Porup v. CIA, No. 20-5144, 2021 WL 2021615 (D.C. Cir. May 21, 2021) (Edwards, J.) (per curiam)

Porup v. CIA, No. 20-5144, 2021 WL 2021615 (D.C. Cir. May 21, 2021) (Edwards, J.) (per curiam)

Re:  Request for records concerning "'any [and] all documents relating to CIA use of poison for covert assassination'"

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

• Litigation Considerations, Pattern-or-Practice Claims:  The Court of Appeals for the District of Columbia Circuit holds that "the Agency has clearly met its burden in showing that its new policy has completely eradicated the effects of the CIA practices that are the subject of [the requester's] complaint, and there is no reasonable expectation that the CIA's past practices will recur."  The court relates that "the CIA refused to process [the requester's] request because Executive Order 12,333 makes it unlawful for federal employees to engage in assassination or conspiracy to assassinate."  "In other words, the CIA initially refused to process the disputed FOIA request because it pertained to matters that were arguably beyond the scope of the Agency's primary mission."  "In the months after [the requester] submitted his FOIA request, the CIA adopted a revised approach to process requests of the sort submitted by [the requester]."  "According to the CIA, under this new policy, Agency personnel are prohibited from 'declin[ing] to process [FOIA] requests solely because they pertain to activities or issues that are beyond the scope of the Agency's primary mission.'"  "Agency personnel are now 'required to engage in a context dependent inquiry as to whether a search may be possible, and whether the Agency's records repositories are likely to contain responsive materials.'"  The court finds that "[i]n this case, it was the Agency's own action – communicating the new CIA policy described in the Declaration – that allegedly rendered the pattern or practice cause of action moot."  "Therefore, under the 'voluntary cessation' doctrine, we may not conclude that the Agency's purported termination of the disputed practice rendered the case moot unless the CIA has demonstrated that '(1) there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely or irrevocably eradicated the effects of the alleged violation.'"  The court finds that "[t]he Declaration from the Information Review Officer of the CIA and Agency counsel's firm representations provide us with sufficient assurance that the Agency's new policy has displaced the practices contested by [the requester]."  "The Agency has assured the court that it will no longer decline FOIA requests based solely on its perception that requested records implicate activities outside the Agency's primary and legislatively authorized mission."  "The Agency's voluntary cessation of the challenged practices thus renders the dispute moot."  "The two FOIA response letters submitted by [the requester] as 'new evidence' do not change our view of this matter."  "Some 'isolated mistakes by agency officials' do not, in and of themselves, demonstrate the continued existence of an illicit pattern or practice for mootness purposes."  "And [the requester] has offered nothing to show that the CIA has been following a practice that is at odds with the Declaration offered by [the CIA]."
   
• Litigation Considerations, Vaughn Index/Declaration:  The Court of Appeals for the District of Columbia Circuit relates that "[t]he essence of [the requester's] argument is that the CIA's 'failure to submit evidence of the alleged guidance beyond a declarant's cherry-picked and qualified summary is not sufficient to overcome [the requester's] evidence that there is a genuine issue of material fact regarding the scope and efficacy of the alleged policy shift.'"  The court finds that "[t]he CIA offered the Declaration to explain how the Agency had changed its policy to moot [the requester's] pattern or practice claim."  "The Declaration explains, in conclusive terms, that Information Management Services personnel at the CIA were 'instructed that [they] should not decline to process requests solely because they pertain to activities or issues that are beyond the scope of the Agency's primary mission.'"  "[The requester] suggests that the instructions given to CIA personnel must have come in the form of a 'new policy document.'"  "But there is absolutely nothing in the record to support this suggestion."  "Indeed, the Declaration's explanation of the CIA's new policy does not reference any other document."  "And if [the requester] thought that there was such a 'document,' he could have pressed for discovery to review it."  "Given the record in this case, it is clear that the Declaration is the best evidence of the CIA's new policy."
   
