COLLEEN KOLLAR-KOTELLY, District Judge.
Plaintiff Ralph Schoenman ("Schoenman"), a political activist and author, commenced this action against a variety of named and unnamed agencies, including the Central Intelligence Agency (the "CIA"), pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, and the Privacy Act of 1974 (the "Privacy Act"), 5 U.S.C. § 552a, seeking an array of
The Court assumes familiarity with its prior opinions in this action, which set forth in detail the history of this case, and shall therefore only address the factual and procedural background necessary to address the discrete issue currently before the Court.
All CIA records are
Decl. of Ralph S. DeMaio ("DeMaio Decl."), Docket No. [64-1], ¶¶ 22-27.
The CIA's Office of Information Management Services ("IMS") serves as the initial reception point for all FOIA and Privacy Act requests directed to the CIA. Id. ¶ 28. Upon receiving a request, IMS personnel determine which areas of the CIA reasonably might be expected to possess responsive records and forward copies of the request to those areas with instructions to search for responsive documents. Id. The tasked areas then conduct searches among their component parts and record systems that reasonably might be expected to have information responsive to the request. Id. Because they reflect and
On July 24, 2001, Schoenman, through counsel, submitted a request for records to the CIA under FOIA and the Privacy Act (the "Request"). Id. ¶ 9. Schoenman sought records pertaining to himself, all "index references," and all records used by the CIA in conducting its search for records.
Schoenman commenced this action on December 20, 2004 against a variety of named and unnamed agencies, including the CIA. See Compl., Docket No. [1]. In the succeeding years, his claims have been successively winnowed down by orders of this Court. Most notably, on March 19, 2009, this Court granted in large part the CIA's [64] Motion for Summary Judgment and denied in large part Schoenman's [70] Cross-Motion for Partial Summary Judgment. See Schoenman v. Fed. Bureau of Investigation, No. 04 Civ. 2202(CKK), 2009 WL 763065 (D.D.C. Mar. 19, 2009). Specifically, the Court found in the CIA's favor as follows: (a) the CIA's search for records was not inadequate on the basis that it excluded the DCI Area and the DI from the search for responsive records;
In its prior opinion addressing the parties' respective cross-motions for summary
Meanwhile, with one exception, the Court uniformly rejected Schoenman's contentions that the CIA's search was inadequate based upon his speculation that the CIA should have produced certain documents in response to his Request. Id. at *16-18. The one exception pertained to Schoenman's request for "all index references," which the CIA admittedly had not produced. Id. at *18. Because the CIA had not offered any explanation as to why these documents were not produced, the Court instructed the CIA, in its supplemental materials, to "provide an explanation for its failure to provide `index references' to [Schoenman], as requested.'" Id.
Consistent with the Court's directives, on April 10, 2009, the CIA filed supplemental materials purporting to address the Court's concerns. See Def.'s Notice of Filing, Docket No. [112]; Fourth Decl. of Ralph S. DeMaio ("Suppl. DeMaio Decl."), Docket No. [112-1]. On May 1, 2009, Schoenman filed his opposition and response to those supplemental materials. See Pl.'s Suppl. Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J. ("Pl.'s Opp'n."), Docket No. [116]. On May 13, 2009, the CIA filed a reply. See Def. Central Intelligence Agency's Reply to Pl.'s Suppl. Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J. ("Def.'s Reply"), Docket No. [117]. The matter was therefore fully briefed and ripe for adjudication.
Nevertheless, on August 15, 2009, without first seeking the Court's leave, Schoenman filed additional materials that he contends demonstrate that the CIA failed to conduct an adequate search for responsive records. See Pl.'s Notice of Filing, Docket No. [122]. On October 12, 2009, Schoenman sought the Court's leave to further supplement the record with yet more materials that he contends bear upon the adequacy of the CIA's search for records (the "Motion to Supplement the Record")—a motion which remains pending and is resolved herein. See Pl.'s Mot. for Leave to Further Supplement His Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J. ("Pl.'s Mot. to Suppl. Mem."), Docket No. [124-1]. On October 30, 2009, the CIA filed an opposition to Schoenman's Motion to Supplement the Record. See Def.'s Opp'n to Pl.'s Mot. for Leave to Further Supplement His Opp'n to Def. Central Intelligence Agency's Mot. for Summ. J., Docket No. [126]. On November 10, 2009, Schoenman filed a reply. See Reply to Def. Central Intelligence Agency's Oppotiion [sic] to Pl.'s Mot. for Leave to Further Supplement His Opp'n to the CIA's Mot. for Summ. J. ("Pl.'s Mot. to Suppl. Reply"), Docket No. [129].
