ARON DIBACCO AND BARBARA WEBSTER, APPELLANTS v. UNITED STATES DEPARTMENT OF THE ARMY, ET AL., APPELLEES
No. 17-5048
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2018 Decided June 14, 2019
Appeal from the United States District Court for the District of Columbia (No. 1:87-cv-03349)
James H. Lesar argued the cause and filed the briefs for appellants.
Brinton Lucas, Counsel, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jessie K. Liu, U.S. Attorney,
Before: HENDERSON, GRIFFITH, and WILKINS, Circuit Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
GRIFFITH, Circuit Judge: In 1985, Carl Oglesby filed Freedom of Information Act requests seeking documents about the government‘s rеlationship with Reinhard Gehlen, a former Nazi general. Believing the relevant agencies had failed to comply with their disclosure obligations under the statute, Oglesby filed this lawsuit. More than thirty years of litigation later, we consider his case for the fourth time. When the court last did so in 2015, we affirmed the district court‘s grant of summary judgment against Oglesby, but remanded the case so that the district court could consider, in the first instancе, issues related to a batch of documents the government released during the appeal. The district court has now done so, concluding that the government adequately searched for documents and justified its redactions. We agree, and affirm.
I
This court has previously recounted the facts of this case in detail. See DiBacco v. U.S. Army, 795 F.3d 178, 184-88 (D.C. Cir. 2015); Oglesby v. U.S. Dep‘t of Army, 79 F.3d 1172, 1175-76 (D.C. Cir. 1996); Oglesby v. U.S. Dep‘t of Army, 920 F.2d 57, 60-61 (D.C. Cir. 1990). In brief, Reinhard Gehlen was a senior Nazi intelligence official in Eastern Eurоpe during World War II. DiBacco, 795 F.3d at 184. Following the Nazis’ defeat, Gehlen was recruited by the United States to operate a European spy network known as the Gehlen Organization. Id. The Gehlen Organization was eventually absorbed by West Germany‘s intelligence service, which Gehlen led until he retired in 1968. Id.
Carl Oglesby was a journalist interested in the relationship between Gehlen and the United States, and in 1985 he submitted requests under the Freedom of Information Act (FOIA),
Oglesby passed away in September 2011. Id. at 187. His daughter, Aron DiBacco, and his domestic partner, Barbara Webster (collectively, “DiBacco“), were substituted as plaintiffs at their request. Id. Soon afterward, DiBacco and the remaining defendants—the CIA, Department of the Army, and National Security Agency (NSA)—filed cross-motions for summary judgment. Id. The district court granted the defendants’ motion and denied DiBacco‘s. Id. DiBacco appealed, and we affirmed. Id. at 200.
That would have been the end of the matter, except that while the appeal was pending, the Army disclosed a new batch of 2,863 pages of records that were responsive to Oglesby‘s initial FOIA requests (the “Remand Records“). Id. at 190. All but eleven of the nearly three thousand pages were produced in full. Id.; DiBacco v. U.S. Dep‘t of the Army, 234 F. Supp. 3d 255, 265 (D.D.C. 2017). We remanded the case to the district court “to allow the parties to create a record and the district court to decide in the first instance the narrow question of whether those withholdings” made under FOIA Exemptions 1
The parties subsequently filed renewed cross-motions for summary judgment. DiBacco argued that the Army had not conducted an adequate search for responsive records and that the redactions to the newly produced records were improper. The district court rejected those contentions, concluding that nothing about the most recent production of documents called into question the adequacy of the Army‘s search, which we had already approved, and that the minimal redactions were justified. Id. at 266-79. DiBacco timely appealed.
The district court had jurisdiction over this FOIA action under
II
Most of DiBacco‘s arguments on appeal seek to reopen our prior decisions or to dispute aspects of the government‘s earlier productions that were not at issue on remand. As a result, only two of DiBacco‘s challenges are properly before us. First, DiBacco argues that the district court erred in concluding that the government‘s search for responsive documents was adequate. In particular, she suggests thаt certain of the declarations submitted by the government to justify the scope of its search were deficient, and that the Remand Records contained references that obligated the government to conduct further searches. Second, she argues that the government failed to justify the redactions it made to ten pages of the Remand Records. The challenges lack merit.
