Hall v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ROGER HALL, et al., §
Plaintiffs, §
v. § Civil Action No. 04-814 (RCL)
CENTRAL INTELLIGENCE AGENCY, §
Defendant. §
)
MEMORANDUM OPINION

I. Background

Although this case is not breaking any records at merely thirteen years old, Cf Dz'Bacco v.
U.S. Army, 795 F.3d 178 (D.C. Cir. 2015) (F()IA litigation lasting more than thirty years), this
matter Will continue to live on past today’s decision.

Plaintiffs Roger Hall (“Hall”), Studies Solutions Results, Inc. (“SSRI”), and Accuracy in
Media (“AIM”) filed this action against defendant Central lntelligence Agency (“CIA” or
“agency”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking records
concerning prisoners of war and Service-members missing in action from the Vietnam War era.
Before the Court is the CIA's renewed motion for summary judgment and plaintiffs' cross-motions
for summary judgment, as well as plaintiffs' request for discovery, in camera review, and
appointment of a special master. Upon consideration of the motions, the oppositions and responses
thereto, the associated replies, the attachments and affidavits filed in support of each party’s
arguments; and the entire record of this case; the Court grants in-part and denies-in part the parties’

motions The Court explains its reasoning in the analysis below.

In February 2003, `Hall made a FOIA request to the ClA on behalf of himself, SSRI, and
AIM, seeking assorted records pertaining to POW/MlAs from the Vietnam War era. Hall Amd.
Compl. [45] 11 6. Having received no substantive response, Hall and AIM filed this action in May,
2004. The procedural history of this case, leading up to November 12, 2009, is set forth
comprehensively in Judge Kennedy's 2009 Order. Hall v. CIA, 668 F.Supp.?.d l72, l75~78
(D.D.C.2009). Likewise, the subsequent history up through August 3, 2012 is provided in an
Opinion by this Court issued on that date. 881 F.Supp.Zd 38, 50 (D.D.C. 2012).

ln its 2012 opinion, this Court ruled that the following issues remained outstanding: 1) the
adequacy of the search with respect to Item 5 of plaintiffs’ request; 2) the adequacy of the search
with respect to Item 7 of the plaintiffs’ request; 3) the disposition of referred documents With
respect to Item 5; and 4) the agency’s application of Exemptions 3 and 6 on the already produced
documents

This most recent round of litigation was kicked off by the CIA’s renewed motion for
summary judgment [248] It is the ClA’s position that it has resolved the outstanding issues
related to production, and all that remains to be decided by the Court is the adequacy of the searches
with respect to lterns 5 and 7. See [248] at *3 1[ l. Item 5 of Hall’s request included all records
relating to a) 47 individuals alleged to be Vietnam-era POW/MlAS, whose next-of-kin have
provided privacy waivers to Roger Hall, and b) l,7ll persons on the Prisoner of War/Missing
Personnel Office’s list of persons whose primary next-of-kin (PNOK) have authorized the release
of information concerning them. Item 7 requests “[a]ll records on or pertaining to any search
conducted regarding any other requests for records pertaining to Vietnam War POW/MIAS,
including any search for such records conducted in response to any request by any congressional

committee or executive branch agency.” Specifics as to the status of production for each of these

requests will be addressed in the analysis below. So, too, is the plaintiffs’ contention that CIA’s
production and conduct up to now leaves outstanding the other matters specified in the Court’s
2012 order (the Item 5 referral documents, and application of Exemptions 3 and 6) and the
adequacy of the Vaughn indices produced pursuant to that Order. For no_W, it will suffice to say
that plaintiffs are so underwhelmed with the agency’S progress that they are requesting discovery,

in camera review of unredacted documents, and/or the appointment of a special master.

II. Legal Standards

A. Summary Judgment

Summary judgment is appropriate where “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. PRO. 56(a). lt is “appropriate only in circumstances Where ‘the evidence is such that a
reasonable jury could not return a verdict for the nonmoving party.”’ Washz'ngton Post Co. v. U.S.
Dep ’t of Health & Human Servs., 865 F.2d 320, 325 (D.C. Cir. 1989) (quoting Ana'erson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986)). The Court must view all evidence “in the light most
favorable to the nonmoving party” and, if a genuine dispute exists, “parties should be given the
opportunity to present direct evidence and cross-examine the evidence of their opponents in an
adversarial setting.” Ia’.

As applied in a FOIA case, an agency defendant may be entitled to summary judgment if
it demonstrates that 1) no material facts are in dispute, 2) it has conducted an adequate search for
responsive records, and 3) each responsive record that it has located has either been produced to
the plaintiff or is exempt from disclosure Miller v. U.S. Dep't afJustice, 872 F. Supp. 2d 12, 18

(D.D.C. 2012) (cz`ting Weisberg v. DOJ, 627 F.2d 365, 368 (D.C. Cir. 1980)).

B. Adeguacy of a Search

When an agency receives a FOIA request it is obligated to “conduct a search reasonably
calculated to uncover all relevant documents,” Truitt v. Dep’t of State, 897 F.2d 540, 541 (D.C.
Cir. 1990) (internal quotation marks omitted), among those sources of information not otherwise
exempted by law. See, e.g., 50 U.S.C. § 3141. The adequacy of a search, therefore, depends not
on “whether any further documents might conceivably exist,” id., but on the search’s design and
scope. An agency must accordingly show that it made “a good faith effort to conduct a search for
the requested records, using methods [that] can be reasonably expected to produce the information
requested.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990).1 An agency need
not, however, “search every record system,” or conduct a perfect search. See id.; SafeCara’ Servs.,
Inc. v. SEC, 926 F.2d 1197, 1201 (D.C. Cir. 1991).

