UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JAMES PATRICK DONOGHUE, : : Plaintiff, : v. : Civil Action No. 23-cv-00157 (TSC) : NATIONAL ARCHIVES AND : RECORDS ADMINISTRATION, et al., : : Defendants. :
MEMORANDUM OPINION
This case, brought under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and
the Privacy Act, id. § 552a, see Complaint (“Compl.”), ECF No. 1, at 9, is before the court on
Cross-Motions for Summary Judgment. See Defendants’ Motion for Summary Judgment
(“MSJ”), ECF No. 25; Plaintiff’s Cross-Motion for Summary Judgment (“X-MSJ”), ECF No. 31.
For the reasons explained below, Defendants’ Motion is GRANTED, and Plaintiff’s Cross-
Motion is DENIED.
BACKGROUND
At issue in this case are several FOIA and Privacy Act requests submitted by Plaintiff
James Patrick Donoghue, proceeding pro se, to Defendants the National Archives and Records
Administration (“NARA”) and the Central Intelligence Agency (“CIA”), see Compl. at 9–20,
25–31, addressed below seriatim.
NARA Requests
1. RD-52285, FOIA-LP-JC-2917-006, and NGC17-067A
On February 10, 2017, Donoghue submitted a request to NARA’s headquarters, located
in College Park, Maryland (“Archives II”) seeking records from 1976 through 1985, regarding
an incident involving a MARSEA supply vessel, on which Donoghue, at age 17, was a merchant
1 seaman. See Declaration of Joseph A. Scanlon Support MSJ (“Scanlon Decl.”), ECF No. 25-3, ¶
5; Scanlon Exhibit A (Pl.’s Ltr., Feb. 10, 2017) (“Request No. RD-52285”); Compl. ¶ 9. The
vessel was returning from Jamaica to Louisiana but ventured into Cuban territorial waters,
resulting in American military intervention by the Carter Administration. See id. NARA
assigned the request “No. RD-52285,” and thereafter, “NARA Textual Services staff searched
the NARA Catalog[,]” but determined that Archives II did not possess the records sought
because, if available, the logbooks would be “kept at the NARA Regional Archives facility
closest to the port of entry of a particular ship[.]” Scanlon Decl. ¶ 6; id. n.1.; Scanlon Exhibit B
(NARA Response Ltr., Feb. 2017) (“Feb. 2017 NARA Ltr.”). In February 2017, see Scanlon
Dec. ¶ 6; id. n.1, NARA responded to Donoghue, informing him of same, and referring him to
the Carter Presidential Library and Museum and the United States Coast Guard National Vessel
Documentation Center, id. ¶ 6; see Feb. 2017 NARA Ltr.
On March 14, 2017, Donoghue sent a supplemental letter to NARA, replicating Request
No. RD-52285, and adding a request for any related records disclosed to the State of Alabama
between 2006 and 2009. Scanlon Decl. ¶ 7; see Scanlon Exhibit C (Pl.’s Letter, Mar. 14, 2017).
On March 22, 2017, NARA responded, combining his supplemental letter with Request No.
RD-52285, and informing Donoghue that NARA maintains only federal, not state records.
Scanlon Decl. ¶ 8; Scanlon Exhibit D (NARA Response Ltr., Mar. 22, 2017) (“March 2017
NARA Ltr.”); see 5 U.S.C.§ 552(f). Nonetheless, NARA conducted an ultimately fruitless
search. See id.
Also in March 2017, Donoghue sent a request to the Carter Presidential Library and
Museum (“LPJC”), again seeking substantially similar material regarding American military
intervention of the MARSEA supply vessel and seeking any documents associating him with the
2 incident. Scanlon Decl. ¶ 9; see Scanlon Exhibit E (Pl.’s Letter, March 2017) (“Request No.
FOIA-LP-JC-2917-006”). LPJC determined that the requested records would constitute
historical donated material, therefore exempting it from FOIA, but it nonetheless searched its
“finding aids of [its] donated historical material,” finding no responsive records. Scanlon Decl.
¶¶ 10–11; Scanlon Exhibit F (LPJC Response Ltr., Mar. 21, 2017) (“March 2017 LPJC Ltr.”)
(citing 5 U.S.C.§ 552(f)). On March 21, 2017, LPJC responded to Donoghue, apprising him of
this outcome, noting that other NARA components could possess material relevant to Request
No. FOIA-LP-JC-2917-006, and enclosing general educational materials regarding the National
Archives Catalogue, MARSEA, and the U.S. Coast Guard. Scanlon Decl. ¶¶ 10–11; see March
2017 LPJC Ltr.
On June 14, 2017, Donoghue appealed LPJC’s response to Request No. FOIA-LP-JC-
2917-006. Scanlon Decl. ¶ 12; see Scanlon Exhibit G (Pl.’s Appeal Ltr., June 14, 2017)
(“Appeal No. NGC17-067A”). In his appeal letter, Donoghue explained that he sought records
regarding the MARSEA incident so that he could investigate whether they were potentially
related to his subsequent state conviction. See id. More specifically, Donoghue contended that,
in 2008, while awaiting trial for criminal charges brought against him in Baldwin County,
Alabama, two unnamed “federal agents” allegedly unlawfully presented a “composite file” to the
prosecutor, his attorney, and certain court personnel, which contained sensitive information
about Donoghue from “several different federal agencies,” thus negatively influencing his
Baldwin County case, resulting in his conviction and life sentences. See Appeal No. NGC17-
067A; see also Pl.’s Opposition (“Pl.’s Opp’n”), ECF No. 27, at 6–8, 11; Compl. ¶¶ 9, 11, 18.
He postulated that this composite file might have contained unfairly prejudicial information
3 about him resulting from an investigation undertaken by the U.S. Coast Guard, the FBI, and
potentially others, into the MARSEA incident. See Appeal No. NGC17-067A.
In response to Appeal No. NGC17-067A, NARA performed additional searches for
records at NARA, the National Archives at Fort Worth, and LPJC. Scanlon Decl. ¶ 13.
Specifically, “[s]taff at each facility searched the National Archives Catalog, the National
Security Council Institutional Files, the Remote Archives Capture Project, and other finding aids
of records held at the library using the Plaintiff’s name and other numerous search terms such as
MARSEA; vessels; boats; seaman/seamen; intervene; intervention; Coast Guard; international
waters; and Universal Iron Works.” Id. No responsive records were found. Id. ¶¶ 13–14; see
Scanlon Exhibit H (NARA Determination Ltr., June 10, 2019) (“June 2019 NARA Ltr.”). On
June 10, 2019, NARA notified Donoghue of same and closed Appeal No. NGC17-067A.
