Hall v. CIA

Citations: 668 F. Supp. 2d 172; 2009 U.S. Dist. LEXIS 105582Docket: Civil Action No. 04-00814 (HHK)

Court: District Court, District of Columbia; November 12, 2009; Federal District Court

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Plaintiffs Roger Hall, Studies Solutions Results, Inc., and Accuracy in Media (AIM) filed a Freedom of Information Act (FOIA) action against the Central Intelligence Agency (CIA) concerning records related to Vietnam War prisoners of war and missing in action soldiers. The case involves multiple motions, including the CIA's Renewed Motion to Dismiss and for Partial Summary Judgment, Hall's Cross-Motion for Partial Summary Judgment, and AIM's Cross-Motion for Summary Judgment. The court found that the CIA appropriately declined to respond to some requests while being required to respond to others. The CIA's search adequacy was validated for some requests but not all, and while some statutory exemptions were justifiably invoked, others lacked adequate support. Consequently, the court granted and denied motions partially and mandated that the CIA provide additional information. The background highlights that FOIA aims for broad government transparency, requiring agencies to conduct thorough searches for relevant documents and justify any withheld information through detailed descriptions. Hall's research focuses on POW/MIAs, and his previous FOIA requests from 1994 and 1998 have influenced the current litigation.

On February 7, 2003, Hall submitted a FOIA request to the CIA for various records related to POW/MIAs from Southeast Asia, specifying seven categories of documents, including records of those not returned to the U.S., documents prepared by the Agency from 1960 to 2002, and searches related to previous FOIA requests. Hall and AIM claimed entitlement to fee waivers as representatives of the news media. After not receiving a substantive response, they filed a lawsuit on May 19, 2004. The CIA responded on June 15, 2004, rejecting several items based on previous requests and non-FOIA applicability. The Agency also stated that Hall's request for certain records was overly burdensome, and he failed to qualify for the news media fee category, estimating search fees at $606,950 and demanding a $50,000 deposit. On April 13, 2005, the Court ruled that Hall and AIM could not challenge the CIA's withholding of records from previous requests and confirmed they did not qualify for a fee waiver. On April 26, 2005, AIM duplicated the requests and added a new one regarding fee estimates, but the CIA refused to accept them citing the ongoing case. Hall later supplemented his fee waiver request and submitted the same eight-part FOIA request, but the CIA reiterated that he did not meet the requirements for a public interest fee waiver or as a news media representative.

In November 2005, the CIA released 122 documents to Hall, responding to both 1994 and 1998 FOIA requests related to Hall I. Of these, 20 were fully disclosed, while 102 were partially released, with 26 documents withheld entirely based on FOIA exemptions. The CIA indicated that this release was voluntary, as Hall I had been dismissed prior to the disclosure. In September 2007, the CIA informed Hall and AIM that it conducted a search for item 3 documents for the years 1960-1971 and 1976-2002, resulting in additional non-exempt documents being disclosed. The CIA also referred other responsive materials from outside agencies for review. For item 6, the CIA communicated in August and October 2006 about providing non-exempt documents. In July 2007, one full document and three partial documents were provided in response to item 8, which had been added to the original request.

In September 2005, Hall and AIM filed an amended complaint with five claims under FOIA: the right to records from their February 2003 request (Count I), the right to records from AIM's and Hall's subsequent letters (Counts II and III), entitlement to a fee waiver as news media representatives (Count IV), and a public interest fee waiver (Count V). Summary judgment is appropriate if there are no genuine issues of material fact, requiring the agency to demonstrate that all requested documents have either been produced, are unidentifiable, or are exempt. The agency must show that its search was reasonably calculated to find all relevant documents and provide specific justifications for any withheld information. Agency decisions regarding FOIA requests are subject to de novo review, and courts can order the production of improperly withheld records. Additionally, a complaint may be dismissed for failure to state a claim under Rule 12(b)(6).

A court ruling on a motion to dismiss must accept all factual allegations as true, regardless of their plausibility, as established in *Bell Atlantic Corp. v. Twombly*. However, a plaintiff must substantiate their claims beyond mere labels, providing factual allegations that elevate the right to relief above a speculative level. In this case, the court will first address the CIA's refusal to disclose documents, followed by the adequacy of the CIA's records search, the legitimacy of the Agency's claimed exemptions from FOIA, and remaining issues regarding discovery and fee waivers.

