Hall v. CIA, No. 04-814, 2017 WL 3328149 (D.D.C. Aug. 3, 2017) (Lamberth, J.)

Hall v. CIA, No. 04-814, 2017 WL 3328149 (D.D.C. Aug. 3, 2017) (Lamberth, J.)

Re:  Request for records concerning prisoners of war and Service-members missing in action from Vietnam War era

Disposition:  Granting in part and denying in part defendant's renewed motion for summary judgment; granting in part and denying in part plaintiffs' cross-motions for summary judgment, as well as plaintiffs' request for discovery and in camera review

• Litigation Considerations, Adequacy of Search:  First, "[t]he Court . . . directs the CIA to provide further specificity as to the regulations and schedules applied to its decision to destroy [certain] files[]" because it "find[s] the conclusory assertion that the folders were 'properly' destroyed as undermining what otherwise appears to be an adequate search of the sources of files it searched."  Second, the court finds that "[t]he CIA has thus far failed to address specific allegations of inadequacy with any particularity, except to reiterate that it has produced the non-exempt material in the places it has searched."  The court finds that, "although a search may be adequate despite failing to discover 'an entire category of records . . . that, according to the requester, was of such importance that records must have been created, . . . a search is inadequate when it is 'evident from the agency's disclosed records that a search of another of its records system might uncover the documents sought.'"  "To be clear . . . what is troublesome is not necessarily that the CIA has not produced in this litigation certain information that may be exempted from disclosure, but that the CIA has failed to squarely address plaintiffs' evidence strongly indicating that the agency does possess the information sought."  "If the agency cannot confirm or deny the existence of that information in a public filing, so be it, but its inadequate responses thus far makes it impossible for the Court to grant the CIA's motion for summary judgment as to its searches."
  
  However, "to the extent the plaintiffs now wish to expand the search terms used . . . the Court denies their request."  "First, the search terms used were reasonably calculated to discover the information in plaintiffs' request."  "Second, the paucity of responsive records itself does not determine whether the search was adequate."  "Third, the Court is skeptical of plaintiffs' argument that additional searches for the names of specific POW camps or the codenames of reconnaissance operations is likely to yield further responsive records; it is reasonable to accept that (at least most) such records would simultaneously include the terms already searched."
   
• Exemption 6:  "[A]s to the non-CIA employees' names redacted under Exemption 6, the Court once again denies summary judgment to the CIA and grants summary judgment to plaintiffs."  "The Court reiterates its holding that the public interest in this matter is high, and the CIA's speculation about potential 'harassment, intimidation, or unwanted contact,' . . . does not overcome the strong presumption of disclosure."  "Although the Court understands the government's interest in protecting lower-level employees, . . . or at least persons who were lower-level employees at the time of the relevant document's creation, the weight of that interest fades considerably as decades pass."
   
• Exemption 1:  "It is clear to the Court that the CIA has sufficiently detailed its classification review and declassification analysis concerning its applications of Exemption 1."  "It has described in great detail the conditions under which information is properly classified, and how it has determined the continued applicability of those conditions to the relevant responsive documents in this case."  "It also has articulated the standards by which classification determinations are reviewed for the downgrading and eventual public release of information, and why certain information in the documents now at issue cannot be yet be released."  "However, the CIA's Denied-in-Full Vaughn index, . . . lists three undated documents that cite to Exemption 1[.]"  "Because the CIA's declassification standard of review is, in part, a function of the age of the documents, [the court finds that] the CIA must discern and disclose the latest date on which these document can reasonably be considered to have been created."
   
• Exemption 3:  The court finds that "[n]o profound logical stretch is necessary to read [the] language [of the CIA Act's exemption of information concerning 'personnel employed by the Agency'"] as encompassing persons currently or previously employed by the CIA, especially when considering the text and purpose of the statute as a whole."  "At the extreme, plaintiffs' preferred interpretation would suggest that there is no Exemption 3 protection even over the names of officers killed in a recent covert operation."  "That reading would be profoundly likely to cause damage to the national security of the United States of exactly the sort that the CIA Act is meant to prevent."  Regarding plaintiff's argument concerning the National Security Act, the court finds that "[t]he relative successes or failures at protecting intelligence sources and methods does not impact the continuing statutory duty to do so."
   
• Exemption 5, Deliberative Process Privilege:  "Regarding the CIA's application of Exemption 5, noting that a future FOIA request for the information the CIA has redacted pursuant to this exemption would likely be subject to the sunset provision in the amended statute, the Court finds the CIA has met its burden under the pre-FOIA Improvement Act standard."  "The CIA's affidavits and accompanying Vaughn indices adequately establish the context for properly applying the deliberative process privilege, and also attest to the non-segregable nature of the information underlying the redactions."  Additionally, responding to plaintiffs' arguments, the court finds that "[i]t is extremely unlikely that deliberate and wanton misconduct on the scale suggested by plaintiffs exists to the extent that the Court would find the privilege inapplicable."
   
• Litigation Considerations, Discovery:  The court holds that, "though its conduct in this litigation has at times been unreasonable, . . . the CIA has not acted so badly as to merit discovery at this stage."
   
• Litigation Considerations, In Camera Inspection:  "The Court declines to order in camera review at this time."  "As already discussed . . ., the Court has been able to make reasoned judgments concerning the CIA's production based on the information already in the record, and is satisfied that any deficiencies in the CIA's production will be cured by its full compliance with the Court’s present order."