Scanlon Dec. ¶ 14; June 2019 NARA Ltr.
2. NGC20-086
On November 12, 2019, Donoghue sent a request to NARA, seeking the composite file
and any records that revealed which, if any, federal agencies or Congressional committees made
requests, between April and August 2008, for documents about him. Scanlon Dec. ¶ 15; see
Scanlon Exhibit I (Pl.’s Letter, Nov. 12, 2019) (“Request No. NGC20-086.”). In response,
NARA determined that it held no responsive records, because “the records sought had a
retention period of two years, and thus any records from 2008 would have already been
destroyed in accordance with NARA’s Records Control Schedule.” Scanlon Dec. ¶ 16; Scanlon
Exhibit J (NARA Response Ltr., Dec. 10, 2019) (“Dec. 2019 NARA Ltr.”). On December 10,
2019, NARA sent a letter to Donoghue informing him of same and closing Request No. NGC20-
4 086. It also advised Donoghue that he could “contact the agencies and Congressional
Committees directly to ask for any records in their custody.” See id.
3. NGC22-539/NGCPA22-002 and NGC22-072A
On April 25, 2022, Donoghue sent NARA another request, seeking records regarding
himself, and asked that it use number “100-HQ-42778 serial 12” in its search. See Scanlon Decl.
¶ 17; Scanlon Exhibit K (Pl.’s Letter, Apr. 25, 2022) (“Request No. NGC22-539/NGCPA22-
002”); Compl. at 18–19, 25–27. He also asked that NARA search specific record systems,
namely, “NARA 3”––Donors of Historical Material Files; “NARA 7”––FOIA Request Files, and
Mandatory Review of Classified Documents Request Files; “NARA 8”––Restricted and
Classified Records Access Authorization files; “NARA 23”––Office of Inspector General
Investigative Case Files; and “NARA 35”––Case Management and Reporting Systems. See id.
Upon receipt of the request, NARA assigned it No. NGC22-539/NGCPA22-002, and
then performed searches of NARA 3, 7, 8, and 35, using Donoghue’s name, and searching for
“100-HQ-42778 serial 12,” only finding responsive records in NARA 7, namely 44 pages
consisting of Donoghue’s FOIA and Privacy Act requests and their associated agency responses.
Scanlon Decl. ¶ 18.
Meanwhile, NARA’s Office of Inspector General (“OIG”) was tasked with searching
NARA 23, also using Donoghue’s name and the provided serial number, but it found no
responsive records. See Scanlon Decl. ¶ 19; Scanlon Exhibit L (OIG Response Ltr., May 24,
2022) (“May 2022 OIG Ltr.”). On May 24, 2022, OIG notified Donoghue of this outcome, and
advised him to reach out directly to the agency, if any, that issued the serial number. See May
2022 OIG Ltr. It also informed him that NARA would notify him separately regarding the
outcome of its searches of NARA 3, 7, 8, and 35. See id.
5 Before that happened, however, on August 19, 2022, Donoghue filed an appeal,
challenging, inter alia,OIG’s response and NARA’s lack of response. See Scanlon Decl. ¶ 20;
Scanlon Exhibit M (Pl.’s Letter, Aug. 19, 2022) (“Appeal No. NGC22-072A”). On August 11,
2023, NARA responded to Donoghue. Scanlon Decl. ¶ 23; see Scanlon Exhibit N (NARA
Appeal Determination Ltr., Aug. 11, 2023) (“Aug. 2023 NARA Ltr.”). It advised that NARA
searched the requested record systems, locating 44 pages of responsive records from NARA 7,
and 53 pages of responsive records from NARA 35, comprising Donoghue’s Official Military
Personnel File. All 97 pages were produced in full. See id. NARA also explained that it was
unsurprising that neither NARA 3 nor NARA 8 contained any responsive records, as those
systems only store records for individuals who have donated historical records, or for NARA
employees and federal contractors. See Aug. 2023 NARA Ltr. It then closed Appeal No.
NGC22-072A. See id.; Scanlon Decl. ¶ 23.
CIA Request
1. No. P-2016-00874
On July 14, 2016, Donoghue submitted a request to the CIA for any documents related to
investigations concerning himself, by the CIA or otherwise. Declaration of Mary C. Williams
Support MSJ (“Williams Decl.”), ECF No. 25-5, ¶ 5; Williams Exhibit A (Pl.’s Letter, July 14,
2016) (“Request No. P-2016-00874”). He also noted that potential responsive records might
relate to his late grandfather, George Lanno Donoghue, and his former associates. See Request
No. P-2016-00874.
On August 9, 2016, the CIA confirmed receipt of Request No. P-2016-00874, and
advised Donoghue that, because he sought personally identifiable information, his Request fell
under the Privacy Act, thus requiring a Certification of Identity form. Williams Decl. ¶ 6 (citing
6 32 C.F.R. § 1901.13); Williams Exhibit B (CIA Response Ltr., Aug. 9, 2016) (“Aug. 2016 CIA
Ltr.”). The CIA also indicated that, insofar as Donoghue sought information about his late
grandfather, it required additional information to process that portion of the Request. See id.
On September 9, 2016, Donoghue returned an executed copy of the Certification of Identity and
withdrew any inquiry relating to his grandfather. Williams Decl. ¶ 7; see Williams Exhibit C
(Pl.’s Ltr., Sept. 9, 2016).
Thereafter, the CIA conducted searches “limited to records that would reveal an
unclassified or openly acknowledged association with the CIA.” Williams Decl. ¶¶ 12, 30. It
searched for in five different records systems:
(1) electronic versions of all Agency records that have been reviewed and/or compiled for potential public release; (2) a system containing information regarding personnel affiliated with the CIA; (3) a system containing information regarding the Agency’s previously-released records, concerning various topics and individuals; (4) a system containing security records; and (5) an electronic inventory of archived Agency records.
Id. ¶ 13. The CIA searched using variations of Donoghue’s name, his social security number,
and date and place of birth. Id.
