Bothwell v. Brennan

Filing 51

ORDER re 50 Status Report/Briefing Schedule filed by Central Intelligence Agency. Signed by Magistrate Judge Jacqueline Scott Corley on 8/18/2015. (ahm, COURT STAFF) (Filed on 8/18/2015)

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MELINDA HAAG (CABN 132612)
United States Attorney
ALEX G. TSE (CABN 152348)
Chief, Civil Division
MICHELLE LO (NY Bar No. 4325163)
Assistant United States Attorney
450 Golden Gate Avenue, Box 36055
San Francisco, CA 94102
Telephone: [phone]
Facsimile: [phone]
Email: [e-mail]

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Attorneys for the Central Intelligence Agency

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ANTHONY P.X. BOTHWELL (CABN 200740)
950 Lincoln Blvd., #29547
San Francisco, CA 94129-0547
Telephone: [phone]
Email: [e-mail]

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Plaintiff, Pro Se
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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN FRANCISCO DIVISION

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ANTHONY P.X. BOTHWELL,
Plaintiff,

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Case No. C 13-05439 JSC
JOINT STATUS REPORT AND
[PROPOSED] ORDER

v.
CENTRAL INTELLIGENCE AGENCY,
Defendant.

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Pursuant to the Court’s Order of June 30, 2015, Plaintiff, Anthony P.X. Bothwell, and

24 Defendant, the Central Intelligence Agency (“CIA” or “Agency”), respectfully submit this further joint
25 status update to advise the Court as to whether any further proceedings remain necessary in this case
26 arising under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, as amended. The parties report
27 as follows:
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JOINT STATUS REPORT AND [PROPOSED] ORDER
C 13-05439 JSC
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1.

This case involves challenges to the CIA’s responses to two FOIA requests that Plaintiff

2 submitted in 2009 seeking certain records pertaining to five individuals allegedly connected to the
3 assassinations of President John F. Kennedy and Robert F. Kennedy. Compl. ¶¶ 3-4.
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2.

On October 9, 2014, the Court issued an order granting in part and deferring in part the

5 CIA’s motion for summary judgment. ECF No. 34. The Court found that the CIA issued a proper
6 Glomar response in response to Plaintiff’s request for records concerning “Jean Souetre, a.k.a. Michel
7 Roux, a.k.a Michel Mertz” under Exemption 3, and granted summary judgment in favor of the CIA on
8 this issue. Bothwell v. CIA, No. 13-cv-05439-JSC, 2014 WL 5077186, at *1 (N.D. Cal. Oct. 9, 2014).
9 The Court otherwise deferred judgment on the adequacy of the CIA’s search for responsive records.
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3.

Following the parties’ submission of supplemental briefing and evidence on the CIA’s

11 renewed motion for summary judgment, the Court issued an Order on June 4, 2015, granting in part and
12 denying in part the CIA’s renewed motion. ECF No. 46. The Court found that the CIA’s search was
13 adequate, except for its search for documents generated in July 1976 regarding Johnny Roselli. See id.
14 at 16. The Court concluded that the Roselli documents fell within 50 U.S.C. § 3141(c), which required
15 the CIA to search operational files. See id.
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4.

In their joint status report of June 29, 2015, the parties agreed that the CIA would

17 complete a search of operational files that is reasonably calculated to uncover records responsive to
18 Plaintiff’s request for “[a]ll records within the possession, custody, or control of the CIA, generated in
19 July 1976 that relate to Johnny ROSELLI, a.k.a. John ROSELLI, a.k.a. Filippo SACCO,” and file a
20 declaration describing its search. ECF No. 47.
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5.

On July 27, 2015, the CIA filed the Third Supplemental Declaration of Martha M. Lutz,

22 Information Review Officer for the Litigation Information Review Office of the CIA, to describe its
23 supplemental search of all databases which might reasonably contain operational files relating to Roselli
24 generated in July 1976. ECF No. 49-1. The declaration specifically described three National
25 Clandestine Service databases that were searched. See id. ¶ 3.
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6.