At the summary judgment stage, the agency bears the burden of showing that it complied
with FOIA and it may meet this burden “by providing ‘a reasonably detailed affidavit, setting forth
the search terms and the type of search performed, ‘and averring that all tiles likely to contain
responsive materials . . . were searched.”’ Iturralde v. Comptroller of Currency, 315 F.3d 311,
313-14 (D.C. Cir. 2003). The plaintiff may then “provide ‘countervailing evidence’ as to the

adequacy of the agency’s search.” Id. at 314. If a review of the record created by these affidavits

1 In various filings and supporting declarations, the CIA and its affiants frequently repeat that the Court’s earlier
holdings about the CIA’s searches being inadequate are “because . . .the CIA had erroneously stated that it had
searched the systems ‘rnost likely’ to contain responsive documents rather than ‘all systems that are likely to produce
responsive records.” To the extent the ClA is implying that the Court in its 2012 Order accepted the CIA’s subsequent
assertion that the CIA had “erroneously” stated where it searched, the Court rejects such a characterization Giving
the CIA the benefit of the doubt, its repeated invocation of erroneousness refers to its own legally significant error;
the Court did not then and does not now treat the CIA’s prior representations as merely a (repeated) rhetorical slip. In
fact, the word “erroneous” appears nowhere in the Court’s 2012 opinion. The CIA’s decision to “reconsider the
matter” of Where responsive records are likely to be found, see [248-1] at *8; [248-2] at *9, implicitly acknowledges
this to be so.

“raises substantial doubt,” as to a search’s adequacy, “particularly in view of ‘Well defined requests

$,S

and positive indications of overlooked materials summary judgment would not be appropriate
Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Founding
Church of Scientology v. Nat’l. Sec. Agency, 610 F.2d 824, 837 (D.C. Cir. 1979)).

“Agency affidavits are accorded a presumption of good faith, which cannot be rebutted by

‘purely speculative claims about the existence and discoverability of other documents

SafeCard, 926 F.2d at 1200. They may, however, be rebutted by evidence of bad faith. Id.

C. Production and Exemptions

This Court determines de novo whether an agency has properly withheld information under
a claimed FOIA exemption. See Mead Data Cent., Inc. v. Dep't of Air Force, 566 F.2d 242, 251
(D.C. Cir. 1977). “The underlying facts are viewed in the light most favorable to the [FOIA]
requester,” Weisberg, 705 F.2d at 1350, and the exemptions must be narrowly construed. FBI v.
Abramson, 456 U.S. 615, 630, 102 S.Ct. 2054, 72 L.Ed.2d 376 (1982). An agency claiming an
exemption to FOIA bears the burden of establishing that the exemption applies. Fea'. Open Mkt.
Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979). And FOIA requires that “[a]ny
reasonably segregable portion of a record shall be provided to any person requesting such record
after deletion of the portions which are exempt.” 5 U.S.C.A. § 552(b).

Especially in national security matters, however, courts generally defer to agency expertise
See, e.g., Taylor v. Dep't of the Army, 684 F.2d 99, 109 (D.C. Cir. 1982) (according “utmost
deference” to classification affidavits); Krikorian v. Dep't of State, 984 F.2d 461, 464-65 (D.C.
Cir. 1993) (acknowledging “unique insights” of executive agencies responsible for national

defense and foreign relations). Because of that deference and the peculiarities of FOIA litigation,

agencies regularly submit affidavits setting forth the bases for withholding otherwise responsive
information, just as they do to establish the adequacy of their searches, in support of their motions
for summary judgment These submissions usually also include so-called Vaughn indeces. See
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). The agency’s submissions “must show, with
reasonable specificity, why the documents fall within the exemption.” Judicial Watch, lnc. v. U.S.
Dep't of Health & Human Servs,, 27 F. Supp. 2d 240, 242 (D.D.C. 1998). Again, they are
presumed to be submitted in good faith. Ground Saucer Warch, Inc. v. CIA, 692 F.2d 770, 771
(D.C. Cir. 1981). The D.C. Circuit has explained the importance of these submissions in
evaluating FOIA exemption claims:

As, ordinarily, the agency alone possesses knowledge of the precise content

of documents withheld, the FOIA requester and the court both must rely

upon its representations for an understanding of the material sought to be

protected ..... Affidavits submitted by a governmental agency in

justification for its exemption claims must therefore strive to correct,

however, imperfectly, the asymmetrical distribution of knowledge that

characterizes FOIA litigation. The detailed public index which in Vaughn

we required of withholding agencies is intended to do just that: to permit

adequate adversary testing of the agency's claimed right to an exemption,

and enable the District Court to make a rational decision whether the

withheld material must be produced without actually viewing the

documents themselves, as well as to produce a record that will render the

District Court's decision capable of meaningful review on appeal
King v. U.S. Dep'r ofJustice, 830 F.2d 210, 218-19 (D.C. Cir. 1987) (quotations omitted).

