Hardway v. Cent. Intelligence Agency

384 F. Supp. 3d 67
CourtCourt of Appeals for the D.C. Circuit
DecidedApril 28, 2019
DocketCivil Action No. 17-1433 (TJK)
StatusPublished
Cited by1 cases

This text of 384 F. Supp. 3d 67 (Hardway v. Cent. Intelligence Agency) is published on Counsel Stack Legal Research, covering Court of Appeals for the D.C. Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hardway v. Cent. Intelligence Agency, 384 F. Supp. 3d 67 (D.C. Cir. 2019).

Opinion

TIMOTHY J. KELLY, United States District Judge

Plaintiffs Dan Hardway, Edwin Lopez, and G. Robert Blakey worked for a congressional committee in the 1970s that investigated the assassinations of Dr. Martin Luther King, Jr. and President John F. Kennedy. They suspected that the Central Intelligence Agency (CIA) was interfering with their investigation and spying on them. About forty years later, they sought to confirm those suspicions by requesting records from the CIA under the Freedom of Information Act (FOIA). Dissatisfied with the CIA's response, they sued, challenging the adequacy of the CIA's searches and its decision to redact its employees' names from the two documents it released to them.

Pending before the Court are the parties' cross-motions for summary judgment. For the reasons explained below, the CIA adequately searched for one of the categories of records Plaintiffs seek and properly withheld the names of its employees. The Court will therefore grant summary judgment for the CIA on those aspects of its response to Plaintiffs' request. But the Court cannot determine on the current record whether the CIA's searches for the other categories of records were adequate, so it will otherwise deny both motions and permit the parties to renew them.1

*72I. Background

In May 2017, Plaintiffs submitted a FOIA request to the CIA for eight types of records. Def. Facts ¶ 1; Pl. Facts ¶ 1. These were:

A. All "201" files, records, information, or materials, including "soft files," pertaining to Dan L. Hardway, Edwin Lopez, and/or G. Robert Blakey. This includes, but is not limited to, covert, as well as overt, 201 files and counterintelligence files, records, information or materials related to or referring to Dan L. Hardway, Ed Lopez and/or G. Robert Blakey.
B. All "P" files, records, information or materials, including, but not limited to "soft" files, related to or referring to Dan Hardway, Ed Lopez, and/or G. Robert Blakey.
C. Any and all files, records, information or materials of the Office of Security related to or referring to Dan L. Hardway, Ed Lopez and/or G. Robert Blakey.
D. Any and all files, records, information or materials related or referring to surveillance of Dan L. Hardway, Ed Lopez and/or G. Robert Blakey, wherever that surveillance may have occurred, including, but not limited to, Mexico, Cuba and the United States and including both surveillance conducted by or on behalf of the Central Intelligence Agency or any other agency of the United States, or any agency of any foreign country, and reported to the Central Intelligence Agency, including, but not limited to, surveillance of any interaction between Dan L. Hardway, Ed Lopez, Gaeton Fonzi, and/or G. Robert Blakey, and members or representatives of the Cuban Interest Section, or other representatives of the Cuban government....
E. Any and all files, records, information or materials generated in, relating to or referencing, the years 1976 through 1979 between the CIA and any representative of a foreign government, including but not limited to a foreign government's intelligence, counterintelligence, law enforcement, judicial or police authorities, or a representative of any foreign news interest which (a) relate to or reference Dan L. Hardway, Ed Lopez and/or G. Robert Blakey, or (b) relate to or reference any activity of the House Select Committee on Assassinations (HSCA) and any staff member of the HSCA, including but not limited to Dan L. Hardway, Ed Lopez and/or G. Robert Blakey, including but not limited to HSCA staff trips to, and activities while in, Mexico and Cuba.
F. Any and all psychological profiles of, about, on, by, or referring to Dan L. Hardway, Ed Lopez, Gaeton Fonzi, and/or G. Robert Blakey, including any and all files, records, information and materials pertaining to any dissemination thereof.
G. Any and all operational files, non-operational files, records, information or materials, including but not limited to Counterintelligence (CI)
*73and autonomous operations, regarding operations aimed at, targeting, related to or referring to the HSCA and any member of the HSCA or its staff, including but not limited to Dan L. Hardway, Ed Lopez, Gaeton Fonzi, and/or G. Robert Blakey.
H. Copies of all search slips, search instructions, routing slips or routing forms, search memoranda, letters, telephone messages, emails or any other form of written or recorded communication in any format whatsoever regarding the searches conducted in response to this request or any other request for information responsive to requests denominated A through G above.

Pl. Request at 1-3.

By July 2017, the CIA had not responded to Plaintiffs' FOIA request, and Plaintiffs filed this suit. The CIA completed its search in October of that year. See JSR at 2. Ultimately, the CIA released two records to Plaintiffs: non-disclosure agreements signed by Blakey during his work for the HSCA in the 1970s. Def. Facts ¶ 10; Pl. Facts ¶ 10. The CIA redacted its employees' names and signatures on them. Def. Facts ¶ 10; Pl. Facts ¶ 10.

The parties cross-moved for summary judgment on the adequacy of the CIA's search and the propriety of those redactions. See Def. Mot.; Pl. Mot. In support of its motion for summary judgment, the CIA has submitted two declarations by Antoinette Shiner, an Information Review Officer for the CIA's Litigation Information Review Office. Shiner Decl. 1; Shiner Decl. 2. The CIA asserts that Shiner's declarations show that it has conducted an adequate search for each category of records requested and that its redactions were proper. Plaintiffs dispute whether those searches were adequate and claim they have reason to believe more responsive records exist. They also argue that the CIA should not have redacted its employees' names and signatures from the released records.

II. Legal Standard

Summary judgment is appropriate where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). "In reviewing a motion for summary judgment under the FOIA, the district court conducts a de novo review of the record." Tokar v. U.S. Dep't of Justice , 304 F. Supp. 3d 81, 89 (D.D.C. 2018) (citing 5 U.S.C. § 552(a)(4)(B) ).

FOIA requires that an agency search for and disclose requested records unless they fall within one of nine exemptions. See 5 U.S.C. § 552.

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384 F. Supp. 3d 67, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hardway-v-cent-intelligence-agency-cadc-2019.