UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

Civil Action No. 17- 00160 (TNM)
____________________________________
ASSASSINATION ARCHIVES AND :
RESEARCH CENTER :

Plaintiff,

v.

CENTRAL INTELLIGENCE AGENCY :

Defendant.
____________________________________ :
AARC’S REPLY IN SUPPORT OF AARC’S CROSS-MOTION FOR
SUMMARY JUDGMENT TO REQUIRE CIA TO PERFORM AN
ADEQUATE SEARCH AND RELEASE NON-EXEMPT RECORDS, OR
PORTIONS

Case 1:17-cv-00160-TNM Document 26 Filed 02/20/18 Page 1 of 17

TABLE OF CONTENTS
Page No.
PRELIMINARY STATEMENT………………………………… 4
A. CIA reveals that its Chief Historian participated
in responding to AARC’s request, and CIA ignores
President Trump directive…………………………………… 4
ARGUMENT…………………………………………………… 6
A. CIA’s Search was Inadequate……………………………. 6
B. CIA’s Vaughn Index is Deficient……………………….. 11
C. CIA’s b(1) Exemption Claim Fails……………………… 13
D. CIA’s b(3) Exemption Claim Fails………………………. 14
E. CIA’s b(5) Exemption Claim Fails………………………. 15
F. CIA’s b(6) Exemption Claim Fails………………………. 15
CONCLUSION…………………………………………………. 16

TABLE OF AUTHORITIES
Federal cases
Founding Church of Scientology,Inc. v. Nat. Sec. Agency,
610 F.2d 824 (D.C.Cir.1979)……………………………………… 7
King v. United States Department of Justice ,
830 F.2d 210, 218 (D .C .Cir .1987)………………………………. 11
Neugent v. U.S. Dept. of Interior (Neugent),
640 F.2d 386,391 (D.C. Cir. 1981)…………………………………. 11
Reporter’s Committee for Freedom of the Press v. FBI,
877 F.3d 399 (D.C. Cir. 2017)…………………………………….. 7,8,9
Truitt v. Department of State,
897 F.2d 540 (D.C.Cir. 1990)……………………………………… 7
Vaughn v. Rosen,
484 F.2d 820, 824-825 (D.C.Cir. 1973)…………………………… 11,12
Rules and Statutes
Freedom of Information Act 5 U.S.C. Sec. 552(a)……………………. passim
National Security Act of 1947, 50 U.S.C. Sec. 3024…………………. 15
Miscellaneous
Executive Order 13,526 ……………………………………………….. 13,14

Plaintiff AARC replies in support of its Cross-motion for summary judgment
(ECF #21) and incorporates by reference the arguments and evidence supporting
its own Cross-motion and will not restate them here except as necessary for
clarification and emphasis.

PRELIMINARY STATEMENT

A. CIA reveals that its Chief Historian participated in responding to AARC’s
request, and CIA ignores President Trump directive.

CIA in its response to AARC’s cross-motion attempts to minimize the
significance of the records requested, but contradicts this position by revealing that
the Chief Historian of the CIA (David Robarge) was personally involved in
formulating CIA’s response to AARC’s FOIA request.1 According to CIA, Chief
Historian Robarge advised on Agency-wide searches in response to AARC’s
request and searched his own files for responsive records, due to his familiarity
with the subject matter. See pp. 3-4 of text of CIA’s Reply and Opposition, ECF #
24. However, there is no declaration by Robarge submitted by CIA. This
omission requires further exploration by way of a deposition of Robarge on his
participation in this search.

1 CIA Chief Historian Robarge authored a report in 2013 in which he contended that CIA
Director John McCone was at the heart of a “benign cover-up” of the assassination of President
Kennedy by withholding information from the Warren Commission about CIA plots to
assassinate Fidel Castro. “Yes, the CIA Director Was Part of the JFK Assassination Cover-Up”,
Politico Magazine, Philip Shenon, Oct. 6, 2015, attached as Exhibit 1.

CIA’s response is curiously silent on the October 2017 directives by President
Donald J. Trump cited in AARC’s brief that agencies should, in the public interest,
expeditiously release the maximum amount of material related to the assassination
of President John F. Kennedy, as are the records at issue. Trump Directive cited at
pp. 11, 27-28, AARC cross-motion, ECF #21. CIA does not even acknowledge
these cited instructions from the President even though he is the officer of the
government with authority over CIA and these issues. The Court should treat the
CIA’s silence as a concession that the President has directed prompt release of
such material, as he has in fact done, demonstrating the high public interest and
significance of the information requested. As set forth in AARC’s cross-motion,
the information requested relates in part to U.S. government efforts to overthrow
Fidel Castro in Cuba in the fall of 1963. Such activities have been the subject of
multiple government investigations to determine if there is a relationship between
such activities and the assassination of President Kennedy on November 22, 1963,
including CIA Chief Historian Robarge’s 2013 report finding a CIA “benign
cover-up” of such activities. See footnote 1.

Further, President Trump has recently utilized the public interest provision of
Executive Order 13526 to release Top Secret classified information in other
contexts, in particular release of the House of Representatives Intelligence
Committee report on compliance with the Foreign Intelligence Surveillance Act.

Statement of White House Counsel McGahn, February 2, 2018, attached as Exhibit
2. Clearly the President is the responsible officer of the government on issues of
classification and release of classified documents. CIA must acknowledge
President Trump’s directives to release JFK assassination related material such as
the information requested in this case, and demonstrate it has complied with them.
CIA entirely fails to explain its confused and contradictory handling of the
multiple searches in this case, instead stating the barest possible explanation at the
end of a footnote that this confusion was the result of “administrative error” with
no further explanation. 3rd Shiner Decl. p. 2 n.1 ECF # 24-1. CIA’s inadequate
response leaves unresolved material issues of fact that preclude a grant of summary
judgment to the government. AARC must be allowed to take discovery on the
searches as requested, including a deposition of CIA Chief Historian David
Robarge, who has been injected into this matter by CIA’s latest filing as a key
participant in the search, thereby opening the door to exploration of Robarge’s role
in this case. Further CIA must acknowledge the instructions of its superior officer
in the government, President Trump, and explain what it is doing to carry out his
instructions.

ARGUMENT

A. CIA’s Search was Inadequate.

When the adequacy of the agency’s search is in dispute, summary judgment for
an agency is inappropriate as to that issue. See Founding Church of Scientology,
Inc. v. Nat. Sec. Agency, 610 F.2d 824, 836-37 (D.C.Cir.1979).If doubt exists as to
the adequacy of the search, Truitt counsels, “summary judgment for the agency is
not proper.” Truitt v. Department of State, 897 F.2d 540 (D.C.Cir. 1990). In this
case, as noted above, there is growing substantial doubt as to the adequacy of the
search.

