United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 18-5280 October Term, 2019
FILED: DECEMBER 21,2020
ASSASSINATION ARCHIVES AND RESEARCH CENTER,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:17-cv-00160)
Before: PILLARD and RAO, Circuit Judges *
AMENDED JUDGMENT
This appeal was considered on the record and on the briefs and oral arguments of the
parties. After according the issues full consideration, the Court is satisfied that appropriate
disposition of the appeal does not warrant a published opinion. See Fed. R. App. P. 36; D.C. Cir.
R. 36(d). For the reasons stated below, it is hereby
ORDERED and ADJUDGED that the grant of the motion for summary judgment and
denial of the cross-motion for summary judgment be AFFIRMED.
In this Freedom of Information Act (FOIA) case, the Assassination Archives and Research
Center (the Center) appeals an order of the district court granting the Central Intelligence Agency’s
(CIA) motion for summary judgment and denying the Center’s cross-motion for summary
judgment. At issue is whether, in response to FOIA requests by the Center, the CIA permissibly
withheld pursuant to FOIA Exemption 5, 5 U.S.C. § 552(b)(5), portions of intra-agency
*
The late Senior Circuit Judge Williams was a member of the panel and participated in the disposition of
the matter on October 11, 2019, before his death on August 7, 2020. Judges Pillard and Rao have acted as
a quorum with respect to the amended judgment. See 28 U.S.C. § 46(d).
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communications relating to the FOIA process itself.
On August 25, 2012, the Center submitted to the CIA a request for all records “pertaining
to the CIA’s study in 1963 of plots to assassinate Adolph Hitler” or “to communications by Allen
Dulles regarding plots to assassinate Adolph Hitler” during Dulles’s service in the CIA and a
related office. After the CIA returned a determination that it had no responsive records, the Center
submitted a supplementary request. In addition to somewhat expanding the scope of the previous
request, the Center’s second letter requested “[a]ll index entries or other records reflecting the
search for records responsive to this request in its original or amended form, including all search
[terms] used with each of the components searched.”
As set forth in declarations from CIA Information Review Officer Antoinette Shiner, who
was involved in responding to the Center’s amended FOIA request, CIA staff searched for
responsive records in the files of eight different CIA sub-offices that the agency identified as “the
locations reasonably expected to contain” the requested materials. Shiner Decl. (Jan. 19, 2018) at
2. Those offices were: “the Directorate of Analysis . . . ; Directorate of Operations . . . , including
its operational files; the Office of the Director, the Director’s Action Center, the Office of the
General Counsel, the Office of Congressional Affairs, the Center for the Study of Intelligence
(which is part of the CIA’s Talent Center) and the CIA’s history staff office.” Id. at 2-3. Within
each office, CIA staff searched “all relevant office databases, Agency share drives, and archival
records.” Id. at 3. In carrying out each search, CIA staff used a wide variety of terms, including
but not limited to “Hitler Assassination,” “Hitler Plot,” “1963 assassination study,” and “Dulles
communication Hitler.” Id. at 4-5; Shiner Decl. (Oct. 13, 2017) at 3. Each of those terms was
searched both as a complete phrase and as separate terms. For example, a search for “Hitler
Assassination” would have returned all documents containing that exact phrase as well as all
documents containing both “Hitler” and “assassination” somewhere in its body. Shiner Decl. (Jan.
19, 2018) at 5. Staff then reviewed each document uncovered by the searches and determined
whether it was responsive to the Center’s particular request. Id.
In addition to directing those searches, Shiner also consulted with the CIA’s Chief
Historian, who is “very knowledgeable about the Agency’s holdings with respect to” the subject
matter at issue here. Id. at 3. The Chief Historian “personally conducted searches of history staff
files for any reference to studies of anti-Hitler plots dating from the 1963 time frame,” but did not
uncover any additional responsive documents. Id. at 3-4. The Chief Historian advised that, “due
to the age of the subject matter and narrow scope of [the] request focusing on anti-Hitler plots,
there would not be many responsive documents and anything related to assassination studies would
likely be found at the National Archives.” Id. at 4. Based on our review of the redacted records,
the declarations, and the CIA’s Vaughn index, we granted summary affirmance to the CIA as to
the adequacy of the CIA’s search and the propriety of its application of FOIA Exemptions 1, 3,
and 6, some of which were not contested. Assassination Archives & Research Ctr. v. CIA, No.
18-5280, 2019 WL 691517 (D.C. Cir. Feb. 15, 2019).
The only remaining issue is the permissibility of the Exemption 5 redactions to five records
the CIA produced, which appear to be CIA internal forms used in processing the Center’s FOIA
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requests and produced pursuant to the Center’s request for records of the FOIA search process
itself. The Center challenges the CIA’s use of the deliberative privilege on the grounds that the
information at issue is purely factual, reporting what the CIA found in its searches. Oral Arg. Rec.
at 10:39-11:01; Appellant Br. 21-23. The CIA, in turn, argues that the withheld materials would
reveal the decision-making process behind its final response to the Center’s FOIA request.
Appellee Br. 7-17.
We now hold that the CIA has permissibly invoked Exemption 5. Under FOIA Exemption
5, agencies need not turn over “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)—e.g., records protected by the Executive’s deliberative process privilege. See EPA v.
Mink, 410 U.S. 73, 85-90 (1973). The privilege covers information that is both “predecisional”
and “deliberative.” Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir.
1980). Documents are predecisional if they were “generated before the adoption of an agency
policy,” and deliberative if they “reflect[] the give-and-take of the consultative process.” Id.
Here, the CIA invokes Exemption 5 to shield portions of the five internal FOIA task forms
mentioned above. Specifically, the CIA has redacted from each form the substance of the intra-
agency communication “[a]uthored by [the] Agency component employee tasked with the search”
for the benefit of the agency official directing the CIA’s internal records search. J.A. 217-219,
296-305.
The withheld communications indisputably precede the CIA’s decision to release records
to the Center. In addition, the redacted content “reflects the give-and-take” of a “consultative
process” through which the agency sought to identify records within its possession potentially
responsive to the Center’s requests. Id. 189-90, 354, 357. We have previously held the privilege
applicable to “factual material . . . assembled through an exercise of judgment in extracting
pertinent material from a vast number of documents for the benefit of an official called upon to
take discretionary action,” Mapother v. Dep’t of Justice, 3 F.3d 1533, 1539 (D.C. Cir. 1993), and
we have described a “recommendation to a supervisor on a matter pending before the supervisor”
as “a classic example of a deliberative document,” Abtew v. U.S. Dep’t of Homeland Sec., 808
F.3d 895, 899 (D.C. Cir. 2015). Taken together, the entries in the agency’s Vaughn index, the
declarations, the forms themselves, and the context in which they are used make it sufficiently
apparent that the redacted text describes the efforts of staff “in extracting pertinent material” and
any issues they encountered along the way. In context, it is evident that the redacted matter
amounted to predecisional communications from staff made for the purpose of informing the
agency’s ultimate decision as to what the law required of the Agency in response to the Center’s
FOIA request. See 5 U.S.C. § 552(a).
It suffices that the redactions on the FOIA forms reflect some predecisional agency give-
and-take; the Center does not challenge the CIA’s segregation efforts. See Appellant Br.; Appellee
Mot. Summ. Affirmance 4 n.3. We therefore affirm the district court’s grant of summary judgment
to the CIA and denial of summary judgment to the Center on the issue of the CIA’s withholdings
under Exemption 5.
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Pursuant to D.C. Circuit Rule 36, this disposition will not be published. The Clerk is
directed to issue the mandate forthwith.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
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