The parties have now conferred on whether any further proceedings remain necessary in

27 this case. The parties are in disagreement over the reasonableness of the CIA’s search of archived CIA
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JOINT STATUS REPORT AND [PROPOSED] ORDER
C 13-05439 JSC
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1 paper records, as described in Paragraph 3 of Third Supplemental Declaration of Martha M. Lutz:
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a.

Plaintiff’s position: Plaintiff takes the position that the CIA should either [1]

3 provide a supplemental declaration affirming that the electronic index it searched is one that lists all
4 paper documents generated in July 1976 related to the U.S. Senate Committee (the Church Committee)
5 before which Johnny Roselli (Roselli) testified, or [2] conduct a manual search of paper files for that one
6 single month for such records related to the Church Committee before which Roselli testified. Perhaps
7 in a box of records generated after the Church Committee report was issued.
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b.

CIA’s position: As Paragraph 4 of Ms. Lutz’s September 16, 2014 declaration

9 states, there is a CIA database that consists of compiled indexes of archived CIA paper records that are
10 no longer used for current office activities. If a search of these indexes suggests the existence of paper
11 files likely to contain records responsive to a particular FOIA request, CIA personnel can then retrieve
12 the archived paper files and review them for responsive individual paper documents. Here, as described
13 in Paragraph 3 of Third Supplemental Declaration of Martha M. Lutz, the CIA searched the indexes of
14 archived paper records through a simple keyword search using the name and aliases for Roselli.
15 Because the search of the index did not suggest the existence of any paper files pertaining to Roselli,
16 there would not have been any paper files that could reasonably have been retrieved and reviewed
17 further for responsive records generated in July 1976. The CIA believes its declarations have fully
18 explained the reasonableness of the Agency’s search of the paper files. Although it believes a
19 supplemental declaration as requested in item 1 of Plaintiff’s position would be duplicative, the CIA
20 indicated its willingness to provide a supplemental declaration further reiterating that “the compilation
21 of indexes which catalogue archived CIA paper records that it searched is one that would identify the
22 existence of any paper records files likely to contain records relating to Johnny Roselli.”
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c.

Plaintiff’s further response: Plaintiff still believes it would not be unreasonable to

24 do a manual search of paper records generated in July 1976 in relation to the Church Committee
25 assassinations investigation. Plaintiff does not believe it would be an excessive burden to flip through
26 one month of those physical files to see if Roselli’s name pops up.
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JOINT STATUS REPORT AND [PROPOSED] ORDER
C 13-05439 JSC
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7.

In light of this remaining disputed issue, the parties propose that they submit further

2 briefing on the reasonableness of the CIA’s search of archived paper records for records relating to
3 Roselli, with the CIA to file its brief by September 9, 2015, Plaintiff to file his response by September
4 23, 2015, and the CIA to file its reply by September 30, 2015.
5 DATED: August 17, 2015

Respectfully submitted,

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MELINDA HAAG
United States Attorney

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/s/ Michelle Lo
MICHELLE LO
Assistant United States Attorney
Attorneys for the Central Intelligence
Agency

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11 DATED: August 17, 2015

PLAINTIFF ANTHONY P.X. BOTHWELL

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/s/ Anthony P.X. Bothwell
ANTHONY P.X. BOTHWELL
Pro Se

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*I, Michelle Lo, attest that I have obtained concurrence in the filing of this document from Plaintiff
Anthony P.X. Bothwell.

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/s/ Michelle Lo
Michelle Lo

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Pursuant to the parties’ joint status report, the parties’ proposed schedule is approved. The

20 parties are to submit further briefing on the reasonableness of the CIA’s search of archived paper records
21 for records relating to Roselli under the following schedule:
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CIA’s supplemental motion:

September 9, 2015

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Plaintiff’s response:

September 23, 2015

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CIA’s reply:

September 30, 2015

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Hearing:

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9 a.m., Thursday, October 22, 2015

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IT IS SO ORDERED.

27 Dated: August 18, 2015

Hon.
Hon. Jacqueline Scott Corley
United States Magistrate Judge
i d
i
d

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JOINT STATUS REPORT AND [PROPOSED] ORDER
C 13-05439 JSC
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