An inadequate search for records constitutes an improper withholding under FOIA. Budik v. Dep't of Army, 742 F.Supp.2d 20, 29-30, 2010 WL 3833828, at *6 (D.D.C. Sept. 30, 2010). Where the adequacy of an agency's search is challenged, the agency "must show beyond material doubt . . . that it has conducted a search reasonably calculated to uncover all relevant documents." Weisberg v. U.S. Dep't of Justice, 705 F.2d 1344, 1351 (D.C.Cir.1983). That is, an agency must show that it made "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C.Cir.1990).
"The adequacy of an agency's search is measured by a standard of reasonableness, and is dependent upon the circumstances of the case." Weisberg, 705 F.2d at 1351 (internal citation and quotation marks omitted); accord Campbell v. U.S. Dep't of Justice, 164 F.3d 20, 27-28 (D.C.Cir.1998). Because "the adequacy of a FOIA search is generally determined not by the fruits of the search, but by the appropriateness of the methods used to carry out the search," Iturralde v. Comptroller of Currency, 315 F.3d 311, 315 (D.C.Cir.2003), "the [mere] fact that a particular document was not found does not demonstrate the inadequacy of a search," Boyd v. Criminal Div. of U.S. Dep't of Justice, 475 F.3d 381, 391 (D.C.Cir.), cert. denied, 552 U.S. 1007, 128 S.Ct. 511, 169 L.Ed.2d 369 (2007). Indeed, an agency's lack of success in locating responsive records does not render the search inadequate provided the agency's supporting declarations establish its compliance with FOIA. Budik, 742 F.Supp.2d at 30-31, 2010 WL 3833828, at *7. Nor must an agency search every record system to render its search reasonable. Oglesby, 920 F.2d at 68. "Rather, an agency is only required to search those record systems that are likely to turn up the information requested." Schoenman, 2009 WL 763065, at *11 (citing Oglesby, 920 F.2d at 68). In sum, perfection is not the standard. Budik, 742 F.Supp.2d at 30, 2010 WL 3833828, at *6. Instead, "the agency must show that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Oglesby, 920 F.2d at 68.
On a motion for summary judgment, an agency may discharge its burden of establishing the reasonableness of its search by submitting a "reasonably detailed affidavit" describing the search performed and averring that all files likely to contain responsive documents were searched. Id. The Court of Appeals for the District of Columbia Circuit has described the agency's evidentiary burden more fully as follows:
Once an agency has made a prima facie showing of adequacy, the burden shifts to the plaintiff to provide "`countervailing evidence' as to the adequacy of the agency's search." Iturralde, 315 F.3d at 314. Indeed, the plaintiff must provide evidence sufficient to raise "substantial doubt" concerning the adequacy of the agency's search. Iturralde, 315 F.3d at 314 (citing Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C.Cir.1999)). With these principles in mind, the Court turns to the merits of the parties' arguments.
The Court's discussion proceeds in three parts: first, the Court shall explain why the CIA has carried its burden of establishing the reasonableness of its search for responsive documents within the MSO and the DO; second, the Court shall address why Schoenman's belatedly introduced arguments concerning the adequacy of the CIA's search are without merit; and third, and finally, the Court shall explain why Schoenman is not entitled to discovery from the CIA.
Schoenman has challenged the adequacy of the CIA's search as it pertains to two component parts of the CIA—namely, the MSO and the DO. In both instances, the CIA has discharged its burden of establishing the reasonableness of its search and, despite a litany of complaints, Schoenman has failed to adduce the sort of countervailing evidence that would cast substantial doubt on the adequacy of the CIA's search.