The Court of Appeals has recently emphatically restated that decisions in this
circuit have long held that declarations must describe in detail how searches were
conducted, including search terms that were used, and results yielded in the search
of each component of an agency. Reporter’s Committee for Freedom of the Press
v. FBI, D.C. Circuit Case No. 17-5042, 2017 WL 6390484 (D.C. Cir. Dec. 15,
2017) pp. 7-8 slip opinion, 877 F.3d 399 (D.C. Cir. 2017).

In this case, CIA has still failed to state all of its search terms, and is hiding the
results yielded by searches of agency components. Further, CIA apparently has
not searched under the most relevant search terms, “July 20 plot” and “plot to kill
Hitler” despite AARC calling these terms to their attention in its cross-motion.
Nor has CIA searched the terms “Joint Chiefs meeting September 25, 1963”,
‘Rolando Cubela”, or “Castro overthrow” or “Manuel Artime”, “Desmond
Fitzgerald”, or “Walter Higgins” as suggested in AARC’s cross-motion. As noted
above, CIA now points to the involvement of its Chief Historian David Robarge in
this search, but provides no declaration from Mr. Robarge documenting his search
activities. Nor has CIA documented what it has done to comply with President
Trump’s directive to release the maximum amount of material related to the JFK
assassination, as set forth above. As the Court of Appeals made clear in its recent
Reporter’s Committee opinion, summary judgment for the agency is not
appropriate in such circumstances, and instead AARC’s cross-motion for summary
judgment on the search issue should be granted.

First, CIA has provided contradictory information as to the results of its search,
initially claiming it found no records, then withdrawing that letter as sent in error,
then reinstating that letter, and finally conducting another search once litigation
was initiated that found responsive records. CIA’s only explanation of these
problems is a short footnote calling them “administrative error’ without further
explanation. 3rd Shiner Decl. p. 2 n.1 ECF # 24-1. AARC must be allowed to take
discovery on these searches and errors, including the deposition of CIA Chief
Historian David Robarge, who CIA reveals was involved in formulating and
conducting the searches in this case and himself has authored a report finding a
“benign cover-up” by the CIA of the JFK assassination. See footnote 1.
Second, CIA withholds the crucial information that would document its search
and search results, by withholding the contents of five documents that record the
search process. Instead of adequately documenting the search, CIA has taken the
opposite approach and is actively hiding the breadth and results of the search.
Such active withholding of relevant information to the search issue makes
summary judgment for CIA inappropriate under the recent Reporter’s Committee
decision. The Court has authority under FOIA 5 USC Sec. 552(a)(4)(B) to make a
de novo review of the handling of plaintiff’s request and such review includes
knowing how the request was handled by employees of the government.
Third, the documentary record of the Higgins Memorandum evidences the
likelihood of more of a documentary record than CIA has produced to date. The
Higgins memo records a briefing of the Joint Chiefs of Staff of the U.S. military by
the CIA’s head of Cuban activities during a period in which the U.S. relationship
with Cuba was one of the highest priority items of U.S. foreign policy. The CIA’s
detailed study of the 1944 plot to kill Hitler in order to develop an approach to
Fidel Castro was therefore one of the most important activities of the U.S.
government at that time. Yet CIA has failed to produce any such records or
explain the failure to do so. CIA attempts improperly to reverse the burden it
carries under FOIA 5 USC Sec. 552(a)(4)(B) and impose it instead on plaintiff.

The FOIA statute is clear that the burden is on the agency to justify its actions in
response to a request, not on the requester to prove otherwise.

AARC has supplied CIA with explicit leads and information to assist its search
and CIA is required to follow up on those leads. Reporter’s Committee v. FBI, p.
14. In addition to the explicit references in the Higgins Memo, AARC has
provided references to the Church Committee investigations and an unrebutted
declaration from author William E. Kelly, Jr. as to his findings as to places where
the plot to kill Hitler appears in the circumstances surrounding the assassination of
President Kennedy. FOIA requires CIA to pursue those compelling leads and
information and does not require AARC to prove what CIA has in its possession
but cannot or will not find.

Fourth, it is illogical and contrary to history that the CIA has only one record
related to the 1944 plot to kill Adolf Hitler, which CIA director (and Warren
Commissioner) Allen Dulles was in contact with at the time. The fact that the one
document produced in this case, the Propagandist’s Guide, relates to the twentieth
anniversary of the plot to kill Hitler supports the importance of the event. Even an
anniversary was important enough to receive written discussion in CIA records, yet
we are to believe that detailed study of the event to develop an avenue to deal with
Fidel Castro was not important enough to create records. Nor was any record
created about this event in the history of the CIA other than a document related to
the twentieth anniversary. Such a result is illogical and contrary to history.
In addition to ordering a new and competent search, this Court should allow
AARC to conduct discovery on CIA’s handling of this search in the form of a
deposition or depositions of CIA Chief Historian David Robarge and other officials
who conducted the searches and are responsible for the contradictory responses.
Neugent v. U.S. Dept. of Interior (Neugent), 640 F.2d 386,391 (D.C. Cir. 1981)
(holding that discovery sought prior to summary judgment should be answered in
the interests of clarifying the matter).

B. CIA’s Vaughn Index is deficient.

As noted in AARC’s cross-motion memorandum, in King, 830 F.2d 210,218,
“[t]he significance of agency affidavits in a FOIA case cannot be underestimated.”
The reason for this is that ordinarily the agency alone possesses knowledge of the
precise content of documents withheld. Thus, “the FOIA requester and the court
both must rely upon its representations for an understanding of the material sought
to be protected.” Id .The agency’s statements are critical because “[t]his lack of
knowledge by the party see[k]ing disclosure seriously distorts the traditional
adversary nature of our legal system’s form of dispute resolution, ‘with the result
that ‘[a]n appellate court, like the trial court, is completely without the
controverting illumination that would ordinarily accompany a lower court’s factual
determination.” . Id., quoting Vaughn v. Rosen, 484 F.2d 820, 824-825 (D.C.Cir.
1973).

As King also stated: Specificity is the defining requirement of the Vaughn
index and affidavit; affidavits cannot support summary judgment if they are
“conclusory, merely reciting statutory standards or sweeping.” To accept an
inadequately supported exemption claim “would constitute an abandonment of the
trial court’s obligation under the FOIA to conduct a de novo review.” Id., at 219
(citations omitted). This index “must describe each document or portion thereof
withheld, and for each withholding it must discuss the consequences of disclosing
the sought after information.” Id, at 223-224 (emphasis in original).

In this case, the Vaughn index and declaration submitted by CIA are wholly
deficient. They fail to specifically link asserted FOIA exemptions to rationales for
withholding, and instead make blanket assertions for multiple FOIA exemptions.
Since FOIA exemptions were enacted to meet specific factual situations, this
blanket assertion of rationales for exemptions is inappropriate and does not justify
the withholdings.

