Dibacco v. U.S. Department of the Army
983 F. Supp. 2d 44
D.D.C.2013Background
- Carl Oglesby filed FOIA requests in 1985 seeking records about Reinhard Gehlen, Fort Hunt meetings (summer 1945), Operation Rusty, Nazi underground groups, OSS operations, and related CIA/Army materials; agencies released some materials but withheld others.
- Litigation began in 1987, proceeded to the D.C. Circuit twice (Oglesby I and Oglesby II), and was remanded for further agency explanation of searches and withholdings; the case lay largely dormant while agencies processed large volumes of WWII-era records under the Nazi War Crimes Disclosure Act (NWCDA).
- The CIA, Army (INSCOM/IRR), and NSA reprocessed and declassified or reviewed large bodies of material, transferred many Army IRR files to NARA, and produced discs and Vaughn entries; agencies relied on detailed declarations and interagency IWG reporting to justify searches and redactions.
- Plaintiffs (substitute plaintiffs DiBacco and Webster) challenged (1) adequacy of the NSA Vaughn index, (2) adequacy of CIA and Army searches, and (3) CIA/Army/NSA invocation of FOIA exemptions (notably exemptions (b)(1) and (b)(3)).
- The district court reviewed agency declarations, the IWG report, and the record, denied the plaintiffs’ motion to compel classified ex parte declarations, granted the defendants’ leave to file a surreply, and granted defendants’ renewed summary judgment while denying plaintiffs’ cross-motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Adequacy of CIA search | Lacked searches across all directorates and missed Fort Hunt materials; narrow earlier NWCDA scope meant some materials excluded | CIA conducted comprehensive NWCDA-driven searches (names, codewords, cryptonyms), searched all directorates, and later broadened scope (2005) to include non-war-criminal Nazis; produced responsive materials | CIA search adequate; no genuine dispute — summary judgment for defendants |
| Adequacy of Army search / transfer to NARA | Transfer to NARA suspicious and might evade FOIA; INSCOM declaration ambiguous about locations | Army transferred IRR (likely repository for responsive files) to NARA pursuant to NWCDA; NARA searched and made files available; transfer not suspect | Army search and transfer proper; Army did not improperly withhold records — summary judgment for defendants |
| Adequacy of NSA Vaughn / withholdings | Earlier NSA declarations were too conclusory; plaintiffs contend index/declaration still inadequate | NSA submitted detailed Grantham declaration (document-by-document) and a later Janosek declaration confirming current classification and harm; segregability addressed | NSA Vaughn/declarations adequate; withholdings justified under exemptions — summary judgment for defendants |
| Validity of CIA/NSA invocation of FOIA exemptions (b)(1) & (b)(3) | Challenges to classification basis and to which Executive Order controls; passage of time undermines secrecy; (b)(3) reliance on National Security Act contested | Agencies relied on Executive Order 12958 (as applicable at time of classification), provided detailed affidavits; (b)(3) reliance on statutes protecting sources/methods is valid; time passage addressed by agency certifications of continuing harm | Court upheld agencies’ use of exemptions (b)(1) and (b)(3); declarations sufficient to meet agency burden |
Key Cases Cited
- Dep’t of Air Force v. Rose, 425 U.S. 352 (Sup. Ct.) (FOIA’s disclosure purpose and exemptions must be narrowly construed)
- Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871 (D.C. Cir.) (balance between disclosure and protection of legitimate governmental/private interests)
- Milner v. Dep’t of Navy, 131 S. Ct. 1259 (Sup. Ct.) (FOIA exemptions are exclusive and construed narrowly)
- Multi Ag. Media LLC v. Dep’t of Agriculture, 515 F.3d 1224 (D.C. Cir.) (agency bears burden; affidavits must provide reasonable specificity)
- Am. Civil Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612 (D.C. Cir.) (detailed affidavits can support summary judgment)
- Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504 (D.C. Cir.) (uncontradicted, plausible affidavits prevail)
- Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir.) (searches must be reasonably calculated to uncover relevant documents)
- Iturralde v. Comptroller of the Currency, 315 F.3d 311 (D.C. Cir.) (adequacy of search measured by appropriateness of methods)
- Public Citizen v. Dep’t of State, 276 F.3d 634 (D.C. Cir.) (affidavits must contain reasonable specificity)
- Campbell v. U.S. Dep’t of Justice, 164 F.3d 20 (D.C. Cir.) (applying correct Executive Order in FOIA classification review depends on remand circumstances)
- Lesar v. U. S. Dep’t of Justice, 636 F.2d 472 (D.C. Cir.) (finality and applicable classification standard on review)
- Oglesby v. U.S. Dep’t of Army, 920 F.2d 57 (D.C. Cir.) (Oglesby I — exhaustion and search issues)
- Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172 (D.C. Cir.) (Oglesby II — remand for more detailed justifications and Vaughn index)
- Hodge v. FBI, 703 F.3d 575 (D.C. Cir.) (agency entitled to presumption it disclosed all reasonably segregable nonexempt material)
- Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir.) (agency must disclose reasonably segregable portions)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir.) (remedy only against agency that improperly withholds)
- Chambers v. Dep’t of Interior, 568 F.3d 998 (D.C. Cir.) (agency destruction of records can preclude summary judgment)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir.) (statutory withholdings and exemption (b)(3) principles)
- Mobley v. CIA, 924 F. Supp. 2d 24 (D.D.C.) (statutory allocation of authority to protect intelligence sources/methods does not preclude agency reliance on statutory exemptions)