Stalcup v. CIA, No. 13-2329, 768 F.3d 65 (1st Cir. 2014) (Howard, J.)

Stalcup v. CIA, No. 13-2329, 768 F.3d 65 (1st Cir. 2014) (Howard, J.)

Re: Request for records concerning crash of TWA Flight 800

Disposition: Affirming district court's grant of defendant's motion for summary judgment

• Exemption 5, Deliberative Process Privilege:  The First Circuit holds that "the CIA properly withheld [certain] materials under exemption 5."  The court first "note[s] at the outset that the Ninth Circuit has recently addressed a nearly identical challenge to the exact materials at issue here."  "Lahr v. Nat'l Transp. Safety Bd., 569 F.3d 964 (9th Cir.2009)."  The court states that "[t]hough [it is] not bound by that conclusion, and would independently arrive at the same result based on this record alone, [it] do[es] find Lahr to be persuasive."  The court finds that "[t]he Ninth Circuit's conclusion coheres with the CIA's declaration and Vaughn index in this case."  One document, the court finds, "has the label 'draft' on it, was shown to the NTSB but never finalized, contains analytical opinions, assessments, and judgments, and was passed on to agency management for possible policy changes."  Another document "is also labeled 'draft', includes opinions and information relevant to calculating the flight path, identifies challenges to conducting the analysis, and was also provided to agency management but never finalized."  "[Plaintiff] has provided no reason to question those descriptions."  The court also notes that, in Lahr, "the CIA released—and provided to [plaintiff] in this case—certain radar data, graphs, and headings from those documents."  "[Plaintiff] has failed to raise a genuine dispute that any additional information is severable."  The court relates that plaintiff "argues that the CIA determined the cause of the crash in 1997, but only created the two documents at issue in 1998 after it had reached that decision."  However, the court finds that the documents were predecisional because "[t]he roadblock in [plaintiff's] path is that the CIA's task did not end in 1997 when it reached its initial conclusion."  The court also declines plaintiff’s invitation to "endorse a government misconduct waiver" drawn "from the civil litigation context," finding that "[t]o the extent that [it] might similarly recognize a narrow waiver doctrine in the FOIA context, it would not apply in this case."  "Even assuming that [plaintiff] could show a scintilla of support for his claim, he still fails to connect the requested materials to the alleged government misconduct[,]" which "is fatal to his claim."
   
• Exemption 7(C):  The First Circuit finds that Exemption 7(C) was appropriately used.  The court first addresses plaintiff's argument "that . . . eyewitnesses have an insignificant privacy interest" and finds that "[t]his argument ignores the Supreme Court's observation that an individual's privacy interest is 'at its apex' when he or she is involved in a law enforcement investigation."  Second, the court finds that plaintiff's argument "that the NTSB's subpoena power minimized the privacy interest, is equally unavailing" because "[i]t mistakenly assumes that the mere possibility of being called as a witness is somehow equivalent to an individual voluntarily abdicating his or her privacy."  Third, the court finds that plaintiff's "argument presumes that individuals start with a minimal threshold of privacy and gain more through government action" "is based on a faulty assumption" because "it ignores an individual's inherent privacy interest irrespective of any government intervention."  Last, the court finds that plaintiff failed to show how "release would further his purported public interest."
   
• Litigation Considerations, Adequacy of Search:  The court holds that defendant "provided extensive detail on how the agency conducted its search" and "cogently explained why the CIA believed that a lone department, the directorate of intelligence, would house the responsive records."  Defendant's "declaration provided a reasonable explanation for the agency's process and, at a bare minimum, created a presumption that the CIA acted in good faith."  The court additionally finds that "[plaintiff's] attempt to rebut that presumption goes nowhere."  "The absence of the single photograph (one, it should be noted, that was analyzed by an agency within the Department of Defense and not the CIA) does not warrant reversal."