DiBacco v. Dep't of the Army, No. 87-3349, 2013 WL 5377060 (D.D.C. September 26, 2013) (Kollar-Kotelly, J.)

Thursday, September 26, 2013
Re: Records concerning former chief of Nazi spy ring during World War II Disposition: Granting defendants' motion for leave to file sur-reply; denying plaintiffs' motion to compel disclosure of ex parte declarations; granting defendants' renewed motion for summary judgment; denying plaintiff's cross-motion for summary judgment
  • Litigation Considerations, Adequacy of the Search:  Regarding one defendant, the court finds that "[defendant] has met its burden to show that the agency's search was reasonably calculated to uncover all relevant documents."  The court notes that, "[i]n order to comply with the NWCDA," the Nazi War Crimes Disclosure Act, which "'required the U.S. Government to locate, declassify, and release in their entirety, with few exceptions, remaining classified records about war crimes committed by Nazi Germany and its allies,'" defendant "conducted a search for records far more expansive than searches usually undertaken in responding to FOIA requests."  The court notes that "[a]ll directorates were instructed to search for relevant documents, using both name and codeword searches."  Additionally, "[a] five person team from [defendant] conducted a page-by-page review of 1.2 million pages of OSS records, that is, records from the wartime and immediate post-war period."  The court also relates that "[u]tilizing search terms suggested by historians and staff . . . as well as interviews with former OSS and [defendant] personnel, the agency also conducted searches of electronic and manual indices of the CIA-era records (post–1947)."  The court also finds that "[t]he Plaintiffs raise a number of objections to the search performed by [defendant], none of which have merit."  Regarding another defendant, the court finds that the search was also adequate.  In so doing, the court rejects "[p]laintiffs suggest[ion] that [defendant's] 'credibility is damaged' due to the change in [defendant's] supplemental declaration."  The court finds that, "[p]laintiffs offer no evidence to contradict or call into question [defendant's] supplemental statement."  The court also rejects plaintiff's contention that defendant's transfer of documents is suspicious.  The court finds that defendant's "transfer of documents is anything but suspicious" because "[t]he NWCDA specifically ordered that agencies make relevant documents available to the public at the National Archives and Records Administration," and defendant "did not transfer only those documents potentially responsive to [plaintiff's] request, rather it transferred all combat and operational files related to World War II."
  • Litigation Considerations, Vaughn Index:  The court finds that defendant "has adequately justified its withholdings."  The court notes that "[p]laintiffs raise four arguments in opposition to [defendant's] motion, none of which are persuasive."  The court holds that defendant's "declaration adequately describes the documents [defendant] determined contained information responsive to [plaintiff's] request, the nature of the documents, as well as the information released to and withheld from [plaintiff]."  The court finds that this is adequate when "[c]ombined with [defendant's] averment that the information remains properly classified as of the filing of the Defendants' present motion, and that release of the information reasonably could be expected to harm national security."
  • Exemption 1:  The court grants defendant's motion for summary judgment.  The court first notes that "[p]laintiffs contend that [defendant's] declaration is insufficient to justify the agency's use of FOIA exemption (b)(1) because [defendant] does not aver that the information is properly classified under Executive Order 13526."  The court explains that "Executive Order 13526, signed by President Barack Obama on December 29, 2009, currently governs classification decisions."  The court notes that "'[a] district court may, upon request by an agency, permit the agency to apply a superceding [sic] executive order during the pendency of FOIA litigation.'"  "'However, absent a request by the agency to reevaluate an exemption 1 determination based on a new executive order, the district court may not require the agency to apply the new order; instead, the court must evaluate the agency's decision under the executive order in force at the time the classification was made.'"  "'This rule prevents undue delay and burden in the resolution of FOIA claims by introducing an element of finality into agency decisionmaking.'"  Therefore, the court finds that "the relevant question is whether the 2009 Executive Order 'calls prior classification decisions under the [prior] Order into question.'"  The court then discusses the substance of defendant's use of Exemption 1.  The court notes that, "[w]ith respect to the substance of the agency's application of exemption (b)(1), the Plaintiffs proffer only two arguments."  "First, the Plaintiffs argue that the agency failed to take into consideration 'the passage of time.'"  The court rejects plaintiff's "'assertion that the passage of time renders the national security claims questionable.'"  The court notes that the mere passage of time is not a per se bar to reliance on exemption 1 and that "[t]his is particularly true in this case, where much of the information withheld under exemption (b)(1) may expose locations and techniques still utilized by the agency."  "Second, for the first time in their Reply the Plaintiffs argue that the documents were not properly classified under Executive Order 12958 because they do not contain the classification markings required by section 1.7 of that Order."  The court notes that, "[t]he documents at issue in this case were marked according to the requirements in place at the time the documents were initially classified, generally between 1951 and 1954."  Therefore, the court find that defendant's, "unrebutted declaration establishes with a reasonable level of specificity that the information at issue was properly classified and marked under Executive Order 12958, and thus was properly withheld under FOIA exemption (b)(1)."
  • Exemption 3:  The court finds that "there is no genuine dispute that [defendant] properly invoked FOIA exemption (b)(3) in this case."  The court notes that "[i]nvoking FOIA exemption (b)(3), [defendant] argues that it properly withheld certain information as provided by the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1), and the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507."  "The National Security Act provides that '[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.'"  "'The Director may only delegate a duty or authority given the Director under this subsection to the Principal Deputy Director of National Intelligence.'"  "The relevant provision of the CIA Act provides 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 agencies other than the Director of National Intelligence may rely upon the National Security Act to withhold information regarding intelligence sources and methods pursuant to FOIA exemption (b)(3)."
Adequacy of Search
District Court
Exemption 1
Exemption 3
Litigation Considerations
Vaughn Index
Updated August 6, 2014