To accomplish that goal, the agency must supply “a relatively detailed justification,
specifically identifying the reasons why a particular exemption is relevant and correlating those
claims with the particular part of a withheld document to which they apply.” Mead Data Cent.,
566 F.2d at 251. The requisite specificity “imposes on the agency the burden of demonstrating

applicability of the exemptions invoked as to each document or segment withheld.” King, 830

F.2d at 224 (emphasis original). Though the affidavits need not contain factual descriptions the

public disclosure of which would endanger the agency's mission, Vaughn, 484 F.2d at 826~27,
they must feature “the kind of detailed, scrupulous description [of the withheld documents] that
enables a District Court judge to perform a de novo review.” Church of Scientology of Cal., Inc.

v. Turner, 662 F.2d 784, 786 (D.C. Cir. 1980).

a. Exemption ]

Exemption l protects matters that are: “(A) specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive order[.]” 5 U.S.C. §
552(b)(1). Pursuant to Executive Order 13526, 75 Fed.Reg. 707 (Jan. 5, 2010), information may
be classified only if all of the following conditions are metz

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the control of the United
States Government;

(3) the information falls within one of more [specified categories];2 and

(4) the original classification authority determines that the unauthorized disclosure of the
information reasonably could be expected to result in damage to the national security, which
includes defense against transnational terrorism, and the original classification authority is able to
identify or describe the darnage.

Exec. Order No. 13526 § l.l(a). The phrase “damage to the national security” means “harm to
the national defense or foreign relations of the United States from the unauthorized disclosure of

information, taking into consideration such aspects of the information as the sensitivity, value,

utility, and provenance of that information.”‘ Exec. Order. No. 13526 § 6.1(1). See also Military

2 The Executive Order limits the government’s ability to classify information to that which falls within the following
enumerated categories: (a) military plans, weapons systems, or operations; (b) foreign government information; (c)
intelligence activities (including covert action), intelligence sources or methods, or cryptology; (d) foreign relations
or foreign activities of the United States, including confidential sources; (e) scientific, technological, or economic
matters relating to the national security; (f) United States Government programs for safeguarding nuclear materials or
facilities; (g) vulnerabilities or capabilities of systems, installations, infrastructures, projects, plans, or protection
services relating to the national security; or (h) the development, production, or use of weapons of mass destruction
Exec. Order No. 13526 § 1.4.

Aua’it Projecz‘ v. Casey, 656 F.2d 724, 748 (D.C. Cir. 1981) (deferring to agency affidavits as to

the proper classification of information).

b. Exemption 3

Exemption 3 covers records that are specifically exempted from disclosure by statute under
conditions dictated by the FOIA. 5 U.S.C. § 552(b)(3). Certain provisions of the Central
lntelligence Agency Act and the National Security Act that require the protection from
unauthorized disclosure of intelligence sources and methods, and certain information regarding
the organization and personnel of the CIA, are such statutes See 50 U.S.C. §§ 3024, 3507. ln
cases involving national security equities, such as this one, there is therefore generally significant
overlap between the information covered by Exemption l and that covered by Exemption 3. See
also Military Audit Project, 656 F.2d at 737 n. 39 (citing Phillippi v. CIA, 546 F.2d 1009 (D.C.
Cir. 1976)). With respect to Exemption 3 claims, as with the other exemptions, this Court seeks
to balance the inherent tension between the public's interest in government goings-on with the
protection of an agency's legitimate, and statutorily recognized need for secrecy in certain matters

See Miller, 872 F. Supp. 2d at 22.

c. Exemption 5
FOIA Exemption 5 applies to “inter-agency or intra-agency memorandums or letters that
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).3 As relevant here, Exemption 5 has been applied as an exercise of the

3 Plaintiffs argue that the Court should apply in this case the FOIA lmprovement Act of 2016’s sunset
provision to deliberative process privilege claims That statute states that the privilege, “shall not apply to records
created 25 years or more before the date on which the records were requested.” 5 USC § 552(b)(5) (2016). According
to its Vaughn indices7 the CIA has claimed Exemption 5 with respect to 20 documents ~ three that were released-in-
part, and seventeen that were denied-in-f`ull. Only one document is denied-in-full solely on the basis of Exemption 5;
it is undated, but apparently bears hallmarks as to its age.

The Senate report accompanying the legislation explains, in part:

8

4 “[T]he ultimate purpose of this

deliberative process privilege. See Shiner decl. [248-2] at 11 61.
long-recognized privilege is to prevent injury to the quality of agency decisions.” N.L.R.B. v.
Sears, Roebuck & Co., 421 U.S. 132, 151 (1975). Three policy bases underlie this privilege:

First, it protects creative debate and candid consideration of alternatives

within an agency, and, thereby, improves the quality of agency policy

decisions Second, it protects the public from the confusion that would result

from premature exposure to discussions occurring before the policies

affecting it had actually been settled upon. And third, it protects the integrity

of the decision-making process itself by confirming that “officials should be

judged by what they decided[,] not for matters they considered before

making up their minds.”
Russell v. Dep ’t of the Az`r Force, 682 F.2d 1045, 1048 (D.C. Cir. 1982) (quoting Jordan v. U.S.
Dep ’t of Justice, 591 F.2d 753, 772-73 (D.C. Cir. 1978)). Therefore, Exemption 5 “protects not
only communications which are themselves deliberative in nature, but all communications which,
if revealed, would expose to public view the deliberative process of an agency.” Ia'. at 1048.

For material to qualify for withholding or redaction under Exemption 5, it “must be both

‘predecisional’ and part of the ‘deliberative process.”’ McKinley v. Bd. of Governors of Fed.

