Stalcup v. CIA , 768 F.3d 65 ( 2014 )

United States Court of Appeals
For the First Circuit
No. 13-2329
THOMAS STALCUP,
Plaintiff, Appellant,
v.
CENTRAL INTELLIGENCE AGENCY,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. F. Dennis Saylor, IV, U.S. District Judge]
Before
Howard, Lipez and Barron,
Circuit Judges.
Richard K. Latimer for appellant.
Patrick G. Nemeroff, Attorney, Department of Justice, with
whom Stuart F. Delery, Assistant Attorney General, Carmen M. Ortiz,
United States Attorney, Michael Sady, Assistant United States
Attorney and Leonard Schaitman, Attorney, were on brief, for
appellee.
October 6, 2014
HOWARD, Circuit Judge. Though clouded by an airline
disaster and claims of a government cover-up, this case ultimately
turns on a relatively straightforward question: must the
government release certain information? Plaintiff-Appellant Thomas
Stalcup brought this Freedom of Information Act ("FOIA") suit
against the Central Intelligence Agency ("CIA"), seeking two
documents from an investigation into the crash of TWA Flight 800.
Stalcup also sought the names of the eyewitnesses interviewed
during the investigation. The district court rejected Stalcup's
requests, concluding that FOIA permitted the agency to withhold the
sought-after material. Because we agree with each of the district
court's conclusions, we affirm its decision to grant summary
judgment for the CIA.
I.
On July 17, 1996, TWA Flight 800 exploded in mid-air and
crashed eight miles south of Long Island, New York. Pursuant to
its obligations under 49 C.F.R. § 800.3(a), the National
Transportation Safety Board ("NTSB") launched an investigation into
the tragedy. The Board quickly arrived at three possible
explanations for the crash: a bomb, a missile, or a mechanical
failure.
Given the possibility of criminal or terrorist activity,
the FBI joined the probe. A central component of the Bureau's task
was to interview eyewitnesses. Many of the 244 individuals who
-2-
were interviewed described a streak of light rising up to the plane
just before the explosion. Given the consistency of that
narrative, the FBI asked the CIA to analyze the accounts and
explore the likelihood of a missile strike.
The CIA reviewed the eyewitness reports along with raw
flight and radar data. It concluded that the eyewitnesses had not
seen a missile soaring towards the plane but, instead, had observed
the burning aircraft in various stages of dismantling. On March
28, 1997, the CIA passed this analysis along to the FBI, which
ultimately reached the same conclusion. In November 1997, the CIA
publicized these results in a video entitled: "TWA Flight 800: What
Did the Eyewitnesses See?"
As new data emerged, the CIA continued its work. For
instance, in 1998 it produced a 17-page draft report analyzing new
radar tracking data ("Analysis of Radar Tracking"). At that time,
it also created an 18-page draft report assessing the plane's
flight path ("Dynamic Flight Simulation"). Both documents
contained recommendations to the agency about how the newly
acquired data should impact the analysis. In 1999, the CIA relayed
this new evaluation to a NTSB-sponsored group studying the
eyewitness accounts.
On August 23, 2000, the investigation, which had been the
largest and most expensive in the NTSB's history, reached its
terminus. The Board adopted the CIA's assessment of the eyewitness
-3-
accounts and concluded that a mechanical explosion in the center
wing fuel tank had caused the crash. The NTSB distributed a final
report detailing these findings.
A decade later, theorizing that the CIA was covering up
that the true cause of the crash was a missile strike, Stalcup sent
the CIA a letter requesting "copies of all data, images, video,
documents and/or other information related to or a product of the
CIA's involvement in the TWA Flight 800 investigation." He also
asked for the "'Technical Analysis Briefing: TWA Flight 800'. . .;
. . . all eyewitness documents, reports, videos, images, and/or
audio provided to the CIA . . . [and] any and all correspondence .
. . regarding the CIA's . . . analysis of the eyewitness evidence."
