Aron Dibacco v. The United States Department , 926 F.3d 827 ( 2019 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 6, 2018 Decided June 14, 2019
No. 17-5048
ARON DIBACCO AND BARBARA WEBSTER,
APPELLANTS
v.
UNITED STATES DEPARTMENT OF THE ARMY, ET AL.,
APPELLEES
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, and R. Craig Lawrence and Fred
E. Haynes, Assistant U.S. Attorneys.
Before: HENDERSON, GRIFFITH, and WILKINS, Circuit
Judges.
Opinion for the Court filed by Circuit Judge GRIFFITH.
2
GRIFFITH, Circuit Judge: In 1985, Carl Oglesby filed
Freedom of Information Act requests seeking documents about
the government’s relationship 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 instance, 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 Europe 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), 5 U.S.C. § 552, to six government agencies. DiBacco,
3
795 F.3d at 185. The requests sought numerous records relating
to Gehlen’s involvement with the U.S. Army and the Office of
Strategic Services, a predecessor to the Central Intelligence
Agency (CIA). Id. Dissatisfied with the government’s initial
productions, Oglesby filed this FOIA suit in 1987. Id. As a
result, the government released thousands of documents to
Oglesby over the next two decades. Id. at 187. His dogged
pursuit of records (aided by intervening congressional action)
led the CIA to admit for the first time its relationship with
Gehlen and his spies. Id. at 186.
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
and 3 on the eleven partially redacted pages “were
permissible.” DiBacco, 795 F.3d at 194; id. at 200 (“Our
remand is limited to issues arising from the Army’s release to
DiBacco during the appeal of responsive but redacted Army
4
documents that had been held by the National Archives.”). The
Army later released one of the eleven pages in full, leaving in
controversy only ten pages with limited redactions. DiBacco,
234 F. Supp. 3d at 265.
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 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). We have
jurisdiction under 28 U.S.C. § 1291, and we review de novo
the adequacy of the search and the government’s withholdings.
See DiBacco, 795 F.3d at 188, 195-96.
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 that 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
5
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
and 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 declarations 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 doctrine holds that decisions rendered on the first appeal
should not be revisited on later trips to the appellate court.”
6
(quoting LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir.
1996))).
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 information 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 support
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 Federal Rule of Civil Procedure 56. Not so. As an
initial matter, much of the information contained within the
declaration is based on her personal knowledge; Benear has
been intimately involved in this FOIA litigation for decades.
Moreover, although some of the information was relayed to
Benear by her subordinates, declarations in FOIA cases may
include such information without running afoul of Rule 56. See
Weisberg v. U.S. Dep’t of Justice, 705 F.2d 1344, 1358 (D.C.
Cir. 1983) (approving of testimony of a supervisor like Benear
because “he consulted with his colleagues who had personal
7
knowledge” of the relevant aspects of the search); see also
Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 813-14 (2d Cir.
1994) (rejecting a “personal knowledge” challenge to an
affidavit from a FOIA component supervisor and holding that
“[a]n affidavit from an agency employee responsible for
supervising a FOIA search is all that is needed to satisfy Rule
[56(c)]; there is no need for the agency to supply affidavits
from each individual who participated in the actual search”).
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 Replacement 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, and 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 requester.” 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 in
good faith ignore, i.e., a lead that is both clear and certain.”
Kowalczyk v. Dep’t of Justice, 73 F.3d 386, 389 (D.C. Cir.
1996). It is “the rare case indeed in which an agency record
contains a lead so apparent.” Id.
8
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 Remand 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 noted, 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
9
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.” 5 U.S.C. § 552(b)(3). The two statutes relied upon
by the CIA to withhold information under Exemption 3 are the
National Security Act of 1947, 50 U.S.C. § 3024(i)(1), and the
Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507.
The former states that “[t]he Director of National Intelligence
shall protect intelligence sources and methods from
unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). The latter
provides in relevant part that the CIA shall be exempt from
disclosing “the organization, functions, names, official titles,
salaries, or numbers of personnel employed by the Agency.”