Regarding item 4, the CIA seeks dismissal of the request for records from the Senate Select Committee on POW/MIA Affairs, arguing that the plaintiffs are collaterally estopped from claiming these records are "agency records" under FOIA based on a prior ruling. The plaintiffs counter that the CIA must confirm whether it has records it created that are included in the Senate documents. The court finds that while plaintiffs cannot argue the records are agency records, the CIA must comply with Judge Friedman’s requirement to confirm or disclose any relevant records of its own creation.

For item 5, the CIA contests the request for records on 1,700 individuals, arguing it is too vague without specific identifying information. The CIA asserts that without details such as date of birth and full names, it risks uncovering records of individuals not authorized for disclosure. The plaintiffs maintain that the request is sufficiently clear and that the CIA should search for records sufficient to identify the individuals listed.

AIM asserts that the Agency can conduct searches for forty-four individuals whose next-of-kin provided authorizations to Hall, citing the specific information provided by plaintiffs, including social security and service numbers. AIM argues that the data accompanying a longer list of POW/MIAs enables the Agency to search effectively. The CIA has not specified the legal authority for its position that item 5 of the request does not meet the FOIA requirement to "reasonably describe" records, as defined in case law. The Agency has acknowledged the feasibility of searching for the names but claims that such a search may yield non-responsive records. It has not justified why it can verify identities using certain information but not social security numbers. Therefore, the CIA must either provide an explanation or search and disclose non-exempt records related to the individuals listed.

Regarding item 7, which seeks records of any searches for Vietnam War POW/MIAs, the CIA claims the request is "unreasonably burdensome," referencing issues with its record systems and a prior search yielding over 3,500 results. Hall contests this assertion, stating that a reasonable effort could yield responsive records. AIM has narrowed its request to exclude records of previous FOIA requests, focusing instead on searches from other types of inquiries. The court will treat item 7 as excluding searches from previous FOIA requests, rendering the burden argument moot. It will not compel the CIA to perform searches incompatible with its document retrieval systems, although the CIA’s own declarations indicate that it can track searches conducted for other federal agencies.

The Court cannot grant summary judgment to the CIA regarding Hall and AIM's item 7 request until the CIA searches its system for responsive documents or explains why it cannot. For item 3, which seeks records related to POW/MIAs in Laos from 1960 to 2002, the CIA has referred documents originating from another agency for review, causing delays in responses to Hall and AIM. Hall contends that this delay waives the right to claim exemptions for these materials and requests a deadline for the CIA to provide nonexempt documents and justify any withholdings. The CIA argues it cannot expedite responses from other agencies or declassify their information and has not sought summary judgment for these referred records. Under FOIA, an agency must process requests for records in its possession, regardless of their origin. While referrals are permissible, they become improper withholding if they significantly impair the requester's ability to obtain records or extend wait times without a reasonable explanation. The CIA's search for item 3 records began in February 2003, with results released in September 2007, but referral responses were still pending as of September 2009, resulting in at least a two-year delay. The Court finds the referral process constitutes improper withholding and mandates the CIA to ensure that its referrals are processed, which it must detail in a supplemental filing. Regarding the adequacy of the CIA's search for items 1, 2, and 3, Hall asserts the search terms used were insufficient, noting the lack of plural searches and omission of various relevant terms and names, which may have hindered the effectiveness of the search.

Hall claims the CIA’s search in response to his FOIA request was inadequate, citing specific documents he believes exist but were not provided. The CIA contends that Hall cannot contest the adequacy of search terms used for records released in November 2005, as those terms were previously approved in Hall I, where Hall had already challenged the search adequacy. The Court had ruled that issues from Hall I could not be revisited. In Hall I, concerns were raised regarding the lack of transparency about the search terms used by three of four CIA divisions, with only the Directorate of Operations providing a list that omitted terms "PW" and "PWs." The CIA asserts that subsequent searches incorporated these terms along with previously used terms, making them valid for the current case. However, the Court lacks sufficient information to evaluate the adequacy of searches for records from other years and emphasizes that agencies must demonstrate their search efforts are reasonably calculated to uncover relevant documents. The CIA's submissions failed to adequately detail the search methods or outcomes, particularly regarding the searches for additional item 3 records. Consequently, the Court denies the CIA's motion for summary judgment on this aspect, requiring a supplemental declaration that includes detailed search methods, terms, and databases used. Additionally, the CIA's Directorate of Operations did not perform further searches for "PW" and "PWS," claiming that any responsive records would be in operational files exempt from FOIA provisions.

