Though the analysis

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intersects at times, the two criteria are distinct prongs and must

be examined separately.

To satisfy the "deliberative" element of the exception,

a document must reflect "the give-and-take of the consultative

process." Petroleum Info. Corp. v. U.S. Dep't of Interior, 976

F.2d 1429, 1434 (D.C. Cir. 1992) (citations and internal quotation

marks omitted). More specifically, the document must: "(i) form[]

an essential link in a specified consultative process, (ii)

reflect[] the personal opinions of the writer rather than the

policy of the agency, and (iii) if released, . . . inaccurately

reflect or prematurely disclose the views of the agency."

Providence Journal Co., 981 F.2d at 559 (internal quotation marks

and citations omitted). Conversely, a document "consisting only of

compiled factual material or purely factual material contained in

deliberative memoranda and severable from its context" is subject

to disclosure. EPA v. Mink, 410 U.S. 73, 87-88 (1973).

Stalcup speculates that the two documents primarily

contain factual information respecting the cause of the Flight 800

crash. He postulates that neither focuses on any policy issue or

legal question. The district court, as he sees it, thus failed to

differentiate between "materials reflecting deliberative or policy-

making processes on the one hand, and purely factual, investigative

matters on the other." Id. at 89.

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 Stalcup's contention is dubious. Though the Supreme

Court in Mink did distinguish between purely factual material and

policy prescriptions, the Court also emphasized that "Congress

sensibly discarded a wooden exemption that could have meant

disclosure of manifestly private and confidential policy

recommendations simply because the document containing them also

happened to contain factual data." Mink, 410 U.S. at 90. The

question is not merely whether the documents contain factual

information -- or even whether the document is predominantly

comprised of findings of fact -- but rather the degree to which the

facts are indissolubly linked to the broader analysis. Thus,

although the two documents may contain certain facts, that alone

does little to advance the analysis.

Instead, the issue hinges on whether the documents were

"prepared to facilitate and inform a final decision or deliberative

function entrusted to the agency." Providence Journal Co., 981

F.2d at 560. In Lahr, the Ninth Circuit reviewed the documents at

issue here and concluded that each contains a preliminary analysis

of newly acquired data and that both discuss recommendations for

agency management to consider. Lahr, 569 F.3d at 983. For

instance, the Dynamic Flight Simulation "exposes in detail the

thought process of the CIA analysts involved in calculating the

simulated flight path, as well as language reflecting the

decisionmaking process." Id. Moreover, if released, both

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documents would "expose the agency's internal deliberations in such

a way that would discourage candid discussion and effective

decisionmaking." Id. Although factual findings are indeed

included in the documents, they are tethered to broader policy

considerations. Id.

The Ninth Circuit's conclusion coheres with the CIA's

declaration and Vaughn index in this case. The Analysis of Radar

Tracking, for example, has the label "draft" on it, was shown to

the NTSB but never finalized, contains analytical opinions,

assessments, and judgments, and was passed on to agency management

for possible policy changes. The Dynamic Flight Simulation,

meanwhile, is also labeled "draft", includes opinions and

information relevant to calculating the flight path, identifies

challenges to conducting the analysis, and was also provided to

agency management but never finalized. Stalcup has provided no

reason to question those descriptions.

Further, to the extent that the documents contain purely

factual information severable from the analysis, any worries can be

put to rest. The district court in Lahr had ordered the CIA to

provide any factual material that could be separated. Lahr, 569

F.3d at 983. In turn, the CIA released -- and provided to Stalcup

in this case -- certain radar data, graphs, and headings from those

documents. Stalcup has failed to raise a genuine dispute that any

additional information is severable.

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 In his reply brief, Stalcup presents a number of new

arguments. Among them is his contention that the passage of time

undermines the basis for enforcing the exemption. See National

Security Archive v. Central Intelligence Agency, 752 F.3d 460 (D.C.

Cir. 2014). We need not consider that claim here since it, like

his other new arguments, is waived. See,e.g., Carpenter, 470 F.3d

at 440 n.9.

Stalcup next takes aim at the predecisional prong of the

requirement. To satisfy this element, a document must be prepared

"in order to assist an agency decisionmaker in arriving at his [or

her] decision." Town of Norfolk v. U.S. Army Corps of Eng'rs, 968

F.2d 1438, 1458 (1st Cir. 1992) (citations omitted). An agency

claiming the exemption must "(i) pinpoint the specific agency

decision to which the document correlates, (ii) establish that its

author prepared the document for the purpose of assisting the

agency official charged with making the decision, and (iii) verify

that the document precedes, in temporal sequence, the decision to

which it relates." Providence Journal, 981 F.2d at 557 (internal

quotation marks and citations omitted).

Stalcup argues that the CIA determined the cause of the

crash in 1997, but only created the two documents at issue in 1998

after it had reached that decision. From his perspective, the

documents were produced solely to reconcile new data that did not

support the agency's initial conclusion. Thus, he asserts, the CIA

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improperly attempted to "explain agency action already taken or an

agency decision already made." Sears, Roebuck & Co., 421 U.S. at

153.

