UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
DAN HARDWAY et al.,
Plaintiffs, v. Civil Action No. 17-1433 (TJK) CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION AND ORDER
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
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. . . .
1 In reaching its conclusion, the Court has considered all relevant filings including, but not limited to, the following: Plaintiffs’ Complaint, ECF No. 1; Plaintiffs’ FOIA Request (“Pl. Request”), ECF No. 1-1; Defendant’s Answer, ECF No. 10; Joint Status Report and Proposed Briefing Schedule (“JSR”), ECF No. 14; Defendant’s Motion for Summary Judgment (“Def. Mot.”), ECF No. 15; Defendant’s Statement of Material Facts as to Which There Is No Genuine Issue (“Def. Facts”), ECF No. 15-2; Declaration of Antoinette Shiner (“Shiner Decl. 1”), ECF No. 15-3; Plaintiffs’ Response to Defendant’s Motion, ECF No. 16; Plaintiffs’ Cross-Motion for Summary Judgment (“Pl. Mot.”), ECF No. 17; Plaintiffs’ Statement of Material Facts as to Which There Is No Genuine Issue (“Pl. Facts”), ECF No. 17-1; Defendant’s Response to Plaintiffs’ Motion (“Def. Resp.”), ECF No. 19; Defendant’s Reply in Support of Its Motion for Summary Judgment, ECF No. 20; Supplemental Declaration of Antoinette Shiner (“Shiner Decl. 2”), ECF No. 20-1; and Plaintiffs’ Reply in Support of Their Motion (“Pl. Reply”), ECF No. 21.
2 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) and 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
3 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.
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. The agency is entitled to summary
judgment on the adequacy of its search if it shows “that it 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.” Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The
agency can make this showing through an affidavit “setting forth the search terms and the type of
search performed, and averring that all records likely to contain responsive materials (if such
records exist) were searched.” Id. “Agency affidavits—so long as they are relatively detailed
and non-conclusory—are accorded a presumption of good faith, which cannot be rebutted by
purely speculative claims about the existence and discoverability of other documents.” Mobley
v. CIA, 806 F.3d 568, 581 (D.C. Cir. 2015) (internal quotation marks omitted) (quoting SafeCard
Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991)). Still, an agency must submit more
than “vague, conclusory affidavits, or those that merely paraphrase the words of a statute,” to
4 allow the Court to review the agency’s search efforts. See Church of Scientology of Cal., Inc. v.
Turner, 662 F.2d 784, 787 (D.C. Cir. 1980).
When the agency has withheld responsive records under one of FOIA’s exemptions, the
agency bears the burden of showing that its withholdings were proper. Mobley, 806 F.3d at 581.
An agency can carry its burden through a declaration, after which “the plaintiff must come
forward with ‘specific facts’ demonstrating that there is a genuine issue with respect to whether
the agency has improperly withheld extant agency records” to avoid summary judgment for the
government on that issue. Span v. Dep’t of Justice, 696 F. Supp. 2d 113, 119 (D.D.C. 2010)
(quoting Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 142 (1989)).
Analysis
A. Whether the CIA Conducted an Adequate Search
This Circuit “applies a reasonableness standard to determine whether an agency
performed an adequate search.” Mobley, 806 F.3d at 580. The Court’s inquiry turns on
methods, not results. Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C. Cir. 2003)
(“[T]he 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.”).
In deciding what physical and electronic locations to search for responsive records, an
agency “cannot limit its search to only one record system if there are others that are likely to turn
up the information requested.” Oglesby, 920 F.2d at 68. It must, “[a]t the very least, . . . explain
in its affidavit that no other record system was likely to produce responsive documents.” Id.
Beyond the locations searched, an agency must explain its search methods and the terms used.
Reporters Comm. for Freedom of the Press v. FBI, 877 F.3d 399, 403 (D.C. Cir. 2017);
Rodriguez v. Dep’t of Defense, 236 F. Supp. 3d 26, 38 (D.D.C. 2017) (“At a bare minimum, the
5 agency’s affidavits need to specify ‘what records were searched, by whom, and through what
process.’” (quoting Steinberg v. Dep’t of Justice, 23 F.3d 548, 552 (D.C. Cir. 1994))).
Here, the CIA grouped Plaintiffs’ requests into four categories, based on where it
determined responsive records might be located: (1) records within the Office of Security; (2)
records within the Directorate of Operations; (3) personnel records; and (4) records related to the
searches for the previous three categories. Def. Facts ¶¶ 3–5, 9. The Court addresses each
category in turn.
1. Office of Security Records
As part of their broader request, Plaintiffs sought all records related to them housed in the
CIA’s Office of Security. Pl. Request at 1. Shiner’s second declaration describes the CIA’s
search for these records in detail. In describing how the agency decided where to search, she
explains that the CIA identified “record systems maintained by the Office of Security that can be
searched for records related to particular individuals and would include records dating back to
the relevant time period.” Shiner Decl. 2 ¶ 6. The CIA identified one record system that fit that
description, and “[n]o other databases or sets of files within the Office of Security were deemed
likely to maintain responsive records.” Id. ¶ 7.
As for the CIA’s search methodology, Shiner represents that the database can be queried
by an individual’s name. Id. CIA employees searched each Plaintiff’s name, and the database
showed that Plaintiffs’ personnel security files had been destroyed “pursuant to ordinary records
control procedures”—Blakey’s on March 26, 2002, and both Hardway’s and Lopez’s on
November 24, 2006. Id.; Shiner Decl. 1 ¶ 15. The database also reflected that there were no
archived hard-copy records related to Hardway or Lopez, but that there were some records “in
hard copy form at an Agency records archive facility” related to Blakey. Shiner Decl. 2 ¶ 8. The
CIA retrieved those hard-copy records, which were two nondisclosure agreements signed by
6 Blakey. Id. The CIA then released them to Plaintiffs, with CIA employees’ names and
signatures redacted, in December 2017. Id.
This declaration provides the Court the basis to conclude that the CIA conducted an
adequate search for records within the Office of Security. The CIA identified the one database
that would contain responsive records and searched it by Plaintiffs’ names. And to the extent
that the search indicated that there were records stored elsewhere, the CIA obtained, reviewed,
and produced them (with redactions).
Plaintiffs argue that the search was inadequate because they received no “proof of [the]
destruction” of their Office of Security files. Pl. Mot. at 22–23. To start, as noted above, “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, 315 F.3d at 315. And in
any event, the CIA has now produced the Shiner declaration, which explains and provides some
detail about the destruction of the records. More fundamentally, though, FOIA does not require
an agency to provide plaintiffs information about the destruction of records they requested. See
Jean-Pierre v. Bureau of Prisons, 880 F. Supp. 2d 95, 103–04 (D.D.C. 2012) (finding that
requests for information—“what was the reason,” “who gave the order,” and “on what day”—
were not requests for records and therefore did not fall within FOIA).
Still, say Plaintiffs, the CIA needed to undertake a separate search for records about the
destruction of the records they requested. But this argument, based on one of the purported
instructions Plaintiffs appended to their FOIA request, fails as well. After Plaintiffs listed the
eight categories of records they requested, they also included about three pages of directives
about how the CIA should search its files, communicate with them about their request, and
provide them responsive records. See, e.g., Pl. Request at 5 (“Where paper copies of a record
7 responsive to any request herein have material of any kind on the reverse side of a page, please
provide both sides of [the] page.”); id. (“Please provide all responsive materials in a digital
format reproduced on word searchable CDs.”). One directive instructed that, if the CIA had
destroyed any responsive records, it should “provide proof of that destruction, including any
documentary evidence indicating the date of destruction, a description of exactly what was
destroyed, and any cited authority for the destruction, and any identifying information regarding
the person(s) who accomplished and recorded the destruction.” Id.
That instruction did not, as Plaintiffs allege, require the CIA to undertake a separate
search for potential records about the destruction of the records they requested. Plaintiffs
essentially contend that the CIA should have interpreted their instruction as part of their
substantive FOIA request, because as part of the “proof” of a record’s destruction they
demanded, along with other information, “documentary evidence indicating the date of the
destruction.” But considered in context, that instruction was not a request that “reasonably
describe[d]” additional records under FOIA, like the eight categories of records Plaintiffs
identified. 5 U.S.C. § 552(a)(3)(A). And although agencies must construe FOIA requests
liberally, see Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 889 (D.C. Cir. 1995), as
previously noted, FOIA does not permit plaintiffs to demand “proof” that particular records they
requested were destroyed, or otherwise dictate how defendants carry out searches for responsive
records, see Mobley v. CIA, 924 F. Supp. 2d 24, 44 (D.D.C. 2013), aff’d, 806 F.3d 568 (D.C. Cir.
2015). Of course, if Plaintiffs now wish to submit a FOIA request for records about the
destruction of their personnel security files, they are free to do so.
Finally, Plaintiffs argue that the CIA needed to conduct additional searches for their
Office of Security files because the agency had a statutory obligation to preserve them under the
8 President John F. Kennedy Records Collection Act of 1992 (“JFK Act”), 44 U.S.C. § 2107 note.
Pl. Mot. at 23. Because destroying these records was illegal, they posit, the CIA may be lying
about having destroyed them, and those conducting the search on the CIA’s behalf should have
searched for them in other locations. Pl. Reply at 7.
The D.C. Circuit has repeatedly held, however, that plaintiffs—including some of the
Plaintiffs here—may not convert the JFK Act’s recordkeeping requirements into additional
agency obligations to the public under FOIA. See Morley v. CIA, 508 F.3d 1108, 1115 (D.C.
Cir. 2007); Assassination Archives & Research Ctr. v. Dep’t of Justice, 43 F.3d 1542, 1544
(D.C. Cir. 1995); see also Lopez v. Nat’l Archives & Records Admin., 301 F. Supp. 3d 78, 90
(D.D.C. 2018). And Plaintiffs’ theory in this case that it would have been illegal for the CIA to
destroy their personnel security files is based solely their bald assertion—uninformed by the
actual contents of the records and inadequately explained in their briefing—that those records
must have fallen within the JFK Act’s definition of “assassination records.” See JFK Act § 3(2)
(defining “assassination record” to include “a record that is related to the assassination of
President John F. Kennedy”). That speculation does not undermine the presumption of good
faith to which agency declarations, such as Shiner’s, are entitled. 2 See, e.g., Passmore v. Dep’t
of Justice, 245 F. Supp. 3d 191, 201–02 (D.D.C. 2017); James v. U.S. Secret Service, 811
F. Supp. 2d 351, 358 (D.D.C. 2011). For that reason, Plaintiffs’ theory does not cast doubt on
2 Plaintiffs also argue that, as a general matter, the CIA’s declarations are not entitled to the presumption of good faith because the agency “has repeatedly demonstrated [its] willingness to lie about the issues involved in this case.” Pl. Mot. at 32; see also Pl. Mot. at 29–33; Pl. Reply at 10–12. This argument misses the mark, because only misconduct in the instant case can pierce that presumption of good faith. See Hayden v. Nat’l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381, 1387 (D.C. Cir. 1979) (“The sufficiency of the affidavits is not undermined by a mere allegation of agency misrepresentation or bad faith, nor by past agency misconduct in other unrelated cases.”). Because Plaintiffs’ argument relies on historical conduct, it does not disturb this presumption.
9 Shiner’s assertion that the CIA destroyed the records at issue “pursuant to ordinary records
control procedures.” Shiner Decl. 1 ¶ 15. And because that is “a reason that is not itself
suspect,” SafeCard, 926 F.2d at 1201, the records’ destruction does not obligate the agency to do
more to find them under FOIA. See id.; Passmore, 245 F. Supp. 3d at 202; see also Kissinger v.
Reporters Comm. for Freedom of the Press, 445 U.S. 136, 152 (1980) (noting that FOIA “only
obligates [agencies] to provide access to [those records] which it in fact has created and
retained”).
For the above reasons, the Court will grant summary judgment for the CIA as to
Plaintiffs’ request for records located in the Office of Security.
2. Directorate of Operations Records
Shiner’s declarations include fewer details about the CIA’s search for records it
determined would be located within its Directorate of Operations: 201 records, surveillance
records, records related to communications with foreign governments, psychological profiles,
and counterintelligence records. 3 Shiner Decl. 1 ¶ 16. That determination was based on “the
nature of the records sought,” which related “to purported clandestine intelligence and
counterintelligence activities.” Shiner Decl. 2 ¶ 10. She explains that the Directorate of
Operations stores two types of records, operational and non-operational. Shiner Decl. ¶¶ 16, 18.
3 Plaintiffs object that “[t]his limitation”—searching only in the Directorate of Operations for these files—“was imposed by [the] CIA even though Plaintiffs specifically requested that the search include the record systems of” other offices. Pl. Mot. at 11; see also Pl. Request at 7 (requesting that the CIA search “the files of the Directorate of Operations, the Directorate of Science and Technology, the Office of Security, the Office of the General Counsel[,] the Office of Personnel, Counterintelligence and the Special Affairs Staff”). But agencies need not search a particular location when they do not expect responsive records to be there. See Mobley, 924 F. Supp. 2d at 44 (“An agency’s search obligations are not dictated by a requester’s demands to search particular components or databases. Rather, an agency’s search obligations are dictated by whether the scope of the search is ‘reasonably calculated to uncover all relevant documents. . . .’” (quoting Morley, 508 F.3d at 1114)).
10 By law, the CIA may exclude operational records from its FOIA searches, unless U.S. citizens
“have requested information on themselves.” 50 U.S.C. § 3141(a), (c)(1). As a result, to the
extent that Plaintiffs sought Directorate of Operations records about themselves, the CIA
searched for operational and non-operational records. Shiner Decl. 1 ¶ 18. And to the extent that
they sought records about Gaeton Fonzi, the CIA searched for non-operational records only. Id.
¶ 19.
Shiner explains that, for operational records, CIA employees “identified an electronic
database system” that they “determined would contain the types of records sought in these
categories.” Shiner Decl. 2 ¶ 12. As for the search methodology and terms, she explains that
this database allows a keyword search of the text of each record, and that employees used the
following search terms:
(a) “dan or danny or daniel” in close proximity to “hardway or hardaway”; (b) “edwin” in close proximity to “lopez”; (c) “robert” in close proximity to “blakey”; (d) “rob or Robbie or robby or bob” in close proximity to “blakey”; and (5) “hardway or hardaway or lopez or lopes or blakely or blakey” near “house select committee on assassinations” or hsca.”
Id. She asserts that Plaintiffs’ names were the only search terms the CIA considered necessary,
because “[a]ny documents responsive to these five categories—to the extent they pertain[ed] to
plainitffs themselves—would contain the name of plaintiffs Hardway, Lopez, or Blakey.” Shiner
Decl. 1 ¶ 18. These search terms, she says, “generated a number of hits . . . each of which was
retrieved from the database and individually reviewed” for responsiveness. Shiner Decl. 2 ¶ 13.
Employees determined that none of the hits related to Plaintiffs. Id.
Shiner’s description of the CIA’s search for the Directorate of Operations records,
though, does not provide the Court enough information to determine whether summary judgment
is warranted. For operational records, Shiner does not directly state—and the Court cannot
otherwise infer on this record—that the Directorate of Operations has no other record systems
11 reasonably likely to contain responsive records, “the very least” an agency must show. Oglesby,
920 F.2d at 68.
Shiner’s declarations also fail to explain how the CIA searched for non-operational
records. For non-operational records about Gaeton Fonzi, she explains that employees searched
his name, “HSCA,” and “House Select Committee on Assassinations.” Shiner Decl. 1 ¶ 19. But
she provides no other details, such as the record system or systems the CIA searched using those
terms, why it selected those systems, and how those systems can be queried. And as for non-
operational records about Plaintiffs, Shiner includes no description of the CIA’s search
methodology at all. It may well be that the Directorate of Operations stores potentially
responsive non-operational records in the same database Shiner describes as containing its
operational records. But she does not say so.
The declarations therefore lack the level of detail that allows the Court to determine
whether the agency conducted an adequate search for Directorate of Operations records. See
Church of Scientology of Cal., 662 F.2d at 787. Accordingly, the Court will deny both parties’
summary judgment motions without prejudice on this issue and allow the agency to submit yet
another declaration filling in the missing details. 4
3. Personnel Records
Plaintiffs also requested all “‘P’ files . . . including, but not limited to ‘soft’ files” about
themselves. Pl. Request at 1. The CIA interpreted “P files” to refer to personnel records,
because “experienced CIA officers determined that the term ‘P file’ has at times been used
4 Plaintiffs also argue at length that additional records within the Directorate of Operations are likely to exist. See Pl. Mot. at 12–19; Pl. Reply at 1–5. But because it is unclear whether the CIA even conducted an adequate search for Directorate of Operations records, the Court need not reach the issue of whether the agency should have pursued “leads that emerge[d] during its inquiry” about the existence of other records. See Campbell v. Dep’t of Justice, 164 F.3d 20, 28 (D.C. Cir. 1998).
12 within the Agency as a shorthand description of a ‘personnel file.’” Shiner Decl. 1 ¶ 14.
Plaintiffs do not appear to object to this interpretation. Pl. Mot. at 7–8.
In explaining the potential locations for personnel records, Shiner explains that the CIA
“maintains an electronic database of personnel records that can be queried by an individual’s
name.” Shiner Decl. 1 ¶ 14. Employees “searched this database for the names of plaintiffs
Hardway, Lopez, and Blakey and no responsive records” were found. Id.
This search for personnel records appears to pass muster in almost all ways. But once
again, Shiner does not state that “no other record system was likely to produce responsive
documents.” Oglesby, 920 F.2d at 68. And the Court hesitates to infer that is the case here, if
only because the records Plaintiffs requested date to the 1970s and might well not be housed in
an electronic database. The Court will therefore deny both summary judgment motions without
prejudice as to personnel records and will allow the CIA to address in another declaration
whether any additional record system was likely to contain responsive files.
4. Records of Search
Finally, Plaintiffs requested all records about the CIA’s search efforts for the other
categories of records they requested. But FOIA only requires agencies to search for records as of
a specific cut-off date. See Kissinger, 445 U.S. at 152. On the one hand, the D.C. Circuit “has
indicated that an agency must have a ‘compelling justification for imposing a date-of-request
cut-off on a particular FOIA request.’” Ctr. for Biological Diversity v. EPA, 279 F. Supp. 3d
121, 141 (D.D.C. 2017) (quoting Pub. Citizen v. Dep’t of State, 276 F.3d 634, 644 (D.C. Cir.
2002)). But on the other, courts in this Circuit have repeatedly held that a date-of-search cut-off
is reasonable. See id. (collecting cases).
The parties do not appear to dispute that it would have been reasonable for the CIA to use
a date-of-search cut-off here. See Def. Mot. at 7; Pl. Mot. at 29; Def. Resp. at 6–7. But the
13 Court cannot tell from Shiner’s declarations whether it did so. Shiner explains that the CIA did
not search for this category of records because they “by definition, did not exist at the time the
CIA received and began processing the plaintiffs’ request.” Shiner Decl. 1 ¶ 20. But this
representation raises more questions than it answers. Although it seems quite likely that no
responsive records existed at the time the CIA received the request, using that cut-off date would
at least arguably require a “compelling justification,” as is required when an agency uses a date-
of-request cut-off. And it is far from clear that no responsive documents would have existed at
the time the CIA conducted the searches at issue, since they appear to have taken some time and
effort to design. The Court will thus deny summary judgment for both parties on this issue and
allow the CIA to explain in more detail, given the caselaw above, the basis for its decision not to
undertake a search for records about the CIA’s searches for the other records Plaintiffs requested.
B. Whether the CIA’s Withholdings Were Proper
Although FOIA generally requires the disclosure of responsive records, it contains nine
exemptions under which an agency can withhold them. See 5 U.S.C. § 552(b). Under
Exemption 3, an agency may withhold information “specifically exempted from disclosure by
statute, . . . if that statute . . . requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue.” Id. § 552(b)(3)(A)(i). When an agency has
invoked Exemption 3, the only questions for the reviewing court are (1) whether the statute the
agency has identified does in fact exempt information from disclosure, and (2) whether the
information the agency has withheld falls within the statute’s scope. See CIA v. Sims, 471 U.S.
159, 167 (1985).
Here, the CIA applied Exemption 3 to redact CIA employees’ names and signatures that
appeared on the two non-disclosure agreements signed by Blakey and released to Plaintiffs. To
justify these redactions, it invoked the provision of the Central Intelligence Agency Act, 50
14 U.S.C. § 3507, 5 that prohibits the disclosure of the names of CIA employees. Courts in this
Circuit have repeatedly held that this statute prohibits information from being disclosed for
purposes of Exemption 3. See Subh v. CIA, 760 F. Supp. 2d 66, 70–71 (D.D.C. 2011) (collecting
cases). And the information withheld—CIA employees’ names and signatures—falls squarely
within the statute’s scope. 50 U.S.C. § 3507 (“[T]he Agency shall be exempted from . . . the
provisions of any . . . law which require[s] the publication or disclosure of the . . . names . . . of
personnel employed by the Agency.”).
For these reasons, the CIA properly withheld the names and signatures of its employees
under FOIA’s Exemption 3. The CIA also invoked Exemption 6, which protects persons’ private
information, to withhold these names and signatures. Def. Mot. at 10. But “[b]ecause the court
has concluded that these redactions were justified under FOIA Exemption 3, it need not consider
whether they were also justified under FOIA Exemption 6.” Assassination Archives & Research
Ctr. v. CIA, No. 18-5280, 2019 WL 691517, at *1 (D.C. Cir. Feb. 15, 2019). The Court will
therefore grant summary judgment for the CIA on this issue.
Conclusion
For all the above reasons, Defendant’s Motion for Summary Judgment (ECF No. 15) is
GRANTED IN PART and DENIED IN PART; Plaintiffs’ Cross-Motion for Summary
Judgment (ECF No. 16) is DENIED. Defendant’s motion is granted, and Plaintiffs’ cross-
motion is denied, as to the adequacy of the CIA’s search for records located in its Office of
Security and the propriety of its withholdings. The motions are denied without prejudice in all
other respects. The Court will permit the CIA to file a renewed motion for summary judgment
supported by an additional declaration, and Plaintiffs to file a renewed cross-motion. It is further
5 The CIA cites the Act’s previous location in the U.S. Code, at 50 U.S.C. § 403g. Def. Mot. at 9.
15 ORDERED that the parties shall jointly propose a briefing schedule for their renewed motions
for summary judgment by May 24, 2019.
SO ORDERED.
/s/ Timothy J. Kelly TIMOTHY J. KELLY United States District Judge
Date: April 28, 2019