Hall contends that the CIA improperly failed to search for records related to his requests, arguing that the CIA's operational files are subject to search for matters investigated by congressional intelligence committees, as outlined in 50 U.S.C. § 431(a)(c). He asserts that investigations into the MIA/POW issue were conducted by several Senate committees. However, the CIA argues that these committees do not qualify as "congressional intelligence committees" under the statute, which specifically refers to the Senate Select Committee on Intelligence and the House Permanent Select Committee on Intelligence. Since Hall has not claimed that either committee investigated his search topics, the Court refuses to mandate further searches of the CIA's Directorate of Operations files for items 1, 2, or 3.

Regarding item 6, which concerns the CIA's search for documents related to Hall's prior FOIA requests and associated fees, Hall argues the CIA did not adequately explain its limited search to one record system as mentioned in the Koch Declaration. The CIA defends its actions, stating it is only required to search the system most likely to yield relevant documents. The Court evaluates the adequacy of such searches based on reasonableness and the agency's good faith efforts. A detailed affidavit is necessary to support the search's adequacy. However, the Koch Declaration lacks a statement indicating that other relevant divisions were unlikely to possess related records, which is essential to establish the reasonableness of the search. Consequently, the Court denies the CIA's summary judgment concerning the adequacy of its search for item 6.

For item 8, concerning fee estimates related to Hall and AIM's February 2003 request, the CIA seeks judgment as a matter of law, and Hall does not contest the adequacy of the CIA's search for these records.

Arguments not addressed by a party can be treated as conceded by the court, as established in Klugel v. Small and Hopkins v. Women's Div. Gen. Bd. of Global Ministries. Consequently, the court rules in favor of the CIA regarding the adequacy of its search for item 8 records. Under FOIA, there are nine exemptions allowing agencies to withhold information, as recognized in FBI v. Abramson, with the agency responsible for justifying its withholding. An agency’s declaration must not be conclusory, should not be contradicted by evidence, and must provide sufficient detail to demonstrate the applicability of the claimed exemption. If these standards are met, the court will give substantial weight to the agency's submissions. The CIA has invoked exemptions 1, 2, 3, 5, and 6 in its Vaughn indexes submitted in 2006 and 2008 for records related to Hall and AIM's requests from 2003 and 2005. However, the CIA did not provide a Vaughn index for its November 2005 disclosures concerning earlier requests. Hall and AIM contend that the CIA has not provided a sufficiently detailed analysis for its November 2005 withholdings and argue that the absence of a declaration or index is unjustified, despite the CIA’s assertion of collateral estoppel based on previous court rulings. The current court has determined that Hall and AIM cannot challenge the earlier decision by Judge Friedman regarding the CIA's withholdings for records sought in Hall's 1998 FOIA request.

The Vaughn index presented to Judge Friedman did not cover the CIA’s withholdings from November 2005 disclosures, which were conducted after Judge Friedman's ruling. Consequently, whether the CIA properly withheld records from these disclosures has not been litigated, necessitating a new Vaughn index that details the withheld documents and justifications for nondisclosure, especially for 102 records not fully provided to Hall and AIM, as well as 26 documents withheld entirely. The court is now examining the CIA's reliance on exemptions for records responsive to specific items not included in previous requests.

Exemption 1 allows for withholding documents that are classified under an Executive Order for national defense or foreign policy. The CIA has invoked this exemption, asserting that the withheld documents are classified per Executive Order 12,958. Hall contends this withholding is unjustified, arguing the records pertain to historical matters, that the CIA has only provided vague assertions regarding national security harm, and that proper classification markings are absent. The CIA, however, defends its position by referencing the DiMaio Declaration, which claims the information is correctly classified and that the Vaughn indexes sufficiently describe the withheld information. The CIA also notes that the withheld information is less than 25 years old, thus not automatically declassified under the Executive Order.