The CIA first disclosed twenty-five documents that it had
previously released in response to a similar FOIA request.
Unsatisfied with the CIA's response, Stalcup brought this FOIA
action. 5 U.S.C. § 552. The complaint, filed in the District of
Massachusetts, asked the court to order the CIA to disclose
additional material. As the litigation progressed, the CIA
provided Stalcup with forty-nine documents, a DVD, eighty-nine
partially-redacted documents, and fourteen documents created by
other agencies. The agency also filed a Vaughn index with the
court detailing its redactions and withholdings.
Nonetheless, Stalcup demanded more. He requested
unredacted versions of the 1998 Analysis of Radar Tracking document
-4-
(only the technical data, graphs, and certain headings were
initially provided); the 1998 Dynamic Flight Simulation analysis
(only the headings had been released); and the names of the
eyewitnesses interviewed by the FBI.
In due course, the CIA moved for summary judgment, which
the district court granted. The court concluded that the agency
had properly withheld the requested documents under the
deliberative process exemption of the law, 5 U.S.C. §
552(b)(5)(hereinafter "exemption 5"), and had appropriately
redacted the eyewitness names pursuant to the law enforcement
exemption of the act, 5 U.S.C. § 552(b)(7)(C)(hereinafter
"exemption 7(C)"). The court also rejected Stalcup's contentions
that disclosure of the information was required in light of alleged
government misconduct. Finally, the court concluded that the CIA
had performed an adequate search in response to the FOIA request.
This timely appeal followed.
II.
We review a district court's grant of summary judgment in
a FOIA case de novo. Moffat v. U.S. Dep't of Justice, 716 F.3d
244, 250 (1st Cir. 2013). Accordingly, we draw all reasonable
inferences in favor of the non-moving party, and will only affirm
the district court's decision if no genuine dispute of material
fact exists and a party is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56.
-5-
III.
FOIA is an important tool in holding the government
accountable because it provides citizens a means to "know what
their government is up to." Carpenter v. U.S. Dep't of Justice,
470 F.3d 434, 437 (1st Cir. 2006) (internal quotation marks and
citation omitted). By establishing a presumption in favor of
agency disclosure, Congress aimed to "expose the operations of
federal agencies to public scrutiny." Providence Journal Co. v.
U.S. Dep't of Army, 981 F.2d 552, 556 (1st Cir. 1992). The need
for transparency, however, must be balanced with the goal of the
"efficient administration of government." Carpenter, 470 F.3d at
438. Accordingly, Congress provided a number of exemptions that
permit an agency to withhold certain documents from release. To
fulfill the broad purposes of FOIA, we construe these exemptions
narrowly. FBI v. Abramsom, 456 U.S. 615, 630 (1982) (citation
omitted).
Two exemptions take center stage in this appeal:
exemption 5, the deliberative process exemption, and exemption
7(C), the law enforcement exemption. We note at the outset that
the Ninth Circuit has recently addressed a nearly identical
challenge to the exact materials at issue here. Lahr v. Nat'l
Transp. Safety Bd., 569 F.3d 964 (9th Cir. 2009). After an in
camera review, that court determined that the government had
properly withheld the material. Though we are not bound by that
-6-
conclusion, and would independently arrive at the same result based
on this record alone, we do find Lahr to be persuasive. After
considering the Ninth Circuit's thoughtful analysis, the CIA's
extensive declaration in this case, and the absence of any viable
argument to the contrary, we are left satisfied that the CIA's
response to the FOIA request accorded with the law.
A. Exemption 5: The Deliberative Process Exemption
Exemption 5 of FOIA, the deliberative process exemption, permits
an agency to withhold "inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an agency in
litigation with the agency." 5 U.S.C. § 552(b)(5). It thus generally exempts
from disclosure documents containing work product, attorney-client
correspondence, or material that is otherwise "privileged in the civil
discovery context." NLRB v. Sears, Roebuck & Co., 421 U.S. 132,
149, 154 (1975). The government carries the burden of establishing
the applicability of the exemption and must show: (1) that the
withheld material is an inter- or intra- agency memorandum -- an
uncontested issue here; (2) that the document is deliberative; and
(3) that it is predecisional. Providence Journal Co., 981 F.2d at
557.
