Bryant v. Central Intelligence Agency

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

______________________________ ) LARRY W. BRYANT, ) ) Plaintiff, ) ) v. ) Civ. Action No. 09-0940 (EGS) ) CENTRAL INTELLIGENCE AGENCY, ) ET AL. ) ) Defendants. ) )

MEMORANDUM OPINION

Pending before the Court in this Freedom of Information Act

case is defendants’ motion for partial summary judgment. Upon

consideration of the motion, the response and reply thereto, the

applicable law, the entire record, and for the reasons set forth

below, the defendants’ motion for partial summary judgment is

hereby GRANTED.

I. BACKGROUND

A. The Initial FOIA Request and Complaint

Plaintiff describes himself as the Director of the

Washington D.C. Office of Citizens Against UFO Secrecy who

“gathers, researches, and publishes documents and information and

analysis concerning Unidentified Flying Objects.” Compl. ¶ 4.

In addition, plaintiff is a columnist for the monthly periodical

UFO Magazine. Compl. ¶ 4. In August of 2008 the plaintiff sent

the Central Intelligence Agency (“CIA”) a request for information under the Freedom of Information Act (“FOIA”). In particular,

plaintiff requested “CIA-received and CIA-generated records as

pertain to. . . cases of airborne UFO encounters reportedly

occurring since Nov. 17, 1986.” Compl. Ex. A. Plaintiff also

specifically requested information relating to “a 1987 special

meeting at FAA headquarters in Washington D.C. to discuss and

evaluate certain official evidence of the intrusive UFO encounter

experienced on Nov. 17, 1986 by the Japanese flight crew (No.

1628) of a 747 cargo jet.” Compl. Ex. A. In the same request,

he asked to be granted status as a representative of the news

media and thereby be exempt from certain fees typically charged

for a FOIA request. Compl. Ex. A.

In their response to plaintiff's FOIA request, the CIA

offered to provide the plaintiff with 2,779 pages of materials at

the cost of $267.90, describing the materials as records already

located in response to “numerous previous request[s]” for

information regarding UFOs. Compl. Ex. B. Plaintiff's request

for a fee waiver was denied on the grounds that “the information

[plaintiff] seek[s] is already in the public domain and its

re-release would not likely contribute significantly to public

understanding of the operations and activities of the United

States Government.” Compl. Ex. B. Plaintiff appealed the

agency's decision, including the denial of the request for a fee

waiver. Compl. Ex. C. The CIA again denied the request for a

2 fee waiver. Compl. Ex. D. In their letter denying the appeal,

the CIA also explained that plaintiff would be charged the

$267.90 irrespective of whether he was placed in the news media

fee category.1 Compl. Ex. D.

Plaintiff brought this action on May 20, 2009. The first

count2 of the Complaint alleges that defendants “did not use the

level of diligence and good faith” in responding to his request

and that defendants “conducted no search to respond to

Plaintiff's FOIA Request.” Compl. ¶ 12. The second count

alleges that, as a representative of the news media, he is

entitled to a waiver of all fees except photocopying fees

associated with his FOIA request. Compl. ¶ 17. Plaintiff

1 More particularly, the CIA explained that “since records responsive to the subject of your request have been previously released, and no additional searches were conducted following receipt of your request, you would be responsible for copying costs associated with this request regardless of fee category determination. . . . [C]opying costs are ten cents per page less the first 100 pages. These copying fees would apply even if we were to place you into the . . . news media fee category.” Compl. Ex. D. 2 The Complaint contains three counts. The first two are labeled identically as “Count II” and both are titled “News Media Representative Status.” The Court assumes that the first “Count II” was erroneously labeled and intended by the Plaintiff to be the first count. Furthermore, the Court assumes that the first count was also incorrectly titled since the paragraphs therein relate to the allegation that defendants “conducted no search to respond to Plaintiff’s FOIA Request” rather than to the news media representative status that is the subject of the allegations in the second count. The third count is a demand for attorneys’ fees.

3 further contends that defendants used an improperly narrow

definition of “news media representative status” when they

refused to grant him such status. Compl. ¶ 19. Plaintiff seeks

a declaration that he was improperly denied news media

representative status, an order that the defendants grant him

such status, and damages including attorneys fees. Compl. ¶ 6.

B. Reopening of Plaintiff's FOIA Request

On June 23, 2009, roughly one month after plaintiff filed

this lawsuit, the CIA sent a letter to plaintiff informing

plaintiff that, (i) the CIA would reopen his FOIA request, (ii)

the CIA would conduct another search for records in existence

through June 15, 2009, and (iii) the CIA would place the

plaintiff in the news media fee category and only charge him for

photocopying costs. Defs.' Summ. J. Mot. Ex. E. According to

defendants, new searches were then conducted for responsive

information, and the CIA followed up with another letter dated

October 21, 2009. Defs.' Summ. J. Mot. Ex. E.

