Hardway v. CIA, No. 17-1433, 2019 U.S. Dist. LEXIS 71225 (D.D.C. Apr. 28, 2019) (Kelly, J.)

Hardway v. CIA, No. 17-1433, 2019 U.S. Dist. LEXIS 71225 (D.D.C. Apr. 28, 2019) (Kelly, J.)

Re:  Request for records concerning alleged surveillance of plaintiffs

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiffs' motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that "[defendant's] declaration provides the Court the basis to conclude that the CIA conducted an adequate search for records within the Office of Security."  "The CIA identified the one database that would contain responsive records and searched it by Plaintiffs' names."  "And to the extent that the search indicated that there were records stored elsewhere, the CIA obtained, reviewed, and produced them (with redactions)."  Responding to plaintiffs' arguments concerning destroyed records, the court finds that "FOIA does not permit plaintiffs to demand 'proof' that particular records they requested were destroyed, or otherwise dictate how defendants carry out searches for responsive records."  "Of course, if Plaintiffs now wish to submit a FOIA request for records about the destruction of their personnel security files, they are free to do so."
   
  However, the court finds that "[defendant's] declarations include fewer details about the CIA's search for records it determined would be located within its Directorate of Operations."  The court explains that "[defendant] does not directly state – and the Court cannot otherwise infer on this record – that the Directorate of Operations has no other record systems reasonably likely to contain responsive records, 'the very least' an agency must show."  "[Defendant's] declarations also fail to explain how the CIA searched for non-operational records."  Regarding personnel records, similarly, the court finds that "[defendant] does not state that 'no other record system was likely to produce responsive documents.'"
   
  "Finally, [the court relates that] Plaintiffs requested all records about the CIA's search efforts for the other categories of records they requested."  "But FOIA only requires agencies to search for records as of a specific cut-off date."  The court finds that "[a]lthough it seems quite likely that no responsive records existed at the time the CIA received the request, using that cut-off date would at least arguably require a 'compelling justification,' as is required when an agency uses a date-of-request cut-off."  "And it is far from clear that no responsive documents would have existed at the time the CIA conducted the searches at issue, since they appear to have taken some time and effort to design."  "The Court will thus deny summary judgment for both parties on this issue and allow the CIA to explain in more detail, given the caselaw above, the basis for its decision not to undertake a search for records about the CIA's searches for the other records Plaintiffs requested."
  
  Exemption 6:  The court holds that "the CIA properly withheld the names and signatures of its employees under FOIA's Exemption 3."  The court finds that "the CIA applied Exemption 3 to redact CIA employees' names and signatures . . . ."  "To justify these redactions, it invoked the provision of the Central Intelligence Agency Act, 50 U.S.C. § 3507, that prohibits the disclosure of the names of CIA employees."  "Courts in this Circuit have repeatedly held that this statute prohibits information from being disclosed for purposes of Exemption 3."  "And the information withheld – CIA employees' names and signatures – falls squarely within the statute's scope."