The government asserts that it properly withheld the 1998
Analysis of Radar Tracking and the 1998 Dynamic Flight Simulation
under the exemption. Stalcup, however, contends that the documents
are neither deliberative nor predecisional. Though the analysis
-7-
intersects at times, the two criteria are distinct prongs and must
be examined separately.
To satisfy the "deliberative" element of the exception,
a document must reflect "the give-and-take of the consultative
process." Petroleum Info. Corp. v. U.S. Dep't of Interior, 976
F.2d 1429, 1434 (D.C. Cir. 1992) (citations and internal quotation
marks omitted). More specifically, the document must: "(i) form[]
an essential link in a specified consultative process, (ii)
reflect[] the personal opinions of the writer rather than the
policy of the agency, and (iii) if released, . . . inaccurately
reflect or prematurely disclose the views of the agency."
Providence Journal Co., 981 F.2d at 559 (internal quotation marks
and citations omitted). Conversely, a document "consisting only of
compiled factual material or purely factual material contained in
deliberative memoranda and severable from its context" is subject
to disclosure. EPA v. Mink, 410 U.S. 73, 87-88 (1973).
Stalcup speculates that the two documents primarily
contain factual information respecting the cause of the Flight 800
crash. He postulates that neither focuses on any policy issue or
legal question. The district court, as he sees it, thus failed to
differentiate between "materials reflecting deliberative or policy-
making processes on the one hand, and purely factual, investigative
matters on the other." Id. at 89.
-8-
Stalcup's contention is dubious. Though the Supreme
Court in Mink did distinguish between purely factual material and
policy prescriptions, the Court also emphasized that "Congress
sensibly discarded a wooden exemption that could have meant
disclosure of manifestly private and confidential policy
recommendations simply because the document containing them also
happened to contain factual data." Mink, 410 U.S. at 90. The
question is not merely whether the documents contain factual
information -- or even whether the document is predominantly
comprised of findings of fact -- but rather the degree to which the
facts are indissolubly linked to the broader analysis. Thus,
although the two documents may contain certain facts, that alone
does little to advance the analysis.
Instead, the issue hinges on whether the documents were
"prepared to facilitate and inform a final decision or deliberative
function entrusted to the agency." Providence Journal Co., 981
F.2d at 560. In Lahr, the Ninth Circuit reviewed the documents at
issue here and concluded that each contains a preliminary analysis
of newly acquired data and that both discuss recommendations for
agency management to consider. Lahr, 569 F.3d at 983. For
instance, the Dynamic Flight Simulation "exposes in detail the
thought process of the CIA analysts involved in calculating the
simulated flight path, as well as language reflecting the
decisionmaking process." Id. Moreover, if released, both
-9-
documents would "expose the agency's internal deliberations in such
a way that would discourage candid discussion and effective
decisionmaking." Id. Although factual findings are indeed
included in the documents, they are tethered to broader policy
considerations. Id.
The Ninth Circuit's conclusion coheres with the CIA's
declaration and Vaughn index in this case. The Analysis of Radar
Tracking, for example, has the label "draft" on it, was shown to
the NTSB but never finalized, contains analytical opinions,
assessments, and judgments, and was passed on to agency management
for possible policy changes. The Dynamic Flight Simulation,
meanwhile, is also labeled "draft", includes opinions and
information relevant to calculating the flight path, identifies
challenges to conducting the analysis, and was also provided to
agency management but never finalized. Stalcup has provided no
reason to question those descriptions.
Further, to the extent that the documents contain purely
factual information severable from the analysis, any worries can be
put to rest. The district court in Lahr had ordered the CIA to
provide any factual material that could be separated. Lahr, 569
F.3d at 983. In turn, the CIA released -- and provided to Stalcup
in this case -- certain radar data, graphs, and headings from those
documents. Stalcup has failed to raise a genuine dispute that any
additional information is severable.
