Morley v CIA

Morley v. CIA, No. 06-5392 (D.C. Cir. Dec. 7, 2007).

Holding

A journalist met his burden that his FOIA request for documents pertaining to a deceased CIA officer fell within an exception to the Central Intelligence Agency Information Act of 1984 (“CIA Act”), 50 U.S.C. § 431(c)(3). Additionally, its release of records pursuant to the John F. Kennedy Assassination Records Collection Act of 1992 (“JFK Act”), 44 U.S.C. § 2107, did not relieve the CIA of its obligations under the FOIA.

ORDER

The Court remanded the case so that the CIA may search its operational files in response to the plaintiff’s FOIA request. On remand, the CIA was also ordered to expand its description of the search by its component units and supplement its justification for withholding documents under FOIA Exemptions 2, 5 and 6.

FACTS

On July 4, 2003, the plaintiff, a journalist and news editor who has written about the assassination of President Kennedy, submitted a FOIA request to the CIA for “all records pertaining to CIA operations officer George Efythron Joannides (also known as ‘Howard,’ ‘Mr. Howard’ or ‘Walter Newby’).” The CIA sent Morley a preliminary response on November 5, 2003, informing him that “CIA records on the assassination of President Kennedy have been re-reviewed under the classification guidelines for assassination-related records of the [JFK Act]” and that such records “have been transferred to the National Archives and Records Administration (“NARA”) in compliance with this Act.” The CIA directed Morley to submit his request to NARA, supplied him with NARA’s address, and advised him that records can be electronically searched through NARA’s website.

The CIA responded to Morley’s FOIA request, enclosing three documents in their entirety and 112 documents with redactions pursuant to FOIA Exemptions 1, 2, 3, 5, 6, 7(C), and 7(E). The CIA noted that it had located additional responsive material that it was withholding in its entirety under FOIA Exemptions 1, 3, and 6. It also explained that two documents required consultation with another agency and that 78 documents previously released under the JFK Act were on file with NARA. The CIA asserted that it could “neither confirm nor deny the existence of records responsive” to Morley’s request pertaining to Joannides’ participation in any covert operation. The CIA later released the two documents requiring consultation with another agency in segregable form. Three months later, the CIA sent Morley a partially redacted document that it had “inadvertently failed to include” in its earlier response and identified additional material that was withheld in its entirety under Exemptions 1, 2, 3, 5, 6, 7(C), 7(D), and 7(E).

Morley sought discovery from the CIA. After the CIA filed a motion for a protective order, the district court referred all discovery disputes to a magistrate judge. The CIA filed a motion for summary judgment, and the magistrate judge granted the CIA’s motion for a protective order and directed Morley to file his opposition to the CIA’s summary judgment motion, which Morley did along with a cross-motion for summary judgment. The district court granted the CIA’s motion for summary judgment and denied Morley’s cross-motion. It found that the CIA had conducted an adequate search, giving deference to the agency’s decisions as explained by the Information Review Officer for the Directorate of Operations of the CIA (“Dorn Declaration”), and that the Dorn Declaration and the CIA’s Vaughn index had adequately justified invocation of the claimed FOIA exemptions. Morley appealed. On appeal, the plaintiff challenged the adequacy of the CIA’s search and the Vaughn index, and to the CIA’s invocation of FOIA exemptions to withhold documents.

DECISION

The appeals court reversed the district court's grant of summary judgment to the CIA and remanded the case for further proceedings.

RATIONALE

The CIA's search for the requested documents was not adequate.

The appeals court first determined that Morley's FOIA request met the § 431(c)(3) (of the CIA Act) criteria for mandating the search of the CIA’s operational files under the FOIA because the Church Committee, which investigated DRE activities in 1963, fell within the definition of a congressional intelligence committee; Morley's request concerned the specific subject matter of an investigation by the congressional intelligence committee; and, the investigation was for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.

The appeals court also determined that Morley correctly contended that the search was inadequate because the CIA did not search records that had been transferred to NARA pursuant to the JFK Act. The Supreme Court has held that “an agency has [] ‘withheld’ a document under its control when, in denying an otherwise valid request, it directs the requester to a place outside of the agency where the document may be publicly available.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136, 150 (1989).

The FOIA has a “settled policy” of “‘full agency disclosure.’” Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1064 (D.C. Cir. 1988) (quoting S. Rep. No. 89-813, at 3 (1965)), aff’d, 492 U.S. 136. Congress has authorized only nine categories of exemption from this policy, and practical considerations that documents exist in another forum outside of the agency is not amongst them. “[A] categorical refusal to release documents that are in the agency’s ‘custody’ or ‘control’ for any reason other than those set forth in the Act’s enumerated exceptions would constitute ‘withholding.’” McGehee v. CIA, 697 F.2d 1095, 1110 (D.C. Cir. 1983) (quoting Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-51 (1980)). Because the CIA did not deny that it has retained copies of the records transferred to NARA and concedes that some transferred records are likely to be responsive, it was obligated to search those records in response to Morley’s FOIA request.

The same holds true for the 1,100 CIA documents contained in the protected collection at NARA. The JFK Act provides for the postponement of disclosure given “clear and convincing evidence” of enumerated circumstances requiring secrecy. JFK Act § 6; see also id. § 2(a)(7). The CIA confirms that “1,100 documents are located in NARA’s protected collection, and will be released in 2017.” Although the CIA asserted on appeal that it was “not required to search these documents . . . because the ‘postponed collection’ under the JFK Act is not reasonably likely to contain information responsive to [Morley]’s request,” this post hoc explanation cannot make up for the Dorn Declaration’s silence. See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins., 463 U.S. 29, 50 (1983). The CIA did not distinguish between the protected and unprotected records when it directed Morley to the NARA collection, instead indicating that the JFK Collection as a whole is likely to contain responsive documents. Moreover, even if the protected records could be withheld under one of the FOIA exemptions, that did not absolve the CIA of its duty to identify responsive documents, claim the relevant exemptions in the Vaughn index, and explain its reasoning for withholding the documents in its affidavit. Indeed, the JFK Act itself indicates that release of records to NARA does not absolve agencies of their duties under the FOIA: “Nothing in this Act shall be construed to eliminate or limit any right to file requests with any executive agency or seek judicial review of the decisions pursuant to [the FOIA].” JFK Act § 11(b).

Finally, Morley correctly contended that the CIA failed to describe its search adequately because the Dorn Declaration did not “explain in reasonable detail the scope and method of the search conducted by the agency [sufficient] to demonstrate compliance with the obligations imposed by the FOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).