The roadblock in Stalcup's path is that the CIA's task

did not end in 1997 when it reached its initial conclusion.

Instead, as would any reasonable government entity presented with

new data, it undertook to determine whether its prior assessment

was accurate or whether it needed to change its position.

Again, the Lahr court describes the documents well. The

Dynamic Flight Simulation is "based on additional and more complete

data that became available over the course of the investigation."

Lahr, 569 F.3d at 982-83. The court further observes that,

"[a]lthough it is dated after the November 1997 CIA animation, it

was clearly prepared for the specific purpose of aiding the agency

in its determination of the likely flight path of the aircraft

following the explosion, a determination central to the CIA's task

of explaining what the eyewitnesses actually saw." Id. at 983.

The Analysis of Radar Tracking, too, "contains conclusions and

thoughts of CIA analysts concerning the viability and accuracy of

certain radar data," and therefore forced the CIA to ask whether it

needed to reconsider its decision. Id. at 983. Stalcup offers us

no basis upon which to reject that reasoning.

Finally, Stalcup maintains that, even if the twin

justifications of exemption 5 are met, release of the documents is

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nevertheless appropriate. Emphasizing his belief that the CIA

participated in a cover-up, he urges us to endorse a government

misconduct waiver. Drawing from the civil litigation context,

Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 885

(1st Cir. 1995), he argues that the exemptions should be waived if

the evidence "warrant[s] a belief by a reasonable person that the

alleged government impropriety might have occurred." Nat'l

Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). He

points to the approach of the District of D.C., which has employed

a narrow waiver in FOIA cases presenting "extreme government

wrongdoing." Neighborhood Assistance Corp. of Am. (NACA) v. U.S.

Dep't of Hous. & Urban Dev., ___ F. Supp. 2d ___, 2013 WL 5314457,

at *8 (D.D.C. Sept. 24, 2013); see also Enviro Tech Int'l, Inc. v.

EPA, 371 F.3d 370, 376 (7th Cir. 2004) (assuming that a waiver

might apply for ultra vires actions by an agency). Contra Appleton

Papers, Inc. v. EPA, 702 F.3d 1018, 1022 (7th Cir. 2012); Hoover v.

U.S. Dep't of Interior, 611 F.2d 1132, 1142 (5th Cir. 1980).

This is a road we need not travel. To the extent that we

might similarly recognize a narrow waiver doctrine in the FOIA

context, it would not apply in this case. Even assuming that

Stalcup could show a scintilla of support for his claim, he still

fails to connect the requested materials to the alleged government

misconduct. Courts that have adopted such a waiver in the FOIA

milieu also require a party to establish a nexus between the

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misconduct and the requested documents. See Judicial Watch of Fla.

v. U.S. Dep't of Justice, 102 F. Supp. 2d 6, 15 (D.D.C. 2000).

This is a sound way to avoid a litigant's mere fishing expedition

into government action. Stalcup's silence as to how the requested

documents would shed any new light on the alleged misconduct is

fatal to his claim.

Ultimately, the CIA properly withheld the materials under

exemption 5. Both documents are deliberative and predecisional in

nature, and any misconduct waiver would be inapplicable.

B. Exemption 7(C): The Law Enforcement Exemption

In addition to the two documents, Stalcup seeks the names

of the eyewitnesses interviewed by the FBI as part of the

investigation. Although the CIA withheld the names under multiple

exemptions -- it asserted that exemption 6 protecting "personnel

and medical files" would also apply -- the parties and the district

court correctly focused on exemption 7(C). See U.S. Dep't of

Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,

756 (1989) (noting that the protections of 7(C) are more extensive

than those of 6). Exemption 7(C) shields information compiled for

law enforcement purposes when the release of such records "could

reasonably be expected to constitute an unwarranted invasion of

personal privacy." 5 U.S.C. § 552(b)(7)(C). That analysis

requires a court to balance the relevant public and private

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interests implicated by disclosure. Maynard v. CIA, 986 F.2d 547,

566 (1st Cir. 1993).

Stalcup asserts that the eyewitnesses have an

insignificant privacy interest. Generally, he says, the names of

witnesses to crimes or accidents are made public and, therefore,

the eyewitnesses in this investigation should be treated no

differently. Since the NTSB had the authority to call the

witnesses to testify, he adds, the witnesses have a reduced

expectation of anonymity.

This argument ignores the Supreme Court's observation

that an individual's privacy interest is "at its apex" when he or

she is involved in a law enforcement investigation. Favish, 541

U.S. at 166 (citation omitted). Indeed, as we have said before,

"[t]his Court has long protected the identities of witnesses and

informants in law enforcement records," even when the individual is

not the subject of the investigation. Carpenter, 470 F.3d at 439.

