Katsiaficas v. Central Intelligence Agency

Filing 75

Judge Allison D. Burroughs: MEMORANDUM AND ORDER entered. 69 Defendant's Motion for Summary Judgment is GRANTED and 53 Plaintiff's Motion for Summary Judgment is DENIED. (Montes, Mariliz)

UNITED STATES DISTRICT COURT
DISTRICT OF MASSACHUSETTS
GEORGE KATSIAFICAS,
Plaintiff,
v.
UNITED STATES CENTRAL
INTELLIGENCE AGENCY,
Defendant.

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Civil Action No. 13-cv-11058-ADB

MEMORANDUM AND ORDER
BURROUGHS, D.J.
I.

INTRODUCTION
Plaintiff George Katsiaficas (“Plaintiff”) sued the United States Central

Intelligence Agency (the “CIA” or “Defendant”) to compel disclosure under the Freedom of
Information Act (“FOIA”), 5 U.S.C. § 552, of CIA documents pertinent to the 1961 South
Korean coup d’état and the 1979 assassination of former-South Korean President Park Chunghee. [ECF No. 1]. Presently pending before this Court are Plaintiff’s Motion for Summary
Judgment [ECF No. 53] and Defendant’s Cross Motion for Summary Judgment [ECF No. 69].
For the reasons stated below, the Court GRANTS Defendant’s Motion for Summary Judgment
and DENIES Plaintiff’s Motion for Summary Judgment.
II.

PROCEDURAL BACKGROUND
On April 29, 2013, Plaintiff, a professor at Wentworth Institute of Technology, filed a

complaint against Defendant in this Court. [ECF No. 1]. On January 1, 2014, Plaintiff filed a
Motion for Summary Judgment. [ECF No. 17]. On February 28, 2014, Defendant filed a Cross
Motion for Summary Judgment. [ECF No. 26]. On March 21, 2016, the Court entered electronic

1

orders denying both motions as moot, and setting a schedule for both parties to file renewed
motions. [ECF Nos. 51–52].
On April 18, 2016, Plaintiff filed a Renewed Motion for Summary Judgment. [ECF No.
53]. Plaintiff’s Renewed Motion for Summary Judgment lacks a clearly identifiable “statement
of the material facts of the record as to which the moving party contends there is no genuine
issue to be tried,” as required under Local Rule, D. Mass 56.1 (“LR 56.1”), but does include a
general “Facts” section. [ECF No. 53]. On October 4, 2016, Defendant filed a Cross Motion for
Summary Judgment [ECF No. 69] and a Memorandum in Support that also contains an
Opposition to Plaintiff’s Renewed Motion for Summary Judgment [ECF No. 70]. Defendant’s
Memorandum includes a Statement of Undisputed Material Facts, none of which appear to
contradict the general facts alleged by Plaintiff.1 Id.; see also [ECF No. 53]. Defendant also relies
on two declarations: the Declarations of Antoinette B. Shiner [ECF No. 71] and of Chief Martha
M. Lutz [ECF No. 28]. Finally, Defendant submitted Vaughn indices for both the Coup Request
[ECF No. 72] and the Assassination Request [ECF No. 73].2

1

In a footnote to its Statement of Undisputed Material Facts section, the CIA states that it was
unclear whether the “Facts” section of Plaintiff’s Renewed Motion for Summary Judgment [ECF
No. 53] was a statement of undisputed, material facts as required under LR 56.1. [ECF No. 70].
Generally, district courts “enjoy broad latitude in administering and enforcing local rules.” S.
Shore Hellenic Church, Inc. v. Artech Church Interiors, Inc., No. CV 12-11663-GAO, 2016 WL
696085, at *27 (D. Mass. Feb. 19, 2016), report and recommendation adopted, 183 F. Supp. 3d
197 (D. Mass. Apr. 28, 2016) (internal quotation and citations omitted). Here, the Court chooses
not to engage with the issue of the adequacy of Plaintiff’s factual statement under LR 56.1, as
Defendant’s Cross Motion for Summary Judgment appears not to dispute any of Plaintiff’s
general factual claims. Therefore, the Court will treat the “Facts” section of Plaintiff’s Motion
for Summary Judgment [ECF No. 53], so far as it asserts factual claims and not the Plaintiff’s
personal opinions on the adequacy of the CIA process, as a statement of undisputed, material
facts sufficient to satisfy LR 56.1.
2
“A Vaughn index correlates information that an agency decides to withhold with the particular
FOIA exemption or exemptions, explaining the agency’s justification for nondisclosure.”
Maynard v. C.I.A., 986 F.2d 547, 556 (1st Cir. 1993).
2

III.

