Driggs v. CIA, No. 23-1124, 2024 WL 2303842 (E.D. Va. May 21, 2024) (Novak, J.)

Driggs v. CIA, No. 23-1124, 2024 WL 2303842 (E.D. Va. May 21, 2024) (Novak, J.)

Re:  Request for records concerning Americans allegedly held as prisoners of war (“POWs”) following the Korean War

Disposition:  Construing plaintiff’s memorandum as a motion requesting relief; denying that motion

• Exemption 3:  The court relates that “Plaintiffs in this case filed a Memorandum of Law in support of their contention that Defendant the Central Intelligence Agency ‘is required to conduct a search of its operational file[s] under [the CIA Information Act of 1984 (“CIAIA”),] 50 U.S.C. § 3141.”  “Plaintiffs’ Memorandum included no accompanying motion and requested no relief from the Court.”  “Nevertheless, because the parties believe the operational-files issue to be ‘ripe for the Court's review’ . . . , the Court addresses Plaintiffs’ Memorandum now.”  “The Court finds that Plaintiffs have not carried their burden to establish [and] demonstrate that the CIA ‘has improperly withheld records because of failure to comply with [the CIAIA],’ and it thus lacks any power to order the CIA to ‘search and review the appropriate exempted operational file[s].’”  The court explains that “[t]he ‘relevant statute’ here is the [CIAIA].”  “It provides that the Director of the CIA ‘may exempt’ that agency’s ‘operational files’ from ‘publication[,]disclosure, or search or review in connection therewith.’”  “The CIAIA itself provides FOIA requesters with two useful exceptions to its strict default rule.”  “Under 50 U.S.C. § 3141(c), three categories of operational files remain subject to the FOIA ‘[n]otwithstanding subsection (a).’”  “And under 50 U.S.C. § 3141(d), non-exempt files that ‘contain information derived or disseminated from exempted operational files’ can be disclosed irrespective of the FOIA-exempt source of the information in them.”  “In addition to these statutory exceptions, the CIAIA provides a narrow path for judicial review.”  “If a court finds that the CIA ‘improperly withheld requested records because of failure to comply with any provision of [§ 3141], the court shall order the [CIA] to search and review the appropriate exempted operational file[s]’ and, if appropriate, to disclose the records it improperly withheld.”
  
  The court concludes that “Plaintiffs’ arguments prove wholly inadequate to justify a search of the CIA’s operational files, because they misapply the governing law.”  “Plaintiffs argue that the circumstances of this case suffice to warrant a search of the CIA’s operational files under the CIAIA.”  “As discussed above, to compel the CIA to search its operational files, Plaintiffs must show that the CIA ‘has improperly withheld requested records because of failure to comply with [a] provision of [50 U.S.C. § 3141].’”  “Plaintiffs’ Memorandum fails this elementary requirement, because the Memorandum nowhere explains how the CIA fell out of compliance with this § 3141.”  Plaintiffs “invoke subsection (f)(3)” which “merely dictates the pleading standard that governs when a plaintiff seeks to make out an improper-placement claim.”  “Plaintiffs satisfy that pleading standard,” “[b]ut, critically and fatally, subsection (t) does not require the Court to order a search of operational files on a mere satisfaction of the pleading standard.”  “Plaintiffs’ only gestures at satisfying the requisite test can be found in two bare paragraphs of their Complaint.”  “Plaintiffs’ declarants focus on whether the CIA over-classifies documents.”  “Maybe so. “  “But whether a document should remain classified has nothing to do with whether the CIA has ‘improperly withheld requested records because of failure to comply with any provision of [50 U.S.C. § 3141].’”  “Indeed, because Plaintiffs filed suit before the CIA produced any records, Plaintiffs categorically could not have satisfied subsection (f)(6)’s requirements, because Plaintiffs could not (and, indeed, do not) show that the CIA has withheld responsive records in the first place.”  “Indeed, even if Plaintiffs provided evidence that the CIA had withheld any records at all, and even if it were true that the documents at issue do not warrant classification, that assertion would not say even a word about the proper subject of a § 3141(f)(3) attack – ‘the propriety of the agency’s decision to put the requested records into properly exempted files.’”  “Plaintiffs’ declarations do not come close to satisfying the statute.”