The other aspect of this argument, that the NTSB's

subpoena power minimized the privacy interest, is equally

unavailing. It mistakenly assumes that the mere possibility of

being called as a witness is somehow equivalent to an individual

voluntarily abdicating his or her privacy. Stalcup offers no

authority supporting that position. Moreover, even assuming that

a witness had been required to testify, that does not necessarily

diminish his or her privacy interest. Moffat, 716 F.3d at 251

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(stating that "prior revelations of exempt information do not

destroy an individual's privacy interest").

Gaining no traction there, Stalcup turns to United States

v. Weber Aircraft Corp., 465 U.S. 797 (1984). In Weber, the

Supreme Court noted that the government provided the witnesses a

guarantee that their testimony would not be released outside of the

relevant investigation. Weber, 465 U.S. at 797 n.11. In Stalcup's

view, this guarantee of confidentiality greatly enhanced the

privacy interests at stake. He then posits that, absent such a

promise in this case, no significant privacy interest can be

established.

Even if the cited footnote in Weber had been central to

the Court's analysis (it was not, because Weber was an exemption 5

case), Stalcup's inversion of the proposition is a textbook logical

fallacy. More fundamentally, it is based on a faulty assumption.

The argument presumes that individuals start with a minimal

threshold of privacy and gain more through government action. Not

only is there an absence of authority supporting that proposition,

it ignores an individual's inherent privacy interest irrespective

of any government intervention. See Carpenter, 470 F.3d at 438

(emphasizing the broad nature of the privacy interest covered by

exemption 7(C)).

Finally, relying on the testimony of a single witness who

felt "intimidated" from speaking out, Stalcup asserts that the

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eyewitnesses in this case actually wish to go public with their

observations. He claims that the CIA has either destroyed their

credibility or threatened retaliation if they come forward. He

thus distinguishes this case from one such as Forest Serivce

Employees for Environmental Ethics v. U.S. Forest Service, 524 F.3d

1021 (9th Cir. 2008), in which the witnesses' decision to remain

silent for years indicated a desire to remain private.

Although the district court is required to make

inferences in favor of the non-moving party at summary judgment, it

is only required to do so if the inference asserted is reasonable.

Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996).

The inference here requires a leap that is simply not justified by

the evidence in this record. Even crediting the testimony

regarding intimidation, that provides no basis to conclude that the

government also "intimidated" 243 other eyewitnesses or, more

benignly, that those witnesses had a desire to discuss the case.

Although this single witness may wish to speak about the crash, as

far as we know, the remainder may prefer to remain private.

Given that some privacy interest is at stake, a

significant public interest must be present to nevertheless warrant

disclosure of the witnesses' names. Favish, 541 U.S. at 172.

Here, again, Stalcup relies on the perceived cover-up as the core

of the relevant public interest. The problem for Stalcup is that

he fails to show how providing him the names -- thus permitting him

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to further interview the witnesses -- would yield any new

information. That gap prevents us from concluding that release

would further his purported public interest. Thus, given the

presence of a privacy interest, and the complete absence of any

public benefit, the balance between the two unquestionably banks

against release. The district court correctly reached this

conclusion.

C. A Final Note: The CIA's Search for the Records

We can quickly dispose of Stalcup's final contention. He

asserts that the CIA failed to conduct a reasonable search after he

sent his FOIA request, and should now be required to do more. He

raises two points.

First, in a press release, the FBI referred to a

photograph captured by an eyewitness and later analyzed by the

National Imagery and Mapping Administration. The CIA, however,

never produced this image. This failure, Stalcup says, is

emblematic of the CIA's handling of his FOIA request.

Second, he posits that the CIA only searched one of the

several departments, called "directorates," within the

organization. He speculates that the work must have been done

across the agency, particularly at the director level. In his

view, this by itself renders the search inadequate.

Resolution of this claim turns on whether the agency made

a good faith, reasonable effort "using methods which can be

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reasonably expected to produce the information requested." Oglesby

v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). After

an agency shows that it acted accordingly, which is generally

accomplished through an affidavit, a rebuttable presumption that

the agency acted in good faith emerges. Maynard, 986 F.2d at 560.

Robert Roland, the Information Review Officer of the

CIA's Directorate of Intelligence, provided extensive detail on how

the agency conducted its search. He also cogently explained why

the CIA believed that a lone department, the directorate of

intelligence, would house the responsive records. His declaration

provided a reasonable explanation for the agency's process and, at

a bare minimum, created a presumption that the CIA acted in good

faith.

Stalcup's attempt to rebut that presumption goes nowhere.

The absence of the single photograph (one, it should be noted, that

was analyzed by an agency within the Department of Defense and not

the CIA) does not warrant reversal. The omission of a single

document in this case does not negate what is otherwise a

reasonable inquiry. See Iturralde v. Comptroller of the Currency,

315 F.3d 311, 315 (D.C. Cir. 2003). Consistent with its approach

to the other issues in this case, the CIA handled the search in the

required manner.

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 IV.

Finding the district court's conclusion to be fully

supported, we affirm its order granting the CIA's motion for

summary judgment.

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