A
We first address the government‘s search. When we consider the adequacy of a search in response to a FOIA request, the burden is on the agency to demonstrate that it made a “good faith effort to conduct a search... using methods which can be reasonably expected to produce the information requested.” Oglesby, 920 F.2d at 68. Courts may rely on a “reasonably detailed affidavit, setting forth the search terms аnd the type of search performed, and averring that all files likely to contain responsive materials (if such records exist) were searched.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Oglesby, 920 F.2d at 68). Summary judgment must be denied “if a review of the record raises substantial doubt” about the search‘s adequacy, “particularly in view of well defined requests and positive indications of overlooked materials.” Id. (internal quotation marks omitted).
DiBacco challenges various declаrations produced by the government to justify its search. Most of those declarations have previously been approved of and relied upon by this court, and nothing about the Remand Records raises concerns about their accuracy or sufficiency. Similarly, DiBacco attacks aspects of the government‘s search that we have already concluded were adequate. These challenges are barred by the law-of-the-case doctrine. Keepseagle v. Perdue, 856 F.3d 1039, 1048 (D.C. Cir. 2017) (“When there are multiple appeals taken in the course of a single piece of litigation, law-of-the-case
The critical declaration that describes the only search relevant to this appeal is from Joanne Benear, Chief of the United States Army Intelligence and Security Command‘s Freedom of Information and Privacy Act Office. J.A. 1851. Benear has held that supervisory position since 1999, but has been involved with this case since Oglesby‘s “first request for various operational files.” Id. She attests that her declaration was made on her “personal knowledge and informаtion made available to [her] in [her] official capacity.” Id. She then describes in detail the provenance of the Remand Records, the government‘s search, and what documents the government has in its possession. Id. at 1852-54.
DiBacco contends that Benear‘s declaration is deficient in two ways. First, she suggests that it contains only broad, boilerplate language that is insufficiently detailed to suppоrt summary judgment. We disagree. There is nothing boilerplate about the declaration; every paragraph specifically relates to DiBacco‘s suit and describes in detail the steps taken to search for responsive records and why further searches were deemed unnecessary or futile. See id. Second, DiBacco argues that Benear‘s declaration was not based on personal knowledge as required by
That leaves DiBacco‘s challenges to the government‘s failure to conduct additional searches. The Remand Records are reproductions of documents archived on microfilm. They contain “Top Secret Rеplacement Sheets” that indicate that shortly after World War II, certain classified documents were removed before the files were photographed. J.A. 1853-54. DiBacco argues that these sheets include information that points to additional responsive records for which the government must search. There were 135 of the Top Secret Replacement Sheets in the production, J.A. 1853, аnd at least some contain “[d]ossier numbers, the subjects of the dossiers, and the dates” that DiBacco says could have been the bases for further searches, DiBacco Br. 45.
When defending a search, the government must “show that its search efforts were reasonable and logically organized to uncover relevant documents,” but “it need not knock down every search design advanced by every rеquester.” DiBacco, 795 F.3d at 191. It is true that when a search turns up “positive indications of overlooked materials,” summary judgment may be inappropriate. Valencia-Lucena, 180 F.3d at 326 (citation omitted). But “the agency need pursue only a lead it cannot
Benear‘s declaration states that she and her staff could not locate the documents referred to in the Replacement Sheets, or even determine where to start looking for any such documents. J.A. 1854. The district court held that these facts, combined with the seventy years that had passed since the original documents were replaced with these sheets, meant that there was no reason to disturb our previous holding that the government‘s search was adequate. DiBacco, 234 F. Supp. 3d at 266-67. To the contrary: “if the documents replaced by these ‘Replacement Sheets’ still exist, and if they are in fact responsive to Oglesby‘s FOIA requests, the Army presumably would have found them in its searches, which it has declared covered all ‘locations that might contain responsive records.‘” Id. at 267 (quoting DiBacco, 795 F.3d at 190). This conclusion was sound. The information revealed in the Rеmand Records was neither a “clear” nor “certain” lead, and thus was not the sort of indication of further responsive material that was “so apparent” as to require additional inquiry. Kowalczyk, 73 F.3d at 389.
