WEEK OF AUGUST 13 - 17

1.  Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.)

Re:  Request for various records pertaining to Pablo Escobar and the Columbian Organization known as Perseguidos por Pablo Escobar

Holding:  Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched

• Adequacy of declarant:  The court denies plaintiff's motion "to strike portions of [defendant's] declarations for lack of personal knowledge and failure to support statements with written materials in the record."  Noting that "[a] declarant is deemed to have personal knowledge if he has a general familiarity with the responsive records and procedures used to identify those records and thus is not required to independently verify the information contained in each responsive record," the court finds that the agency "declarants did have the personal knowledge required of them."  Additionally, the court concludes, that despite plaintiff's arguments to the contrary, defendants adequately supported the facts set forth in the declarations. 

• Adequacy of search:  With regard to plaintiff's claim that the CIA impermissibly limited the date range of its search, the court finds that although the declarations contained an error concerning a search date, this typo does not demonstrate that defendant violated the FOIA.  Rather, the court finds that defendant's submissions "signed under oath, show good faith on the part of defendant that the search was performed correctly."  Similarly, the court rejects plaintiff's allegation that defendant improperly "limit[ed] its search to records located in a search on behalf of a previous requestor and another FOIA reference number."  The court determines that "plaintiff failed to show any evidence [on this point], other than the initial typos" in the Vaughn Index, which defendant subsequently corrected.  However, the court rejects defendant's argument that it was not required to search three directorates "'because the files most likely to have information responsive to the request [contained in two of the offices] would be exempt under 50 U.S.C. § 431'" and the other directorate "would not likely have [responsive] information."  To the contrary, the court finds that it "will evaluate the search's reasonableness based on what it knows at the conclusion of the search, rather than on the agency's speculation at the initiation of the search."  As such, the court concludes that the CIA's "failure to search the remaining three [agency] directorates while admitting that they would likely contain records responsive to plaintiff's [request] does not rise to the level of an adequate search."  The court then "orders defendant to perform plaintiff's requested search in the three directorates that defendant failed to search and denies defendant summary judgment on this point."

• Referral of documents:  The court finds that the CIA "was correct in referring the documents" that originated with DEA and the Department of State to those agencies for their "direct response" to plaintiff.

• Exemption 1:  Finding no evidence of bad faith, the court defers to the CIA's assertion of Exemption 1 to protect analytical assessments, an intelligence report, various cables and articles, and briefings, the disclosure of which could damage national security.  With respect to plaintiff's contention that the CIA "failed to describe [certain] information withheld with any specificity," the court concludes that "defendant's descriptions were sufficient to justify its withholdings in these documents" and finds that "[i]f defendant were to describe the redacted parts of the document with more specificity, as the plaintiff requested, defendant would have been disclosing the exact information it sought to withhold."  The court also concludes that DEA properly asserted Exemption 1 to redact intelligence sources.  

• Exemption 1/Glomar:  The court concludes that the CIA cannot invoke a Glomar response in conjunction with Exemption 1 "[b]ecause defendant has demonstrated the existence of documents pertaining to 'Pablo Escobar' [beyond open source material and therefore] . . . has acknowledged their existence."  The court also notes that because Escobar is deceased "it would be incredibly difficult for [him] to frustrate the CIA's [intelligence methods]," as initially argued in defendant's submissions. 

• Exemption 2:  The court concludes that the CIA properly asserted Exemption 2 to withhold "information such as the signature of a CIA officer as well as internal filing instructions and administrative routing information" that was of no public interest.  The court finds that "[t]his explanation for withholding this information is still in line with the recent Milner ruling" by the Supreme Court.  Accordingly, "[n]arrow construction of [Exemption 2], particularly the phrase 'personnel rules and practices of an agency' would include the signature of a CIA officer, internal filing instructions, and an internal cover sheet with administrative routing information."  Conversely, the court determines that Exemption 2 is not appropriate to redact internal DEA telephone numbers.  The court finds that narrow construction of the exemption "demands that phone numbers fall out of its ambit" because they "are neither 'rules' nor 'practices.'"  However, because plaintiff did not contest these redactions, the court finds that summary judgment to defendant is warranted on this issue.

• Exemption 3:  The court holds that the CIA properly asserted Exemption 3 in conjunction with the CIA Act of 1949, 50 U.S.C. § 403g, which protects intelligence sources and methods, to withhold a "polygraph interview" that "involves intelligence sources and methods, and organizational and functional information as well as additional signatures, employee's names and personal identifiers."  Further, the court treats as conceded DEA's redaction of an "office code of the CIA activity" in a DEA report where plaintiff failed to challenge defendant's assertion of the CIA Act to withhold that information. 

• Exemption 6:  The court concludes that "in light of the lack of legal objection from the plaintiff and defendant's description," defendant properly asserted Exemption 6 to protect information about "specific individuals, CIA employees, and their family members" where it asserted that "the public interest in this information is nonexistent."

• Exemption 7(E):  The court holds that CIA properly invoked Exemption 7(E) to protect the portion of a polygraph interview that would reveal "investigatory techniques and procedures of not only the agency but also certain other law enforcement agencies."

• Segregability: The court finds that defendant's assertion that "a 'line-by-line review was conducted for all documents at issue to identify and release reasonably segregable, non-exempt portions of documents'" coupled with the descriptions provided in the Vaughn Index, "provide sufficient detail for the justification to withhold the material." 

• Litigation considerations/declaratory judgment:  The court denies plaintiff's request for declaratory relief based on the CIA's failure to respond to its FOIA appeal within twenty days.  The court finds that "[i]n light of the remedy of initiating a cause of action within federal court provided by FOIA, . . . declaratory judgment for the plaintiff on this point is improper."  Mootness: The court denies as moot plaintiff's argument that it is entitled to declaratory relief where defendant initially denied its fee waiver request but ultimately waived fees as a matter of administrative discretion.  The court determines that "the fact that plaintiff might at some point in the future file another FOIA claim and that defendant might then refuse to waive fees is no more than speculative." 

• Litigation considerations/Administrative Procedure Act (APA) violation:  The court denies plaintiff's APA claim because it finds that the "FOIA itself provides plaintiff with an adequate remedy."  

2.  Venkataram v. Off. of Info. Pol'y, No. 09-6520, 2012 WL 3283485 (D.N.J. Aug. 9, 2012) (Simandle, J.)

Re:  Request for records pertaining to plaintiff's criminal investigation

Holding:  Denying plaintiff's motion for contempt; and ordering defendant EOUSA to provide a Vaughn Index for any withheld information on the date 45 days after plaintiff has tendered full pre-payment of the estimated search fee

• Litigation considerations/motion for contempt:  The court denies plaintiff's motion to hold defendant in civil contempt based on its assessment of search fees and its proposed timeline regarding the search for responsive records.  The court finds that "Plaintiff has not, apparently, requested a waiver of fees on the grounds provided in [the Department of Justice regulations]" and "[t]herefore, the Court sees no reason why Plaintiff should not be required to comply with agency regulations and pre-pay the estimated search fees [which exceed $250] before the Department of Justice undertakes a time-consuming search."  As to plaintiff's allegations of delay regarding the timing of the search, the court notes that "Plaintiff points to no statute or regulation, and the Court finds none in its own research, that would suggest that Defendant's proposed schedule is unusually or unacceptably slow."  The court orders defendant to submit a Vaughn Index within 45 days after plaintiff's pre-payment of the assessed search fee.