Further, there is no context given for the Court or counsel to understand the
asserted exemptions. Documents are released related to Propaganda techniques,
yet CIA seems to claim an exemption for these same Propaganda techniques,
which is illogical and inappropriate. Vital information related to the searches
undertaken and the results found are withheld under exemption claims.
Also, CIA has now identified its Chief Historian David Robarge as a key
participant in the search but has provided no declaration by him to document his
activities. Nor has CIA stated what it has done to comply with President Trump’s
directive to release the maximum amount of information related to the JFK
assassination such as the records in this case.

In addition, CIA has not identified a reasonably foreseeable harm to a protected
government interest to justify its withholdings, as required by the FOIA
Improvement Act of 2016, codified at 5 U.S.C. Sec. 552(a)(8)(A). CIA cannot
withhold records and information without making a determination of reasons to
foresee harm to a protected government interest.

C. CIA’s b(1) exemption claim fails

CIA fails to find an exemption from the automatic declassification provisions of
Executive Order 13526 for documents over 50 years in age, and these records must
be released. CIA does not deny that it fails to meet the exceptional circumstances
test of section 3.3(h) of that executive order, as pointed out by AARC in its crossmotion.
Nor does CIA meet the test of section 3.3(j) of that order, which states
(1) The notification shall include:
(A) a detailed description of the information, either by reference to information in
specific records or in the form of a declassification guide;
(B) an explanation of why the information should be exempt from automatic
declassification and must remain classified for a longer period of time; and
(C) a specific date or a specific and independently verifiable event for automatic
declassification of specific records that contain the information proposed for
exemption.

CIA asserts that all information it describes by the general term intelligence
method is exempt from automatic declassification under section 3.3(j). There
could hardly be a more generalized description of information, and it is certainly
not a detailed description of the information nor identification of specific records
as required in subsection (j)(1)(A). Nor has CIA provided a specific date or a
specific independently verifiable event for automatic declassification of the
withheld records, as required by subsection (j)(1)(C) The requirements of EO
13526 section 3.3(j) are not met on this record, rather the 54 year old documents at
issue must be treated as the Executive order states- they must be automatically
declassified for reasons of their age being over 50 years.2
CIA does not deny that the Propagandist’s Guide document does not contain
classification markings that comply with the requirements of Executive Order
13,526 Section 1.6.

D. CIA’s b(3) exemption claim fails

Because the records at issue under exemption b(3) are properly automatically
declassified under EO 13526, CIA’s b(3) exemption claim also fails. As noted, the
2 CIA’s failure to follow the automatic declassification provisions of EO 13526 and its failure to
acknowledge President Trump’s directive to release Kennedy assassination records are troubling.
Both circumstances involve executive authority over the CIA.
Executive order reflects Presidential authority over the CIA on matters of
classification and declassification. Records automatically declassified under the
executive order are properly approved for release and not subject to a b(3)
exemption claim pursuant to the National Security Act of 1947 (“NSA Act”) 50
U.S.C. §3024, which guards against unauthorized disclosure.

E. CIA’s b(5) exemption claim fails

The material withheld under b(5) is the result of CIA’s searches for responsive
records in this matter. CIA asserts that deliberative process should exempt such
material as it contains CIA’s determinations as to whether to release or account for
apparently responsive material. The Freedom of Information Act 5 USC Sec. 552
(a)(4)(B) empowers this Court to make a de novo review of the handling of a FOIA
request to see that it was handled properly under the law. The court must review
these results of CIA’s search to make such a de novo determination. This statutory
provision overrides CIA’s assertion of deliberative privilege because by statute,
CIA’s actions are at issue in this case.

F. CIA’s b(6) exemption claim fails

CIA concedes that the subject matter of this request, the assassination of
President Kennedy, is a matter of very high public interest. Nor does CIA contest
that its handling of the searches in this matter have been confused, contradictory
and in error. CIA does not offer any explanation of these events other than that
they were in “administrative error”. These errors and contradictions add to the
public interest in knowing what the government is doing in responding to this
request. Further, CIA has revealed in its opposition the identity of one of the key
personnel participating in and directing the search- CIA Chief Historian David
Robarge. Obviously CIA felt it necessary to reveal the identity of this officer
because of the public interests in the subject matter of this request. In this context,
the public interest outweighs privacy interests in knowing who else conducted the
searches in question so that they might be deposed as to their knowledge.

CONCLUSION
In consideration of the foregoing and AARC’s memorandum in support of its
cross-motion for summary judgment, plaintiff AARC hereby moves the court for
summary judgment that defendant CIA has not conducted an adequate search for
records responsive to AARC’s FOIA request, and that CIA be ordered to conduct
an adequate search for responsive records, including operational files, and provide
them to AARC. Further, in light of the confusion and admitted error evident in
CIA’s search for responsive records in this case AARC moves that the Court order
that AARC be permitted to conduct discovery of CIA’s search activities and
location of responsive records and that such discovery include taking the
deposition of CIA Chief Historian David Robarge, who personally participated in
and directed the search due to his expertise in the subject matter. Further AARC
prays the Court for an order compelling CIA to release to plaintiff the material
withheld improperly under exemption claims as set forth above.

Respectfully submitted,
__/s/_Daniel S. Alcorn_____
Daniel S. Alcorn
Counsel for Plaintiff
Assassination Archives
and Research Center

James H. Lesar
Co-counsel for Assassination
Archives and Research Center

“Routine” Destruction

Case No. 1:17-cv-00588CRC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID TALBOT,

Plaintiff

v.

U. S. DEPARTMENT OF
STATE, and the CENTRAL
INTELLIGENCE AGENCY,

Defendants

DECLARATION OF WILLIAM SIMPICH

1. My name is William Simpich. I am over the age of eighteen years; I am
competent to testify in this matter; and I make this Declaration to the best of
my knowledge and memory.

2. I am an attorney admitted to practice in the state of California; the Northern
District of California, the Central District of California, the Ninth Circuit, and
the U.S. Supreme Court. I have been in the active practice of law for the
past 35 years.

3. I have been involved in research and investigation of the assassination of John
F. Kennedy for the past 15 years. I have authored various articles and often
speak at conferences on the subject. I am the author of State Secret, a book
on CIA and intelligence aspects of the assassination available at
https://www.maryferrell.org/pages/Features_Archive_-_2013.html.