The burden lies with the agency to demonstrate that documents are confidential and exempt from disclosure, though courts have shown significant deference in national security cases, requiring only plausible assertions for classification. Affidavits regarding classified status are given substantial weight by the court.

The DiMaio Declaration asserts that all withheld records are appropriately classified, detailing the reasons for keeping certain intelligence methods, internal information, and cryptonyms confidential. The Vaughn indexes indicate the classification levels for documents the CIA claims under exemption 1, aligning with prior D.C. Circuit approval in Morley v. CIA regarding the protection of intelligence sources and methods. Hall's challenges to the CIA's justifications are deemed unconvincing. However, the CIA's claim that all records withheld under exemption 1 are under twenty-five years old is incorrect, as some documents dating back to 1962 are included. Executive Order 12,958 mandates automatic declassification of records older than twenty-five years unless they fit certain exempt categories, which the CIA has not claimed for the records in question. The CIA is instructed to address this in a supplemental filing. Consequently, the Court grants summary judgment to the CIA for withholding documents less than twenty-five years old under exemption 1 but denies it for those exceeding that age.

Under exemption 2, the agency may withhold information related solely to its internal personnel rules. To qualify, the information must meet statutory criteria and the agency must demonstrate that disclosure could undermine its regulations or pertains to trivial matters of no public interest. Most documents cited under exemption 2 in the 2008 Vaughn index are stated to contain internal administrative information lacking genuine public interest, such as filing identifiers and routing codes. Other documents show similar internal routing and filing details as the basis for withholding under exemption (b)(2).

Hall contends that the CIA improperly invoked Exemption 2 to withhold information of public interest, which includes details about record locations and awareness among personnel. He argues that the CIA has not met its burden to justify withholding this administrative data, as the D.C. Circuit has ruled that Exemption 2 does not protect information solely because it is for internal use. The CIA must demonstrate that the information is too trivial to warrant disclosure, but it has failed to provide adequate justification. Consequently, Hall and AIM have shown a genuine issue of material fact, leading the court to deny the CIA's motion for summary judgment and requiring the agency to either provide more details on its Exemption 2 claim or disclose the withheld information.

Regarding Exemption 3, which allows withholding records exempted from disclosure by statute, the CIA seeks summary judgment, and since Hall and AIM have not responded, the court treats this as conceded, granting summary judgment in favor of the CIA.

On Exemption 5, which covers inter-agency or intra-agency communications protected by privileges such as the deliberative process privilege, the CIA also seeks summary judgment. Hall and AIM challenge the CIA's justification for withholding six specific documents, arguing that the explanations are too vague and that one document from 1981 is too old to serve the exemption's purpose.

The CIA claims it has appropriately invoked the deliberative process privilege to withhold documents containing internal recommendations and opinions prior to final agency action. This privilege protects confidential intra-agency communications that reflect the deliberative or policy-making processes, aimed at fostering open dialogue and preventing premature policy disclosures. Courts assess whether disclosing such materials would discourage candid discussions and hinder agency functions.

Specific documents identified include emails and internal memos from June 2004, along with memoranda regarding fee estimates related to a FOIA request, which the CIA argues reflect internal deliberations on POW/MIA records and search costs. However, the court finds inadequate justification for the withholding, noting that simply asserting pre-decisional status without linking it to pending decisions or clarifying the nature of the recommendations is insufficient. If decisions about searches or fees were already made, these documents do not qualify for exemption 5.

The CIA is required to either disclose these documents or provide a detailed explanation for non-disclosure in a supplemental filing. The age of a document is a relevant factor in assessing the privilege's applicability but is not determinative, as older documents may still reflect ongoing deliberations. The CIA must clarify its position regarding the June 4, 1981 document, which it claims pertains to handling specific record requests.

