997 F.3d 1224
D.C. Cir.2021Background
- In May 2015 Jens Porup FOIA‑requested “any and all documents relating to CIA use of poison for covert assassination”; the CIA initially declined to process the request citing Executive Order prohibiting assassination.
- Porup sued in 2017 alleging the CIA unlawfully declined to process his requests and maintained a pattern or practice of categorically refusing FOIA requests on matters the Agency deemed beyond its mission.
- After the request, the CIA issued internal guidance requiring processors to perform a context‑dependent inquiry and not decline processing solely because a request concerned matters outside the Agency’s primary mission; the Agency then located 39 potentially responsive documents, released some, withheld others under Exemption 3/National Security Act, and posted 22 via the JFK Records Act.
- The District Court granted summary judgment for the CIA, holding (1) the Agency’s new policy mooted the pattern-or-practice claim, (2) the Agency’s searches (including operational files through 1980) were adequate, and (3) Exemption 3 withholdings/redactions were justified; the court did not make a segregability finding.
- The D.C. Circuit affirmed: it found the Shiner declaration and counsel’s oral representations sufficient to show voluntary cessation and mootness, upheld the adequacy of searches and Exemption 3 withholdings, and made the segregability finding in the first instance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness of pattern-or-practice claim | Porup: Declaration is insufficient; Best Evidence Rule prohibits reliance on the declaration alone | CIA: Shiner declaration and counsel representations show mandatory new policy and end the challenged practice | Court: Moot — Agency met heavy burden under voluntary cessation (no reasonable expectation of recurrence) |
| Admissibility of Shiner declaration (Best Evidence) | Porup: Must produce the underlying policy document; declaration alone is inadmissible under Rule 1002/56(c)(2) | CIA: Declaration is the definitive, admissible proof of the policy; no other document in the record; plaintiff could have sought discovery | Court: Declaration admissible; best evidence rule not a bar because the declaration proves the event/policy itself and could be converted to admissible testimony |
| Adequacy of searches (including operational files and search terms) | Porup: CIA failed to search for names of unrevealed programs, nonpublic investigations beyond Church Committee, and did not describe Boolean/search methodology | CIA: Searches were conducted by subject‑matter experts, used identified search terms (and Boolean connectors), and searched locations reasonably likely to contain responsive records, including operational files through 1980 | Court: Searches were reasonably calculated and adequate; Morley does not require broader search for records created long after the Church Committee’s inquiry |
| Withholdings/redactions & segregability | Porup: Exemption 3/National Security Act withholdings/redactions were overbroad; segregability not found by district court | CIA: Explained harms from disclosure re: sources/methods; conducted line‑by‑line review and released all reasonably segregable, non‑exempt info | Court: Upheld Exemption 3 withholdings and found CIA satisfied segregability obligations (court made its own segregability finding) |
Key Cases Cited
- Zukerman v. USPS, 961 F.3d 431 (D.C. Cir. 2020) (voluntary cessation / mootness standard)
- Friends of the Earth, Inc. v. Laidlaw Env’t Servs., 528 U.S. 167 (2000) (mootness doctrine—when subsequent events render dispute non‑justiciable)
- Payne Enters., Inc. v. United States, 837 F.2d 486 (D.C. Cir. 1988) (affidavit insufficiency for mootness where assurances lack authority)
- Deakins v. Monaghan, 484 U.S. 193 (1988) (consideration of counsel representations at argument)
- CIA v. Sims, 471 U.S. 159 (1985) (National Security Act as an Exemption 3 withholding statute)
- Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (§ 3141(c)(3) "specific subject matter"—records central to a congressional inquiry)
- Iturralde v. Comptroller of Currency, 315 F.3d 311 (D.C. Cir. 2003) (agency affidavit standard for FOIA search adequacy)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (presumption of good faith for agency affidavits; speculative assertions insufficient)
- In re: Clinton, 973 F.3d 106 (D.C. Cir. 2020) ("reasonably calculated" search standard)
- Juarez v. DOJ, 518 F.3d 54 (D.C. Cir. 2008) (appellate court may make segregability finding in the first instance)
- Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364 (D.C. Cir. 2020) (line‑by‑line review sufficient for segregability)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (deference to CIA assertions about harm to intelligence sources/methods)
- Sussman v. U.S. Marshals Serv., 494 F.3d 1106 (D.C. Cir. 2007) (segregability requirement when documents are withheld)