4. The fact that CIA works through liaison with the United States Department of
State (“DOS”) to provide diplomatic cover to CIA officers stationed overseas
is a well-known and established fact known to the public from many
declassified records previously released by CIA. As examples of such I have
attached the following exhibits to this affidavit:

a. CIA Document, Comments on Phillips Manuscript, undated, RIF 104-
10105-10103 indicating that CIA’s “Central Cover Staff points out” that
Winston Scott, the CIA chief of station in Mexico City in 1963, “retired
under State Department Cover.” This document not only indicates the use
of State Department Cover by CIA employees and retirees, it identifies the
entity in CIA that dealt with such cover, the Central Cover Staff. The
document was reviewed and declassified in 1998 and is publicly available
on the National Archives and Record Center’s website at
https://www.archives.gov/files/research/jfk/releases/104-10105-

b. CIA Request for Security Certification from Personnel Security Division
from Official Cover and Liaison, 06/27/60, RIF 104-10130-10345 which
indicates that “security certification was provided by CIA to the
Department of State when a CIA officer was working under DOS cover.
The document also identifies two additional CIA offices involved in the
process, “Personnel Security Division” and “Official Cover & Liaison,”
and further indicates that the subject of the request was on a temporary
duty assignment (“TDY”). The document was declassified and released in
full in 1993 by CIA and is publicly available at
https://maryferrell.org/showDoc.html?docId=12080&search=%22securit

c. CIA Request for Security Certification from Personnel Security Division
from Official Cover and Liaison, 07/07/61, RIF 104-10128-10295 which
was declassified and released in full by CIA in 1998 and is publicly
available at
https://maryferrell.org/showDoc.html?docId=15570&search=%22securit
Many other, similar Requests for Security Certification have been declassified and are
publicly available.

d. CIA Memorandum to Official Cover Branch/CCS from Clearance
Division, Office of Security, 06/13/74, Record No.
1993.08.02.10:12:37:370060 indicates that these two branches were also
involved in the process of coordination between CIA and DOS in the use
of diplomatic cover for CIA employees. This document declassified and
released with redactions as part of the CIA Historical Review Program in
1993 and is publicly available at
https://www.maryferrell.org/showDoc.html?docId=102744&search=ccs_

e. CIA Memorandum to Security Advisor/HMAB from Honor and Merit
Awards Board, 11/15/68, RIF 104-10121-10236 indicates that the CIA
Central Cover Staff arranges “appropriate liaison channels to obtain the
State Department concurrence.” This document was declassified and
released with redactions by CIA in 1998 and is publicly available at
https://www.maryferrell.org/showDoc.html?docId=63737&search=%22c

5. A 16 March 1965 Memorandum indicates that CIA had an arrangement with
the Agency for International Development similar to that maintained directly
with DOS. CIA Memorandum for Personnel Security Division from
C/OCD/CCS, 3/16/65, RIF 104-10121-10287, available at
https://www.maryferrell.org/showDoc.html?docId=63751&search=%22central_cover%22+AND+%22security+certification%22#relPageId=2&tab=page

6. In 2011 the U.S. government officially acknowledged that Raymond Davis
who had been detained in Pakistan for shooting two men and held a U.S.
Diplomatic Passport was a CIA employee. Spencer Ackerman, “U.S. Admits:
Jailed Diplomat Actually Works for CIA,” Wired, 2/22/11, available at
https://www.wired.com/2011/02/u-s-admits-diplomat-in-pakistan-jailactually-
works-for-cia/.

7. CIA declassified documents have also revealed that the CIA uses commercial
cover as well. “Commercial cover” is when a CIA employee works overseas
posing as employees of private businesses. See, e.g., CIA Memorandum for
Deputy Director of Plans from Central Cover Staff, 10/14/70, in Record No.
1993.07.24.08:35:20:900310, CIA Security File on E. Howard Hunt available
at
https://www.maryferrell.org/showDoc.html?docId=103901&search=%22wil
This document was found by
searching for the previously disclosed name of the person serving in 1970 as
Chief of the Central Cover Staff, Willard F. Burke. In addition to illustrating
CIA’s use of commercial cover, the document being found by searching for a
disclosed name illustrates how disclosure of such names in ancient documents
can lead to the public gaining further understanding of how the government,
as manifested by agencies such as CIA and DOS, operate.

8. The use of diplomatic cover for CIA officers overseas has been broad public
knowledge since at least the 1970’s. In 1979, for example, it was reported,
“Though rarely proclaimed publicly, the use of diplomatic titles to protect
intelligence officers in foreign countries has long been standard practice for
the United States….The stationing of Central Intelligence Agency employees
with diplomatic titles in American embassies has been discussed openly for
years.” Robert G. Kaiser, “Diplomatic Titles Often Used to Protect
Intelligence Aides,” Washington Post, 12/5/79, available at
https://www.washingtonpost.com/archive/politics/1979/12/05/diplomatictitles-
often-used-to-protect-intelligence-aides/e57eec6c-e41e-4e6d-b193-
1ebab1341dad/?utm_term=.91d68eddbe69. Kaiser goes on to explain that
John Marks’s explanation of how to identify CIA officers under DOS cover
from State Department directories in an article entitled “How to Spot a Spook”
published in the Washington Monthly in 1974 led to the DOS ceasing to
publish the directories.

9. Based on my understanding from my research and review of publicly
available declassified CIA documents overseas duty assignments for CIA
officers, whether long-term or TDY, would have generated documents in the
records of the Office of Security, the Central Cover Staff, the Personnel
Security Division, and Official Cover & Liaison CCD, or other similar or
renamed components, within CIA. While I have not been able to identify
the office or division in DOS handling liaison on these matters, the Kaiser
article discussed above suggests that DOS might fruitfully search records
relating to the Foreign Service Reserve Officers corps for records in the
relevant time period on relevant individuals. I believe it would be
reasonably likely that a search of records of these offices would find
documents relating to a specific CIA employee’s TDY assignments and their
assignments to any overseas station, post, base, unit or other CIA component.

I declare under penalty of perjury that the foregoing is true and correct.
Executed this 14th day of February, 2018.
____________________________________
William Simpich

Case No. 1:17-cv-00588CRC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
DAVID TALBOT,

Plaintiff

v.

U. S. DEPARTMENT OF
STATE, and the CENTRAL
INTELLIGENCE AGENCY,

Defendants

DECLARATION OF DAN L. HARDWAY

My name is Dan L. Hardway. I am over the age of eighteen years; I am competent to
testify in this matter. I am an attorney admitted to practice in the states of West Virginia and North Carolina;
and before the Supreme Court of the United States, the United States Tax Court, the United
States Court of Appeals for the District of Columbia Circuit, and the United States Court
of Appeals for the Fourth Circuit, and United States District Courts in the District of
Columbia, North Carolina and West Virginia. I am an inactive member of the bars of the
states of Florida and Indiana.

Along with James Lesar, I represent the Plaintiff David Talbot in this case.
On April 16, 2016, we sent a Freedom of Information Act (“FOIA”) request to the United
States Department of State (“DOS”) on behalf of Plaintiff David Talbot. See Exhibit 4
Case 1:17-cv-00588-CRC Document 19-4 Filed 02/15/18 Page 1 of 19

(Exhibits attached to this Declaration are numbered in accordance with the number of the
paragraph in which they are first cited for ease of reference.) The request was sent in
response to the DOS advising that its search had revealed no records on William King
Harvey (“Harvey”).