The Vaughn index indicates that the withheld document, a "Weekly Report of the Information and Privacy Division," likely contains deliberation results rather than deliberative material itself, necessitating further information for the Court to assess the CIA's use of exemption 5. The CIA is granted summary judgment for other withholdings justified by the deliberative process privilege. Regarding attorney-client privilege, the CIA has withheld documents it claims are protected, but Hall and AIM argue that the CIA has not proven the confidentiality of these communications, noting that some may be inappropriately redacted under exemption 2. The Court requires clarification on whether the CIA officers involved are authorized representatives entitled to attorney-client privilege protections. Therefore, the CIA must either disclose these documents or provide detailed justification for withholding them. On the attorney work product privilege, Hall and AIM did not contest the CIA's claims, leading the Court to grant summary judgment in favor of the CIA. Lastly, concerning exemption 6, Hall and AIM assert that the CIA's justification for withholding personal and medical files is insufficiently detailed.

The CIA contends that its claim for exemption regarding the names and identifying information of its employees is justified, asserting a lack of public interest in such details. According to the D.C. Circuit, the standard for exemption 6 requires a "heavy burden" to prove that disclosure would lead to a "clearly unwarranted" invasion of personal privacy. The agency must provide sufficient context for the reviewing court to evaluate the privacy interests involved. In prior cases, such as Morley v. CIA, the court found the agency's rationale insufficient when it failed to adequately explain the privacy interests or potential consequences of disclosure. Here, the CIA similarly provides minimal justification for withholding information, stating only that it pertains to identifiable individuals, which the court finds inadequate. Consequently, the court denies the CIA's request for summary judgment, requiring the agency either to disclose the information or to offer a more detailed explanation for its withholding.

Additionally, the Freedom of Information Act (FOIA) mandates the disclosure of any reasonably segregable portions of records after exempt information is removed. The agency must prove that withheld documents do not contain any segregable factual information with reasonable specificity. The court has a responsibility to ensure that all reasonably segregable information has been released. Hall and AIM argue that the CIA has not met this obligation due to vague explanations for withholding significant portions of many documents. In response, the CIA claims it has provided the fullest possible explanations without revealing protected information, supported by the DiMaio Declaration asserting that no further information could be segregated.

The CIA's Vaughn index fails to adequately demonstrate compliance with the Freedom of Information Act (FOIA) regarding the release of reasonably segregable portions of records. The DiMaio Declaration lacks the necessary specificity for a proper segregability analysis, with vague statements asserting that no meaningful nonexempt information is reasonably segregable. The 2006 Vaughn index does not address segregability at all. While FOIA does not demand exhaustive detail, some specificity is required to assess segregability. The Court mandates that the CIA's supplemental filing must detail which document portions are disclosable and which are exempt, providing specific findings for each withheld document and correlating claimed exemptions with relevant passages.

Regarding fee limitations and waivers, the CIA seeks to dismiss Hall and AIM's claims for a fee limitation as representatives of the news media and for a public interest fee waiver. Hall and AIM request summary judgment in their favor on these issues. Under FOIA, ordinary requesters must pay processing fees, but representatives of the news media are only subject to duplication fees. The CIA contends that the Court previously ruled against Hall and AIM's media status claims and argues that the matter is moot since the Agency waived search fees for the plaintiffs. The Court finds the issue moot as Hall has received all potentially recoverable documents, negating his appeal regarding the fee waiver's denial.

For the public interest fee waiver, FOIA allows for reduced or waived fees if disclosure significantly enhances public understanding of government operations and is not primarily for commercial gain. Hall and AIM assert their eligibility for this waiver and claim to have provided further relevant information to the CIA since a prior ruling in April 2005. The CIA does not differentiate its arguments on this matter from those regarding media representatives' fee limitations.

Only duplication fees are relevant in the case concerning the CIA's treatment of Hall and AIM as media representatives; however, there is no record of the plaintiffs being charged such fees. The Court will not address this issue as no actual controversy exists. Hall's request for discovery under Rule 56(f) is denied since discovery is generally disfavored in FOIA lawsuits. The Court typically seeks supplemental declarations from agencies when their initial affidavits are insufficient, rather than allowing discovery. Hall's claim of CIA misconduct lacks evidentiary support, and thus the Court cannot conclude that the CIA acted in bad faith, leading to the denial of his discovery request. Additionally, Hall and AIM's request for in camera inspection of documents is also denied. In camera review is reserved for specific circumstances, such as a manageable number of withheld documents or evidence of agency bad faith, neither of which apply here as there are over 125 documents involved and no evidence of bad faith from the CIA. The Court expects the CIA to address the deficiencies in its previous filings. Consequently, the Court denies the request for in camera review and orders partial summary judgment in favor of the CIA.