-10-
In his reply brief, Stalcup presents a number of new
arguments. Among them is his contention that the passage of time
undermines the basis for enforcing the exemption. See National
Security Archive v. Central Intelligence Agency, 752 F.3d 460 (D.C.
Cir. 2014). We need not consider that claim here since it, like
his other new arguments, is waived. See,e.g., Carpenter, 470 F.3d
at 440 n.9.
Stalcup next takes aim at the predecisional prong of the
requirement. To satisfy this element, a document must be prepared
"in order to assist an agency decisionmaker in arriving at his [or
her] decision." Town of Norfolk v. U.S. Army Corps of Eng'rs, 968
F.2d 1438, 1458 (1st Cir. 1992) (citations omitted). An agency
claiming the exemption must "(i) pinpoint the specific agency
decision to which the document correlates, (ii) establish that its
author prepared the document for the purpose of assisting the
agency official charged with making the decision, and (iii) verify
that the document precedes, in temporal sequence, the decision to
which it relates." Providence Journal, 981 F.2d at 557 (internal
quotation marks and citations omitted).
Stalcup argues that the CIA determined the cause of the
crash in 1997, but only created the two documents at issue in 1998
after it had reached that decision. From his perspective, the
documents were produced solely to reconcile new data that did not
support the agency's initial conclusion. Thus, he asserts, the CIA
-11-
improperly attempted to "explain agency action already taken or an
agency decision already made." Sears, Roebuck & Co., 421 U.S. at
153.
The roadblock in Stalcup's path is that the CIA's task
did not end in 1997 when it reached its initial conclusion.
Instead, as would any reasonable government entity presented with
new data, it undertook to determine whether its prior assessment
was accurate or whether it needed to change its position.
Again, the Lahr court describes the documents well. The
Dynamic Flight Simulation is "based on additional and more complete
data that became available over the course of the investigation."
Lahr, 569 F.3d at 982-83. The court further observes that,
"[a]lthough it is dated after the November 1997 CIA animation, it
was clearly prepared for the specific purpose of aiding the agency
in its determination of the likely flight path of the aircraft
following the explosion, a determination central to the CIA's task
of explaining what the eyewitnesses actually saw." Id. at 983.
The Analysis of Radar Tracking, too, "contains conclusions and
thoughts of CIA analysts concerning the viability and accuracy of
certain radar data," and therefore forced the CIA to ask whether it
needed to reconsider its decision. Id. at 983. Stalcup offers us
no basis upon which to reject that reasoning.
Finally, Stalcup maintains that, even if the twin
justifications of exemption 5 are met, release of the documents is
-12-
nevertheless appropriate. Emphasizing his belief that the CIA
participated in a cover-up, he urges us to endorse a government
misconduct waiver. Drawing from the civil litigation context,
Texaco P.R., Inc. v. Dep't of Consumer Affairs, 60 F.3d 867, 885
(1st Cir. 1995), he argues that the exemptions should be waived if
the evidence "warrant[s] a belief by a reasonable person that the
alleged government impropriety might have occurred." Nat'l
Archives & Records Admin. v. Favish, 541 U.S. 157, 174 (2004). He
points to the approach of the District of D.C., which has employed
a narrow waiver in FOIA cases presenting "extreme government
wrongdoing." Neighborhood Assistance Corp. of Am. (NACA) v. U.S.
Dep't of Hous. & Urban Dev., ___ F. Supp. 2d ___, 2013 WL 5314457,
at *8 (D.D.C. Sept. 24, 2013); see also Enviro Tech Int'l, Inc. v.
EPA, 371 F.3d 370, 376 (7th Cir. 2004) (assuming that a waiver
might apply for ultra vires actions by an agency). Contra Appleton
Papers, Inc. v. EPA, 702 F.3d 1018, 1022 (7th Cir. 2012); Hoover v.
