Hardway v. CIA, No. 17-1433, 2020 WL 1905065 (D.D.C. Apr. 18, 2020) (Kelly, J.)

Hardway v. CIA, No. 17-1433, 2020 WL 1905065 (D.D.C. Apr. 18, 2020) (Kelly, J.)

Re:  Request for records concerning alleged CIA investigation of congressional committee's investigation of assassinations of President John F. Kennedy and Dr. Martin Luther King, Jr.

Disposition:  Granting defendant's motion for summary judgment; denying plaintiffs' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "[T]he Court holds that the CIA performed an adequate search of the Directorate of Operations for records responsive to Plaintiffs' Requests . . . ."  The court relates that, "[i]n its renewed motion the CIA has:  (1) asserted that no records system other than the database searched was reasonably likely to contain responsive documents; (2) clarified that it searched for nonoperational files in the database in substantially the same way it searched for operational files, since both were located there; and (3) explained the search terms it used to electronically search the nonoperational files in that database."  "It has thus filled the gaps left open in its prior motion for summary judgment."  "Plaintiffs argue that the CIA's search terms were insufficient because they did not include [a specific search term supplied by plaintiffs].  But 'in general, a FOIA petitioner cannot dictate the search terms for his or her FOIA request."  "Because the CIA's search terms were 'reasonably tailored to uncover documents responsive to the FOIA request' and Plaintiffs have not shown how the [additional] term [proposed by plaintiffs] could be expected to uncover additional responsive documents, this objection also fails."
  
  Also, regarding the portion of plaintiffs' request for certain records concerning themselves, the court notes that "[i]n their cross-motion, Plaintiffs do not challenge the adequacy of the CIA's search of its personnel records."  "And having received the CIA's explanation that it does not create personnel files for legislative branch employees who interact with the CIA, and its representation that 'there are no other CIA records systems that are reasonably likely to contain personnel files pertaining to the plaintiffs,' the Court is satisfied that its search of its personnel files for records responsive to [this portion of plaintiffs' request] fulfilled its obligations under FOIA."
   
• Procedural Requirements, Searching for Responsive Records:  Regarding plaintiffs' request for "all records about the CIA's search efforts," "[t]he Court finds that [the cut-off date used by defendant was reasonable]."  The court relates that "the CIA explains that it used the date it began its search process as the cut-off date" and that "it did not search for any such records because none could have existed at the moment the search began."  "Plaintiffs say this interpretation of 'search' is too broad and argue that the CIA's approach would collapse any meaningful distinction between a date-of-search cutoff and a date-of-receipt cutoff."  "First, [the court finds that] for the reasons explained above, the CIA's cut-off date was not linked to the date of Plaintiffs' request, but the commencement of its search process, so under Circuit precedent the CIA need not show any 'compelling justification' for it."  "And second, the cut-off date used by the CIA in this circumstance – that is, in connection with a request for records about its own search process for records responsive to the same FOIA request – accords with the general principle that the FOIA 'does not obligate agencies to create or retain documents; it only obligates them to provide access to those which it in fact has created and retained.'"  "Any other approach could result in an end-run around this rule by effectively requiring the CIA to create and retain records it might not have otherwise."  The court finds reasonable "the CIA's position here that a search can reasonably be considered a process – and not merely the moment when search terms are applied to a particular database" and that defendant did not have to search for "'documentation that may or may not exist but which, in any event, was created during the course of searching for records responsive to Plaintiff's FOIA request.'"