The April 16, 2016, request was sent by United States Mail, Certified Mail No. 7015 1730
0001 1031 8080. Id. According to the records of the United States Postal Service
Certified Mail No. 7015 1730 0001 1031 8080 was delivered by the United States Postal
Service on April 21, 2016. See Exhibit 5.

After filing the Complaint in this case, I discovered that the April 16, 2016, request had
been inadvertently left out of the filed copy of Exhibit 5 of the Complaint. I filed an Errata
on July 24, 2017, adding the request to Exhibit 5 and including the request as an Exhibit.

Doc. No. 12.
As part of my work on this case I have compared documents produced by CIA in response
to Talbot’s FOIA request with a version of CIA’s Harvey OPF released as part of the
National Archives and Records Administration (“NARA”) release of Kennedy
assassination documents under the President John F. Kennedy Assassination Records
Collection Act of 1992, 44 U.S.C. § 2107 note. The review of the OPF at NARA indicates
CIA has redacted much information in many of the documents released to Talbot in this
case in which the redacted information that has been declassified in the NARA releases.

For example:
a. CIA Document No. CO1228704 is a Medical Action Request and Report dated 1
Oct 1957 which redacts information that is in the NARA copy of the declassified
Case 1:17-cv-00588-CRC Document 19-4 Filed 02/15/18 Page 2 of 19
document. Specifically, the NARA copy, attached hereto as Exhibit 7a, has the
redacted position –Germany—and the redacted signature of the Medical Officer.

b. A Biographic Profile dated 27 Sep 1971 and attached hereto as Exhibit 7b contains
a full list positions held by Harvey with only one foreign facility location redacted.
A copy of this document has not, to date, been located in the Talbot Documents.

c. CIA No. C01228738 contains five redactions, all of which have been declassified
in the NARA copy of the document attached hereto as Exhibit C which unredacted
information provides the name and/or signature of the CIA Chief of Station in
Germany in 1959, the CIA Chief of the Eastern European Division, and the fact
that Harvey was then serving as Chief of the CIA’s Berlin Base, all of which is
redacted in the copy released to Talbot.

d. CIA No. C01228773 is a request for Medical Evaluation dated 20 October 1960
that approves Harvey as qualified for TDY service in a redacted station. The
NARA released copy of the document, attached hereto as Exhibit 7d, indicates that
the station has been declassified and is Germany and Switzerland.
The Harvey OPF in the released NARA records consists of only 112 pages which are not
coextensive with the documents released by CIA in response to Talbot’s request. The
NARA Harvey OPF file, RIF No. 104-10193-10076, is available at
https://www.archives.gov/files/research/jfk/releases/104-10193-10076.pdf.

Publicly disclosed records indicate that CIA maintains a registry of aliases used by its
officers. Attached hereto as Exhibit 9a of this Declaration is a copy of a 19 October 1972
Memorandum for Chief, Badge Office/OS, RIF 104-10121-10206, indicating such
registration for CIA Officer David Morales. The document is publicly available at
Case 1:17-cv-00588-CRC Document 19-4 Filed 02/15/18 Page 3 of 19

https://www.maryferrell.org/showDoc.html?docId=26981&search=%22104-10121-
10206%22#relPageId=1&tab=page.

A second document indicating registration of aliases
is a 20 June 1974 Memorandum for OTS/AB/Docs from David A. Phillips, Chief, Western
Hemisphere Division, RIF 104-10121-10133, attached hereto as Exhibit 9b, and publicly
available at
https://www.maryferrell.org/showDoc.html?docId=26964&relPageId=3&search=”104-
10121-10133″.

I declare under penalty of perjury that the foregoing is true and correct.
Executed this 15th day of February, 2018.
s/Dan L. Hardway
____________________________________
Dan L. Hardway

Case No. 1:17-cv-00588CRC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

DAVID TALBOT,

Plaintiff,

V.

U.S. DEPARTMENT OF STATE, and the CENTRAL INTELLIGENCE AGENCY,

Defendants.

MEMORANDUM OF OPPOSING POINTS AND AUTHORITIES IN RESPONSE TO
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND IN SUPPORT OF
PLAINTIFF’S CROSS MOTION FOR SUMMARY JUDGMENT

James H. Lesar #xxxxx xxxxxxx xxxxxx Phone: (xxx) xxx-xxxx

Dan L. Hardway #xxxxx xxxxxxx xxxxxx Phone (xxx) xxx-xxxx

Counsel for Plaintiffs

TABLE OF CONTENTS

TABLE OF AUTHORITIES……………………………………………………………………………………………….. 3

INTRODUCTION…………………………………………………………………………………………………………….. 5

BACKGROUND……………………………………………………………………………………………………………… 5

ARGUMENT ………………………………………………………………………………………………………………….  6

1. LEGAL STANDARDS GOVERNING SUMMARY JUDGMENT, ADEQUACY OF

SEARCHES, VAUGHN INDICES AND VAUGHN DECLARATIONS………………………………… 6

1. FOIA Summary Judgment Standard……………………………………………………………………. 7
2. FOIA Exemptions Summary Judgment Standard………………………………………………….. 7
3. Adequacy of Searches Standard………………………………………………………………………… 7
4. Vaughn Index and Declaration Standard…………………………………………………………….. 9
5. DOS HAS FAILED TO ADEQUATELY SEARCH FOR, LOCATE, RETRIEVE AND

PRODUCE RESPONSIVE SEARCHES…………………………………………………………………………. 10

1. William Harvey Records Search………………………………………………………………………. 10
2. Wyatt Search………………………………………………………………………………………………… 15
3. Talbot’s April 16, 2016, FOIA Request…………………………………………………………….. 19

• THE DOS EXEMPTION 6 CLAIM IS WITHOUT BASIS………………………………………….. 21

1. CIA HAS FAILED TO ADEQUATELY SEARCH FOR, LOCATE, RETRIEVE AND

PRODUCE RESPONSIVE SEARCHES…………………………………………………………………………. 26

1. Wyatt Records Search…………………………………………………………………………………….. 26
2. Harvey Records Search………………………………………………………………………………….. 27
3. CIA VAUGHN INDEX IS DEFICIENT………………………………………………………………….. 34
4. CIA EXEMPTION 1 CLAIMS ARE WITHOUT BASIS…………………………………………….. 35

• CIA EXEMPTION 3 CLAIMS FAIL……………………………………………………………………… 38
• CIA EXEMPTION 6 CLAIMS ARE WITHOUT BASIS………………………………………….. 40