The MSO is the CIA's administrative support arm and is responsible for various administrative matters, including personnel resources, logistics, communications, finance, facilities, acquisitions, security, medical services, and other general support. Suppl. DeMaio Decl. ¶ 4. The MSO maintains records on all current and former CIA employees, as well as other individuals for whom security processing or evaluation has been required, including those individuals who come to the CIA's attention due to a counterintelligence interest. Id. ¶ 5. Typically, where an individual has no past, present, or potential relationship with the agency, the MSO would not have any records pertaining to that individual. Id.
The Office of Security (the "MSO/OS")—one of five separate offices within the MSO—maintains the CIA's security database containing records of security-related documents dating from the agency's inception. DeMaio Decl. ¶ 26; Suppl. DeMaio Decl. ¶ 5. In this case, once tasked by IMS with the responsibility for searching for documents responsive to Schoenman's Request, the MSO/OS "made all reasonable efforts to identify and retrieve any [responsive] records."
Based on the foregoing, the CIA has discharged its burden of describing in reasonable detail the scope and method of the search it performed and averring that all files likely to contain documents responsive to Schoenman's Request were searched. Perry, 684 F.2d at 127. That the CIA's submissions could have hypothetically been more detailed—for example, in describing the number of "false hits" obtained during the course of its search—does not prevent the Court from concluding that the CIA has satisfactorily demonstrated the adequacy of its search, nor preclude a finding that summary judgment is appropriate. See id. ("To be sure, the descriptions of the searches could have been more detailed. . . . The arguable inadequacy of the search descriptions here is, however, no more than marginal and does not render the grant of summary judgment inappropriate."). Because the record evidences that the CIA conducted an informed, detailed, and good faith search of sources likely to reveal documents maintained by the MSO and responsive to Schoenman's Request, the Court finds that the CIA has carried its burden of establishing the reasonableness of its search within the MSO.
The CIA having discharged its burden of making out a prima facie showing of reasonableness, the burden shifts to Schoenman to provide "`countervailing evidence' as to the adequacy of the agency's search." Iturralde, 315 F.3d at 314. Schoenman tenders five principal arguments as to why the CIA's search within the MSO/OS should be held inadequate, none of which is of any avail. The Court addresses each argument in turn.
First, Schoenman contends that the search within the MSO/OS was inadequate
Second, Schoenman argues, in essence, that the adequacy of the CIA's search cannot be determined in the absence of information concerning the precise content of the MSO's instructions to the MSO/OS, the number of "hits" obtained in response to particular search terms used during the course of the search, and the interplay between certain search terms.
Third, Schoenman challenges the CIA's decision to task only the MSO/OS—and not the other four offices within the MSO—with the responsibility for conducting a search for records responsive to his Request. Pl.'s Opp'n at 3-4. In its sworn declarations, the CIA explains that the MSO, as the administrative support arm of the CIA, maintains records on individuals with whom the CIA has some sort of past or present relationship. Suppl. DeMaio Decl. ¶¶ 4-5. In particular, the security database maintained by the MSO/OS contains security-related records, dating from the inception of the CIA, concerning current
Fourth, and in a similar vein, Schoenman suggests that the CIA has failed to adduce sufficient information concerning the precise contents of the MSO/OS electronic database such that would allow the Court to assess whether or not another MSO component part would likely maintain responsive records. Pl.'s Opp'n at 4-5. The Court disagrees. As set forth in greater detail elsewhere, the CIA has discharged its burden of providing reasonable—not exhaustive—detail concerning the scope and the method of its search and it has averred that all sources reasonably likely to contain information responsive to Schoenman's Request have been searched. The deficiency in the CIA's description of its search, if any, is no more than marginal and "does not render the grant of summary judgment inappropriate." Perry, 684 F.2d at 127.
Fifth, and finally, Schoenman complains that "[i]t is unclear whether the [MSO/OS] search is based on one or more than one electronic databases." Pl.'s Opp'n at 4. Here, Schoenman's complaint is predicated upon a typographical error in the sworn declarations submitted by the CIA; the CIA has since mooted Schoenman's argument by clarifying that the MSO/OS's search was limited to a single electronic database—i.e., the electronic database that contains records of security-related documents dating from the agency's inception. Def.'s Reply at 7 n. 4. In any event, the CIA has identified with sufficient particularity which record systems were reasonably likely to turn up information responsive to Schoenman's Request and has described its search with respect to those systems with enough detail to permit this Court to assess the adequacy of the search. Oglesby, 920 F.2d at 68.
