Brehm v. Department of Defense

• Court: District Court, District of Columbia
• Decided: January 5, 2009
• Docket: Civil Action No. 2007-1739
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROBERT BREHM, : : Plaintiff, : Civil Action No.: 07-1739 (RMU) : v. : Document Nos.: 20, 21 : : DEPARTMENT OF DEFENSE et al., : : Defendants. :

MEMORANDUM OPINION

On September 23, 2008, the court directed the Central Intelligence Agency (“CIA”) to

supplement the record in this action filed under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, with evidence of its search for records responsive to the plaintiff’s FOIA request

for records pertaining to himself. See Order of September 23, 2008 [Dkt. No. 18] and

accompanying Memorandum Opinion [Dkt. No. 19]. In what remains of this case, the CIA has

renewed its motion for summary judgment [Dkt. No. 21], which also includes its opposition to

the plaintiff’s motion for summary judgment filed on October 8, 2008 [Dkt. No. 20]. Upon

consideration of the parties’ supplemental filings and the entire record, the court grants the CIA’s

motion for summary judgment and denies the plaintiff’s motion for summary judgment because

it is “not accompanied by [the requisite] statement of material facts as to which the moving party

contends there is no genuine issue.” LCvR 7(h); Baptiste v. Bureau of Prisons, 554 F. Supp. 2d

1, 2 n.1 (D.D.C. 2008).

In support of its claim of an adequate search, the CIA proffers the Declaration of Delores

M. Nelson (“Nelson Decl.”), who is Chief of the CIA’s Public Information Programs Division,

Information Management Services and Office of the Chief Information Officer. Nelson Decl. ¶ 1. As manager of the CIA’s FOIA and Privacy Act programs, Nelson is responsible for, among

other duties, “directing searches of CIA records systems pursuant to public requests for records . .

. and coordinating the review of any records retrieved in such searches.” Id. ¶ 2. Her statements

are “based upon [her] personal knowledge and information made available to [her] in the course

of performing [her] official duties,” id. ¶ 3, and therefore satisf[y] the personal knowledge

requirement in Rule 56(e),” Barnard v. Dep’t of Homeland Sec., 531 F. Supp. 2d 131, 138

(D.D.C. 2008) (citations and internal quotation marks omitted).

Using the plaintiff’s name, variants thereof and other personal identifiers, CIA staff

searched two filing systems determined likely to contain responsive records, namely, the

Directorate of Support and the National Clandestine Service. Nelson Decl. ¶ 10. Based on

Nelson’s description of those and other CIA databases, ¶¶ 5, 10-12, the retrieval methods

employed, id. ¶¶ 11-12, and her conclusion that “it is unlikely that other CIA directorates would

possess records responsive to Plaintiff’s request,” id. ¶ 10, the court is satisfied that the CIA

conducted an adequate search for responsive records, see Long v. U.S. Dep’t of Justice, 450 F.

Supp.2d 42, 54 (D.D.C. 2006) (agency declarations are accorded “a presumption of good faith”)

(quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir.1991)).

For the foregoing reasons, the court grants the CIA’s renewed motion for summary

judgment and denies the plaintiff’s motion for summary judgment. A final order consistent with

this Memorandum Opinion and the court’s prior ruling resolving all other issues is separately and

contemporaneously issued this 5th day of January 2009.

RICARDO M. URBINA United States District Judge