Porup v. CIA, No. 17-72, 2020 WL 1244928 (D.D.C. Mar. 16, 2020) (Cooper, J.)

Porup v. CIA, No. 17-72, 2020 WL 1244928 (D.D.C. Mar. 16, 2020) (Cooper, J.)

Re:  Request for records concerning CIA's use of poison to carry out assassinations

Disposition:  Granting defendant's motion for summary judgment

• Litigation Considerations, Pattern-or-Practice Claims:  The court holds that "the Government has met its burden to establish that the challenged practice 'could not reasonably be expected to recur,' . . . and Plaintiff's 'pattern or practice' claim is thus moot."  The court relates that "[plaintiff] first alleges that the CIA 'maintain[s] a pattern or practice of refusing to process requests regarding conduct in which it claims it does not and cannot engage.'"  The court further relates that "[t]he Government argues that [plaintiff's] 'pattern or practice' claim is mooted by new 'internal guidance' that was issued by the agency after his initial FOIA request but prior to his filing of this lawsuit."  The court notes that "[defendant's] declaration attests that under the new guidance, 'processors are required to engage in context dependent inquiry as to whether a search may be possible, and whether the Agency's records repositories are likely to contain responsive materials' and that 'the guidance provided mandates that this fact specific analysis will be applied to requests moving forward, and pursuant to the guidance described above, Agency personnel should not decline to process requests solely because the matters at issue are beyond the scope of the Agency’s primary mission.'"  The court finds that "[t]he new policy is materially different than the challenged practice; the CIA has not simply 'renewed the challenged conduct in a new form.'"
   
• Procedural Requirements, Searching for Responsive Records:  First, "the Court concludes that there is no genuine dispute of material fact as to whether the agency's search terms were adequate."  The court finds that defendants' search "terms were determined to be those 'most reasonably likely to return responsive records' and 'were identified by subject matter experts as referring to operations or Congressional investigations the substance of which was likely to be responsive to the request.'"  Second, regarding defendant's supplemental search of operational files, the court finds that "[t]he CIA Information Act generally exempts CIA operational files from the search, review, publication, and disclosure requirements of FOIA."  "The CIA thus conducted a supplemental search of its operational files for information concerning 'the specific subject matter of' the Church Committee investigation, 50 U.S.C. § 3141(c)(3), which turned up no responsive documents . . . ."  "Plaintiff now challenges the adequacy of that search."  The court finds that "[b]y the terms of the statute, the CIA is obligated to search its operational files when three conditions are met."  "'First, the entity that performed the investigation must qualify as a "congressional intelligence committee"' or another listed entity."  "'Second, the request must concern "the specific subject matter" of the investigation.'"  "'Finally, the investigation must be one into an "impropriety or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity."'"  "The parties do not dispute that the . . . investigation [at issue] meets the first and third prongs of this test."  "The only dispute is whether the agency satisfied the second prong."  The court finds that "'[t]he requirement of § 431(c)(3) that a FOIA request concern ‘the specific subject matter of an investigation’ is satisfied where the investigating committee would have deemed the records at issue to be central to its inquiry.'"  "Thus, 'information that merely "surfaced in the course of the investigation" should not trigger the § 431(c)(3) exception.'"  The court finds that "[t]he agency's supplemental search was adequate under this standard."  The court holds that "Plaintiff misconceives the scope of 50 U.S.C. § 3141(c)."  "Section 3141(c) does not require the CIA to search its operational files for all information, including information on events occurring decades later, that could hypothetically have been deemed central to a congressional committee's investigation."  "Section 3141(c) mandates only disclosure of 'information central to the committee's "direct investigation."'"
   
• Exemption 3:  The court holds that "[t]he agency is therefore entitled to summary judgment with respect to its Exemption 3 and National Security Act withholdings."  The court finds that "[t]he CIA based several withholdings on the National Security Act, which broadly directs the Director of National Intelligence to 'protect intelligence sources and methods from unauthorized disclosure,' . . . and has been recognized as a valid Exemption 3 statute."  "The agency also asserted Exemption 1 over many of these withholdings."  "Because [plaintiff] concedes that the agency properly withheld those documents under Exemption 1, the Court need only address those documents over which the agency exclusively asserted Exemption 3 in conjunction with the National Security Act."  The court finds that "[defendant's] detailed declaration easily satisfies the deferential standard that courts afford agency declarations relating to Exemption 3 in matters of national security."  The court relates that defendant stated that "'[e]ach of [the] types of information [withheld under Exemption 3] directly concern intelligence sources and methods of the Agency, and are accordingly exempt from disclosure by the National Security Act'"  "[Defendant] also represented – with respect to all of the documents withheld under Exemption 3 – that 'disclosure of this information would expose CIA officers and highlight capabilities and limitations of intelligence activities of the Agency, which could render them ineffective and result in harm to national security' and 'could also reveal sensitive security requirements, potentially putting Agency officers at risk, and increasing the likelihood of exposure of sensitive information.'"