Within the CIA, the DO is responsible for the clandestine collection of foreign intelligence information from human sources. DeMaio Decl. ¶ 23; Suppl. DeMaio Decl. ¶ 8. Its records system contains information concerning persons or entities that are of foreign intelligence or counterintelligence interest to the CIA and other agencies in the United States. DeMaio Decl. ¶ 23; Suppl. DeMaio Decl. ¶ 8. The DO maintains an electronic database that contains the records under the DO's control, which includes some of the CIA's most sensitive operational information. Suppl. DeMaio Decl. ¶ 9. Because the public disclosure of the specific organization and search capabilities of the electronic database could put the information contained in the database at risk, the structure of the database is treated as an intelligence method and is protected from public disclosure. Id. ¶ 10. Nevertheless, the CIA explains that the database can be searched for personal names as indexed into specific fields—that is, if a name is not indexed into one of these fields, it is not retrievable. Id. At the same time, provided it appears in a searchable field, a name need not appear in the title or subject line of a document in order to retrieve responsive information. Id. Moreover, the database groups names and accounts automatically for variations or errors in spelling. Id.
The CIA avers that, once tasked by IMS with the responsibility for searching for documents responsive to Schoenman's Request, the DO "made all reasonable efforts to identify and retrieve any [responsive] records." DeMaio Decl. ¶ 35. Specifically, the task was assigned to a trained officer who routinely conducts searches within the DO's electronic database, who searched for records using Schoenman's first and last name, and variations thereof. DeMaio Decl. ¶ 35; Suppl. DeMaio Decl. ¶¶ 9, 11. The universe of records searched included so-called "exempt operational files," which are excluded from searches where, unlike here, the request does not fall within the ambit of the Privacy Act. Suppl. DeMaio Decl. ¶ 12. Ultimately, the DO located a total of five responsive documents, each of which was withheld in its entirety. DeMaio Decl. ¶ 35; Suppl. DeMaio Decl. ¶ 11. The Court previously upheld the withholding of these five documents in full. See Schoenman, 2009 WL 763065, at *19-25.
Here too, the CIA has discharged its burden of describing in reasonable detail the scope and method of the search it performed and averring that all files likely
First, Schoenman speculates that the DO's electronic database is not designed to allow for full-text searches of all DO records, but rather is confined to more discrete indexed, field-based searches. Pl.'s Opp'n at 5. Similarly, without any support in the record, Schoenman periodically conjectures that certain information may not be indexed in a searchable field. Id. at 5-6. Understandably, Schoenman may have his own ideas as to how the CIA should organize its records, but the CIA is under no obligation to reorganize its files to satisfy Schoenman's Request, McGehee v. Cent. Intelligence Agency, 697 F.2d 1095, 1100 (D.C.Cir.1983), and imposing Schoenman's preferences upon the CIA would extend far beyond the sort of reasonable efforts required of agencies in responding to validly lodged requests under FOIA and the Privacy Act, Landmark Legal Found. v. Envtl. Prot. Agency, 272 F.Supp.2d 59, 63 (D.D.C.2003).
Second, and in a similar vein, Schoenman poses a variety of questions about the specific details of the organization and contents of the DO's electronic database. Asserting, without any citation to competent record evidence, that the DO is "known for. . . decentralized filing systems" and that the DO's component parts maintain "chron" or "chronological" files, "registry" files, and so-called "soft" files, Schoenman asks whether these types of documents are maintained in the DO's database and whether such information appears in a searchable field. Pl.'s Opp'n at 5-6. Schoenman is simply mistaken that, "[u]ntil these questions have been addressed, the CIA cannot show that its search efforts have been adequate." Id. at 6. Notwithstanding the questions conjured by Schoenman, the CIA has discharged its burden of providing reasonable—not exhaustive—detail concerning the scope and method of its search and it has averred that all sources within the DO reasonably likely to contain information responsive to Schoenman's Request have been searched. Indeed, the sworn declarations submitted by the CIA indicate that the single electronic database searched in this case "collectively[ ] contains the CIA's records under the control of the DO." Suppl. DeMaio Decl. ¶ 9. Despite Schoenman's unsupported conjecture to the contrary, the Court finds that there is no genuine issue as to the reasonableness of the CIA's search as it pertains to the DO. Viewed from a slightly different perspective, Schoenman's questions are akin to requests for discovery, but discovery is unavailable where, as here, the agency's declarations are sufficiently detailed. Wolf v. Cent. Intelligence Agency, 569 F.Supp.2d 1, 9-10 (D.D.C. 2008).