U.S. Dep't of Interior, 611 F.2d 1132, 1142 (5th Cir. 1980).
This is a road we need not travel. To the extent that we
might similarly recognize a narrow waiver doctrine in the FOIA
context, it would not apply in this case. Even assuming that
Stalcup could show a scintilla of support for his claim, he still
fails to connect the requested materials to the alleged government
misconduct. Courts that have adopted such a waiver in the FOIA
milieu also require a party to establish a nexus between the
-13-
misconduct and the requested documents. See Judicial Watch of Fla.
v. U.S. Dep't of Justice, 102 F. Supp. 2d 6, 15 (D.D.C. 2000).
This is a sound way to avoid a litigant's mere fishing expedition
into government action. Stalcup's silence as to how the requested
documents would shed any new light on the alleged misconduct is
fatal to his claim.
Ultimately, the CIA properly withheld the materials under
exemption 5. Both documents are deliberative and predecisional in
nature, and any misconduct waiver would be inapplicable.
B. Exemption 7(C): The Law Enforcement Exemption
In addition to the two documents, Stalcup seeks the names
of the eyewitnesses interviewed by the FBI as part of the
investigation. Although the CIA withheld the names under multiple
exemptions -- it asserted that exemption 6 protecting "personnel
and medical files" would also apply -- the parties and the district
court correctly focused on exemption 7(C). See U.S. Dep't of
Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749,
756 (1989) (noting that the protections of 7(C) are more extensive
than those of 6). Exemption 7(C) shields information compiled for
law enforcement purposes when the release of such records "could
reasonably be expected to constitute an unwarranted invasion of
personal privacy." 5 U.S.C. § 552(b)(7)(C). That analysis
requires a court to balance the relevant public and private
-14-
interests implicated by disclosure. Maynard v. CIA, 986 F.2d 547,
566 (1st Cir. 1993).
Stalcup asserts that the eyewitnesses have an
insignificant privacy interest. Generally, he says, the names of
witnesses to crimes or accidents are made public and, therefore,
the eyewitnesses in this investigation should be treated no
differently. Since the NTSB had the authority to call the
witnesses to testify, he adds, the witnesses have a reduced
expectation of anonymity.
This argument ignores the Supreme Court's observation
that an individual's privacy interest is "at its apex" when he or
she is involved in a law enforcement investigation. Favish, 541
U.S. at 166 (citation omitted). Indeed, as we have said before,
"[t]his Court has long protected the identities of witnesses and
informants in law enforcement records," even when the individual is
not the subject of the investigation. Carpenter, 470 F.3d at 439.
The other aspect of this argument, that the NTSB's
subpoena power minimized the privacy interest, is equally
unavailing. It mistakenly assumes that the mere possibility of
being called as a witness is somehow equivalent to an individual
voluntarily abdicating his or her privacy. Stalcup offers no
authority supporting that position. Moreover, even assuming that
a witness had been required to testify, that does not necessarily
diminish his or her privacy interest. Moffat, 716 F.3d at 251
-15-
(stating that "prior revelations of exempt information do not
destroy an individual's privacy interest").
Gaining no traction there, Stalcup turns to United States
v. Weber Aircraft Corp., 465 U.S. 797 (1984). In Weber, the
Supreme Court noted that the government provided the witnesses a
guarantee that their testimony would not be released outside of the
relevant investigation. Weber, 465 U.S. at 797 n.11. In Stalcup's
view, this guarantee of confidentiality greatly enhanced the
privacy interests at stake. He then posits that, absent such a
promise in this case, no significant privacy interest can be
established.
Even if the cited footnote in Weber had been central to
the Court's analysis (it was not, because Weber was an exemption 5
case), Stalcup's inversion of the proposition is a textbook logical
fallacy. More fundamentally, it is based on a faulty assumption.
