Skip to main content

DiBacco v. Dep't of Army, No. 17-5048, 2019 WL 2479443 (D.C. Cir. June 14, 2019) (Griffith, J.)


DiBacco v. Dep't of Army, No. 17-5048, 2019 WL 2479443 (D.C. Cir. June 14, 2019) (Griffith, J.)

Re:  Request for records concerning senior Nazi intelligence official recruited by United States to operate a European spy network following World War II

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

  • Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit holds that "the government adequately searched for documents."  Responding to the first of the requester's three objections, the court first finds that "[t]here is nothing boilerplate about the [government's] declaration; every paragraph specifically relates to [the requester's] suit and describes in detail the steps taken to search for responsive records and why further searches were deemed unnecessary or futile."  Second, regarding the requester's objection that the government's "declaration was not based on personal knowledge," the court finds that "much of the information contained within the declaration is based on her personal knowledge; [the government's declarant] has been intimately involved in this FOIA litigation for decades."  "Moreover, although some of the information was relayed to [the government's declarant] by her subordinates, declarations in FOIA cases may include such information without running afoul of Rule 56."  Finally, the court finds that "information revealed in [certain records] was neither a 'clear' nor 'certain' lead, and thus was not the sort of indication of further responsive material that was 'so apparent' as to require additional inquiry."  The court relates that "[the government's] declaration states that [the government] could not locate the documents referred to in [the located sheets that replaced the original documents], or even determine where to start looking for any such documents."  "The district court held that these facts, combined with the seventy years that had passed since the original documents were replaced with these sheets, meant that there was no reason to disturb our previous holding that the government's search was adequate."
  • Exemption 3:  The Court of Appeals for the District of Columbia Circuit holds that the government appropriately used Exemption 3.  The court relates that "[t]he two statutes relied upon by the CIA to withhold information under Exemption 3 are the National Security Act of 1947, 50 U.S.C. § 3024(i)(1), and the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507."  "The former states that '[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.'"  "The latter provides in relevant part that the CIA shall be exempt from disclosing 'the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.'"  The court finds that "[w]hen viewed in the context of the redacted documents themselves, . . . it is apparent that the information withheld under the CIA Act largely consists of names or nationalities."  "[T]he government has sufficiently justified its assertion that the redacted information is of the type protected by the CIA Act."  Responding to the requester's objection, the court finds that "the CIA Act's text does not expressly restrict its scope to personnel currently employed by the agency."  "The relevant provision contains no 'temporal qualifier,' and the plain text could just as easily be read to refer to past employment as to ongoing employment."  Nor does the CIA Act only cover "'personnel records.'"  "Rather, it protects from disclosure certain information relating to personnel, wherever that information may be found."  Finally, responding to another of the requester's objections, the court finds that "[r]egardless of whether the CIA has in the past overreached in relying on the National Security Act – a proposition on which we take no position – [the requester] has offered no compelling reason to suspect bad faith here."  "The limited nature and context of the redactions make that conclusion all the more obvious by suggesting that the information redacted was precisely the sort of information the CIA says it was."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 3
Litigation Considerations, Adequacy of Search
Updated January 10, 2022