On October 5, 2016, the CIA issued a final response to Donoghue, notifying him that its
searches did not result in any responsive records in which the association with the CIA was
unclassified or openly acknowledged. Id. ¶ 8; Williams Exhibit D (CIA Response Ltr., Oct. 5,
2016) (“Oct. 2016 CIA Ltr.”); Compl. at 13. To the extent that Request No. P-2016-00874 “may
have implicated records whose association with the Agency was classified or otherwise
unacknowledged, the Agency asserted a “Glomar response,” pursuant to 5 U.S.C. § 552(b)(1)
(“FOIA Exemption 1”), id. § 552(b)(3) (“FOIA Exemption 3”), id. § 552a(j)(1) (“Privacy Act
7 Exemption (j)(1)”), and id. § 552a(k)(1) (“Privacy Act Exemption (k)(1)”). Williams Decl. ¶¶ 8,
30; see Oct. 2016 CIA Ltr.
On December 23, 2016, Donoghue appealed the CIA’s Glomar response. Williams Decl.
¶ 9; see Williams Exhibit E (Pl.’s Letter, Dec. 23, 2016) (“Appeal No. NGC22-072A”). On
January 6, 2017, the CIA confirmed receipt of the appeal, Williams Decl. ¶ 10; Williams Exhibit
F (CIA Response Ltr., Jan. 6, 2017), and on June 27, 2017, the CIA denied the appeal in full,
Williams Decl. ¶ 11; Williams Exhibit G (CIA Response Ltr., June 27, 2017) (“June 2017 CIA
Ltr.”); Compl. at 13–14.
The Instant Matter
On January 17, 2023, Donoghue filed this lawsuit. See generally Compl. Defendants
filed their pending Motion for Summary Judgment on December 18, 2023. On December 26,
2023, the court entered an Order, ECF No. 26, directing Donoghue to respond to Defendants’
Motion for Summary Judgment, and to file any cross-motion for summary judgment, by January
17, 2024, or risk that the court rule on Defendants’ Motion without the benefit of his input, see
id. at 1–3 (citing Fox v. Strickland, 837 F.2d 507, 509 (D.C. Cir. 1988) (per curiam)). On
February 5, 2024, Donoghue filed his Opposition, 1 see generally Pl.’s Opp’n, , to which
Defendant filed a Reply, ECF No. 29.
Three months later, on May 2, 2024, Donoghue filed his Cross-Motion for Summary
Judgment, well beyond the deadline. See generally X-MSJ. Notwithstanding, given Donoghue’s
1 In his Opposition, Donoghue discusses a FOIA request that he submitted to the CIA on November 7, 2019, see Pl.’s Opp’n at 9–10; Pl.’s Opp’n Exhibit 1 (CIA Resp. Ltr., dated Nov. 27, 2019), ECF No. 27-1, but that request was not identified in the Complaint, see generally Compl., and is therefore not before the court, see Sharp v. Rosa Mexicano, D.C., LLC, 496 F. Supp. 2d 93, 97 n.3 (D.D.C. 2007) (“[P]laintiff may not, through summary judgment briefs, raise the new claims[.]”). 8 incarceration and pro se status, the court accepted the late-filed Cross-Motion. See Minute Order
(entered May 14, 2024). On July 14, 2024, Defendants filed an Opposition, ECF No. 34, to
Donoghue’s Cross-Motion, and Donoghue late-filed his Reply (“Pl.’s Reply”), ECF No. 35, on
August 26, 2024.
LEGAL STANDARDS
I. FOIA
In a FOIA case, a district court reviews the agency’s decisions de novo and “the burden is
on the agency to sustain its action.” 5 U.S.C. § 552(a)(4)(B); Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). “[T]he vast majority of FOIA cases can be resolved on
summary judgment.” Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
Under Federal Rule of Civil Procedure 56, “[a] party is entitled to summary judgment only if
there is no genuine issue of material fact and judgment in the movant’s favor is proper as a
matter of law.” Soundboard Ass’n v. Fed. Trade Comm’n, 888 F.3d 1261, 1267 (D.C. Cir.
2018) (quoting Ctr. for Auto Safety v. Nat’l Highway Traffic Safety Admin., 452 F.3d 798, 805,
(D.C. Cir. 2006)), cert. denied, 139 S.Ct. 1544 (2019); see also Fed. R. Civ. P. 56(a).
“[S]ummary judgment may be granted on the basis of agency affidavits if they contain
reasonable specificity of detail rather than merely conclusory statements, and if they are not
called into question by contradictory evidence in the record or by evidence of agency bad
faith.” Aguiar v. DEA, 865 F.3d 730, 734–35 (D.C. Cir. 2017) (quoting Jud. Watch, Inc. v.
Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013)); see also Students Against Genocide v. Dep’t of
State, 257 F.3d 828, 833 (D.C. Cir. 2001) (“[A]n agency is entitled to summary judgment if no
material facts are in dispute and if it demonstrates ‘that each document that falls within the class
requested either has been produced . . . or is wholly exempt from the Act’s inspection
9 requirements.’”) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)). Indeed, an
agency’s declarations are accorded “a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents.” Shapiro v.
Dep’t of Justice, 40 F.4th 609, 613 (D.C. Cir. 2022) (quoting Bartko v. Dep’t of Justice, 898 F.3d
51, 74 (D.C. Cir. 2018) (internal quotation marks omitted); SafeCard Services, Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991)).
Furthermore, “to satisfy FOIA’s aims of providing more transparency into the workings
of the government,” an agency must generally demonstrate that an adequate search for records
responsive to a FOIA request was made. Montgomery v. IRS, 40 F.4th 702, 714 (D.C. Cir. 2022).
This demonstration “entails a ‘show[ing] that [the agency] made a good faith effort to conduct
a search for the requested records, using methods which can be reasonably expected to produce
the information requested.’” Id. (quoting Oglesby v. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir.
1990)). The D.C. Circuit has explained that “[w]hile the agency need not search every record
system, it also may not limit its search to only one record system if there are others that are likely
to turn up the information requested.” Id. (internal quotation and citation omitted). Moreover,
“the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the
appropriateness of the methods used to carry out the search.” Iturralde v. Comp. of Currency,
315 F.3d 311, 315 (D.C. Cir. 2003).
II. Privacy Act
In a Privacy Act access case, a court may similarly rely on agency declarations. See
Chambers v. Dep't of the Interior, 568 F. 3d 998, 1003 (D.C. Cir. 2009). At the summary
judgment stage, where the agency has the burden to show that it acted in accordance with the
statute, a court may rely on a reasonably detailed affidavit, setting forth the search terms and the
10 type of search performed, and averring that all files likely to contain responsive materials (if such
records exist) were searched. Id. at 1003. The burden is on the movant to demonstrate why
summary judgment is warranted. Id. A district court “must determine for itself that there is no
genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of
law, and then ‘should state on the record the reasons for granting or denying the motion.’” Id. at
508–09 (quoting Fed. R. Civ. P. 56(a)).
