Accuracy in Media v. CIA, No. 22-5235, 2025 WL 1198024 (D.C. Cir. Apr. 25, 2025) (Millett, J.)

Accuracy in Media v. CIA, No. 22-5235, 2025 WL 1198024 (D.C. Cir. Apr. 25, 2025) (Millett, J.)

Re: Request for records concerning prisoners of war from Vietnam War

Disposition:  Reversing and remanding district court’s grant of defendant’s motion for summary judgment

• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit holds that “the CIA’s description of its search terms raises more questions than answers, especially when the agency is unable to explain why key terms were omitted and how the listed terms were used, including whether single terms excluded their plurals.” “As a result, the CIA has failed to show ‘beyond material doubt that its search was “reasonably calculated to uncover all relevant documents.”’”  “In conducting its search, the CIA’s declaration said that it used search terms ‘such as’:  ‘POWs,’ ‘prisoners of war,’ ‘MIA,’ ‘missing in action,’ ‘Vietnam,’ ‘task force,’ ‘House Special POW,’ ‘image[.]’”  “The declaration added that the CIA used those terms, as well as ‘different combinations and variations of those search terms[,]’ and searched for ‘records through the date of the search.’”  “On their face, the CIA’s search terms are inadequate to have uncovered the relevant documents.”  “First, the search terms have notable omissions.”  “While the CIA looked for records with the word ‘Vietnam,’ it inexplicably omitted the country of ‘Laos,’ even though the live-sighting reports and imagery records on which [plaintiff] relied referenced prisoners of war located in Laos.”  “In addition, the CIA does not explain why it left out terms like ‘live sighting’ even though that word is a key feature of the search’s prescribed scope.”  “Confusingly, the search used ‘image,’ but not ‘imagery,’ ‘reconnaissance,’ or ‘rescue,’ even though the request seeks information about all three.”  “Why the search was confined to ‘image’ and not ‘sighting’ is similarly unexplained and indiscernible.”  “Likewise, the CIA cannot explain why it uses ‘House Special POW’ but not Senate or Senate Select POW, even though [plaintiff’s] evidence, including an affidavit from former Senator Bob Smith, references live-sighting reports discovered by investigators on the Senate Select Committee on POW/MIA Affairs in the early 1990s.”  “Second, the identified search terms are an unexplained mismatch for the scope of the FOIA request.”  “The CIA did not explain how phrases like ‘task force’ or ‘House Special POW’ would capture records about the ‘1,400 live sighting reports that were reportedly displayed at Congressional briefings attended by CIA employees, as well as records of imagery and reconnaissance and rescue operations[.]’”  “There is little to no overlap between many of the terms and the search’s prescribed scope.”  “Third, in using ‘POWs,’ ‘prisoners of war,’ ‘MIA,’ or ‘missing in action,’ the CIA did not explain whether only singular or plural forms of those terms were employed and whether the use of one excludes the other, given the CIA’s particular search tools and methods.”  “The CIA’s supplemental declaration claimed that it omitted ‘more precise or narrowed terms because utilizing more specific search terms would not have necessarily been effective in identifying documents potentially responsive to plaintiffs’ request, and may have inadvertently excluded otherwise responsive documents that failed to contain the more specific search terms.’”  “The CIA’s worry about further narrowing the search is no answer to the problem of it not being broad enough to begin with.”  “More to the point, nothing in the CIA’s affidavit explains how the use of one term excludes using another, or why terms cannot be used in separate searches to turn up different sets of documents.”  “The CIA argued that the terms provided in the declaration were only a sample of the terms used.”  “But the CIA has never disclosed the full list of terms used.” “This court can only discern reasonableness based on the record provided by the government, which bears the burden of proof.”  “[The court] cannot just assume a broader search occurred in an informational vacuum.” “The only list provided, and on which the district court relied in granting summary judgment, suffers from material and obvious omissions; the CIA has not provided any additional information; and so the search is inadequate.”