In short, the record evidences that the CIA conducted an informed, detailed, and good faith search of sources likely to reveal documents maintained by the DO and responsive to Schoenman's Request, and because Schoenman has adduced no countervailing evidence that would raise a "substantial
When it last had the opportunity to address the parties' cross-motions for summary judgment, the Court, with one exception, uniformly rejected Schoenman's contentions that the CIA's search for records responsive to his Request was inadequate based upon his speculation that the CIA should have produced certain "missing records." Schoenman, 2009 WL 763065, at *16-18. The single exception pertained to Schoenman's request for "all index references," which the CIA admittedly had not produced. Id. at *18. Since the CIA had not offered any explanation as to why these documents were not produced, the Court instructed the CIA to submit supplemental materials "provid[ing] an explanation for its failure to provide `index references' to [Schoenman], as requested.'" Id. As instructed, the CIA has explained why the documents were not produced, and the Court is satisfied with its explanation.
Whereas physical indices or hard copy search records were used before the agency transitioned to electronic records, all the relevant records in this action have been consolidated into electronic databases. Suppl. DeMaio Decl. ¶ 16. Hence, the record systems at issue here were both electronic databases, meaning that, where the subject of a search is an individual, the searching officer simply enters the individual's name (or variants thereof) in the electronic database rather than using physical or hard copy search records. Id. ¶ 14. Accordingly, the CIA credibly explains that it "did not provide any `index references' to [Schoenman] because of the simple fact that none exist." Id. ¶ 13. Simply put, Schoenman's unsupported allegation that the CIA's explanation lacks credibility and his speculation that such documents simply must exist does not suffice. Pl.'s Opp'n at 6-7. As Schoenman has been consistently reminded by this Court, his personal "conjecture `is hardly proof that such documents exist.'" Schoenman, 2009 WL 763065, at *12 (citing Morley v. Cent. Intelligence Agency, 508 F.3d 1108, 1120 (D.C.Cir.2007)); see also Steinberg, 23 F.3d at 552 ("mere speculation that as yet uncovered documents may exist does not undermine the finding that the agency conducted a reasonable search.").
Despite the fact that this Court clearly limited supplemental briefing on the parties' cross-motions for summary judgment to a single, discrete issue—i.e., the adequacy of the CIA's search within the MSO and the DO, including the propriety of the CIA's non-production of "index references"—Schoenman injects three additional issues into his supplemental papers.
First, Schoenman suggests that there are "several examples outside th is [sic] case where CIA searches have proved not to produce relevant records." Pl.'s Opp'n at 7. In support, he submits a declaration executed by his own counsel in September 2002 in connection with an unrelated FOIA
Second, long after the parties had already completed the permitted supplemental briefing and without first seeking the Court's leave, Schoenman submitted additional materials that he claims "bear on issues regarding the failure of the CIA to demonstrate that it has conducted an adequate search for records"—namely, (a) a declaration from Professor G. Robert Blakey submitted in an unrelated FOIA action in which Professor Blakey outlines his personal belief that certain CIA records at issue in that action must have been destroyed, and (b) a decades-old memorandum originating with the National Security Agency (the "NSA") that mentions Schoenman and is listed as having been directed to Richard Helms, then the Director of Central Intelligence, and Vice Admiral Rufus L. Taylor, ostensibly of the CIA. Pl.'s Notice of Filing at 1-2; see also Aff. of Professor G. Robert Blakey, Docket No. [122-2]; Ex. from Oglesby Case, Docket No. [122-1]. Neither document undermines the reasonableness of the CIA's search. Professor Blakey's declaration, like the two documents just discussed, simply has no bearing upon the CIA's search for documents in the instant case and falls woefully short of the sort of countervailing evidence that would raise a "substantial doubt" as to the adequacy of the CIA's search for records here. The same holds true for the NSA memorandum; even assuming, arguendo, that the memorandum was sent to and at some point retained by the CIA, "the [mere] fact that a particular document was not found does not demonstrate the inadequacy of a search."