DISCUSSION
I. Adequacy of the Searches
Donoghue does not, in earnest, contest the adequacy of either NARA or the CIA’s
searches, however, the court independently finds their searches sufficient. Defendants bear the
initial burden of showing that its searches were adequate. Weisberg v. Dep’t of Justice, 745 F.2d
1476, 1485 (D.C. Cir. 1984). The adequacy of an agency’s search is measured by a standard of
reasonableness under the attendant circumstances. Truitt v. Dep't of State, 897 F.2d 540, 542
(D.C. Cir. 1990). When an agency’s declarations explain in reasonable detail the scope and
method of the search, see Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (citations
omitted), “[i]n the absence of contrary evidence, such . . . declarations are sufficient to
demonstrate an agency’s compliance[,]” North v. Dep't of Justice, 774 F. Supp. 2d 217, 222
(D.D.C. 2011) (citing Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982) (per curiam)).
NARA submitted a Declaration from Joseph A. Scanlon, a FOIA and Privacy Act Officer
with NARA’s Office of General Counsel. Scanlon Decl. ¶ 1. The CIA submitted a Declaration
from Mary C. Williams, Team Lead and Acting Information Review Officer (“IRO”) for the
CIA’s Litigation Information Review Office (“LIRO”). Williams Decl. ¶ 1. Both declarants
have extensive tenure, experience, and personal knowledge regarding (1) the types of documents
11 that their agency maintains, (2) the agency’s FOIA and Privacy Act policies and procedures, and
(3) Donoghue’s FOIA requests. See id. ¶¶ 1–4; Scanlon Decl. ¶¶ 1–4.
The court finds that both Scanlon’s and Williams’ Declarations set forth in reasonable
detail, and in good faith, the type of information their agency (and its relevant components)
retains, the way that information is organized, the locations searched, the scope of the searches,
and the search terms used. See Scanlon Decl. ¶¶ 6, 8, 10–11, 13–14, 16, 18–19, 23; Feb. 2017
NARA Ltr.; March 2017 NARA Ltr.; March 2017 LPJC Ltr.; June 2019 NARA Ltr.; Dec. 2019
NARA Ltr.; May 2022 OIG Ltr.; Aug. 2023 NARA Ltr.; Williams Decl. ¶¶ 12–14, 30; Aug.
2016 CIA Ltr.; Oct. 2016 CIA Ltr.; June 2017 CIA Ltr.
Additionally, Donoghue attests that, where relevant, NARA searched the record systems
and employed the search terms specified by Donoghue, even though that is not necessarily
required. See Scanlon Decl. ¶¶ 17–20, 23; Aug. 2023 NARA Ltr. When NARA found
responsive records, they were produced in full to Donoghue without redaction, see id. ¶ 23, and
if no responsive records were found, NARA clearly explained the likely reason for that outcome
and provided him with additional resources and advice, see id. ¶¶ 8, 10–11, 16; Feb. 2017 NARA
Ltr.; March 2017 NARA Ltr.; March 2017 LPJC Ltr.; Dec. 2019 NARA Ltr.; May 2022 OIG
Ltr.; Aug. 2023 NARA Ltr.
Similarly, Williams attests that the CIA “conducted thorough and diligent searches of
relevant systems of records that were reasonably calculated to find documents responsive to
Plaintiff’s request as written[,]” Williams Decl. ¶ 13, and that knowledgeable, qualified, and
experienced staff searched five separate records systems most likely to contain the requested
records, and none were found, see id. ¶¶ 12–13, 30.
12 Consequently, the court finds that both NARA and the CIA have shown “in reasonable
detail the scope and method of the search[es] conducted by the agency [sufficient] to
demonstrate compliance with the obligations imposed by the FOIA[,]” Perry, 684 F.2d at 127,
and that its searches were reasonable, see White v. Dep’t of Justice, 840 F. Supp. 2d 83, 89
(D.D.C. 2012), aff’d, No. 12–5067, 2012 WL 3059571 (D.C. Cir. July 19, 2012) (per curiam).
And to the extent that Donoghue sought records that would reveal a classified or
unacknowledged association between himself and the CIA, to which the CIA issued a Glomar
response, see Williams Decl. ¶ 14, “the adequacy of a search is irrelevant . . . because the issue is
whether the [CIA] has given sufficiently detailed and persuasive reasons for taking the position
that it will neither confirm nor deny the existence or non-existence of any responsive records.”
Wheeler v. CIA, 271 F. Supp. 2d 132, 141–42 (D.D.C. 2003) (quoting Phillippi v. CIA, 546 F.2d
1009, 1013 (D.C .Cir. 1976); Nayed v. INS, No. 91–805, 1993 WL 524541, at *3 (D.D.C. Nov.
29, 1993) (“Because defendant CIA properly refused to confirm or deny the existence of records
. . . the Court need not examine whether the search was adequate.”)) (other citation omitted); see
Ppl. for the Eth. Treat. of Animals v. NIH, 745 F.3d 535, 540 (D.C. Cir. 2014) (holding that, in
issuing a Glomar response, an agency “need not conduct any search for responsive documents or
perform any analysis to identify segregable portions of such documents.”).
Having “made a prima facie showing of adequacy, the burden [then] shifts to [the]
plaintiff to provide . . . evidence sufficient to raise ‘substantial doubt’ concerning the adequacy
of the agency’s search.” Schoenman v. FBI, 764 F. Supp. 2d 40, 46 (D.D.C. 2011) (quoting
Iturralde, 315 F.3d at 314). Donoghue has presented no substantive argument, let alone
evidence, to challenge the adequacy of NARA or the CIA’s searches.
13 Accordingly, given the evidence submitted by NARA and the CIA, and the good faith
afforded their Declarations, and with no countervailing evidence from Donoghue, the court finds
that the agencies have met their search obligations under the FOIA. See Truitt, 897 F.2d at 542.
II. The CIA’s Glomar Response
In response to a FOIA request, an agency may provide a Glomar response, that is, the
agency may refuse to confirm or deny the existence of records responsive to the request on the
ground that even acknowledging the existence of responsive records would “cause harm
cognizable under an FOIA exemption.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982);
see Phillippi, 546 F.2d at 1014–15 (acknowledging the CIA’s refusal to confirm or deny
existence of records regarding activities of ship named Hughes Glomar Explorer). “In
determining whether the existence of agency records vel non fits a FOIA exemption, courts apply
the general exemption review standards established in non-Glomar cases.” Wolf v. CIA, 473 F.3d
370, 374 (D.C. Cir. 2007) (citation omitted). “[A]n agency’s justification for invoking a FOIA
exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Id. at 374–75 (internal citations
omitted). A court must exercise particular deference to an agency’s Glomar response “when the
information requested ‘implicat[es] national security, a uniquely executive purview.’” EPIC v.