The October 21st letter informed the plaintiff that new

materials responsive to his general request had been located.

Defs.' Summ. J. Mot. Ex. F. However, because the

newly-identified responsive materials were not “originated by the

CIA,” the request would need to be referred to the originating

agencies. Defs.' Summ. J. Mot. Ex. F. Plaintiff received

subsequent FOIA response letters from the NSA and the Department

4 of State regarding these additional materials, including five

pages of materials with redactions from the Department of State.

Pl.'s Resp. to Defs.' Statement of Material Facts ¶ 36.

In their pending motion for partial summary judgment3,

defendants seek a ruling that they fulfilled their FOIA

obligations in conducting a reasonably diligent search. In

addition, they argue that plaintiff's second count is moot

because plaintiff was placed in the media fee category subsequent

to the filing of the complaint.

II. STANDARD OF REVIEW

The Court may grant a motion for summary judgment if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with affidavits or declarations,

show that there is no genuine issue of material fact and that the

moving party is entitled to judgment as a matter of law. Fed. R.

Civ. P. 56(c). The moving party bears the burden of

demonstrating the absence of a genuine issue of material fact.

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Factual

assertions in the moving party's affidavits or declarations may

be accepted as true unless the opposing party submits his own

3 Defendants have moved only for partial summary judgment because they agree that plaintiff maintains the right to challenge the decisions by the NSA and the Department of State to redact or withhold any of the documents referred to them. (As discussed above, a few pages responsive to plaintiff’s request were forwarded to these other agencies for a determination because the CIA concluded the documents “originated” from them.)

5 affidavits or declarations or documentary evidence to the

contrary. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

In a FOIA case, the Court may grant summary judgment based

on the information provided by the agency in affidavits or

declarations when the affidavits or declarations describe “the

documents and the justifications for nondisclosure with

reasonably specific detail, demonstrate that the information

withheld logically falls within the claimed exemption, and are

not controverted by either contrary evidence in the record nor by

evidence of agency bad faith.” Military Audit Project v. Casey,

656 F.2d 724, 738 (D.C. Cir. 1981); see also SafeCard Services,

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

affidavits must be “relatively detailed and non-conclusory”).

III. ANALYSIS

Three issues are raised by defendants' motion for partial

summary judgment and plaintiff's opposition thereto. First, the

Court must address whether defendant has failed to conduct a

reasonably diligent search such that permitting plaintiff to

conduct further discovery would be necessary. Second, the Court

must consider defendants' argument that plaintiff's second claim,

relating to the news media representative status, is moot.

Finally the Court must consider whether an award of attorneys'

fees to plaintiff is appropriate. For the reasons discussed

below, the Court concludes that the defendants prevail on all

6 three of these issues. Each argument will now be discussed in

turn.

A. Defendants Have Provided Sufficient Evidence of the Completeness of Their Search, and Discovery in this Case is Unwarranted

Although an agency bears the burden of showing that its

search in response to a FOIA request was sufficiently diligent,

affidavits or declarations by agency officials may provide

sufficient evidence to warrant summary judgment. In particular,

courts may rely on agency affidavits so long as they are

reasonably detailed and there is no evidence they are being

offered in bad faith. See, e.g., SafeCard Servs., Inc. 926 F.2d

at 1200; Military Audit Project, 656 F.2d at 738. Furthermore,

“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

Servs., Inc. 926 F.2d at 1200 (internal quotation omitted).

In support of its claim that it conducted a reasonably

diligent search, the CIA has submitted the declaration of Delores

Nelson, the Information & Privacy Coordinator of the CIA. Ms.

Nelson's declaration provides a detailed description of the

various departments within the CIA, the type of records each

department maintains, the procedures the CIA uses to process FOIA

requests generally, the specific steps taken to respond to

plaintiff's request, and the search terms used to accomplish the

7 search for documents responsive to plaintiff's request.

Plaintiff “disputes the reliability, accuracy, and credibility of

Defendant’s sole witness[] (Delores Nelson).” Pl.'s Opp'n at 9.

He further argues that Ms. Nelson's declaration is inadequate

because it “makes sweeping and insufficiently supported

statements about the systems, procedures and policies used by the

CIA.” Pl.'s Opp'n at 9. Finally, plaintiff questions whether

Ms. Nelson is a suitable affiant, with personal knowledge, and

states that discovery is necessary to evaluate the worth of Ms.

Nelson's declaration. Pl.'s Opp'n at 9.