FACTUAL BACKGROUND
Except as otherwise noted, the following facts are taken from the Statement of

Undisputed Material Facts contained in Defendant’s Motion for Summary Judgment [ECF Nos.
69–70]. Because Plaintiff did not file an opposition to Defendant’s pending Motion for Summary
Judgment, the Court considers the facts contained therein to be admitted by Plaintiff. See
Zimmerman v. Puccio, 613 F.3d 60, 63 (1st Cir. 2010) (noting that where a party opposing
summary judgment fails to file an opposition including a “concise statement of the material facts
of record as to which it is contended that there exists a genuine issue to be tried,” material facts
asserted by the moving party “will be deemed for purposes of the motion to be admitted by
opposing parties”).
By letter dated March 4, 2010, Plaintiff submitted two separate FOIA requests to the
CIA. The first request (the “Coup Request”) asked for “records related [to], describing, and/or
concerning the coup d’état of May 16, 1961 in South Korea through which General Park Chunghee seized power,” and specifically requested CIA communications with United States Army
officer James Hausman and the CIA, the Defense Intelligence Agency (DIA), and other
government documents related to Park Chung-hee’s meetings with United States government
personnel. The second request (the “Assassination Request”) asked for “records related [to],
describing, and/or concerning the assassination of the South Korean President Park Chung-hee
on October 26, 1979 in Seoul, South Korea.” The request included all CIA, DIA, and other
government documents “related to the assassination, to his assassin (Korean Central Agency
chairman Kim Jae-kyu), to [United States] persons’ meetings with both [individuals] named
above, and to any other materials referring to President Park’s assassination.”

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On March 29, 2011, the CIA responded to Plaintiff’s Coup Request by producing
documents totaling 29 pages.3 Katsiaficas appealed this production as insufficient. On February
19, 2014, the CIA’s Agency Release Panel (“ARP”) denied Plaintiff’s appeal, stating that the
previously-withheld information was properly protected under FOIA exemptions (b)(1) and
(b)(3).
On July 20, 2012, the CIA mailed Plaintiff its final response to the Assassination
Request. The CIA’s letter referenced an April 20104 phone call during which Plaintiff agreed to
limit the scope of his request to CIA documents. The CIA’s final response consisted of ten pages
containing four documents, which were released with “deletions made on the basis of FOIA
exemptions (b)(1) and (b)(3).” The CIA’s response letter also noted that additional documents
had been withheld in their entirety under these exemptions.
On April 30, 2013, before having exhausted the CIA’s appeals process with respect to his
Assassination Request, Plaintiff filed this lawsuit.5 On May 19, 2014, Plaintiff and Defendant
agreed to stay this Court’s proceedings until Plaintiff had completed the CIA appeals process
while Plaintiff appealed the CIA’s response to his Assassination Request. On September 29,
2015, the ARP issued a final response to Plaintiff’s administrative appeal. This response
included additional information from the four partially-redacted documents that Plaintiff
received on July 20, 2012.
3

The facts in this paragraph are drawn from the “Facts” section of Plaintiff’s Motion for
Summary Judgment and from supporting exhibits. [ECF Nos. 53, 53-5]. The CIA does not
dispute these facts in its Opposition to Plaintiff’s Motion for Summary Judgment [ECF No. 70],
and they are therefore considered admitted. See LR 56.1.
4
The letter states that this phone call took place in 2012. The CIA, however, asserts that the
2012 date was a clerical error and that all other documents confirm that the call took place on
April 22, 2010.
5
Plaintiff explains that he filed suit in April 2013 because he mistakenly believed at that time
that the CIA’s response to his Assassination Request was a response to his appeal of the Coup
Request, and that it related to both requests. [ECF No. 53].
4

Subsequent to the productions detailed above, the CIA conducted another review of its
records and released additional, previously-redacted information relevant to Plaintiff’s requests.
As of today, the CIA has released 15 documents6 in response to Plaintiff’s Coup Request (with
no documents withheld in full) and 14 documents in response to Plaintiff’s Assassination
Request (with 16 documents withheld in full). Plaintiff, who has now exhausted the CIA’s
internal appeals process, continues to challenge the adequacy of the CIA’s searches and the
completeness of its productions.
IV.