NSA, 678 F.3d 926, 931 (D.C. Cir. 2012) (quoting Ctr. for Nat’l Sec. Studies v. Dep’t of Justice,
331 F.3d 918, 926–27 (D.C. Cir. 2003)).
FOIA Exemptions 1 and 3
In issuing its Glomar response, the CIA relies exclusively on FOIA Exemptions 1 and 3,
and Privacy Act Exemptions (j)(1) and (k)(1) 2. See Williams Decl. ¶¶ 8, 15–25, 30; Oct. 2016
2 Privacy Act Exemption (j)(1) authorizes the Director of the CIA to promulgate regulations that exempt systems of records from the Privacy Act’s access and amendment provisions. Williams Decl. ¶ 26 (citing 5 U.S.C. §§ 552a(j)(1); 32 C.F.R. §§ 1901.62(c), 1901.21(c)). Privacy Act 14 CIA Ltr. Exemption 1 covers “matters ‘specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense or foreign policy and . . . in
fact properly classified pursuant to such Executive order.’” Larson v. Dep’t of State, 565 F.3d
857, 861 (D.C. Cir. 2009) (quoting 5 U.S.C. § 552(b)(1)); see Milner v. Dep’t of Navy, 562 U.S.
562, 580 (2011) (noting that among the “tools at hand to shield national security information and
other sensitive materials,” the government has “[m]ost notably, Exemption 1 of FOIA [which]
prevents access to classified documents.”). Exemption 3 protects “matters ‘specifically
exempted from disclosure by statute,’ provided that such statute leaves no discretion on
disclosure or ‘establishes particular criteria for withholding or refers to particular types of
matters to be withheld.’” Id. (quoting 5 U.S.C. § 552(b)(3)).
An agency withholding information under Exemption 1 must show that the information
has been classified in compliance with the classification procedures set forth in the relevant
exemption (k)(1) authorizes the Director of the CIA to promulgate rules that exempt agency systems of records from the access provision of the Privacy Act if the system is subject to FOIA Exemption 1. Id. ¶ 28 (citing 32 C. F.R. § 1901. 63)); see 5 U.S.C. § 552a(k)(1). Notably, Privacy Act Exemption (k)(1) models FOIA Exemption 1, and Privacy Act Exemption (j)(1) models FOIA Exemption 3. See Wheeler, 271 F. Supp. at 137; Braun v. FBI, No. 18-cv-2145, 2019 WL 3343948, at *6 (D.D.C. July 25, 2019) (explaining same). Thus, for purposes of the court’s analysis, the Privacy Act Exemptions are redundant, Wheeler, 271 F. Supp. 2d at 137 n.6 (noting that these same four “provisions track each other, so . . . the fundamental question is whether the requested information is exempt under FOIA,” not the Privacy Act), particularly because an agency may not rely exclusively “on any exemption in [the Privacy Act] to withhold from an individual any record which is otherwise accessible to such individuals under the provisions of [FOIA][,]” 5 U.S.C. § 552a(t)(2). Therefore, the court need only consider the viability of the CIA’s FOIA Exemptions. See Wheeler, 271 F. Supp. 2d at 137 n.6; Subh v. CIA, 760 F. Supp. 2d 66, 69–70 n.3 (D.D.C. 2011) (finding same as to the treatment of Privacy Act Exemption (j)(1) and FOIA Exemption 3); Moore v. FBI, 883 F. Supp. 2d 155, 159 n.2 (D.D.C. 2012) (finding that Privacy Act Exemptions (j)(1) and (k)(1) were “not at issue” because the court need only analyze the use of FOIA Exemptions 1 and 3); see also Greentree v. Customs Serv., 674 F.2d 74, 79 (D.C. Cir. 1982) (finding that “there is no need to determine whether [a] section” of the Privacy Act “meets any of the alternative qualifications” of their coextensive FOIA sections).
15 executive order and that only information conforming to the executive order's substantive criteria
for classification has been withheld. See Jud. Watch, Inc. v. Dep’t of Defense, 715 F.3d 937, 941
(D.C. Cir. 2013) (per curiam) (discussing “substantive and procedural criteria for
classification”), cert. denied, 571 U.S. 1125 (2014); Lesar v. Dep’t of Justice, 636 F.2d 472, 483
(D.C. Cir. 1980) (“To be classified properly, a document must be classified in accordance with
the procedural criteria of the governing Executive Order as well as its substantive terms.”).
Notably, “any affidavit or other agency statement of threatened harm to national security will
always be speculative to some extent,” Wolf, 473 F.3d at 374 (quoting Halperin v. CIA, 629 F.2d
144, 149 (D.C. Cir. 1980)). A court shall generally defer to the government regarding what type
of information should be classified, see Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978) (per
curiam) (explaining that legislative history demonstrates that an agency’s declaration should be
given substantial deference due to the expertise of the Executive in matters of national security),
and moreover, “courts have little expertise in either international diplomacy or
counterintelligence operations” and thus “are in no position to dismiss [an agency’s] facially
reasonable concerns[,]” Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999).
Here, the CIA relies on Executive Order (“E.O.”) 13,526, see Williams Decl. ¶ 16, which
is “the operative classification order under Exemption 1, [that] sets forth both substantive and
procedural criteria for classification[,]” Judicial Watch, 715 F.3d at 941; see also E.O. 13,526,
75 Fed. Reg. 707 (Dec. 29, 2009). An agency may “refuse to confirm or deny the existence or
nonexistence of requested records whenever the fact of their existence or nonexistence is itself
classified under [the Order] or its predecessors.” E.O. 13,526 § 3.6(a). E.O. 13,526 contains
four requirements: (1) an original classification authority must classify the information; (2) the
information must be owned by, produced by or for, or be under the control of the United States
16 government; (3) the information pertains to one of eight subject-matter classification categories;
and (4) disclosure of the information could reasonably be expected to harm national security.
See id. at § 1.1(a); see also Judicial Watch, Inc., 715 F.3d at 941.
Williams is an original classification authority because she is the current IRO in the
CIA’s LIRO, Williams Decl. ¶ 1, and courts may rely “on affidavits by IROs of sub-groups
within the CIA to classify information in support of Glomar response exemptions[,]” Smith v.