In support of his position, plaintiff relies on Weisberg v.

U.S. Dep't of Justice, 627 F.2d 365 (D.C. Cir. 1980). In that

case, the court did indeed conclude that “the Department's

demonstration that it disclosed all available material within the

scope of plaintiff's request was inadequate for purposes of

summary judgment.” Id. at 366 (quotation omitted). However, the

affidavit relied upon by the defendant in Weisberg was

substantially different than the one relied upon in the instant

case. The affidavit in Weisberg simply stated that the affiant

“‘has conducted a review of FBI files which would contain

information that [plaintiff] has requested. . . . The FBI files

to the best of my knowledge do not include any information

requested by [plaintiff] other than the information made

available to him.’” Not surprisingly, the court in Weisberg held

8 that the affidavit gave “no detail as to the scope of the

examination and thus is insufficient as a matter of law to

establish its completeness.” Id.

In contrast, the declaration provided by the CIA in the

instant case offers seventeen pages of detail regarding the type

of records the CIA maintains, the procedures the CIA uses to

process FOIA requests generally, the specific steps taken to

respond to plaintiff's request, and the search terms used to

accomplish the search for documents responsive to plaintiff's

request. Defs.’ Mem. Ex. G, Declaration of Dolores Nelson

(“Nelson Decl.”) Furthermore, Ms. Nelson is responsible for

supervising and coordinating FOIA requests, and she can therefore

be relied upon as an individual with personal knowledge. Nelson

Decl. ¶¶ 1-5. The agency affidavit in the instant case is

entitled to substantial weight.

In light of the Court's conclusion that the declaration

submitted by the defendants is sufficient to support their

motion, the plaintiff is not entitled to further discovery.

B. Plaintiff's Second Claim is Moot

Defendants argue that plaintiff's second claim, relating to

the CIA's initial denial of news media representative status is

moot because, in their October 21, 2009 letter to plaintiff, the

CIA granted plaintiff such status. The Court agrees. Plaintiff

himself admits that he has been granted news media representative

9 status. See Plaintiff Decl. ¶ 2 (“The CIA initially denied me

news media representative status under the Freedom of Information

Act as regards the instant civil litigation, and did not grant me

such status until after I filed the instant Complaint.”).

Contrary to plaintiff's assertions that his claim is not moot

because he was only granted news media representative status

after the complaint was filed, the timing of the CIA's decision

to grant him the status is irrelevant. See Montgomery Envtl.

Coal. v. Costle, 646 F.2d 568, 579 (D.C. Cir. 1980) (“federal

courts are without power to decide questions that cannot affect

the rights of litigants in the case before them.”) (quoting North

Carolina v. Rice, 404 U.S. 244,246 (1971)).

C. Plaintiff is not Entitled to Attorneys' Fees

Plaintiff also seeks an award of attorneys fees pursuant to

5 U.S.C. § 552(a)(4)(E).4 He argues that attorneys fees should

be awarded “because before filing his Complaint he found the news

media representative status denial to be a hurdle to his

submitting FOIA requests to the CIA.” Pl.’s Opp’n at 10.

4 5 U.S.C. § 552(a)(4)(E) provides: “(i) The court may assess against the United States reasonable attorney fees and other litigation costs reasonably incurred in any case under this section in which the complainant has substantially prevailed. (ii) For purposes of this subparagraph, a complainant has substantially prevailed if the complainant has obtained relief through either-- (I) a judicial order, or an enforceable written agreement or consent decree; or (II) a voluntary or unilateral change in position by the agency, if the complainant's claim is not insubstantial.”

10 However, even assuming granting the plaintiff this status is

a “voluntary or unilateral change in position by the agency”

within the meaning of 5 U.S.C. § 552(a)(4)(E), the statute also

requires that the change in position by the agency be “not

insubstantial.” Id. In making this determination, district

courts are to consider “at least four criteria in determining

whether a substantially prevailing FOIA litigant is entitled to

attorney's fees: (1) the public benefit derived from the case;

(2) the commercial benefit to the plaintiff; (3) the nature of

the plaintiff’s interest in the records; and (4) the

reasonableness of the agency’s withholding of the requested

documents.” Davy v. CIA, 550 F.3d 1155, 1159 (D.C. Cir. 2008)

(citations omitted). Applying the standard laid out in Davy, the

plaintiff has failed to show he is entitled to attorneys’ fees.

IV. CONCLUSION

For the foregoing reasons, it is hereby ordered that

defendants’ motion for partial summary judgment is GRANTED. An

appropriate Order accompanies this Memorandum Opinion.

SIGNED: Emmet G. Sullivan United States District Court Judge September 30, 2010