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Mobley v. CIA, No. 13-5286, 2015 U.S. App. LEXIS 19742 (D.C. Cir. Nov. 13, 2015) (Rogers, J.)


Mobley v. CIA, No. 13-5286, 2015 U.S. App. LEXIS 19742 (D.C. Cir. Nov. 13, 2015) (Rogers, J.)

Re: Request for records concerning plaintiff

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

  • Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit holds that "[t]he detailed declarations of . . . the assistant section chief of the FBI's Record/Information Dissemination Section, demonstrate that the FBI's search was adequate."  "He sets out in detail what search terms the FBI employed, and concludes that the FBI's search of the [Central Records System] – alongside its search of the [Electronic Surveillance] Indices – was reasonably likely to produce the information [plaintiff] requested."  Additionally, the court finds that, "[a]lthough [plaintiff] may believe that [defendant's declarant's] sworn statements are disingenuous, he has offered no basis on which this court could conclude the presumption of good faith has been overcome."
  • Procedural Requirements, Searching for Responsive Records:  The court holds that "a request for an agency to search a particular record system – without more – does not invariably constitute a 'lead' that an agency must pursue."  The court explains that "[plaintiff's] demand that the FBI search certain record systems is generally mere fiat."  "To the extent it is not, as noted, [defendant's] declarations demonstrate the FBI conducted an adequate search."  The court finds that "[a]lthough an agency may not ignore a request to search specific record systems when a request reaches the agency before it has completed its search, . . . a search is generally adequate where the agency has sufficiently explained its search process and why the specified record systems are not reasonably likely to contain responsive records."  "As noted, the FBI did just that."  "Finally, the FBI's search, under FOIA, 'is not unreasonable simply because it fails to produce all relevant material.'"
  • Waiver:  The court holds that defendant has not waived its ability to assert Exemption 1.  The court relates that "plaintiff bears the burden of identifying specific information that is already in the public domain due to official disclosure."  "[Plaintiff] has not carried that burden."  Responding first to plaintiff's argument that there is a similar "document filed by a private party in a Yemeni court proceeding[,]" the court finds that "a foreign government . . . cannot waive a federal agency's right to assert a FOIA exemption" and "disclosure by private litigants in a foreign court proceeding" is "insufficiently official to trigger waiver."  Additionally, responding to plaintiff's argument regarding defendant's response letter which stated "that (1) the agency had located responsive records but was withholding them in full based on two FOIA and two Privacy Act exemptions, and (2) as to any records that 'reveal[ed] a classified connection to the CIA,' it was asserting a Glomar response[,]" the court finds that "[a]lthough a FOIA response could [lead to waiver], a simple clerical mistake in FOIA processing cannot."
  • Exemption 1:  The court rejects plaintiff's argument "that the official who classified [the] records acted pursuant to an improper sub-delegation of post hoc classification authority."  The court finds that "Executive Order 13,526 . . . sets forth the executive branch's classification system and procedures" and "Section 1.7(d) of the Order governs the classification or re-classification of previously undisclosed information after it has become the subject of a FOIA request."  The court relates that "[c]lassification in those circumstances is permissible 'only if' (1) the information meets the Order's substantive requirements and (2) classification 'is accomplished on a document-by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official designated under section 5.4 of this order.'"  The court finds that "[s]ub-delegation to a subordinate federal official is presumptively permissible, absent affirmative evidence in the original delegation of a contrary intent."  The court finds that because "[t]he 1999 sub-delegation order . . . requires that the sub-delegee keep the Assistant Attorney General for Administration 'apprised in a timely manner of any action taken under this authority'" it "qualifies the sub-delegee's classification decisions as made 'under the direction' of the Assistant Attorney General for Administration."
  • Litigation Considerations, In Camera Inspection:  The court holds that, "[h]ere, as [the court's] own review confirms, the district court, after reviewing in camera the FBI's classified declaration, acted within its sound discretion when it decided that it did not need to review the classified document in camera to conclude that the FBI withheld it as properly classified."  The court also finds that "[plaintiff] points to no record evidence of bad faith."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 1
Litigation Considerations, Adequacy of Search
Litigation Considerations, In Camera Inspection
Procedural Requirements, Searching for Responsive Records
Waiver and Discretionary Disclosure
Updated January 10, 2022