Reserve Sys., 647 F.3d 331, 339 (D.C. Cir. 2011) (internal quotation marks omitted). A document

The [sunset] provision ensures government records be made available to the public for their
educational and historic value, while providing sufficient time for agencies to protect
against the disclosure of their deliberative processes The world can change significantly
over the span of 25 years, and the public benefits derived from access to historical records
should continue to be given special consideration when weighted against the govemment's
interest in withholding information.. . . . The amendment to Exemption 5 is consistent with
the unique relationship that government employees have with executive branch agencies,
as well as the duty imposed on government employees to act in the public interest. . . .
S. REP. No. 114-4 (2016).

The Act, however, also provides that its amendments to the FOIA “shall apply to any request for records . . .
made after the date of enactment of this Act.” Thus, the only way for the Act to be applicable to the present litigation
is if the plaintiffs filings after the date of enactment (June 30, 2016) can properly be construed as FOIA requests in
and of themselves; if so, that would materially alter the CIA’s ability to apply Exemption 5 to materials produced
pursuant to those requests The plaintiffs have not alleged they have sent a FOIA request to the CIA after June 30,
2016, and the Court declines to treat its filings as such; a motion for Surnmary judgment is a motion to a court, not a
request to an agency. The Court therefore applies Exemption 5 as codified prior to the enactment of the FOIA
lmprovement Act.

4 CIA’s claims of material covered by the attorney-client and work product privileges were disposed of in the Court’s
2012 order. 881 F.Supp.2d at 69-70.

is predecisional if it is prepared “to assist an agency decisionmaker in arriving at his decision, and
may include recommendations drafi documents, proposals, suggestions, and other subjective
documents which reflect the personal opinions of the writer rather than the policy of the agency.”
Formala’ehyde Inst. v. Dep’t of Health & Human Servs., 889 F.2d 1118, 1122 (D.C. Cir. 1989)
(internal citations and quotation marks omitted). A document is predecisional only if a court can
“pinpoint an agency decision or policy to which the document contributed.” Senate of the Com.
of Puerto Rico on Behalf of Judiciary Comm. v. U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C.
Cir. 1987). lf that document is, in fact, later adopted as an agency decision, however, it may lose
it ‘predecisional’ status Coastal States Gas Corp. v. Dep ’t of Energy, 617 F.2d 854, 866 (D.C.
Cir. 1980). Furthermore, although draft documents may properly be withheld under Exemption 5,
an agency’s mere “designation of a document as a ‘draft’ does not automatically trigger proper
withholding under Exemption 5.” Defs. Of Wildlife v. U.S. Dep ’t of Agric., 311 F. Supp.2d 44, 58
(D.D.C. 2004).

A document is part of the deliberative process “if the disclosure of [the] materials would
expose an agency’s decisionmaking process in such a way as to discourage candid discussion
within the agency and thereby undermine the agency’s ability to perform its fianctions.”
Formaldehyde Inst., 889 F.2d at 1122 (internal quotation marks omitted). ln addition, “[f]actual
material is not protected under the deliberative process privilege unless it is ‘inextricably
intertwined’ with the deliberative material.” Judicz`al Watch, Inc. v. Dep’t of Justice, 432 F.3d

366, 372 (D.C. Cir. 2005).

10

a’. Exemption 6

Exemption 6 protects disclosure under the FOlA of “personnel and medical files and
similar files the disclosure of Which would constitute a clea'rly unwarranted invasion of personal
privacy.” 5 U.S.C § 552(b)(6). Exemption 6 thus has two prongs, and requires an agency to prove
both the nature of the files and that the files’ disclosure “would constitute a clearly unwarranted
invasion of personal privacy.” Dep'l ofState v. Washington Post Co., 456 U.S. 595, 599-603, 102
S.Ct. 1957, 72 L.Ed.2d 358 (1982)). The first criterion does not require that the information be
contained in a specifically designated “personnel” file. Ia'. at 601. lt is met if the information
“appl[ies] to a particular individual” and is “personal” in nature. New York Times Co. v. NASA,
852 F.2d 602, 606 (D.C. Cir. 1988). The second step of an Exemption 6 analysis is to strike a
“balance between the protection of an individual's right to privacy and the preservation of the
public‘s right to government information.” Washington Post Co., 456 U.S. at 599. The “public
interest” in the analysis is limited to the “core purpose” for which Congress enacted the FOIA, i.e.,
to “shed light on an agency’s performance of its statutory duties.” U.S. Dep't of Justice v.
Reporters Comm. for Freedom of the Press, 489 U.S. 749, 773, 109 S.Ct. 1468, 103 L.Ed.2d 774
(1989).

lnforrnation about federal employees therefore generally does not qualify for protection
See Ariejj‘"v. Dep't of the Navy, 712 F.2d 1462, 1467-68 (D.C. Cir. 1983) (declining to protect
information about a large group of individuals); Aguirre v. SEC, 551 F.Supp.2d 33, 54 (D.D.C.
2008) (“Correspondence does not become personal solely because it identifies government
employees.”). There must be some personal information that relates to a particular individual for
exemption 6 protection to be warranted Typical personal information protected under exemption

6 includes “place of birth, date of birth, date of marriage, employment history, and comparable

ll

data.” Nat'l Ass’n of Retirea' Fed. Emps. v. Horner, 879 F.2d 873, 875 (D.C. Cir. 1989). In
examining an exemption 6 withholding, the court must balance the privacy interest at stake against
the public's interest in disclosure F and for Constitutional Gov’t v. National Archives and Records
Serv., 656 F.2d 856, 862 (D.C. Cir. 1981). “Under exemption 6, the presumption in favor of
disclosure is as strong as can be found anywhere in the Act.” Nat'l Ass'n of Home Builders v.

Norton, 309 F.3d 26, 32 (D.C. Cir. 2002).