LEGAL STANDARD
A.

Summary Judgment Generally

Summary judgment is appropriate where “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56. An issue is considered “genuine” when “the evidence of record permits a rational
factfinder to resolve it in favor of either party.” Borges ex rel. S.M.B.W. v. Serrano-Isern, 605
F.3d 1, 4–5 (1st Cir. 2010) (citing Medina-Munoz v. R.J. Reynolds Tobacco Co., 896 F.2d 5, 8
(1st Cir. 1990)). A fact is considered “material” when “its existence or nonexistence has the
potential to change the outcome of the suit.” Id. at 5 (citing Martínez v. Colón, 54 F.3d 980, 984
(1st Cir. 1995).
“To succeed in showing that there is no genuine dispute of material fact, the moving
party must direct [the Court] to specific evidence in the record that would be admissible at trial.”
Ocasio-Hernández v. Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015). “That is, it must

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While the CIA’s Motion for Summary Judgment [ECF No. 70] states that the CIA has released
15 documents in response to Plaintiff’s Coup Request, the Declaration of CIA Information
Review Officer Antoinette Shiner, cited by the CIA, states that the CIA has released 16
documents in response to the Coup Request [ECF No. 71 ¶ 23]. The Vaughn index relevant to
the Coup Request production lists 15 documents. [ECF No. 72].
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‘affirmatively produce evidence that negates an essential element of the non-moving party’s
claim,’ or, using ‘evidentiary materials already on file . . . demonstrate that the non-moving party
will be unable to carry its burden of persuasion at trial.’” Id. at 4–5 (citing Carmona v. Toledo,
215 F.3d 124, 135 (1st Cir. 2000)). Once the moving party has laid out its basis for summary
judgment, the burden shifts to the party opposing summary judgment to demonstrate, “with
respect to each issue on which she would bear the burden of proof at trial, . . . that a trier of fact
could reasonably resolve that issue in her favor.” Borges, 605 F.3d at 5.
On a motion for summary judgment, the Court reviews “the entire record in the light
most hospitable to the party opposing summary judgment.” Podiatrist Ass’n, Inc. v. La Cruz
Azul De P.R., Inc., 332 F.3d 6, 13 (1st Cir. 2003). Where inferences are to be drawn from the
stated facts, those inferences “must be viewed in the light most favorable to the party opposing
the motion.” Oleskey, 658 F. Supp. 2d at 294 (citing Founding Church of Scientology of Wash.,
D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). The Court, however,
“safely may ignore conclusory allegations, improbable inferences, and unsupported speculation.”
Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st Cir. 2003) (internal quotation and citation
omitted).
When a court faces cross motions for summary judgment, it applies the above analysis,
unaltered, “to each motion in turn.” Wilkinson v. Chao, 292 F. Supp. 2d 288, 291 (D.N.H. 2003)
(citing Wightman v. Springfield Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996)); see also
Cochran, 328 F.3d at 6 (“This framework is not altered by the presence of cross-motions for
summary judgment.”).

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B.

Summary Judgment in the FOIA Context

“In a summary judgment context, the burden rests with the agency subject to a FOIA
request to establish that it has ‘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.’” Oleskey ex rel. Boumediene v. U.S. Dep’t of Def., 658 F. Supp. 2d 288, 294 (D.
Mass. 2009) (quoting Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68 (D.C. Cir. 1990)). The
inquiry is “not whether relevant documents might exist, but whether the agency’s search was
‘reasonably calculated to discover the requested documents.’” Maynard, 986 F.2d at 559 (citing
Safecard Servs., Inc. v. S.E.C., 926 F.2d 1197, 1201 (D.C. Cir. 1991); see also Sephton v. F.B.I,
442 F.3d 27, 29 (1st Cir. 2006) (“FOIA requires a reasonable search, not an exhaustive one”
(internal quotation and citation omitted)). Moreover, the government bears the burden of proving
that any withheld information is exempt under FOIA. Carpenter v. U.S. Dep’t of Justice, 470
F.3d 434, 438 (1st Cir. 2006).
V.

DISCUSSION
Defendant argues that it conducted an adequate, reasonable search based on Plaintiff’s

requests, and that it properly withheld information pursuant to applicable FOIA exemptions.
Plaintiff argues that the search was deficient based on the inconceivably limited number of
documents produced, that the description of the CIA’s search detailed in a letter to him was
vague, and that any exemptions are inapplicable here.
A.