1. SEGREGABILITY AND THE DOCUMENTS WITHHELD IN FULL………………………. 40

CONCLUSION……………………………………………………………………………………………………………… 42

TABLE OF AUTHORITIES

Cases

Aguiar v. Drug Enforcement Administration, 865 F.3d 730 (D.C. Cir. 2017)……………………… 8, 15

Animal Legal Defense Fund, Inc. v. Dep’t of Air Force, 44 F.Supp.2d 295 (D.D.C.1999)…………. 42

Arieff v. Dep’t of the Navy, 712 F.2d 1462 (D.C. Cir. 1983)…………………………………………….. 22, 23

Armstrong v. Exec. Office of the President, 97 F.3d 575 (D.C.Cir.1996)……………………………. 22, 41

Army Times Pub. Co. v. U.S. Dep’t of the Air Force, 998 F.2d 1067 (D.C. Cir. 1993)……………… 41

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007)……………………………………. 20

Citizens for Resp. & Ethics v. Dep’t of Justice, 746 F.3d 1082 (D.C. Cir. 2014)……………………… 22

Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99 (1957)…………………………………………………………….. 20

Dept. of Air Force v. Rose, 425 U.S. 352 (1976)……………………………………………………………. 7, 22

DiBacco v. U.S. Army, 795 F.3d 178 (D.C. Cir. 2015)……………………………………………….. 7, 11, 19

Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1 (D.C. Cir., 2014)………………………….. 41

Founding Church of Scientology v. National Sec. Agency, 610 F.2d 824 (D.C.Cir.1979)…………. 8, 9

Getman v. NLRB, 450 F.2d 670 (D.C.Cir. 1971)………………………………………………………………… 22

Hall v. C.I.A., 668 F.Supp.2d 172 (D.D.C. 2009)……………………………………………………… 7, 41, 42

Hallv. C.I.A., 881 F.Supp.2d 38 (D.D.C. 2012)………………………………………………………………….. 42

Inst. for Policy Studies v. CIA, 153 F.Supp.3d 352, 355 (D.D.C., 2016)…………………………………. 30

Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141 (D.C. Cir. 2006)…………………………. 22

King v. United States Department of Justice, 830 F.2d 210 (D.C. Cir. 1987)…………………. 9, 34, 35

Krikorian v. Dep’t of State, 984 F.2d 461 (D.C.Cir.1993)……………………………………………………. 41

Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242 (D.C.Cir.1977)…………………….. 41

Military Audit Project v. Casey, 656 F.2d 724 (D.C.Cir.1981)…………………………………………. 7, 19

Milner v. Dept. of Navy, 562 U.S. 562 (2011)……………………………………………………………………. 7

Morley v. CIA, 508 F. 3d 1108 (D.C. Cir. 2007)……………………………………………………………. 8, 30

MultiAgMedia LLC v. Dept. of Agriculture, 515 F.3d 1224 (D.C.Cir.2008)……………………………. 7

National Cable Television Ass’n v. FCC, 479 F.2d 183 (D.C. Cir.1973)………………………………… 8

Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982)…………………………………………………………………… 27

PHE, Inc. v. Dep’t of Justice, 983 F.2d 248 (D.C.Cir.1993)…………………………………………………. 41

Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)……………………………………………………………….. 38

Quinon v. FBI, 86 F.3d 1222 (D.C.Cir.1996)…………………………………………………………………….. 41

Reporters Comm. for Freedom of Press v. Fed. Bureau of Investigation, No. 17-5042, slip op.

(D.C. Cir. 2017)………………………………………………………………………………………………. 15, 27, 28

Sack v. CIA, 49 F. Supp. 3d 15 (D.D.C. 2014)…………………………………………………………………… 38

Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205 (D.C.Cir.1992)……………………………………. 41

Schrecker v. U.S. Dept. of Justice, 254 F.3d 162 (D.C. Cir., 2001)……………………………………….. 23

Simpson v. Vance, 648 F.2d 10 (D.C. Cir. 1980)……………………………………………………………. 24, 25

Stonehill v. I.R.S., 534 F.Supp.2d 1 (D.D.C. 2008)…………………………………………………………….. 24

Summers v. Dep’t of Justice, 140 F.3d 1077 (D.C. Cir. 1998)………………………………………………. 23

Thomas v. FCC, 534 F. Supp. 2d 144 (D.D.C. 2008)………………………………………………………….. 21

Truitt v. Department of State, 897 F.2d 540 (D.C. Cir. 1990)……………………………………………….. 9

United America Financial, Inc. v. Potter, 667 F.Supp.2d 49 (D.D.C., 2009)…………………………… 24

Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321 (D.C. Cir. 1999)………………………………….. 8

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)…………………………………………………………… 9, 34

Weisberg v. DOJ, 627 F.2d 365 (D.C. Cir. 1980)……………………………………………………………….. 8

Statutes

5 U.S.C. § 552…………………………………………………………………………………………………………………. 7

50 U.S.C. § 3024…………………………………………………………………………………………………………… 38

50 U.S.C. § 3141……………………………………………………………………………………………….. 28, 29, 30

50 U.S.C. § 3507…………………………………………………………………………………………………………… 38

President John F. Kennedy Records Collection Act of1992 (JFK Records Act or JFK Act), 44 U.S.C. Sec. 2107 notes…………………………………………………………………………………………………………………….. 33

Rules

Fed. R. Civ. P. 8…………………………………………………………………………………………………………….. 20

Other Authorities

“Alleged Assassination Plots Involving Foreign Leaders”, Church Committee, 94^th Congress,

Report No. 94-465, November 20, 1975………………………………………………………………………… 31

Bayard Stockton, Flawed Patriot (2006)…………………………………………………………………………… 15

CIA IG Report on Plots to Assassinate Fidel Castro dated May 23 1967………………………………… 31

David Atlee Phillips, The Night Watch (1977)…………………………………………………………………….. 25

David Robarge, “DCI John McCone and the Assassination of President John F. Kennedy,” Studies in Intelligence, (Vol. 57, No. 3, 09/2013), Approved for Release and declassified,

09/29/2014……………………………………………………………………………………………………………….. 32

Executive Order 13526 § 3.3, 75 Fed. Reg. 707 (Jan. 5, 2010)……………………………………….. 35, 39

Foreword by former President Gerald R Ford, “A Presidential Legacy and The Warren

Commission”, FlatSigned Press, Nashville, TN, 2007………………………………………………………. 32

https://www.youtube.com/watch?v=e3nDUEgh05o…………………………………………………………….. 31

Interim Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, United States Senate (“Church Committee ”), The Investigation of the Assassination of President John F. Kennedy: Performance of the Intelligence Agencies, S.Rep.