III. Analysis

Over the years of this litigation, Hall’s FOIA request has resulted in the release of more
than 4,000 documents tending to shed light on the fates of prisoners of war and those men
otherwise reported as missing in action during the Vietnam conflict. See Hall v. CIA, 115
F.Supp.3d 24, 29 (D.D.C. 2015). Since the Court’s 2012 order alone, the ClA has processed and
released (in-full or in-part) over 750 additional responsive documents Shiner decl. 11 29. The
years of back-and-forth in this litigation, characterized by numerous motions, cross-motions and
oppositions, as well as declarations and iterative supplements thereto, tends to obscure that the
Court’s two-fold task here is theoretically fairly straightforward: to determine the reasonableness
of the CIA’s search for and production of documents responsive to plaintiffs’ 2003 FOlA request
Although we are getting closer to a final resolution the Court finds some daylight remains to be

shed on both prongs of this judicial inquiry.

A. Adequacy of the Search(es)
The “genuine issue of fact” relevant to a FOIA summary judgment motion is not the
existence of any particular document, but rather the reasonableness of the agency's search. See

SafeCara', 926 F.2d at 1201. The question before the Court therefore is not whether there were or

12

are still American POWS remaining in Southeast Asia contrary to the government’s
representations but whether the searches conducted by the CIA (of its non-exempted files)
pursuant to the plaintiffs’ FOIA request were adequately likely to yield information related to that
request

The court may rely on an agency’s “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.” Oglesby, 920 F.2d at 68. Such affidavits are
“accorded a presumption of good faith, which cannot be rebutted by ‘purely speculative claims
about the existence and discoverability of other documents,” so long as they are “relatively detailed
and non-conclusory.” Mobley v. C.I.A., 806 F.3d 568, 580-81 (D.C. Cir. 2015), quoting SafeCard,
926 F.2d at 1200. The plaintiff “may nonetheless produce countervailing evidence, and if the
sufficiency of the agency's identification or retrieval procedure is genuinely in issue, summary
judgment is not in order.” Morley v. C.I.A., 508 F.3d 1108, 1116 (D.C. Cir. 2007) (quoting
Founding Church of Scientology, 610 F.2d at 836).

Here the CIA has submitted declarations from a senior Information Review Officer with
original classification authority. Shiner decl. at 1111 1-6; 2d Shiner decl. [272-1]. The declarations
describe in great detail the process the CIA has used to search for documents responsive to ltems
5 and 7 of plaintiffs’ request. Plaintiffs continue to challenge the adequacy of the CIA’s searches
in this case, using several declarations of their own, complete with numerous exhibits culled from

previously disclosed records and other research.

a. Item 5
Plaintiffs’ Item 5 requests records on over 1,700 persons reported to be prisoners of war or

missing-in-action during the Vietnam War. The CIA’s declarant details what systems were

13

searched for records responsive to this request, and how (i.e., which search terms were used).
Shiner decl jj 22. lt details how the agency’s search team “manually reviewed” hard-copy folders,
“page-by-page, to determine responsiveness,” and explained the criteria used to determine what
would be considered responsive Ia’. lt likewise describes the agency’s searches of its CADRE
system ordered by this Court. Id. at 11 24.

But the CIA’s affidavits are insufficient in certain critical ways lts declarant states that
114 folders out of the 569 originally identified as potentially responsive “had been properly
destroyed in accordance with the CIA’s records control schedule.” Ia'. at 11 22. Plaintiffs argue
that the CIA “should describe, with particularity” what schedules the agency is referring to that
would allow it discretion to destroy records on reported missing persons See [289] at *29. The
Court agrees with the plaintiffs, finding the conclusory assertion that the folders were “properly”
destroyed as undermining what otherwise appears to be an adequate search of the sources of files
it searched. The Court therefore directs the CIA to provide further specificity as to the regulations
and schedules applied to its decision to destroy the files.

Furthermore, although a search may be adequate despite failing to discover “an entire
category of records . . . that, according to the requester, was of such importance that records must
have been created, Mobley, 806 F.3d at 583 (quoting DiBacco, 795 F.3d at 190), a search is
inadequate when it is “evident from the agency's disclosed records that a search of another of its
records system might uncover the documents sought.” Valencia-Lucena, 180 F.3d at 326. While
the plaintiffs have littered the record with plenty of speculation that, to paraphrase, insists more
records must exist because so many men have been reported missing, they also have pointed to
several concrete examples of categories of documents that prior productions strongly suggest do

exist See, e.g., Hall decl. [260].

14

The CIA has thus far failed to address specific allegations of inadequacy with any
particularity, except to reiterate that it has produced the non-exempt material in the places it has
searched. For example, in addition to the CIA’s failure to tum-up files on l,700 of the names of
reported missing persons that it searched for, plaintiffs present evidence of imagery of suspected
prison camps up to 1,400 live-sighting reports and named reconnaissance and rescue operations
alleged to have taken place. Although specific imagery, intelligence reports and operations even
those more than 60 years old, may well still be classified, the Court cannot be left to speculate
about whether such records if they exist, are among those the CIA Director has designated as
operational files pursuant to his statutory authority. See Def. Reply and Opposit’n [272] at *12
(representing that plaintiffs “have identified only the [a]gency’s operational files” in their
argument that the CIA’s search has been inadequate). And, although the Court is strongly inclined
to defer to the CIA’s determinations as to classification and Section 3141, the present record fails
to demonstrate how such dated records can reasonably be considered operational under the statute.
ln this particular litigation, that the CIA conducted a decennial review of its operational files in
2015, 2d Shiner decl. at 1111 17-20, is a threshold matter; it is not the end of the inquiry before the

Court

b. Item 7
Plaintiffs’ Item 7 requests “All records on or pertaining to any search conducted regarding
any other requests for records pertaining to Vietnam War POW/MlAs, including any search for
such records conducted in response to any request by any congressional committee or executive
branch agency.” As with respect to ltem 5, the CIA’s submissions detail how it went about its

search for materials responsive to Item 7. lt describes its determination as to the offices likely to

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contain responsive records sent to Congress and the universe of terms searched. Shiner decl. 11
26. lt also explains in detail the CIA’s follow-up with respect to certain attachments enclosures
photographs and reports of previously produced documents as ordered by the Court in 2012.
Shiner decl. ‘|l 28.