• Litigation Considerations, Adequacy of Search:  The Court of Appeals for the District of Columbia Circuit holds that "[the CIA's] Declarations listed several of the search terms that were used by the Agency."  "In addition, the declarations explained that subject matter experts worked to determine these and other search terms, as well as the locations to be searched."  "The Supplemental Declaration explained that the searches 'used Boolean connectors to create logical search queries.'"  "And the Declaration averred that the Agency's searches were 'reasonably calculated' to identify all responsive records, and that 'all files likely to contain responsive material were searched.'"  "Those sworn assertions were sufficient to carry the Agency's burden as to its search terms and methodology."
  
  Additionally, the court "rejects [the requester's] reading of the statute and agree[s] with the District Court that the Agency sufficiently searched its operational files in response to [the requester's] request."  The court relates that "[the CIA's] Supplemental Declaration noted that the Agency's operational files are generally exempted from publication under FOIA."  "However, there is a narrow exception to such nondisclosure for any operational files 'concerning,' among other things, 'the specific subject matter of an investigation by the congressional intelligence committees . . . .'"  "[The CIA] thus explained that the Agency had – after [the requester] filed his opposition to its summary judgment motion – searched its operational files for responsive documents created on or before December 31, 1980, or roughly five years after the Church Committee had issued its interim report on alleged assassination plots."  "The Supplemental Declaration noted that those searches sought 'to capture potentially responsive materials that would have existed at the time of the Committee's review, as well as any documents created in an attempt to address the concerns raised by the [interim] [r]eport.'"  The court relates that "[the requester] asserts . . . that the Agency must search its operational files for responsive documents postdating December 31, 1980, or approximately five years after the Church Committee released its 'Interim Report on Alleged Assassination Plots' and four years after the Committee ceased operations."  The court holds that "[the requester] invokes a . . . broad[] claim that an investigating committee would deem records central to its inquiry even if they did not yet exist."  The court finds that "[the requester's] proposed approach would render the word 'specific' in the statutory text largely nugatory, a result to be avoided."
   
• Litigation Considerations & Exemption 3:  The Court of Appeals for the District of Columbia Circuit relates that "[the requester] argues that the District Court misconceived the documents for which he challenged withholdings and redactions made by the Agency pursuant to Exemption 3 and the National Security Act."  The court holds that "[the requester] has not explained why the number of documents at issue undermines a finding that the broadly applicable information contained in [the CIA's] Declarations carried the Agency's burden on this point."  "The Agency explained in the Declaration why it had redacted and withheld documents pursuant to Exemption 3 and the National Security Act, focusing on the harm that might result from disclosure."  "Exercising de novo review, [the court] find[s] that the Agency's representations are sufficient to carry its burden, regardless of whether they cover more documents than the District Court realized."  "Moreover, [the requester] has explicitly declined to raise his 'substantive arguments about specific withholdings' before this court 'in the interest of judicial economy.'"  "While he still maintains in a footnote that summary judgment was incorrect as to all of the Agency's Exemption 3 withholdings pursuant to the National Security Act . . . his conclusory arguments are 'insufficiently developed to constitute a serious challenge to the district court's' findings."  "Thus, [the court] decline[s] to address them."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  First, the Court of Appeals for the District of Columbia Circuit holds that "[b]ecause '[its] review of summary judgment is de novo[,] . . . [the court has] the same record before [it] as did the district court [and] [it is] just as capable of evaluating the [CIA]'s [declarations] regarding segregability as is the court below.'"  "Thus, rather than remanding solely for the District Court to pass upon segregability, [the court] will exercise [its] discretion to make such a determination in the first instance."  Second, the court finds that "[b]ased on [the CIA's] Declarations, the Agency has carried its burden in demonstrating that it released all segregable portions of the responsive documents."  "[The CIA] attested that the Agency had 'conducted a page-by-page and line-by-line review, and released all reasonably segregable, non-exempt information' within responsive records."  "Moreover, [the CIA] 'determined that no additional information may be released without divulging information that . . . falls within the scope of one or more FOIA exemptions.'"  "Those sworn statements sufficiently establish that 'no portions of the withheld documents may be segregated and released.'"