Third, once again long after the parties had already completed the limited supplemental briefing permitted by the Court, Schoenman filed his Motion to Supplement the Record in light of the referral of certain documents by the Federal Bureau of Investigation (the "FBI") to the CIA for purposes of FOIA processing. See generally Pl.'s Mot. to Suppl. Mem. Schoenman posits that the CIA's "failure to locate and account for these records during its search of its files raises troubling questions about the nature and extent of the CIA's search." Id. at 2. The 119 documents at issue—first referred to the CIA on July 6, 2009—consist of documents that originated with the CIA. Decl. of Dennis J. Argall ("Argall Decl."), Docket No. [126-1], ¶ 6 & Ex. B.
Schoenman focuses on the six documents, consisting of fourteen pages, that pertain to him personally. According the Schoenman, "[t]he obvious question which must be asked is how the CIA's search managed to overlook each and every one of the documents which the FBI identified as requiring a referral to the CIA when it conducted its own search for records on Schoenman[.]" Pl.'s Mot. to Suppl. Reply at 2. Schoenman speculates that "[i]t would appear that the CIA's search may have been formulated in some way, or the CIA's record systems structure [sic] in some way, which enabled this to happen." Id. However, consistent with the guiding principle that the adequacy of a FOIA search is not determined "by the fruits of the search," Iturralde, 315 F.3d at 315, "the [mere] fact that a particular document was not found does not demonstrate the inadequacy of a search," Boyd, 475 F.3d at 391. The CIA is correct that it is not duty-bound to account for documents which a requester has in some way identified, provided it has made a diligent search for documents in those places where they might be expected to be found. See Iturralde, 315 F.3d at 315 ("After all, particular documents may have been accidentally lost or destroyed, or a reasonable and thorough search may have missed them."). Here, the record evidences that the CIA conducted an informed, detailed, and good faith search of sources likely to reveal documents responsive to Schoenman's Request, and Schoenman's reliance on these 6 documents simply falls far short of raising the "substantial doubt" required to undermine the CIA's prima facie case of reasonableness. Id. at 314.
Schoenman does not dispute that the remaining 113 documents referred to the CIA by the FBI relate not to him personally, but rather to Lord Bertrand Russell and various organizations. Pl.'s Mot. to Suppl. Reply at 2. Nor does he dispute that the Court previously dismissed his claims as they pertain to these records based on his failure to exhaust his administrative remedies. See Schoenman, 2006 WL 1126813, at *19-20. Rather, he speculates that, because he was "a very
As he has on multiple occasions in this action, Schoenman again requests that discovery be had to address the adequacy of the CIA's search. Pl.'s Opp'n at 2. However, where, as here, the agency's declarations are sufficiently detailed and the district court is satisfied that no factual dispute remains, discovery should be denied. Wolf, 569 F.Supp.2d at 9-10. Because Schoenman has failed to raise substantial, or even colorable, doubt concerning the adequacy or good faith of the CIA's search, Iturralde, 315 F.3d at 314, the Court shall once again DENY Schoenman's request for discovery.
The Court has considered the remaining arguments tendered by the parties and has concluded that they are without merit. Therefore, and for the reasons set forth above, the Court shall GRANT Schoenman's [124] Motion to Supplement the Record, but nevertheless GRANT the CIA's [64] Motion for Summary Judgment and DENY Schoenman's [70] Cross-Motion for Partial Summary Judgment as they pertain to the adequacy of the CIA's search for records within the MSO and the DO, including the propriety of the CIA's failure to produce "index references." Furthermore, the Court shall DENY Schoenman's request for discovery. An appropriate Order accompanies this Memorandum Opinion.