CIA, 393 F. Supp. 3d 72, 81 (D.D.C. 2019) (citing Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d
262, 276–77 (D.D.C. 2011)). The information sought is also “owned by and under the control”
of the United States government because it relates to “intelligence activities, intelligence sources
and methods, and foreign relations or foreign activities of the United States[,]” thus
concomitantly falling into two of the eight classification categories. See Williams Decl. ¶ 18
(citing E.O. 13,526 § 1.4(c), (d)). Finally, Williams asserts that she “determined that the
existence or nonexistence of records that might reveal a classified or otherwise unacknowledged
association between the subject of the request and the Agency[,]” id., and she identifies several
ways in which acknowledging the existence or nonexistence of information could damage
national security, see id. ¶¶ 20–22. More specifically, acknowledgement could “jeopardize the
clandestine nature of the Agency’s intelligence activities or otherwise reveal previously
undisclosed information about CIA sources, capabilities, authorities, interests, domestic or
foreign relationships, strengths, vulnerabilities, and/or resources[,]” id. ¶ 20, and “would tend to
reveal whether or not the Plaintiff had a covert or clandestine association with the CIA, or
whether or not the CIA had an intelligence interest in the Plaintiff[,]” id. ¶ 22.
The court finds this information sufficient to show that that CIA has sufficiently
established that the existence or non-existence of responsive records is classified under E.O.
17 13,526, thus justifying its Glomar response. See Carter v. NSA, 962 F. Supp. 2d 130, 140–41
(D.D.C. 2013) (affirming Glomar response under Exemption 1 and E.O. 13,526) (citing
Bassiouni v. CIA, 392 F.3d 244, 245 (7th Cir. 2004) (affirming a Glomar response to a first-
person request for CIA records on the ground that “providing a list of the documents that
mention [the requester], and claiming document-by-document exemptions for those whose
contents are classified, would reveal details about intelligence-gathering methods,” even if
“disclosure could be innocuous”); People for the Am. Way Found. v. NSA/Cent. Sec. Serv., 462
F. Supp. 2d 21, 31 (D.D.C. 2006) (affirming Glomar response to a request for records related to
surveillance of the plaintiff because confirmation that a person’s activities are not of intelligence
interest, or that the agency was unable to collect intelligence information on his activities would
allow adversaries to accumulate information and draw conclusions about its technical
capabilities, sources, and methods); Wolf, 473 F.3d at 376 (concluding that revealing the
existence of CIA records “could potentially reveal targets of CIA surveillance and, thus, CIA
methods” by “signal[ing] to a foreign intelligence service the specific persons and areas in which
the CIA is interested and upon which it focuses its methods and resources”)), aff’d, No. 13–5322,
2014 WL 2178708 (D.C. Cir. Apr. 23, 2014) (per curiam).
The CIA’s reliance on Exemption 3 is proper for similar reasons. See Agility Public
Warehousing Company K.S.C. v. NSA, 113 F. Supp. 3d 313, 329 (D.D.C. 2015). To prevail on a
Glomar response premised on Exemption 3, the CIA “need only show that the statute claimed is
an exemption statute under Exemption 3 and that the withheld material falls within the statute.”
Smith, 393 F. Supp. 3d at 83 (citing CIA v. Sims, 471 U.S. 159, 167 (1985) (explaining the first
question is whether the statute is an exemption statute, and the second is whether the materials
sought are intelligence sources)). And again, “it is the responsibility of the [intelligence
18 community], not that of the judiciary, to weigh the variety of complex and subtle factors in
determining whether disclosure of information may lead to an unacceptable risk of
compromising the . . . intelligence-gathering process.” Sims, 471 U.S. at 180.
The CIA satisfies the first requirement by invoking § 102A(i)(1), see Williams Decl. ¶
23, “a recognized withholding statute . . . of the National Security Act of 1947[,]” see Agility
Public, 113 F. Supp. at 329 (citing ACLU/DOD, 628 F.3d at 619). Section 102A(i)(1) shields
“intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024.
The CIA has also met the second requirement. Material is properly withheld under §
102(A)(i)(1) of the National Security Act if it “can reasonably be expected to lead to
unauthorized disclosure of intelligence sources and methods.” Halperin, 629 F.2d at 147
(internal quotation marks omitted). Here, Williams specifically attests that acknowledging the
records could place intelligence sources and methods at risk of unauthorized disclosure. See
Williams Decl. ¶¶ 20–25. Accordingly, the court finds that the CIA has also met its burden in
justifying its Glomar response under Exemption 3. See Agility Public, 113 F. Supp. at 329.
III. Donoghue’s Objections
Official Acknowledgement Exception
Donoghue appears to contend that the CIA previously acknowledged the existence of the
composite file by allegedly providing it to Baldwin County Circuit Court personnel in 2008. See
Compl. at 10, 12, 17; Pl.’s Opp’n at 5–8, 11. If an agency has officially acknowledged the
existence of a record, it waives its right to rely on a Glomar response, “and instead must either:
(1) disclose the record to the requester or (2) establish that its contents are exempt from
disclosure and that such exemption has not been waived.” Moore v. CIA, 666 F.3d 1330, 1333
(D.C. Cir. 2011) (citations omitted). To constitute an official acknowledgment, the information
19 requested (1) must be as specific as the information previously released, (2) match the
information previously disclosed, and (3) already have been made public through an official and
documented disclosure. Fitzgibbon, 911 F.2d at 765. A plaintiff “bears the burden of pointing to
‘specific information in the public domain that appears to duplicate that being withheld.’” EPIC,
678 F.3d at 933 (quoting Wolf, 473 F.3d at 378).
Donoghue has offered only speculation regarding the CIA’s purported official
acknowledgment. See Schaerr v. Dep’t of Justice, 435 F. Supp. 3d 99, 117 (D.D.C. 2020) (a
plaintiff cannot overcome a Glomar response based on speculation) (citing Wolf, 473 F.3d at
378–79), aff’d, 69 F.4th 924 (D.C. Cir. 2023) (per curiam); Bartko v. Dep’t of Justice, 62 F.