As an initial matter, to the extent the plaintiffs now wish to expand the search terms used,
see AIM MSJ [258] at **15-16; [286] at **7-8, the Court denies their request First, the search
terms used were reasonably calculated to discover the information in plaintiffs’ request Second,
the paucity of responsive records itself does not determine whether the search was adequate Third,
the Court is skeptical of plaintiffs’ argument that additional searches for the names of specific
POW camps or the codenames of reconnaissance operations is likely to yield further responsive
records; it is reasonable to accept that (at least most) such records would simultaneously include
the terms already searched. At this stage, the Court will not order the CIA to commit its limited
resources to searching anew for what is unlikely to yield new responsive materials See also
Mobley, 806 F.3d at 583 (failure to discover an entire category of records did not render a search
inadequate).

Further, plaintiffs’ reliance on a number of affidavits submitted by former congressmen
and senators combined with insistence that “the ClA must search its operational files” [258] at
*10, seems to imply a belief any documents that the CIA may have shared with Congress out of
the agency’s properly-designated operational files now must be disclosed pursuant to FOIA. That
notion is incorrect Whether compelled or voluntary, the CIA’s decision to share its operational
information with other government agencies or with Congress, does not sacrifice that
information’s protection from disclosure under FOlA. The applicable statute does not envision

that outcome, 50 U.S.C. § 3141, and to decide otherwise would likely chill both interagency

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cooperation and Congress’ oversight function See also Military Audit Project, 656 F.2d at 753-
54 (“lt would be unwise for us to punish flexibility, lest we provide the motivation for
intransigence.”).

This item, however, is essentially a request for records about prior searches for records So
although the CIA need not disclose to FOIA plaintiffs information from its operational files the
fact that it may have previously disclosed information from its operational files or elsewhere
pursuant to the requests of congressional committees is itself within the scope of the FOIA request
For example, the plaintiffs submitted affidavits from certain former congressmen and senators that
make it abundantly clear to the Court that, at some point, these individuals were shown imagery
of possible POW camps that plaintiffs say has not been produced to them. The ClA has not
addressed why that might be. To be clear, as with Item 5, what is troublesome is not necessarily
that the CIA has not produced in this litigation certain information that may be exempted from
disclosure, but that the CIA has failed to squarely address plaintiffs’ evidence strongly indicating
that the agency does possess the information sought If the agency cannot confirm or deny the
existence of that information in a public filing, so be it, but its inadequate responses thus far makes

it impossible for the Court to grant the CIA’s motion for summary judgment as to its searches

B. Production
a. Disposition of Referral Documents Since 2012
ln its 2012 ruling, the Court ordered the CIA to follow-up on the seven documents
responsive to Item 5 that had been referred to other agencies for review, but whose disposition had
not yet been determined. The CIA considers the issue to be resolved. Shiner decl. at 11 16.

Plaintiffs in their oppositions and cross-motions disagreed, arguing the NSA’s response is

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insufficient [259] at **34-36. The CIA subsequently further explained the processing of the
document in-question, and the basis for its asserting that the matter is resolved. 2d Shiner decl. at
11 16. Plaintiffs do not appear to challenge this more complete account, and the Court agrees with

the CIA that this matter is resolved.

b. Applications of Exemptions Rejected in 2012

In its 2012 order, this Court determined that questions remained related to the CIA’s
invoking Exemptions 3 and 6 for names and photographs on certain produced documents 881
F.Supp.2d at 67, 71-72. With respect to Exemption 3 on the documents then in-question, the Court
finds the CIA has adequately addressed the Court’s concern with its submissions filed shortly after
entry of the order. See Tisdale decl. [188-2] at 11 3(b).

With respect to Exemption 6, the Court determined in 2012 that “the CIA has not overcome
the heavy presumption in favor of disclosure found in exemption 6 in regard to the names”
contained in the already produced documents as “the names . . . themselves appear to be the
subject of substantial public interest.” 881 F.Supp.2d at 71. The Court observes that the public
interest in POW/MIA issues has not waned in the past five years - indeed, the POW/MIA flag
flew just below our nation’s flag over the dome of the Capitol on lndependence Day just last
month, and a Sunday edition of the Washington Post that same week featured a front-page story
on a Vietnam Veteran who had been missing in action and presumed dead.5 The Court reiterates
its holding that the public interest in this matter is high, and the CIA’s speculation about potential
“harassment, intimidation, or unwanted contact,” 2d Shiner decl. at 11 14, does not overcome the

strong presumption of disclosure See Nat'l Ass’n of Home Builders, 309 F.3d at 32 (“Under

