31 F. Supp. 3d 23
D.D.C.2014Background
- Whitaker filed FOIA/Privacy Act requests to CIA, DOD, and State from 2008-2012 seeking records about his father Harold Whitaker, a missing DC-3, and related investigations.
- CIA responded with Glomar asserts; later searches for Whitaker and Eckmann yielded no responsive records; appeals followed.
- DOD requests concerned Ramstein search for missing 1980 DC-3 aircraft; USAF and Army records searches found no responsive material.
- State Department conducted two-part searches on Case Nos. 200800250 and 200904872, releasing some documents in 2009; additional searches occurred in 2011-2012.
- Plaintiff alleged inadequate searches and improper exemptions; Defendants moved for summary judgment; CIA search issue narrowed to exemptions (b)(3) and (b)(5), State search and Privacy Act processing for father’s records, and exemptions (b)(5) and (b)(6).
- Court granted in part and denied in part; key issues included CIA’s use of Exemption (b)(3)/(b)(5) and State’s privacy and search handling related to Eckmann and PPT records.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CIA Exemption (b)(3) scope under CIA Act and NSA | CIA overbroadly uses CIA Act to shield all CIA functions | Exemption (b)(3) covers CIA functions and sources/methods under Act and NSA | CIA Act too broad; requires narrower justification or disclosure; Exemption (b)(3) to be reconsidered without prejudice |
| CIA Exemption (b)(5) and deliberative/attorney-client protections | Exemption (b)(5) improperly withholds materials | Materials are predecisional/deliberative or attorney-client privileged | Deliberative and attorney-client privileges upheld; appropriate with limited segregability; some parts withheld |
| State Department search adequacy for Eckmann and PPT records | States search inadequate for Eckmann and PPT passport records contrary to schedules | Search methods reasonable; PPT searches adequate; missing PPT records not FOIA liability | Search inadequate for Eckmann; failure to pursue clear lead; PPT search deemed adequate; no liability for missing PPT records |
| Privacy Act processing of father’s records | State should process father’s records under Privacy Act as Whitaker next-of-kin | Privacy Act rights do not extend to deceased individuals; OMB Guidelines controlling | Privacy Act does not apply to deceased individuals; state processes under FOIA; Chevron deference given to OMB Guidelines |
| State Department Exemption (b)(5)/(b)(6) defenses for PP8 and X1/X3 | Withholdings improper or lacking identified privacy waivers | Withheld materials are privileged or privacy-protected with no segregable non-exempt portions | Exemption (b)(5) and (b)(6) sustained; in camera review supports attorney-client privilege for PP8; no waiver or release of identities demanded |
Key Cases Cited
- Dep't of the Air Force v. Rose, 425 F.3d 352 (U.S. 1976) (FOIA seeks disclosure balanced against exemptions)
- Milner v. Dep't of Navy, 131 S. Ct. 1259 (S. Ct. 2011) (Exemptions narrowly construed; disclosure objective emphasized)
- Am. Civil Liberties Unions v. U.S. Dep't of Defense, 628 F.3d 612 (D.C. Cir. 2011) (Uncontradicted affidavits with specificity support withholding)
- Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504 (D.C. Cir. 2011) (Segregability and non-exempt portions analysis in FOIA)
- Sussman v. U.S. Marshals Service, 494 F.3d 1106 (D.C. Cir. 2007) (Chevron deference to OMB Privacy Act Guidelines)
- Piper v. U.S. Dep't of Justice, 294 F. Supp. 2d 16 (D.D.C. 2003) (Reasonable search standard; missing documents not fatal to adequacy)
- Kowalczyk v. DOJ, 73 F.3d 386 (D.C. Cir. 1996) (Leads during search; rare obligation to follow clear leads)
- Hall v. CIA, 881 F.2d 138 (D.D.C. 2012) (Agency should pursue leads evident in text of requests)