Hall's motion and AIM's motion are each partially granted and partially denied. The parties are ordered to submit a joint proposed case management plan and briefing schedule by December 4, 2009. If they cannot reach an agreement, each party must provide its own proposed plan by the same date. The excerpt references Hall's control over Studies Solutions Results, Inc., which has made filings jointly with him. It also discusses the CIA's motions, including a motion to dismiss and for summary judgment dating back to October 2006, which has undergone renewals and included various declarations and Vaughn indices. The CIA previously requested a $20,000 deposit for further document searches. The principles of collateral estoppel and relevant case precedents are noted, emphasizing that a court's prior factual or legal determinations can prevent relitigation in subsequent cases. Hall's prior case was dismissed due to his failure to pay for a requested search. The parties have not provided lists of individuals referenced in earlier correspondence, but the court assumes their descriptions are accurate. Additionally, Hall's discussions imply a narrowing of his requests regarding congressional and executive agency searches, excluding FOIA-related searches. The excerpt also touches on the need for prompt and public agency referrals and the requirement for detailed declarations to address Hall's objections.

The Agency must clarify whether it used both "Prisoner of War" and "Prisoners of War" as search terms; if not, it must justify the omission or conduct a new search. Additionally, the Agency should specify if its retrieval system is case-sensitive, as this could affect search results. The Court requests an explanation from the Agency regarding the sufficiency of its search terms and the relevance of Hall's suggested terms. 

Operational files are defined as those documenting foreign intelligence or counterintelligence operations as per 50 U.S.C. 431 (b)(1). Hall agrees that further searches by the Directorate of Operations would only yield records within this definition. He claims that a 1993 Presidential Directive regarding POW/MIAs supersedes the exemption of CIA operational files from FOIA searches, although he provides no supporting evidence for this assertion. 

Hall also contends that the CIA's search did not yield records of search time and charges, yet the adequacy of a FOIA search is not judged by whether all responsive documents are found, as established in case law. AIM claims that plaintiffs have not received certain documents relevant to item 8 but fails to substantiate its argument against the CIA's entitlement to summary judgment on this item. 

The 2008 Vaughn index lacks consecutive numbering for documents, with specific 1962 documents numbered MORI 1342289 through MORI 1342292. Certain categories of information, if disclosed, could jeopardize national security or diplomatic relations, as detailed in E.O. 12,958. Further document numbers include MORI 1479578 through MORI 1479582.

Documents referenced include MORI numbers 141096, 1370159-1370165, 1383898-1383899, 1100665-1100671, and 1479603. The Court clarifies that highlighting these documents does not exclude others related to CIA withholdings under exemption 2. Arguments made by Hall and AIM regarding the deliberative process privilege focus on the protection of document authors' identities; however, the Court emphasizes that the privilege aims to preserve agency-wide candid deliberations, not individual interests, citing case law (Greenberg v. U.S. Dep't of Treasury). Hall's additional claims regarding exemption 5, including a fiduciary relationship and misconduct waiver, are deemed unsupported and ineffective. He also argues that certain unreceived records are business records exempt from attorney-client privilege, but acknowledges that the CIA did not locate these records, limiting the Court's assessment. The ruling encompasses all documents under attorney-client privilege, with additional documents (MORI 1479603, 1479604, 1442331, 1333276, 1340885, 1370168) falling under exemption 6. The Court references Armstrong v. Executive Office of the President to establish that an agency's specific explanations for withholding documents allow for a segregability analysis, contrasting it with the current submissions' lack of detail. The CIA has waived all applicable fees for certain searches, and no review fees have been asserted by plaintiffs, leading the Court to presume a waiver of those as well. The only fee request identified pertains to search fees, which the CIA has waived.