CIA’s Motion for Summary Judgment
i.

Adequacy of the CIA’s Search for Documents

An agency is permitted to rely upon affidavits to establish that its search was adequate,
provided that these affidavits are “relatively detailed and nonconclusory, and are submitted by

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responsible agency officials in good faith.” Maynard, 986 F.2d at 559. A sufficiently detailed
affidavit must at least “describe in reasonable detail the scope and method by which the search
was conducted.” Id. If an agency is able to demonstrate by affidavit that its search was
“reasonably thorough,” the burden shifts to the plaintiff to show that this search was not
conducted in good faith. Id. at 560. Agency affidavits are “accorded a presumption of good faith,
which cannot be rebutted by purely speculative claims about the existence and discoverability of
other documents.” Id. (internal quotations and citations omitted).
To establish the adequacy of its searches, the CIA has submitted the declarations of CIA
Litigation Information Review Office7 Chief Martha M. Lutz [ECF No. 28 (“Lutz Affidavit”)]
and CIA Information Review Officer Antoinette Shiner [ECF No. 71 (“Shiner Affidavit”)]. The
Lutz Affidavit focuses on the Coup Request, while the Shiner Affidavit focuses on the
Assassination Request. These affidavits, outlined in relevant part in the CIA’s Motion for
Summary Judgment [ECF Nos. 69–70], describe the “scope” and “method” of the CIA searches
in sufficient detail to satisfy the agency’s burden of demonstrating a good faith search effort.
Maynard, 986 F.2d at 559.
Specifically, the Lutz Affidavit outlines the CIA’s general search procedures (after a
request is received by Information Management Services (“IMS”), it is reviewed by IMS
professionals and tasked to the relevant directorates), then explains more specifically how these
procedures were followed relative to Plaintiff’s Coup Request. Lutz Affidavit ¶ 27. In relevant
part, the CIA reviewed Plaintiff’s Coup Request and tasked the Directorate of Intelligence (“DI”)
with searching the relevant record systems using “broad search terms designed to locate all
responsive documents created between 1 January 1961 and 1 January 1962.” Id. ¶ 28. The Lutz

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The Litigation Review Office was previously known as the “Litigation Support Unit.”
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Affidavit details the specific search terms used, as well as the various phases of discovery,
redaction, and release. Id. ¶¶ 28–29. It also explains that when Plaintiff appealed the CIA’s
response, the DI requested that the National Clandestine Service (“NCS”), another CIA
directorate, be tasked with the Coup Request search to “ensure that all responsive records had
been located.” Id. ¶ 30. The NCS searched for various common spellings of Park Chung-hee’s
name, and did not limit its search to a specific time period. Id. This search turned up four
records, two of which were judged non-responsive and two of which had been previously
released. Id. Lutz stated that at the time of her declaration, the CIA had released eleven
documents pertinent to the Coup Request, two of which had been released for a second time
pursuant to Plaintiff’s appeal. Id. ¶ 31. The Coup Request documents have been re-reviewed
since the time of Lutz’s declarations, and additional portions of previously-denied records were
released to Plaintiff on August 23, 2016. Shiner Affidavit ¶ 23.
The Shiner Affidavit details the CIA’s search process as applied to the Assassination
Request. With regard to this request, the CIA tasked the Directorate of Analysis (“DA”) and the
Directorate of Operations (“DO”) with searching for responsive documents. Id. ¶ 24. These
directorates were chosen because “the DA houses the Agency’s finished analytical products and
the DO has certain intelligence reporting” and is responsible for “the clandestine collection of
foreign intelligence.” Id. Both directorates used “broad search terms” described in the Shiner
Affidavit to find responsive documents created between October 20, 1979 and December 31,
1980. Id. In June of 2016, the CIA searched two additional databases—one containing
documents previously reviewed and processed for release under FOIA, the Privacy Act, and
other release programs, and one containing a listing of records retired to the CIA archives—to
find responsive records created between January 1, 1977 and December 31, 1980. Id. ¶¶ 25–26.

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These searches revealed an additional ten documents responsive to the Assassination Request,
and four of them were withheld in their entirety pursuant to FOIA exemptions (b)(1) and (b)(3).
Id. ¶ 27. All told, the CIA released fourteen documents in part and withheld sixteen documents in
full.
The Lutz and Shiner Affidavits sufficiently establish that the CIA conducted a search
“reasonably calculated to discover the requested documents.” Maynard, 986 F.2d at 559 (internal
quotation and citation omitted). Thus, Plaintiff can rebut the CIA affidavits “only by showing
that the agency’s search was not made in good faith.” Moffat v. U.S. Dep’t of Just., 716 F.3d
244, 254 (1st Cir. 2013) (citing Maynard, 986 F.2d at 560)). To support his claim that the CIA’s
response was inadequate, Plaintiff states that “[c]onsidering the extent of CIA involvement in
South Korea during the time of Park Chung-hee’s ascension to power and his assassination . . .
[Plaintiff] does not believe that it is possible that the results are only such a small number of
pages, and those pages only summaries of such a general nature.” [ECF No. 53]. This claim,
though it cites to the long history of South Korea’s relationship with the United States, is merely
speculative with regard to discoverable documents in the CIA’s possession. Therefore, it is
insufficient to rebut the presumption of good faith on the part of the CIA. Maynard, 986 F.2d at
560 (presumption of good faith “cannot be rebutted by purely speculative claims about the
existence and discoverability of other documents” (internal citations and quotations omitted)).
Because Defendant has presented sufficiently-detailed affidavits establishing the reasonableness
of its searches and Plaintiff has failed to present evidence of bad faith on the part of the CIA,
summary judgment is proper on the issue of the adequacy of the searches.

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ii.

Information Withheld Under FOIA Exemptions (b)(1) and (3)8

FOIA was enacted to promote a well-informed American citizenry by “[exposing] the
operations of federal agencies ‘to the light of public scrutiny.’” Carpenter, 470 F.3d at 437 (first
citing Dep’t of the Air Force v. Rose, 425 U.S. 352, 372 (1976), then citing Providence J. Co. v.
U.S. Dep’t of the Army, 981 F.2d 552, 556 (1st Cir. 1992)). In order to support the dissemination
of information to the public while protecting the government’s efficient administration, FOIA
includes nine exemptions for materials excused from the “general requirements of disclosure.”
Id. at 438 (internal citations omitted). These exemptions “are to be construed narrowly, with any
doubts resolved in favor of disclosure.” Id. (internal citations omitted). “The government bears
the burden of proving that withheld materials fall within one of the statutory exemptions.” Id.
(internal citations omitted). “The government’s burden is a light one,” however, because “an
agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or
plausible.” N.Y. Times Co. v. U.S. Dep’t of Just., No. 14 Civ. 03776 (AT)(SN), 2016 WL
5946711, at *5 (S.D.N.Y. Aug. 18, 2016) (internal quotations and citations omitted).

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Defendant argues that because Plaintiff’s Complaint [ECF No. 1] did not contest the
appropriateness of the CIA’s stated exemptions and instead focused solely on the adequacy of
the CIA’s search, the Court may not engage with Plaintiff’s exemption-based arguments now
[ECF No. 70]. In support of this position, Defendant cites cases noting that a plaintiff is not
permitted to amend his or her complaint to include new claims at the summary judgment stage.
See, e.g., Gilmour v. Gates, McDonald & Co., 382 F.3d 1312, 1315 (11th Cir. 2004); Bell v. City
of Philadelphia, 275 Fed. App’x 157, 160 (3d Cir. 2008). Here, however, Plaintiff’s argument
about the FOIA exemptions appears not to be a new claim, but instead a response to the CIA’s
third affirmative defense: that “documents are protected from disclosure by various exemptions
to the FOIA.” [ECF No. 7]. Furthermore, the Plaintiff’s exemption-based argument arguably
falls within his existing claim that “[t]here is no legal basis for Defendants’ refusal to disclose the
records sought.” [ECF No. 1]. Therefore, Plaintiff’s argument about the appropriateness of the
FOIA exemptions does not present an impermissible new claim.
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a.

FOIA Exemption (b)(1)

FOIA Exemption (b)(1) states that the FOIA requirements do not apply to matters that are
“(A) specifically authorized under criteria established by an Executive order to be kept secret in
the interest of national defense or foreign policy and (B) are in fact properly classified pursuant
to such Executive order.” 5 U.S.C. § 552(b)(1). Here, the CIA asserts that certain documents
have been properly withheld under Executive Order 13526, which states that information may be
classified under the Order when:
(1) An original classification authority is classifying the information; (2) the
information is owned by, produced by or for, or is under the control of the United
States Government; (3) the information falls within one or more categories listed
in section 1.4 of this order; and (4) the original classification authority determines
that the unauthorized disclosure of the information reasonably could be expected to
result in damage to the national security, which includes defense against
transnational terrorism, and the original classification authority is able to identify
or describe the damage.
Exec. Order No. 13526, 75 Fed. Reg. 707 (Dec. 29, 2009) (“Executive Order 13526”).
“Courts . . . accord substantial deference to the CIA’s determination that information
must be withheld under Exemption 1, and will uphold the agency’s decision so long as the
withheld information logically falls into the category of the exemption indicated, and there is no
evidence of bad faith on the part of the agency.” Maynard, 986 F.2d at 555–56 (internal
quotations and citations omitted). Because the first two conditions of Executive Order 13526—
that an original classifying authority (here, the CIA) is classifying the information and that the
information is owned by, produced by or for, or is under the control of the government—are
undisputed here, the Court proceeds to a discussion of the third and fourth conditions.
The third condition refers to Section 1.4 of Executive Order 13526, which states that
information “shall not be considered for classification unless its unauthorized disclosure could
reasonably be expected to cause identifiable or describable damage to the national security” and
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it pertains to one or more of seven enumerated categories. Exec. Order No. 13526, 75 Fed. Reg.
708. In relevant part, these categories include “(c) intelligence activities (including covert
action), intelligence sources or methods, or cryptology” and “(d) foreign relations or foreign
activities of the United States, including confidential sources.” Id. The CIA claims, and the Court
agrees, that the information withheld here logically falls into the classification categories of
intelligence activities, intelligence sources and methods, and foreign relations or foreign
activities of the United States. [ECF No. 70]; Shiner Affidavit ¶ 29. Specifically, the CIA argues
that the information contained in withheld documents would “reveal the depth and breadth of the
CIA’s specific intelligence capabilities, authorities, interests, and resources.” [ECF No. 70].
Plaintiff does not address the CIA’s specific assertion that the withheld information falls
under categories (c) and (d) of Section 1.4 of Executive Order 13526.9 Instead, Plaintiff states
that “considering the length of time which has passed since the events which are the subject of
this FOIA request and that they happened in a friendly country[,] it is hard to understand what
national defense or foreign policy could be implicated.” [ECF No. 53]. Plaintiff therefore appears
to dispute whether the CIA’s withheld information “could reasonably be expected to cause
identifiable or describable damage to the national security,” as required under Section 1.4. The
CIA adequately addresses both Plaintiff’s argument about South Korea’s status as a friendly
nation and about the passage of time.
With regard to the positive relationship between the United States and South Korea, the
CIA states that maintaining a friendly relationship is crucial, and that revealing information
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At the time that Plaintiff filed his Motion for Summary Judgment [ECF No. 53], he was not
aware of the specific Executive Order cited by the CIA as grounds for its decision to withhold
documents under 5 U.S.C. § 552(b)(1). The CIA identified Executive Order 13526 in its Motion
for Summary Judgment [ECF Nos. 69–70], but Plaintiff never filed a response or opposition to
that motion. Therefore, the Court must proceed based only on Plaintiff’s broad claims about 5
U.S.C. § 552(b)(1).
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about United States “intelligence activities, sources, and methods” could have an adverse effect
on relations with a key ally in Asia [ECF No. 70]; Shiner Affidavit ¶¶ 33–34. Furthermore, even
when a friendly nation is involved, revealing confidential sources’ identities could expose
aspects of the CIA’s recruitment process, negatively impact sources and their families, and hurt
the CIA’s ability to recruit future confidential sources. [ECF No. 70]; Shiner Affidavit ¶ 35.
Finally, according to the CIA, responding to all FOIA requests for information about events in
friendly countries could reveal the CIA’s resources, interests, activities, and priorities “piece by
piece,” further endangering national security and foreign relations. [ECF No. 70]; Shiner
Affidavit ¶¶ 35–38. Therefore, the CIA asserts, disclosing currently withheld information “could
reasonably be expected to cause damage to U.S. national security and current foreign relations”
despite the fact that the United States and South Korea are allies. [ECF No. 70].
As to the passage of time, Executive Order 13526 provides for the automatic
declassification of historically significant10 records that were created over 25 and 50 years ago,
unless certain conditions are met. In relevant part, Section 3.3(b)(1) of Executive Order 13526
exempts from automatic declassification 25-year-old documents “the release of which should
clearly and demonstrably be expected to . . . reveal the identity of a confidential human source, a
human intelligence source, a relationship with an intelligence or security service of a foreign
government or international organization . . . or impair the effectiveness of an intelligence
method currently in use, available for use, or under development.” Exec. Order No. 13526, 75
Fed. Reg. at 714–15. Furthermore, Section 3.3(b)(6) of Executive Order 13526 exempts from
automatic declassification 25-year-old documents containing “information, including foreign
10

To be automatically declassified under Section 3.3 of Executive Order 13526, records must
have “permanent historical value.” Exec. Order No. 13526, 75 Fed. Reg. at 714. The CIA does
not appear to dispute the historical value of the information in question, and instead relies on
exceptions to automatic declassification under Section 3.3.
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government information, that would cause serious harm to relations between the United States
and a foreign government.” Id. at 715. Under Section 3.3(h) of Executive Order 13526,
documents over 50 years old are exempted from release if they reveal “the identity of a
confidential human source or a human intelligence source” or “key designs of weapons of mass
destruction.” Id. at 716–17.
Here, the CIA located 30 responsive documents that were over 25 years old, and 15
responsive documents that were over 50 years old. The CIA determined that the information in
these records was properly withheld under FOIA exemption (b)(1) because it relates to “CIA
intelligence methods still in use, would reveal a confidential human source[,] or would reveal
foreign government information that would impair the U.S. foreign relations with another
country.” [ECF No. 70]; Shiner Affidavit ¶ 32.
The fourth classification condition under Executive Order 13526 is that the “unauthorized
disclosure of the information reasonably could be expected to result in damage to the national
security . . . and the original classification authority is able to identify or describe the damage.”
Exec. Order No. 13526, 75 Fed. Reg. at 707. Because this condition mirrors the Section 1.4
requirement that the information could “reasonably be expected to cause identifiable or
describable damage to the national security,” further discussion of this condition is unnecessary
here. Id.
As described above, the information withheld by the CIA “logically falls into the
category” of Exemption (b)(1) as it relates to Executive Order 13526. Maynard, 986 F.2d at 555–
56. Furthermore, Plaintiff has failed to provide non-speculative evidence of bad faith on the part
of Defendant. Id. Therefore, the Court defers to the CIA’s judgment and accepts that the
information has been properly withheld. Id.

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b.

FOIA Exemption (b)(3)

FOIA Exemption (b)(3) states that the FOIA requirements do not apply to matters that are
“specifically exempted from disclosure by statute . . . if that statute (A)(i) requires that the
matters be withheld from the public in such a manner as to leave no discretion on the issue; or
(ii) establishes particular criteria for withholding or refers to particular types of matters to be
withheld; and (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.” 5 U.S.C. § 552(b)(3). Here, the CIA relies on Section 102A
of the National Security Act of 1947, 50 U.S.C. § 3024 (“National Security Act”) and on Section
6 of the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507 (“CIA Act”). The National
Security Act, in relevant part, states that “[t]he Director of National Intelligence shall protect
intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1).
Relatedly, the CIA Act exempts the CIA from “law[s] which require the publication or
disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel
employed by the Agency.” 50 U.S.C. § 3507.
“Courts evaluating Exemption 3 claims must accord the same substantial weight to the
agency’s judgment as with Exemption 1 claims.” Nat’l Sec. Archive Fund, Inc. v. C.I.A., 402 F.
Supp. 2d 211, 216–17 (D.D.C. 2005) (first citing C.I.A. v. Sims, 471 U.S. 159, 179 (1985) (“The
decisions of the Director, who must of course be familiar with ‘the whole picture,’ as judges are
not, are worthy of great deference given the magnitude of the national security interests and
potential risks at stake”); then citing Gardels v. C.I.A., 689 F.2d 1100, 1104–05 (D.C. Cir. 1982);
and then citing Phillippi v. C.I.A., 655 F.2d 1325, 1332 (D.C Cir. 1981)); see also Church of
Scientology Int’l, 30 F.3d at 235 (“agency decisions to withhold materials under Exemption 3 are
entitled to some deference”); Sims, 371 U.S. at 180 (“it is the responsibility of the Director of

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Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors
in determining whether disclosure of information may lead to an unacceptable risk of
compromising the Agency’s intelligence-gathering process”). For Exemption (b)(3) to apply, the
invoked statute must constitute “a statutory exemption to disclosure within the meaning of
Exemption 3” and the requested information must be “included within” the statute’s
“protection.” Maynard, 986 F.2d at 554 (quoting Sims, 471 U.S. at 167). “[O]nce a court
determines that the statute in question is an Exemption 3 statute, and that the information
requested at least arguably falls within the statute, FOIA de novo review normally ends.”
Aronson v. I.R.S., 973 F.2d 962, 967 (1st Cir. 1992).
Both the National Security Act and the CIA Act qualify as Exemption (b)(3) statutes. See
Shiner Affidavit ¶¶ 40, 41; Berman v. C.I.A., 501 F.3d 1136, 1137–38, 1140 (9th Cir. 2007)
(holding that 50 U.S.C. § 403-1, the previous codification of Section 102A of the National
Security Act, and 50 U.S.C. § 403g, the previous codification of Section 6 of the CIA Act, fall
under FOIA Exemption (b)(3)); Maynard, 986 F.2d at 554 (noting that National Security Act is
an Exemption (b)(3) statute). Thus, the next inquiry is whether Plaintiff’s requested information
“at least arguably” falls under these statutes. Aronson, 973 F.2d at 967. With regard to the
National Security Act, the CIA states that “[r]evelation of the withheld information would
disclose the CIA’s intelligence sources and methods, which the National Security Act is designed
to protect.” [ECF No. 70]; Shiner Affidavit ¶ 42. With regard to the CIA Act, the CIA states that
it is exempt from disclosures concerning the CIA’s “core function: intelligence collection
through its intelligence sources and methods.” [ECF No. 70]; see also Shiner Affidavit ¶ 41.
Based on these arguments, Plaintiff’s requested information “at least arguably” falls under the

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National Security Act and the CIA Act, and Exemption (b)(3) therefore permits the information
to be withheld. Aronson, 973 F.2d at 967.
Plaintiff argues that Exemption (b)(3) should not apply because then-relevant information
about CIA methods, employees, and sources can no longer be considered pertinent or harmful
given the significant amount of time that has elapsed since the relevant events. [ECF No. 53].
This argument is analogous to Plaintiff’s time-related claims against the application of
Exemption (b)(1). The discussion above, concerning the potential impact on national security
despite the passage of time that could result from disclosure, therefore applies here. Furthermore,
“[c]ourts have generally rejected the contention that the mere age of intelligence information
rules out Exemption 3.” Maynard, 986 F.2d at 555 n.6 (stating that the fact that information was
30 years old did not mean it could not harmfully reveal intelligence sources or methods).
Plaintiff therefore is unable to establish that the requested information does not, “at least
arguably,” fall under Exemption (b)(3).
Because the CIA adequately searched for responsive documents and properly withheld
certain documents under FOIA Exemptions 1 and 3, the CIA’s Motion for Summary Judgment
[ECF No. 69] is GRANTED.
B.

Plaintiff’s Motion for Summary Judgment

Plaintiff claims that he is entitled to summary judgment because the CIA unlawfully
withheld documents and impermissibly applied FOIA Exemptions 1 and 3. [ECF No. 53].
“‘[S]ummary judgment in favor of the FOIA plaintiff’ is appropriate ‘[w]hen an agency seeks to
protect material which, even on the agency’s version of the facts, falls outside the proffered
exemption,’ but should be denied if the agency satisfies its burden ‘to show that requested

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material falls within a FOIA exemption.’” N.Y. Times Co., 499 F. Supp. 2d at 509 ((quoting
Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)).
Based on the discussion above, as supported by the Lutz and Shiner Affidavits, Plaintiff
has failed to show that there is no genuine dispute as to any material fact and that he is entitled to
judgment as a matter of law. See Fed. R. Civ. P. 56. Furthermore, Plaintiff’s assertions are made
up in large part of “conclusory allegations” and “unsupported speculation” based solely on the
United States government’s long-term involvement in South Korea. Cochran, 328 F.3d at 6. The
Court is permitted to disregard such assertions at the summary judgment phase. Id. Therefore,
Plaintiff’s Motion for Summary Judgment [ECF No. 53] is DENIED.
VI.

CONCLUSION
Accordingly, Defendant’s Motion for Summary Judgment [ECF No. 69] is GRANTED

and Plaintiff’s Motion for Summary Judgment [ECF No. 53] is DENIED.
SO ORDERED.
Dated: May 17, 2017
/s/ Allison D. Burroughs
ALLISON D. BURROUGHS
U.S. DISTRICT JUDGE

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