Whitaker v. CIA, No. 12-316, 2014 WL 914603 (D.D.C. Mar. 10, 2014) (Kollar-Kotelly, J.)

Whitaker v. CIA, No. 12-316, 2014 WL 914603 (D.D.C. Mar. 10, 2014) (Kollar-Kotelly, J.)

Re: Request for records concerning investigation into disappearance of airplane piloted by plaintiff's father, as well as investigations into three other missing aircraft.

Disposition: Granting in part and denying in part defendant's motion for summary judgment

• Exemption 3:  The court notes that "the CIA has invoked two statutes—the CIA Act of 1949 and the National Security Act of 1947—in withholding documents pursuant to Exemption (b)(3)."  The court also notes that "[plaintiff] concedes that both of these statutes permit withholding generally under Exemption (b)(3), but argues that the CIA is applying neither statute correctly here."  First, the court finds that "CIA has too broadly applied the CIA Act to withhold information pursuant to Exemption (b)(3), [and therefore,] the Court orders the CIA to either (a) disclose any otherwise non-exempt information to Plaintiff, or (b) along with any subsequent renewed motion for summary judgment, file a more sufficient declaration and Vaughn index which justifies the actual relationship between the withheld information and personnel functions of the CIA."  The court explains that "[d]efendants read the CIA Act too broadly when they assert that it generally permits withholding of all information related to the 'functions' of the CIA."  The court finds that "[r]ather, the use of the word 'functions' is limited by the statutory phrase 'of personnel employed by the Agency.'"  Second, regarding defendant's use of the National Security Act of 1947, the court finds that "[t]o the extent the CIA asserts that the FOIA processing materials are themselves 'intelligence sources and methods,' the Agency goes too far."  The court explains that "[t]o be sure, as discussed, the Court agrees that these documents may contain 'intelligence and methods,'" but "although the FOIA processing materials 'may contain information that reveals intelligence sources and methods, this does not mean that [they] themselves are intelligence methods.'"  Therefore, "the Court orders the CIA to either (a) disclose any otherwise non-exempt information to Plaintiff, or (b) along with any subsequent renewed motion for summary judgment, file a more sufficient declaration and Vaughn index which explains in greater detail why all of the information withheld pertains to intelligence sources and methods."
   
• Exemption 5:  Deliberative Process Privilege:  The court determines that it "is satisfied that the information withheld from these documents is both predecisional and deliberative and thus falls under the deliberative process privilege."  The court explains that "the documents at issue relate to the CIA's formulation of responses to Plaintiff's FOIA requests."  Additionally, the court finds that it "is satisfied from the CIA's description of its review process that all reasonably segregable portions of these records have been produced."
   
• Exemption 5, Attorney-Client Privilege:  The court "concludes that the CIA properly invoked the attorney-client privilege here."  The court explains that defendant's "declaration specifies that the CIA's Information Management Services (IMS) consulted with CIA's Office of General Counsel regarding legal advice in connection with this litigation."  The court notes that "[i]n addition, the CIA has claimed privilege over these documents and the confidentiality of these communications has been maintained since the discussion."  Also, the court finds that it "is satisfied from the CIA's description of its review process that all reasonably segregable portions of these documents have been produced."  Regarding the State Department, "[h]aving reviewed the document in camera, the Court finds that the description of the document contained in [defendant's] Declaration" – that "'[t]he withheld material reflects a confidential exchange between a Department attorney and his clients'" – "is accurate."  The court also "concludes there is no reasonably segregable non-exempt portion of the e-mail chain not already disclosed."
   
• Procedural Requirements, Searching for Responsive Records:  The court "agrees with Plaintiff that the State Department's search was inadequate and should have been revised to include a search for documents related to the disappearance of the DC–3 airplane that mention [plaintiffs father's co-pilot], but not [plaintiff's father]."  The court notes that "[t]his would appear to be the rare case 'in which an agency record contains a lead so apparent that the [agency] cannot in good faith fail to pursue it.'"  The court explains that "[p]laintiff's first request . . . broadly sought records relating to the '[m]issing airplane investigation report resulting from [the] 10.03.80 flight gone missing over Spain....'"  The court further explains that "[a]lthough Plaintiff's request referred to his father by name as one of the plane's pilots, the request also referred specifically to a co-pilot on board the plane."  The court notes that "[t]he co-pilot was admittedly unnamed, but the request nevertheless identified a concrete second occupant of the plane, as opposed to merely a potential or hypothetical additional occupant."  As to a different aspect of the search also challenged by plaintiff, the court holds that "[b]ecause this declaration describes in detail the search [for passport records]. . . in response to Plaintiff's request, and 'the Government enjoys a good faith presumption in FOIA actions,' . . . the Court will not find the State Department's search [for such passport records to be] inadequate simply because it failed to turn up the records sought by Plaintiff."  The court finds that "[i]n addition, despite Plaintiff's implicit assertions, the failure to retain these documents does not create liability on the State Department under FOIA."  The court explains that "'[e]ven where the Government was obligated to retain a document and failed to do so, that failure would create neither responsibility under FOIA to reconstruct those documents nor liability for the lapse.'"
   
• Exemption 6:  The court holds that "[it] will neither order Defendants to disclose the withheld information nor to identify the individuals to whom it pertains."  The court finds that "disclosure of the identities of the individuals whose privacy interests are affected would undermine the privacy interests served by the exemption."  The court explains that "'to inform Plaintiff which individuals the records he seeks relate to would defeat the entire purpose of Exemption 6 by revealing the very information the exemption protects.'"