50 U.S.C. § 3507. We have held that both statutes may be used
to withhold information under Exemption 3. DiBacco, 795
F.3d at 183 (National Security Act); Baker v. CIA, 580 F.2d
664, 667 (D.C. Cir. 1978) (CIA Act).
10
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 does
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 records.” Rather,
it protects from disclosure certain information relating to
personnel, wherever that information may be found. See 50
U.S.C. § 3507. And here, the CIA submitted a declaration
clearly stating that the redactions cover such information. See
Appellees’ Supplemental Appendix 19 (stating that the
information withheld under Exemption 3 “includes: the names
of CIA employees; information regarding CIA intelligence
methods; information regarding covert CIA installations,
including names and locations of these covert installations;
11
signatures of CIA employees; and internal CIA organizational
information”). Nothing that DiBacco identifies in the
documents or the remainder of the record gives us reason to
doubt these representations. When viewed in the context of the
redacted documents themselves, moreover, it is apparent that
the information withheld under the CIA Act largely consists of
names or nationalities. Taken together, the government has
sufficiently justified its assertion that the redacted information
is of the type protected by the CIA Act. See Larson, 565 F.3d
at 864-65.
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.” DiBacco Br. 41
(quoting 50 U.S.C. § 3507). Because of the age of the
documents in question, it is highly unlikely that anyone
referenced remains employed by the CIA. On DiBacco’s
reading of the CIA Act, that precludes using the statute to
withhold information. The government, in contrast, urges us to
interpret “personnel employed by the Agency” to include
individuals who previously worked for the CIA. It relies
primarily on a case involving Title VII of the Civil Rights Act
of 1964 in which the Supreme Court held that the statute’s use
of the word “employed” without “any temporal qualifier . . .
could just as easily be read to mean ‘was employed’” as to
mean “is employed.” Robinson v. Shell Oil Co., 519 U.S. 337,
342 (1997).
Given the similarity between the text of the statutes, we
think it fair to say that the CIA Act’s text does not expressly
restrict its scope to personnel currently employed by the
agency. The relevant provision contains no “temporal
qualifier,” and the plain text could just as easily be read to refer
to past employment as to ongoing employment. DiBacco
argues that we should adopt only the latter construction
12
because exemptions to the FOIA’s general regime of disclosure
are to be construed narrowly. Milner v. Dep’t of Navy, 562 U.S.
562, 565 (2011). But Milner does not govern because it
construes the FOIA, not the CIA Act. And although the CIA
Act itself represents only a “very narrow” exception to the
FOIA’s disclosure requirements, Baker, 580 F.2d at 670, we
must nonetheless interpret the CIA Act to “give reasonable
effect to the congressional intent” expressed in the text of the
statute, Halperin v. CIA, 629 F.2d 144, 151 (D.C. Cir. 1980).
That is, “to protect the security of foreign intelligence activities
and to further the protection of intelligence sources and
methods.” Halperin, 629 F.2d at 151.
We have never expressly resolved whether “employed 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 security 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 that 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
13
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.” 50 U.S.C.
§ 3024(i)(l). She argues that, given the CIA’s past overuse of
this exemption, we must express “considerable skepticism” at
its claims here, because the agency may be attempting to
“keep[] the American public from fully learning how badly the
CIA was gulled” by former Nazis. DiBacco Br. 42; see also
Reply Br. 17-19. This theory of bad faith is far too speculative
to justify disregarding the declarations produced by the CIA
that explain why Exemption 3 and the National Security Act
warranted the challenged redactions. Carter v. U.S. Dep’t of
Commerce, 830 F.2d 388, 393 (D.C. Cir. 1987) (requiring
“tangible evidence of bad faith” to doubt agency submissions);
see also Minier, 88 F.3d at 803. Regardless of whether the CIA
has in the past overreached in relying on the National Security
Act—a proposition on which we take no position—DiBacco
has offered no compelling reason to suspect bad faith here. The
limited nature and context of the redactions make that
conclusion all the more obvious by suggesting that the
information redacted was precisely the sort of information the
CIA says it was.
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.