5 Michael E. Ruane, Marked Dead in Vietnam, a Long Journey Back to Life, Wash. Post (July 9, 2017) at Al.

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exemption 6, the presumption in favor of disclosure is as strong as can be found anywhere in the
[FOIA].”); Nat'l Ass’n of Retired Fed. Emps., 879 F.2d at 875 (declining to include individuals’
names among the types of information normally withheld under Exemption 6). Although the Court
understands the government’s interest in protecting lower-level employees 2d Shiner decl. at 11
14, or at least persons Who were lower-level employees at the time of the relevant document’s
creation, the weight of that interest fades considerably as decades pass Therefore, as to the non-
CIA employees’ names redacted under Exemption 6, the Court once again denies summary

judgment to the CIA and grants summary judgment to plaintiffs

c. Post-2012 Document Release and Accompanying Vaughn Indices

Since its 2012 order, the CIA has released an additional 750 documents in whole or in-part
that are responsive to the plaintiffs’ request For the responsive documents located for which
release was denied in full, and for those documents released-in-part that plaintiffs selected for a
sample Vaughn index, the CIA asserted various combinations of Exemptions 1, 3, 5, and 6.

lt is clear to the Court that the ClA has sufficiently detailed its classification review and
declassification analysis concerning its applications of Exemption l. Shiner decl. at 11 34-56; 2d
Shiner decl. at 1111. lt has described in great detail the conditions under which information is
properly classified, and how it has determined the continued applicability of those conditions to
the relevant responsive documents in this case. lt also has articulated the standards by which
classification determinations are reviewed for the downgrading and eventual public release of
information, and why certain information in the documents now at issue cannot be yet be released.

However, the CIA’s Denied-in-Full Vaughn index, [248-2] at **70-96, lists three undated

documents that cite to Exemption l (documents 2, 3, and 15). Because the CIA’s declassification

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standard of review is in part, a function of the age of the documents the CIA must discern and
disclose the latest date on which these document can reasonably be considered to have been
created. This date should be indicated by a designation such as “no later than,” “NLT,” or similar,
and should be based on hallmarks of the age of the document, determined first by looking at the
features and content of the document itself (e.g., comparing the name and position of the author
and recipient to the times during which those persons held the positions they were in at the time,
or observations of then-current events), and then, if the document itself somehow bears no such
hallmarks as to its age, by looking to the context in which the document was found (e.g., whether
documents stored alongside the one in question are themselves dated or bear hallmarks as to their
age which the document in question does not).6

Regarding Exemption 3, the CIA has explained its grounds for withholding information
based on provisions of the Central lntelligence Agency Act and the National Security Act. As to
the former, plaintiffs argue that a plain reading of the CIA Act’s exemption of information
concerning “personnel employed by the Agency,” 50 U.S.C. § 3507, is limited to current
employees and that it certainly cannot be applied to deceased former employees [286] at **13-
14. The Court disagrees No profound logical stretch is necessary to read that language as
encompassing persons currently or previously employed by the CIA, especially When considering
the text and purpose of the statute as a whole At the extreme, plaintiffs’ preferred interpretation
would suggest that there is no Exemption 3 protection even over the names of officers killed in a
recent covert operation That reading would be profoundly likely to cause damage to the national

security of the United States of exactly the sort that the CIA Act is meant to prevent

6 The Court notes that, prospectively, the CIA’s ability to rely on Exemption 5 is also going to depend on the age of
the documents in question See n. 3, supra. Here, undated denied-in-full documents citing to (b)(5) include
documents 2, 14, and 35 . The Court believes that the same diligence can and should be applied to those documents

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As for the CIA’s exercise of Exemption 3 under the NSA Act, 50 U.S.C. § 3024, one of
the plaintiffs argues:
some intelligence sources and methods are so commonly known by the news
media, the public at large, and hostile intelligence agencies that it is generally
pointless to protect them in the name of national security, particularly when
there have been vast disclosures related to the topic by congressional
committees and the press
[286] at *15; [259] at **23-24. That argument has been roundly and consistently rejected. See,
e.g., Military Audz`t Project, 656 F.2d at 741 -45, 752-53 (press reports and published congressional
studies concerning a national security operation have no bearing on whether that operation is
properly classified). 'l`he relative successes or failures at protecting intelligence sources and
methods does not impact the continuing statutory duty to do so. See id. at 745 (musing that the
details of a sensitive operation may one day be disclosed “when the story is safe to tell.”).
Regarding the CIA’s application of Exemption 5, noting that a future FOIA request for the
information the CIA has redacted pursuant to this exemption would likely be subject to the sunset
provision in the amended statute, the Court finds the ClA has met its burden under the pre-FOlA
lmprovement Act standard. The CIA’s affidavits and accompanying Vaughn indices adequately
establish the context for properly applying the deliberative process privilege, and also attest to the
non-segregable nature of the information underlying the redactions.7 The plaintiffs allege that

extensive government misconduct vitiates the privilege asserted here; the Court disagrees lt is

extremely unlikely that deliberate and wanton misconduct on the scale suggested by plaintiffs

7 The plaintiffs’ reliance on Citz'zensj?)r Responsibility and Ethics in Washington v. U.S. Dept. of Homeland Sec., 648
F.Supp.2d 152 (D.D.C. 2009), for the proposition that information such as specific documents’ authors or recipients
is necessary to perform a proper analysis under Exemption 5, is misplaced See [259] at **11-12. Although each
FOIA exemption must generally be analyzed on its own merit, the plaintiffs cannot use Exemption 5 to get around the
statutory protections against disclosure of information related to the CIA’s personnel and organization that happen
also to be grounds for some of its Exemption 3 assertions There is simply no analogy here to the cited case’s treatment
of the United States Customs and Border Patrol documents