The argument presumes that individuals start with a minimal
threshold of privacy and gain more through government action. Not
only is there an absence of authority supporting that proposition,
it ignores an individual's inherent privacy interest irrespective
of any government intervention. See Carpenter, 470 F.3d at 438
(emphasizing the broad nature of the privacy interest covered by
exemption 7(C)).
Finally, relying on the testimony of a single witness who
felt "intimidated" from speaking out, Stalcup asserts that the
-16-
eyewitnesses in this case actually wish to go public with their
observations. He claims that the CIA has either destroyed their
credibility or threatened retaliation if they come forward. He
thus distinguishes this case from one such as Forest Serivce
Employees for Environmental Ethics v. U.S. Forest Service, 524 F.3d
1021 (9th Cir. 2008), in which the witnesses' decision to remain
silent for years indicated a desire to remain private.
Although the district court is required to make
inferences in favor of the non-moving party at summary judgment, it
is only required to do so if the inference asserted is reasonable.
Mulero-Rodriguez v. Ponte, Inc., 98 F.3d 670, 672 (1st Cir. 1996).
The inference here requires a leap that is simply not justified by
the evidence in this record. Even crediting the testimony
regarding intimidation, that provides no basis to conclude that the
government also "intimidated" 243 other eyewitnesses or, more
benignly, that those witnesses had a desire to discuss the case.
Although this single witness may wish to speak about the crash, as
far as we know, the remainder may prefer to remain private.
Given that some privacy interest is at stake, a
significant public interest must be present to nevertheless warrant
disclosure of the witnesses' names. Favish, 541 U.S. at 172.
Here, again, Stalcup relies on the perceived cover-up as the core
of the relevant public interest. The problem for Stalcup is that
he fails to show how providing him the names -- thus permitting him
-17-
to further interview the witnesses -- would yield any new
information. That gap prevents us from concluding that release
would further his purported public interest. Thus, given the
presence of a privacy interest, and the complete absence of any
public benefit, the balance between the two unquestionably banks
against release. The district court correctly reached this
conclusion.
C. A Final Note: The CIA's Search for the Records
We can quickly dispose of Stalcup's final contention. He
asserts that the CIA failed to conduct a reasonable search after he
sent his FOIA request, and should now be required to do more. He
raises two points.
First, in a press release, the FBI referred to a
photograph captured by an eyewitness and later analyzed by the
National Imagery and Mapping Administration. The CIA, however,
never produced this image. This failure, Stalcup says, is
emblematic of the CIA's handling of his FOIA request.
Second, he posits that the CIA only searched one of the
several departments, called "directorates," within the
organization. He speculates that the work must have been done
across the agency, particularly at the director level. In his
view, this by itself renders the search inadequate.
Resolution of this claim turns on whether the agency made
a good faith, reasonable effort "using methods which can be
-18-
reasonably expected to produce the information requested." Oglesby
v. U.S. Dep't of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). After
an agency shows that it acted accordingly, which is generally
accomplished through an affidavit, a rebuttable presumption that
the agency acted in good faith emerges. Maynard, 986 F.2d at 560.
Robert Roland, the Information Review Officer of the
CIA's Directorate of Intelligence, provided extensive detail on how
the agency conducted its search. He also cogently explained why
the CIA believed that a lone department, the directorate of
intelligence, would house the responsive records. His declaration
provided a reasonable explanation for the agency's process and, at
a bare minimum, created a presumption that the CIA acted in good
faith.
Stalcup's attempt to rebut that presumption goes nowhere.
The absence of the single photograph (one, it should be noted, that
was analyzed by an agency within the Department of Defense and not
the CIA) does not warrant reversal. The omission of a single
document in this case does not negate what is otherwise a
reasonable inquiry. See Iturralde v. Comptroller of the Currency,
315 F.3d 311, 315 (D.C. Cir. 2003). Consistent with its approach
to the other issues in this case, the CIA handled the search in the
required manner.
-19-
IV.
Finding the district court's conclusion to be fully
supported, we affirm its order granting the CIA's motion for
summary judgment.
-20-