DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. July 31, 2015) (Millett, J.)

DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. July 31, 2015) (Millett, J.)

Re: Request for records concerning former Nazi general

Disposition: Affirming in part and remanding in part district court's grant of defendant's motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the D.C. Circuit holds that the Army conducted an adequate search.  The court finds that "[a]fter reviewing and declassifying the relevant files under the Disclosure Act, the Army turned them over to the National Archives."  However, "[t]he Army also conducted a manual review of its remaining paper files."  The court notes that "the National Archives, rather than the Army, conducted the most recent searches of those files for records responsive to [plaintiff's] FOIA request."  The court notes that the Army stated that it "was 'unaware of any other locations of any records related to plaintiff's FOIA request'" and that the location where the search was conducted was "'the only location the documents would be located.'"  The court also rejects plaintiff's counter-arguments and holds "that the only place containing records 'responsive to the FOIA requests'" was searched, "the Army's 'failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records,'" "adequacy—not perfection—is the standard that FOIA sets," plaintiff has not presented "any . . . basis for concluding that the Army is holding back documents," and "[t]he Army's burden was to show that its search efforts were reasonable and logically organized to uncover relevant documents; it need not knock down every search design advanced by every requester."

The court also holds that the CIA conducted an adequate search.  The court finds that "[t]he CIA instructed all of its directorates to search for relevant documents, using name and codeword searches."  Additionally, the court finds that the CIA's "declarations adequately explain the congruence between the CIA's [related] Disclosure Act search and [plaintiff's] FOIA request."  Additionally, the CIA "identified in detail the locations searched within the CIA, expressly noting that the search included all directorates and even encompassed operational files not subject to FOIA."  The court finds that plaintiff's counter-arguments similar to those used against the Army's search fail.  Additionally, plaintiff's argument regarding the scope of the Disclosure Act search fails because "'all . . . related records responsive to [plaintiff's] request fell within the scope of [the Disclosure Act] and all were released in whole or in part under the [Act] and provided to Plaintiffs.'"

• Procedural Requirements:  The court holds that "[T]he Army's transfer of documents to the National Archives was done for a proper and eminently sensible reason: to fulfill the Army's obligations under the Disclosure Act to disclose all relevant materials and 'make them available to the public at the National Archives[.]'"  "That is the antithesis of a suspect motive; following the law is exactly what agencies are supposed to do."  The court notes that "the Army transferred its documents to the National Archives after receiving [plaintiff's] FOIA request."  However, the court finds that "[i]f 'the agency is no longer in possession of the document, for a reason that is not itself suspect,' FOIA does not compel the agency 'to take further action in order to produce' that document."
   
• Litigation Considerations:  The court "remand[s] to allow the parties to create a record and the district court to decide in the first instance the narrow question of whether . . . withholdings [on documents the Army transferred to NARA] were permissible under FOIA."  The court explains that "[s]ome [of those documents] were redacted or indicated that pages had been removed, with no accompanying justification for that withholding of information."
   
• Exemption 1:  The court holds that the CIA properly invoked Exemption 1 to withhold certain documents.  The court notes that "the CIA relied on President Clinton's Executive Order 12958, as amended by President Bush, which was in effect at the time the classifications were made in 2005–2007."  The court rejects plaintiff's argument that "President Obama's Executive Order currently in effect—Executive Order 13526—governs" and holds that "[n]othing in the Obama Executive Order calls the CIA's classification decisions into question."  "Quite the opposite, the Obama Order explicitly defines properly classified information to include information classified under prior Executive Orders . . . and it 'does not contain any provision that requires an agency to reconsider classification decisions in pending FOIA litigation.'"  Regarding plaintiff's additional argument concerning the marking of these documents, the court holds that "[t]he documents at issue were classified decades ago, with the markings required under the then-governing Executive Orders."  "That is all the Clinton/Bush Order requires."
   
• Exemption 3:  The court holds that the CIA correctly withheld certain documents pursuant to Exemption 3.  The court relates that "[t]he CIA relied on the National Security Act of 1947, 50 U.S.C. §§ 3001 et seq., to justify withholding information that would reveal intelligence sources and methods."  In response to plaintiff's argument concerning improper delegation, the court finds that "even if the Director of the CIA needs authorization to protect intelligence sources and methods from unauthorized disclosure, that authorization is already in place."  "Both the President and the Director of National Intelligence have provided it."  Moreover, "the statutory limitation on delegation on which [plaintiff] relies, 50 U.S.C. § 3024(i)(3), does not unravel either the President's or the Director of National Intelligence's authority to assign responsibility to intelligence agency heads to protect intelligence sources and methods."  "Instead, the anti-delegation provision means that the Director of National Intelligence must hold close those critical responsibilities for superintending and guiding the work of members of the intelligence community."  "The Director has done that through the guidance issued."