Supp. 3d 134, 142–43 (D.D.C. 2014) (speculation “that the individual may have been the subject
of an investigation” is not enough to overcome a Glomar response under the exception) (citing
cases). Indeed, he admits he is uncertain what federal agency, if any, the officials represented, or
what agency, if any, authored the file, despite having submitted countless FOIA requests
regarding the composite file, to multiple federal agencies, for nearly two decades. See Compl. ¶¶
8–9, 11, 16, 18; id. at p. 19; Opp’n at 2–3, 6–8, 11; Pl.’s Reply at 6–7. Simply put, a disclosure
is not “official” when it is “made by someone other than the agency from which the information
is being sought.” Frugone, 169 F.3d at 774.
Furthermore, to successfully employ the public acknowledgement exception, a requestor
“has the burden of showing that there is a permanent public record of the exact portions he
wishes[,]” for example, if the composite file was formally entered into evidence, or “publicly
played at trial.” See Jurdi v. United States, 485 F. Supp. 3d 83, 97 (D.D.C. 2020) (quoting Davis
v. Dep’t of Justice, 968 F.2d 1276, 1280 (D.C. Cir. 1992); citing Cottone v. Reno, 193 F.3d 550,
555 (D.C. Cir. 1999)). Here, to the contrary, Donoghue alleges that two unknown agents
20 privately presented a confidential file, marked “DO NOT COPY” to the prosecutor, his attorney,
and perhaps a few other court personnel, see Pl.’s Opp’n at 6–9, 11; Compl. ¶¶ 8–9, 11.
Accordingly, the court cannot find that the CIA has officially acknowledged the
composite file.
Bad Faith
Donoghue also alleges that Defendants have long possessed the composite file and are
intentionally withholding it, borne out of a decades-long governmental conspiracy orchestrated
to conceal the alleged bad acts in Baldwin County. See Compl. 8–10, 12–14, 16, 19–20, 28, 31;
Pl.’s Opp’n at 6–7, 16–17; X-MSJ at 3, 6–8; Pl.’s Reply at 2, 6–12, 14–15. In raising this
challenge, he cites to E.O. 13,526, subsection 1.7 (1)–(2), which prohibits agency classification
of a document to conceal violations of law, inefficiency, or administrative error, or to prevent
embarrassment to a person, organization, or agency, see Compl. at 15–16; Pl.’s Opp’n at 8.
Donoghue’s broad and unfounded allegations are insufficient to overcome the
presumption of good faith accorded to Defendants’ Declarations. See Broaddrick v. Exec. Office
of President, 139 F. Supp. 2d 55, 65 (D.D.C. 2001) (“[I]t is well settled that conclusory
allegations unsupported by factual data will not create a triable issue of fact.”) (internal quotation
marks and citation omitted), aff’d, 38 Fed. Appx. 20 (D.C. Cir. 2002) (per curiam); Meeropol v.
Meese, 790 F.2d 942, 956 (D.C. Cir. 1986) (finding the plaintiff’s “claims of bad faith,” rooted
in his belief that the agency intentionally withheld documents “whose existence remains purely a
matter of unsupported speculation”); see also Nance v. FBI, 845 F. Supp. 2d 197, 201 (D.D.C.
2012) (holding that “whether a search is adequate is determined by methods, not results . . . [and
an] agency’s failure to locate . . . specific responsive document[s] will not, on its own, render an
21 otherwise reasonable search inadequate.”) (citation omitted), appeal dismissed, No. 12–5073,
2012 WL 1922387 (D.C. Cir. May 7, 2012).
Similarly, Donoghue splits hairs over the CIA’s language to support his contention that
the CIA’s Glomar response constitutes an implicit admission that it possesses responsive
documents, thus “infer[ring] that the CIA had some form of association regarding Donoghue in
the past.” Pl.’s Reply at 4; see Pl.’s Opp’n at 11–12; Compl. at 14–16. This argument is
unavailing. As the CIA clearly instructed, a Glomar response is “a standard notification given to
all . . . requesters and should not be taken as an indication excluded records do, or do not, exist.”
See May 2022 OIG Ltr. Despite Donoghue’s insistence otherwise, “[a]gencies must issue
[Glomar] responses in all cases where requests implicate classified information—whether or not
responsive records exist.” See Braun, 2019 WL 3343948, at *4; see also Williams Decl. ¶ 22.
“Otherwise, a Glomar response would do no good at all.” Braun, 2019 WL 3343948, at *4.
Consequently, the court finds no merit in Donoghue’s arguments that Defendants’
Declarations indicate bad faith.
Privacy Act Exemption (k)(2) & Donoghue’s Constitutional Rights
Donoghue argues that, in allegedly sharing the composite file with attorneys and court
officials, the CIA allegedly violated his Sixth, Ninth, Thirteenth, and Fourteenth Amendments,
thus mandating its disclosure to him under § 552a(k)(2) (“Exemption (k)(2)”) of the Privacy Act.
See Pl.’s Opp’n at 11–13; X-MSJ at 3–8. Exemption (k)(2) of the Privacy Act exempts from
disclosure “investigatory material compiled for law enforcement purposes,” but provide an
exception that “if any individual is denied any right, privilege, or benefit that he would otherwise
be entitled by Federal law, or for which he would otherwise be eligible, as a result of the
maintenance of such material, such material shall be provided to such individual[.]” See 5
22 U.S.C. 552a(k)(2). But there are no records “compiled for law enforcement purposes” at issue in
this case because the CIA has not relied on Privacy Act Exemption (k)(2); it relies on Privacy
Act Exemptions (k)(1) and (j)(1). See Williams Decl. ¶¶ 26–29. Therefore, Exemption (k)(2) is
irrelevant. See Nat’l Archives and Records v. Favish, 541 U.S. 157, 166 (2004) (finding that the
requester fundamentally “misapprehend[ed]” the government’s use of exemptions, and that the
requester could not rely on a different subset of that exemption because “a different set of
considerations would control.”).
Insofar as Donoghue challenges the constitutionality of his conviction based on the use of
this composite file, see Pl.’s Opp’n at 1–2, 11–13; X-MSJ at 5–7; Pl.’s Reply at 2, 6–12, 14–15,
he cannot use this case to do so, see Johnson v. EOUSA, 310 F. 3d 771, 777 (D.C. Cir. 2002)
(holding that FOIA and Privacy Act do not offer a remedy for alleged violations of constitutional
rights even if the requested records might support a challenge to criminal conviction); see
Donoghue, 157 F. Supp. 3d 21, 23 n.2 (D.D.C. 2016) (finding that Donoghue could not expand
the scope of his FOIA/Privacy Act action to address constitutional criminal procedure claims).
In Camera Review, “Balancing Tests”and Vaughn Index
Donoghue next asks the court not to “acquiesce[] to the government’s desire not to
disclose,” and demands that the CIA present evidence in camera to show that it appropriately
relied on its cited Exemptions, and only then can “the Court must perform its balancing test.”