No. 94-755, Book V(1976)………………………………………………………………………………………….. 30

John Scelso Testimony, HSCA Executive Session, 95^th Cong. (16 May 1978) RIF: 180-1013110330 32

Miles Copeland, The Real Spy World (1974)………………………………………………………………………. 25

INTRODUCTION

Plaintiff David Talbot (“Talbot”) in support of his opposition to Defendants, Central Intelligence Agency (“CIA”) and Department of State’s, (“DOS”) Motion for Summary Judgment and in support of his Cross-Motion for Summary Judgment against the CIA and DOS offers the following memorandum of points and authorities.

BACKGROUND

Talbot’s Freedom of Information Act (“FOIA”) request of May 6, 2013, to DOS sought passport and visa records pertaining to two deceased CIA officers, William King Harvey (“Harvey”) and F. Mark Wyatt (“Wyatt”). Records on Harvey were requested for the period of January 1, 1950, to July 1, 1976. Records on Wyatt were sought for the period of January 1, 1948, through 1975. Talbot’s FOIA request to DOS also sought an 8×10 glossy photograph of both Harvey and Wyatt. Complaint Ex. 1, Doc. No. 1-6.

Talbot’s FOIA request of May 6, 2013, to CIA sought: 1) all records pertaining to temporary duty (“TDY”) travel for Harvey during the period January 1, 1950, through July 1, 1976 and for Wyatt during the period January 1, 1948 through 1975; 2) all passport and visa records pertaining to Wyatt and Harvey; 3) all photographs of Harvey and Wyatt; and 4) all records reflecting duty assignments to any station, post, base, unit or other component of the CIA for Harvey during the period January 1, 1950, through July 1, 1976 and for Wyatt during the period January 1, 1948 through 1975. Talbot’s request also sought a fee waiver on the basis of his status as a journalist. Complaint Ex. 2, Doc. No. 1-11.

DOS released ten documents on Wyatt, six in full and four with redactions based on Exemption 6, on July 19, 2017. Stein Decl. ^ 11 & Ex. 9, Doc. No. 17-3. DOS advised Talbot on

December 15, 2015, that it had been unable to locate any responsive record on Harvey and requested further identifying information about him be provided. Complaint Ex. 4, Doc. No. 1-9. Talbot provided DOS with Harvey’s date and place of birth, two pseudonyms Harvey had been known to have used, and the names of Harvey’s parents, on April 14, 2016. Complaint Ex. 5, Doc. No. 1-10. DOS advised Talbot on June 8, 2017, that it had not located any responsive records on Harvey. Stein Decl. ^ 8 & Ex. 6, Doc. No. 17-3. DOS searches were limited to the Office of Passport Services within the Bureau of Consular Affairs (“PPT”).

By letter dated April 16, 2016, Talbot submitted an additional request to DOS seeking records relating to DOS’s search for records responsive to Talbot’s FOIA request of May 6, 2013. Complaint Ex. 5 addition, Doc. No. 12-1. The letter was delivered to DOS by U.S. Certified Mail on April 21, 2016. Hardway Decl. ^ 5, Ex. 5. DOS has conducted no search based upon this request.

CIA advised Talbot on July 14, 2014, that it had located 277 documents consisting of 419 pages regarding Harvey that had been previously released in response to an earlier request. CIA advised Talbot, on February 20, 2015, that it had not located any responsive records regarding Wyatt. Complaint Ex. 9, Doc. No. 1-14. CIA discovered approximately 300 additional pages of responsive documents relating to Harvey after the Complaint had been filed in this case. Shiner Decl. ^ 15, Doc. No. 17-5. CIA released 13 additional redacted documents to Talbot on August 31, 2017. Id. at ^ 17. With the exception of 60 documents which were withheld in full, CIA released the remaining responsive documents, some in full, but most redacted, on September 29, 2017.

ARGUMENT

1. LEGAL STANDARDS GOVERNING SUMMARY JUDGMENT, ADEQUACY OF SEARCHES, VAUGHN INDICES AND VAUGHN DECLARATIONS
2. FOIA Summary Judgment Standard

The FOIA “requires federal agencies to make Government records available to the public, subject to nine exemptions for categories of material.” Milner v. Dept. of Navy, 562 U.S. 562, 565 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the act.” Dept. of Air Force v. Rose, 425 U.S. 352,361 (1976). Agency actions under the FOIA are subject to de novo review. 5 U.S.C. § 552(a)(4)(B); DiBacco v. U.S. Army, 795 F.3d 178, 188 (D.C. Cir. 2015). Summary judgment is appropriate if “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Hall v. C.I.A., 668 F.Supp.2d 172, 178 (D.D.C. 2009)(“Hall 7”).

1. FOIA Exemptions Summary Judgment Standard

Because the ultimate purpose of the FOIA is “to make Government records available to the public” the FOIA’s “‘exemptions are explicitly made exclusive… and must be ‘narrowly construed.'” Milner 562 U.S. at 565 (citations omitted). De novo review “requires the court to ‘ascertain whether the agency has sustained its burden of demonstrating that the documents requested … are exempt from disclosure under the FOIA.”‘ MultiAg Media LLC v. Dept. of Agriculture, 515 F.3d 1224, 1227 (D.C.Cir.2008) (citations omitted). A District Court may award summary judgment “solely on the information provided in affidavits or declarations that describe ‘the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'” Id, quoting Military Audit Project v. Casey, 656 F.2d 724,738 (D.C.Cir.1981).

1. Adequacy of Searches Standard

To prevail in a FOIA case, “the defending agency must prove that each document that falls within the class requested either has been produced, is unidentifiable or is wholly exempt from the Act’s inspection requirements.” National Cable Television Ass’n v. FCC, 479 F.2d 183, 186 (D.C. Cir.1973). An agency has the burden of showing “that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested,” Oglesby v. U.S. Department of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). The agency may satisfy that burden by submitting “[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all records likely to contain responsive materials (if such records exist) were searched.” Id. Such affidavits have to be reviewed in light of the whole record of the case and, if there is “substantial doubt, particularly in view of “well defined requests and positive indications of overlooked materials,” summary judgment is inappropriate.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 326 (D.C. Cir. 1999) (quoting Founding Church of Scientology v. National Sec. Agency (“Founding Church”), 610 F.2d 824, 837 (D.C.Cir.1979) .

To adequately describe a search so as to serve as a basis for summary judgement, the agency’s affidavits must, at a minimum, 1) describe the search terms and the types of searches performed, Oglesby, 920 F.2d at 68; 2) describe the search strategies of the components of the agency charged with conducting the search and a description of the results of the search, Morley v. CIA, 508 F. 3d 1108, 1122 (D.C. Cir. 2007); 3) provide an explanation of how the agency components conducted the search, Aguiar v. Drug Enforcement Administration, 865 F.3d 730, 738-39 (D.C. Cir. 2017); and 4) provide sufficient detail to allow the plaintiff to “challenge the procedures utilized,” Weisberg v. DOJ, 627 F.2d 365, 371 (D.C. Cir. 1980). A detailed affidavit is necessary so as to afford the “FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.” Oglesby, 920 F.2d at 68. When the adequacy of an agency’s search is in dispute, summary judgment for the agency is inappropriate to that issue. Founding Church, 610 F.2d at 836-837; Truitt v. Department of State, 897 F.2d 540 (D.C. Cir. 1990).

