Talbot v. Dep't of State, No. 17-cv-0588, 2018 WL 2739921 (D.D.C. June 7, 2018) (Cooper, J.)

Talbot v. Dep't of State, No. 17-cv-0588, 2018 WL 2739921 (D.D.C. June 7, 2018) (Cooper, J.)

Re:  Request for records pertaining to two former CIA agents

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  "When the [State] Department searched for passports issued under two pseudonyms that [the CIA officer] is known to have used, it limited its search to records containing those pseudonyms and [the CIA officer's] actual birthdate."  The court finds it "unlikely that a CIA officer using a pseudonym would list his real birthdate with the false name rather than a false birthdate."  "The Department's declarations offer nothing to support a contrary conclusion."  The court therefore concludes, "that the Department's search for only records reflecting [the CIA officer's] actual birthdate was too narrow."  "As a result, the search was not reasonably calculated to find all responsive records."
  
  "[Plaintiff] also argues the CIA's search was inadequate because the agency did not look for any responsive records within its operational files."  "The CIA responds that operational files—and thus any responsive records contained therein – are categorically exempt from FOIA under the CIA Information Act."  "There is an exception, however:  the statute goes on to provide that operational files may still be searched for responsive records that are 'the specific subject matter of an investigation by the congressional intelligence committees' or other specifically enumerated investigative offices conducted into 'any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.'"  "[B]ecause [the CIA officer's] activities and involvement with Operation Mongoose and the Castro assassination plots in 1961 to 1963 were central to [a congressional intelligence] committee investigation, any responsive records related to those operations contained in the agency's operational files fall within [the exception] and the CIA must search those files to the extent necessary to conduct an adequate search."
   
• Exemption 6:  "With respect to [the CIA officer's] children, the disclosure of information regarding 'private citizens' which 'reveals little or nothing about an agency's own conduct' does not serve relevant public interest under FOIA."  "The names, places of birth, and dates of birth of [the CIA officer's] then-minor children—which is what the Department redacted, sheds little if any light on the Department's own conduct."  "The privacy interests of [the] children in their personal biographical information thus outweigh whatever public interest might exist in the disclosure of the information."
  
  The court finds with respect to the identities of the State Department employees who processed plaintiff’s passport that release of their names and signatures "provides a possible target for other members of the public who have received unfavorable [passport] decisions."  "While these concerns strike the Court as somewhat attenuated. . . [t]he question is whether the 'incremental value of the specific information being withheld' . . . would outweigh the employees' privacy interests."  "Plaintiff points to several legitimate concerns the employees might have about the disclosure of their names, including the possibility of harassment and threats."  "The court therefore concludes that the public interest here does not outweigh the privacy interest of the employees."
   
• Litigation Considerations, Vaughn Index/Declaration:  "Here, the Vaughn index includes an entry for every withheld or redacted document, and each entry provides the nature of the document . . . the exemption(s) claimed; and a description of the type of information redacted, either by listing the specific information withheld . . . or referencing a category of information described in the [] Declarations . . .. "  "The court is mindful that many of the redactions involved here relate to intelligence sources and methods, and requiring more thorough explanations—such as a description of which sources and methods are being protected . . . could risk incurring the harm that the FOIA exemptions are designed to avoid."  "For all these reasons, the court finds that the CIA's Vaughn index is sufficient to fulfill its purposes."
   
• Exemption 3:   "The CIA Act prevents the disclosure of 'the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.'"  "Plaintiff first challenges these withholdings on the ground that the records are not 'personnel documents,' or 'personnel information.'"  The court finds "this argument is unavailing . . . [t]he statute specifically protects the disclosure of 'names, official titles, [and] salaries.'"  "Plaintiff also contends that the CIA Act does not apply to former or deceased employees . . . [b]ut . . .  cites no authority for this proposition, and the statutory text is to the contrary."  The court finds the statute "protects the names and titles of personnel 'employed by the Agency' . . . [and a] former or deceased employee was still employed by the CIA."  "Thus, as other judges in this District have concluded, the plain text of the statute encompasses names and other information for former or deceased employees."  "And clearly, the kind of harm that can flow from the disclosure of such information – exposing CIA personnel and their families to 'intimidation or physical harm,' – is just as capable of occurring to former or deceased employees and their families as to current employees and their families."
  
  "The National Security Act broadly directs the Director of National Intelligence to 'protect intelligence sources and methods from unauthorized disclosure.'"  "[Plaintiff]'s main challenge to the Exemption 3 withholdings is that the text of the National Security Act only prohibits unauthorized disclosures and the CIA has not demonstrated that disclosure here would be unauthorized."  The court finds that "plaintiff's argument would vitiate the scope of the National Security Act's protection under Exemption 3:  if the disclosure of unclassified information pursuant to a valid FOIA request is necessarily authorized, then any protection accorded by the National Security Act under Exemption 3 would be co-extensive with Exemption 1’s protection for classified information."
   
• Procedural Requirements, "Reasonably Segregable" Obligation:  "[P]laintiff challenges the agencies' compliance with the requirement to release any 'reasonably segregable' portion of a record."  "Agencies are entitled to a presumption that they complied with the obligation to disclose reasonably segregable material."  "CIA [attests it] conducted a segregability review and released all reasonably segregable records."  "[S]imilarly [State] attests that the [] Department released all reasonably segregable information."  "The burden is on [plaintiff] to proffer contrary evidence to rebut the applicable presumption."  "Plaintiff has not done so, and, consequently, his challenge to the CIA's response on this basis fails."