Pl.’s Opp’n at 14–15. He further alleges that 5 U.S.C. § 552(b)(6) (“Exemption 6”) and (b)(7)
(“Exemption 7”) protect his personal information, and that the CIA violated those provisions by
releasing the composite file to Baldwin County Court personnel. See id. X-MSJ at 2–3; Reply at
13. He also demands that Defendants produce a Vaughn Index. See Compl. at 1; X-MSJ at 8.
23 First, in camera review is only appropriate where “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.” Quinon v. FBI, 86 F.3d 1222, 1228 (D.C. Cir. 1996); see also 5 U.S.C. §
552(a)(4)(B). Neither circumstance is present here. Although district courts possess broad
discretion in conducting in camera review, Carter v. Dep’t of Commerce, 830 F.2d 388, 392
(D.C Cir. 1987), such review is considered “a last resort in ‘national security’ situations[,]”
Weissman v. CIA, 565 F.2d 692, 697 (D.C. Cir. 1977), and “a court should not resort to it
routinely on the theory that ‘it can’t hurt,’” Ray, 587 F.2d at 1195. Here, the court has concluded
that, based on its detailed Declaration, the CIA has met its burden to “place the challenged
documents within the exemption categories,” Larson, 565 F.3d at 870, and Donoghue has not
shown any indicia of bad faith; therefore, “in camera review is neither necessary nor
appropriate,” Hayden v. National Sec. Agency/Central Sec. Service, 608 F.2d 1381, 1387 (D.C.
Cir. 1979), cert. denied, 446 U.S. 937 (1980).
Second, there is no need for the court to conduct a balancing test; the CIA does not rely
on either FOIA Exemption 6 or 7, it relies strictly on FOIA Exemptions 1 and 3, neither of which
include a balancing test. See Ctr. for Int’l Env’t Law v. Off. of U.S. Trade Rep., 718 F.3d 899,
904 (D.C. Cir. 2013); Smith, 393 F. Supp. 3d at 83.
Third, assuming arguendo the CIA even produced the composite file in 2008, neither
Exemption 6 nor Exemption 7, nor any other FOIA exemption, create a private right of action for
Donoghue to allege a violation of his fundamental right to privacy. See Cause of Action Institute
v. IRS, 390 F. Supp. 3d 84, 91–92 (D.D.C. 2019) (noting that the FOIA's judicial review
provision, 5 U.S.C. § 552(a)(4)(B), erects strict “boundaries of a district court's remedial powers
24 under the FOIA[.]”) (quoting Camp. for Accountability v. Dep't of Justice, 278 F. Supp. 3d 303,
312 (D.D.C. 2017)).
Under the FOIA, a district court has limited “jurisdiction to enjoin the agency from
withholding agency records and to order the production of any agency records improperly
withheld from the complainant[.]” See id. at 91 (quoting 5 U.S.C. § 552(a)(4)(B)) (emphasis
added). It does not provide the court with any additional authority, including the power to order
an agency to “create documents, [or] to answer questions,” and Donoghue’s “pursuit of advisory
legal opinions . . . with respect to federal questions” has no place in the FOIA. See Brown v.
FBI, 675 F. Supp. 2d 122, 129–30 (D.D.C. 2009); Greenpeace, Inc. v. Dep’t of Homeland
Security, 311 F. Supp. 3d 110, 124 (D.D.C. 2018) (finding that a court should decline
independent provision of additional remedies to the FOIA, and noting that “FOIA plaintiffs must
take the bitter with the sweet[,]” focusing on “the merits of their” request for production of
records, rather than “the niceties of agency procedure[.]”) (quoting Sandoz Inc. v. Amgen Inc.,
582 U.S. 1, 16 (2017); citing Nw. Airlines, Inc. v. Transp. Workers Union of Am., 451 U.S. 77,
94 (1981) (“It is, of course, not within our competence as federal judges to amend these
comprehensive enforcement schemes by adding to them another private remedy not authorized
by Congress.”)) (other citations omitted); see also Cunningham v. Dep’t of Justice, 961 F. Supp.
2d 226, 242–24 (D.D.C. 2013) (finding that there is no private right of action for an alleged
“constitutional deprivation” under the FOIA); Chrysler Corp. v. Brown, 441 U.S. 281, 282
(1979) (“The FOIA is exclusively a disclosure statute and affords petitioner no private right of
action to enjoin agency disclosure.”).
Finally, the court finds no basis for a Vaughn Index in this case. A Vaughn index
itemizes and explains redactions in a FOIA production, see Vaughn v. Rosen, 484 F.2d 820, 827
25 (D.C. Cir. 1973), but in this case, there are no redactions, as NARA produced its responsive
records in full. See Scanlon Decl. ¶ 23. The CIA produced no records, as they did not locate any
unclassified records, and issued a Glomar response for classified records, if any. See Williams
Decl. ¶¶ 13–25. Therefore, directing either Defendant to produce a Vaughn index would be an
exercise in futility. See Wolf, 473 F.3d at 374 n.4 (noting that a Vaughn Index is needless where
an agency has issue a Glomar response) (quoting Phillippi, 546 F.2d at 1013) (“When the
Agency’s position is that it can neither confirm nor deny the existence of the requested records,
there are no relevant documents for the court to examine other than the affidavits which explain
the Agency's refusal.”)); see also Jarvik v. CIA, 741 F. Supp. 2d 106, 112 n.6 (D.D.C. 2010)
(finding that “a Vaughn index is not necessary if it ‘could cause the very harm that [the
exemption] was intended to prevent,’ or ‘where there are no responsive records to describe in a
Vaughn index[.]’”) (quoting Linder v. Nat'l Security Agency, 94 F.3d 693, 697 (D.C. Cir. 1996);
Casillas v. Dep’t of Justice, 672 F. Supp. 2d 45, 48 (D.D.C. 2009)); Heartland All. For Hum.
Needs & Hum. Right v. Immig. & Cust. Enf., 406 F. Supp. 3d 90, 125 (D.D.C. 2019) (“An
agency does not necessarily need to produce a Vaughn Index in every FOIA suit.”).
Accordingly, the court is not persuaded by any of these arguments.
CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary Judgment is GRANTED,
and Plaintiff’s Cross-Motion for Summary Judgment is DENIED. An Order consistent with this
Memorandum Opinion is separately and contemporaneously issued.
Date: September 23, 2024
Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge