James Madison Project v. Central Intelligence Agency

• Court: District Court, District of Columbia
• Decided: January 6, 2009
• Docket: Civil Action No. 2008-0708
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JAMES MADISON PROJECT, : : Plaintiff, : : v. : Civil Action No. 08-0708 (JR) : CENTRAL INTELLIGENCE AGENCY, : : Defendant. :

MEMORANDUM

The James Madison Project (JMP) brought this FOIA

action to compel the CIA to respond to its October 2007 request

for “copies of all internal [CIA] documents pertaining to

discussions concerning the decision to initiate an internal

review of the operations of the CIA’s Inspector General (“IG”),

John Helgerson, and of the IG’s office as a whole.” Dkt. 5,

Ex. A (emphasis added). The CIA has since reported that it has

found no responsive records, id., Ex. D, and has moved to

dismiss, or, alternatively, for summary judgment.

To prevail, the CIA must “show beyond a material doubt

that it has conducted a search reasonably calculated to uncover

all relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705

F.2d 1344, 1351 (D.C. Cir. 1983). The CIA must defend the search

process, not its outcome: “the agency’s failure to turn up a

particular document, or mere speculation that as yet uncovered

documents might exist, does not undermine the determination that

the agency conducted an adequate search for the requested records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C. Cir. 2004)

(citations omitted).

The CIA’s initial attempt to meet this standard was the

affidavit of Delores M. Nelson, a senior CIA public information

official. See First Nelson Decl. JMP challenged Ms. Nelson’s

affidavit on two grounds: that it did not explain why the CIA

searched only for records within the Director of the Central

Intelligence Agency (DCIA) component, and that it did not explain

why the CIA searched only for records generated before

November 5, 2007.1 The CIA has addressed both of those points in

a second affidavit of Ms. Nelson. She states that the CIA only

searched the DCIA component because “the Director of the CIA

decided to initiate the review [,] the Office of the DCIA carried

out the review of the IG . . . [and] the other directorates of

the CIA . . . were not involved in the decision to initiate the

internal review.” Second Nelson Decl., at ¶ 3. She also

explains that the CIA’s search for pre-November 5, 2007 documents

1 JMP’s other concerns about the first Nelson declaration -- its failure to describe “which of the ‘example’ search terms were used in which particular record systems,” “what other search terms were used in conducting the search,” and “whether and to what degree the CIA revised its initial search in light of information discovered during initial phases of the search” -- ask too much of the CIA. See, e.g., Miller v. Dept. of State, 779 F.2d 1378, 1383 (8th Cir. 1985) (“An agency may prove the reasonableness of its search through affidavits of responsible agency officials so long as the affidavits are relatively detailed, non-conclusory and submitted in good faith”).

- 2 - was reasonable because the CIA’s decision to conduct an internal

review of the IG occurred well before that date. Id., at ¶ 4.

JMP also finds the CIA’s failure to produce at least

one of the IG’s semiannual reports suspicious, since the internal

inquiry into the IG’s performance lasted approximately ten

months. JMP concedes that “the inability of an agency to find a

particular document does not generally render a search

inadequate,” but relies on Nation Magazine, Wash. Bureau v. U.S.

Customs Serv., 71 F.3d 885 (D.C. Cir. 1995), for the proposition

that “in certain circumstances a court may place significant

weight on the fact that a records search failed to turn up a

particular document.” Dkt. 9, at 12. Ms. Nelson notes, however:

While the IG’s Office is obligated to meet certain reporting requirements under the CIA Act, the CIA did not search for any IG reporting relating to the internal review of the IG’s office simply because these documents would not be responsive to Plaintiff’s request. Any documentation relating to the IG Office’s compliance with the internal review would not be responsive to a request for records relating to the decision to initiate the internal review of the IG and the IG’s office as a whole.

Second Nelson Decl., at ¶ 5 (emphasis in original).

The CIA’s position rests upon a careful and literal,

but not improper, reading of JMP’s narrow and awkwardly worded

FOIA request. The two Nelson declarations demonstrate that the

search -- for what JMP asked for -- was reasonable.

* * *

- 3 - The CIA’s motion to dismiss JMP’s amended complaint

will be granted. The exquisitely nuanced question of whether

plaintiff filed an amended or supplemental complaint is mooted,

in this instance, by the exercise of my discretion not to allow

plaintiff to alter and expand this litigation more than two

months after a motion for summary judgment on its original

complaint was fully briefed and under submission. The FOIA

requests plaintiff made to different agencies about the same or

similar subjects involved in this case will have to be pursued

separately.

An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

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