Assassination Archives & Research Ctr., Inc. v. CIA, No. 17-00160, 2018 WL 3448229 (D.D.C. July 17, 2018) (McFadden, J.)

Assassination Archives & Research Ctr., Inc. v. CIA, No. 17-00160, 2018 WL 3448229 (D.D.C. July 17, 2018) (McFadden, J.)

Re:  Request for records related to CIA's research into assassination attempts against Adolf Hitler, plus any records related to the resulting search itself

Disposition:  Granting defendant's motion for summary judgment, denying plaintiff's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court finds that, "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 . . . [a]nd mere speculation that efforts are insufficient – without any meaningful indication of what else the CIA should have done – fails to rebut the presumption of good faith accorded to agency declarations."  "This is especially so when the documents sought are likely quite old and the CIA . . . indicates they would have been handed over to the National Archives."  Further, the court finds that there is "[n]o statutory provision or court precedent requires affidavits from all government employees involved in the search or dictates who among them should be the affiant."
   

• Exemption 1:  The court finds that, "[e]xemption 1 applies when criteria laid out in an Executive order authorizes information to be kept secret in the interest of national security, and the information is in fact properly classified pursuant to such order."  "The CIA utilized Exemption 1 to redact . . . information related to intelligence methods still in use, pursuant to Section 1.4(c) of Executive Order 13526."  "Executive Order 13526 authorizes original classification authorities to classify information that 'could reasonably be expected to cause identifiable or describable damage to the national security.'" "Moreover, the classified information must 'pertain to' one or more items on an enumerated list, including 'intelligence activities (including covert action), intelligence sources or methods, or cryptology.'"  "Plaintiff contends that because the [document] is more than 50 years old, the redacted information has been automatically declassified under Executive Order 13526."  The court finds that, "the Order's 50-year declassification provision only provides for automatic declassification 'not later than 3 years from the effective date' of December 29, 2009, if the relevant agency head has not, '[i]n extraordinary cases . . . within 5 years of the onset of automatic declassification, propose[d] to exempt additional specific information from declassification.'"  "Here, that exact procedure has occurred." 
   

• Exemption 3:  The court finds that the CIA properly "invoked the National Security Act as independent authority for redacting intelligence methods . . . and invoked the CIA Act to withhold the names and phone numbers of the CIA employees that conducted the search."  "Plaintiff argues that the CIA should not have withheld employee names, because the need to get to the bottom of the mistakes made during the FOIA search outweigh any relevant privacy interests."  The court finds however, "[that] exemption 3 is not a balancing test."  "Instead, 'the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage.'"  The court concludes that the "CIA properly used Exemption 3 to withhold the names and phone numbers of the CIA employees who conducted the requested search."
   

• Exemption 5:    "CIA contends that it properly withheld communications between CIA staff that would reveal how internal search methods were decided upon and conducted, as well as materials inextricably intertwined with these communications."  The court finds that "plaintiff makes the bald assertion, without a citation to the record, that the CIA's redactions 'do not reflect a policy deliberation . . . rather they are factually based records as to what was found or not found.'"  "This unsupported claim fails to rebut the presumption of good faith that [the court] must give to agency affidavits . . . [and therefore the court] conclude[s] that the CIA properly applied Exemption 5."
   

• Exemption 6:  "CIA invokes this exemption as an independent basis for withholding the names and phone numbers of agency personnel."  The court finds that, "plaintiff alleges that Exemption 6 does not apply because disclosure of CIA personnel names and telephone numbers are important for sniffing out why administrative errors occurred in this case, and to vindicate the public interest in the John F. Kennedy assassination."  "But the connection between these records and President Kennedy's assassination are tenuous at best . . . [and] that interest does not outweigh the privacy interests of CIA personnel in their names and phone numbers."  "Accordingly, [the court] conclude[s] that the CIA properly applied Exemption 6."