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exists to the extent that the Court would find the privilege inapplicable Plaintiffs’ conspiracy
theory would require the complicity of eight presidential administrations of both parties dozens
of congressmen and senators (including Vietnam veterans), and hundreds of other public servants
Though the CIA is not an unblemished agency, and the government as a whole is not without its
share of poorly considered or executed policies the Court will not pierce the veil of the
govemment’s privilege here

Finally, the Court denies the CIA’s motion for summary judgment as to Exemption 6. The
CIA’s speculation that disclosure of certain names in decades-old documents might bring
“unwanted attention from the media . . . especially in the social media age,” Shiner decl. at 11 65,
is insufficient to overcome the strong presumption favoring disclosure See Nat'l Ass'n of Home
Builders, 309 F.3d at 32. The CIA shall therefore reexamine its application of Exemption 6 in

accordance with the Court’s analysis and direction in section lII(B)(b) of this opinion

C. Plaintiffs’ Additional Requests
a. Discovery
“Discovery is not favored in lawsuits under the FOIA. lnstead, when an agency’s affidavits
or declarations are deficient regarding the adequacy of its search the courts generally will request
that the agency supplement its supporting declarations.” Judicial Watch, Inc. v. U.S. Dep't of
Justice, 185 F.Supp.2d 54, 65 (D.D.C. 2002) (citing Nation Magazine, Wash. Bureau v. U.S.
Customs Service, 71 F.3d 885, 892 (D.C. Cir. 1995); Oglesl)y, 920 F.2d at 68). Courts may permit
discovery in FOlA cases where a “plaintiff has made a sufficient showing that the agency acted in
bad faith.” Voz'nche v. FBI, 412 F.Supp.2d 60, 71 (D.D.C. 2006) (citing Carney v. U.S. Dep't of

Justice, 19 F.3d 807, 812 (2d Cir. 1994)).

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In each of the several previous instances where plaintiffs have alleged bad faith in this
matter, both this Court and Judge Kennedy earlier have not found that to be so. 668 F.Supp.2d at
196 (2009 order); 881 F.Supp.2d at 74-75 (2012 order). Likewise here, though its conduct in this
litigation has at times been unreasonable, see 115 F.Supp.3d at 30-31 (2015 order), the CIA has

not acted so badly as to merit discovery at this stage

b. ln camera Review
FOlA gives district courts the discretion to examine the contents of requested agency

records in camera “to determine whether such records or any part thereof shall be withheld.” See
5 U.S.C. § 552(a)(4)(B). “The decision whether to perform in camera inspection is left to the
‘broad discretion of the trial court judge.”’ Lam Lek Chong v. DEA, 929 F.2d 729, 735 (D.C. Cir.
1991) (quoting Carter v. U.S. Dep't of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987)). Agency
affidavits are sufficient to justify summary judgment without in camera inspection When they:

must show, with reasonable specificity, why the documents fall within the

exemption . . . If the affidavits provide specific information sufficient to

place the documents Within the exemption category, if this information is

not contradicted in the record, and if there is no evidence in the record of

agency bad faith, then summary judgment is appropriate without in camera
review of the documents

Hayden v. Nat'l Sec. Agency, 608 F.2d 1381, 1387 (D.C. Cir. 1979), cert. denied, 446 U.S. 937,
100 S.Ct. 2156, 64 L.Ed.2d 790 (1980). “[W]hen the agency meets its burden [under FOIA] by
means of affidavits in camera review is neither necessary nor appropriate.” Weissman v. CIA, 565
F.2d 692, 696-97 (D.C. Cir. 1977). However, “in camera inspection may be particularly
appropriate when either the agency affidavits are insufficiently detailed to permit meaningful
review of exemption claims or there is evidence of bad faith on the part of the agency,” when the

number of withheld documents is relatively small, or “when the dispute turns on the contents of

23

the withheld documents and not the parties‘ interpretations of those documents.” Quinon v. FBI,
86 F.3d 1222, 1228 (D.C. Cir. 1996).

While FOIA provides the Court the option to conduct in camera review, 5 U.S.C. §
552(a)(4)(B), it by no means compels the exercise of that option See NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 224, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). lt is within the Court's
“broad discretion” to decline to conduct in camera review where, as here, the Court determines
that in camera inspection is unnecessary “to make a responsible de novo determination on the
claims of exemption.” Carter, 830 F.2d at 392.

The Court declines to order in camera review at this time As already discussed above, the
Court has been able to make reasoned judgments concerning the CIA’s production based on the
information already in the record, and is satisfied that any deficiencies in the CIA’s production

will be cured by its full compliance with the Court’s present order.

c. Appointment of a Special Master
Federal Rule of Procedure 53 vests district courts with discretion to appoint masters to, inter
alia, “address pretrial and posttrial matters that cannot be effectively and timely addressed by an
available district judge or magistrate judge of the district.” Fed. R. Civ. Pro. 53(a)(1)(C). Because
the Court has already found that in camera review is unwarranted, the plaintiffs’ motion to appoint

a master is moot

IV. Conclusion
For the foregoing reasons each of the parties’ motions for summary judgment, [248],

[258], [259], is GRANTED-IN-PART and DENlED-lN-PART, in accordance with the order

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accompanying this opinion, and the plaintiffs’ motions for discovery, in camera inspection, and

appointment of a special master are DENIED.

Date: Ie/a_'//7 72<46~ M

Roy;e C. Lamberth
United States District Judge

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