B
When the government produced the Remand Records to DiBacco, the CIA requested that certain information on ten pages be withheld pursuant to two statutory exemptions contained in the FOIA. As the district court nоted, most of these redactions were “very minimal.” DiBacco, 234 F. Supp. 3d at 269. DiBacco nevertheless argues that they were improper.
“An agency withholding responsive documents from a FOIA release bears the burden of proving the applicability of claimed exemptions,” typically through affidavit or declaration. DiBacco, 795 F.3d at 195 (quoting ACLU v. Dep‘t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)). “Summary judgment is warranted based on the agency‘s affidavit if it ‘describes the justifications for withholding the information with specific detail, demonstrates that the information withheld logically falls within the claimed exemption, and is not contradicted by contrary evidence in the record or by evidence of the agency‘s bad faith.‘” Id. at 196 (quoting ACLU, 628 F.3d at 619).
Here, the CIA has explained its redactions by reference to FOIA Exemptions 1 and 3. Because we conclude that the CIA properly justified each of its redactions under Exemption 3, we need not address its use of Exemption 1.
Exemption 3 provides that an agency may withhold information “specifically exempted from disclosure by statute” when the statute in question “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or... establishes particular criteria for withholding or refers to particular types of matters to be withheld.”
To invoke Exemption 3, the government “need only show... that the withheld material falls within” a statute meeting the exemption‘s conditions. Larson v. Dep‘t of State, 565 F.3d 857, 865 (D.C. Cir. 2009). “If an agency‘s statements supporting exemption contain reasonable specificity of detail as to demonstrate that the withheld information logically falls within the claimed exemption and evidence in the record doеs not suggest otherwise,... the court should not conduct a more detailed inquiry to test the agency‘s judgment and expertise or to evaluate whether the court agrees with the agency‘s opinions.” Id. Indeed, “we have consistently deferred to executive affidavits predicting harm to national security, and have found it unwise to undertake searching judicial review.” Ctr. for Nat‘l Sec. Studies v. U.S. Dep‘t of Justice, 331 F.3d 918, 927 (D.C. Cir. 2003). In this regard “Exemption 3 differs from other FOIA exemptions” because “its applicability depends less on the detailed factual contents of specific documents.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007) (quoting Ass‘n of Retired R.R. Workers v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987)).
DiBacco argues that the withholdings made under Exemption 3 by way of the CIA Act were unjustified for two reasons. She first contends that the CIA Act does not apply to these documents because they are not “personnel records.” But the CIA Act does not cover only “personnel rеcords.” Rather, it protects from disclosure certain information relating to personnel, wherever that information may be found. See
DiBacco next takes issue with the use of Exemption 3 and the CIA Act to shield from disclosure information about persons no longer “employed by the Agency.” DiBаcco Br. 41 (quoting
Given the similarity between the
We have never expressly resolved whether “employеd by” refers only to ongoing employment, but the Ninth Circuit dealt with this very question in Minier v. CIA, 88 F.3d 796 (9th Cir. 1996). The court concluded that “[u]se of the word ‘employed’ without qualification indicates that Congress intended the [CIA Act] to apply to both current and former agents.” Id. at 802 n.9. That reading of the statue was informed by the CIA Act‘s generally expansive protections for agency records, which indicated Congress desired to privilege national sеcurity over the FOIA‘s general preference for disclosure. Id. at 801-02. This reasoning is in accord with Robinson and a prior decision of this court in which we approved of the CIA‘s use of Exemption 3 and the CIA Act to withhold information about temporary employees of the agency. Halperin, 629 F.2d at 151. Our opinion never discussed whether the temporary employees were still employed by the CIA, but our description of the employment relationship suggests thаt they were not. Id. We nevertheless held that these workers were “personnel employed by the Agency,” because that broader reading was required to give effect to the purpose of the CIA Act. Id. Given the statutory text, the Supreme Court‘s decision in Robinson, the persuasive reasoning of the Ninth Circuit in Minier, and our past approach to interpreting the relevant provision, we reject DiBacco‘s argument that the CIA Act only applies to information referencing current intelligence personnel.
DiBacco‘s final objection relates to the CIA‘s use of the National Security Act to withhold information that would reveal “intelligence sources and methods.”
III
The government conducted an adequate search and properly justified its withholdings. We therefore affirm the district court‘s grant of summary judgment to the defendants.
So ordered.