1. Vaughn Index and Declaration Standard

The agency handling the FOIA request alone possesses knowledge of the precise content of documents withheld and, consequently, “[t]he significance of agency affidavits in a FOIA case cannot be underestimated.” King v. United States Department of Justice (King), 830 F.2d 210, 218 (D.C. Cir. 1987). Thus, “the FOIA requester and the court both must rely upon its representations for an understanding of the material sought to be protected.” Id. The agency’s statements are critical because “‘[t]his lack of knowledge by the party see[k]ing disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution,’ with the result that ‘the trial court, is completely without the controverting illumination that would ordinarily accompany’” a fully adversarial confrontation in a case with full discovery and fully informed parties on both sides of the case. Id, quoting Vaughn v. Rosen, 484 F.2d 820, 824-825 (D.C. Cir. 1973) As King aptly stated: “Specificity is the defining requirement of the Vaughn index and affidavit; affidavits cannot support summary judgment if they are ‘conclusory, merely reciting statutory standards or if they are too wide or too sweeping.’ To accept an inadequately supported exemption claim “would constitute an abandonment of the trial court’s obligation under the FOIA to conduct a de novo review.” King, 830 F.2d at 219 (citations omitted).

This index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Id, at 223-224. “Furthermore, a reproduction of the redacted documents can only show the court the context from which an item has been deleted, and context may or may not assist the court in assessing the character of the excised material and the grounds for its deletion.” Id. at 221. Examples of the kinds of contextual information that should be supplied in a Vaughn Index, in addition to a copy of the expurgated document, to aid the court in its determination as to whether an agency has carried its burden to show that information is substantively classified is set forth in note 60 of that case: Whether an intelligence source whose name has been excised is still alive? Has that source been otherwise identified in the decades since the document was generated? Would information deleted on the theory that it might identify a source still do so fifty years after the fact? Is a particular intelligence method or activity still in use? If not, what concerns warrant continuing protection for information on intelligence methods and activities from earlier decades? A Vaughn Index that does not supply such information does not adequately support a motion for summary judgment.

1. DOS HAS FAILED TO ADEQUATELY SEARCH FOR, LOCATE, RETRIEVE AND

PRODUCE RESPONSIVE SEARCHES.

1. William Harvey Records Search

Talbot’s request of May 6, 2013, requested DOS to search for “[a]ll passport and visa records pertaining to former CIA official William King Harvey during the period January 1, 1950 through July 1, 1976.” In response to a request from DOS for more information on Harvey, Talbot informed DOS by letter dated April 14, 2016, that Harvey had served in Berlin, Germany, in the 1950’s and in Rome, Italy, in the 1960’s as a part of his CIA employment. DOS was further advised that Harvey’s date of birth was reported to be September 13, 1915, in Cleveland, Ohio, to Drenan R. Walker and Sara J. King. Talbot also advised DOS that Harvey was known to have used at least two pseudonyms: “William Walker” and “Daniel Presland.” DOS claims to have found no records responsive to this request.

DOS has an obligation to show that “its search efforts were reasonable and logically organized to uncover relevant documents.” DiBacco, 795 F.3d at 191. DOS has submitted a declaration by Eric F. Stein (“Stein Declaration”), Doc. No. 17-4, in support of its claim “that it made a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested,” Oglesby 920 F.2d at 68. The DOS effort to support that claim must be found to be inadequate.

The searches for Harvey’s records described in the Stein Declaration were not reasonably and logically organized to uncover responsive documents, nor can they be characterized as good faith efforts. Two of the databases used, the American Citizen Record Query (“ACRQ”) and the Passport Information Electronic Records System (“PIERS”), do not contain records from the period covered by Talbot’s request. Both ACRQ and PIERS records start in 1978, three years after the cutoff date in the request. DOS also searched a database, Passport Lookout System (“PLOTS”), covering fraudulent activities and a database, Consular Lookout and Support System (“CLASS”), of individuals who may not be entitled to passports even though DOS was told that Harvey was a CIA official and there is no indication of any type that he could be expected to be found in a database listing fraudulent or criminal activity. Id. No information is provided about the time period covered by the CLASS or PLOTS databases. A fifth database, American Citizens Services Plus (“ACS+”), used to track services provided to citizens overseas was also checked but no information was provided regarding the dates of records available through the system. Id. At least four, if not all five, of these searches were not even reasonably related to the FOIA request, let alone “reasonable and logically organized to uncover relevant documents.” DiBacco, 795 F.3d at 191.

Talbot requested that records be searched for the period of January 1, 1950 to July 1, 1975, for records about “William King Harvey.” The DOS paralegal, and later, the PPT Division Chief searched the five irrelevant electronic databases using search terms “William K. Harvey,” “William Harvey,” “Daniel Presland,” and “William Walker.” Neither used the requested name, “William King Harvey,” as a search term. All searches for the pseudonyms were coupled with Harvey’s actual birthdate. Id. at ^ 17. No explanation is given for why neither the paralegal nor the Division Chief did not search for “William King Harvey.” While the paralegal searched for the terms “William King Harvey” and “William K. Harvey,” the Division Chief did not. There is no logical reason why no search was conducted using the requested name. Similarly, there is no logical reason why someone using a pseudonym would use his actual birthdate on pseudonymic records. The limitation of possible responses to these searches by not using the requested search term and the use of Harvey’s actual birthdate to limit pseudonymic names appears to have been designed to exclude the possibility of finding potentially responsive records. Such a search cannot be said to have been undertaken in good faith.

It is hard to conceive how it can be said that these searches were conducted in good faith when the databases searched do not even cover the period for which records were requested and the primary search term requested was not even used. At best these searches appear to be window dressing to make it appear that something was done in response to the request while avoiding the possibility of finding responsive records.

A Records Management Specialist also searched archived paper passport files maintained at the Washington National Records Center (“WRNC”) and an electronic database of microfilmed issuance cards. Stein Decl. ^ 18, Doc. No.17-3. This search was limited to the period covered by the request. The unidentified Specialist searched the paper records for “any records maintained under the names “William K. Harvey,” “William Harvey,” “Daniel Presland,” or “William Walker.” The same names were used to search the electronic database of microfilmed issuance cards. The most remarkable aspect of this description of the search is the conspicuous absence of the name requested to be searched “William King Harvey” from the search terms used. This in spite of the fact that “William King Harvey” was the specific search term requested by Talbot and is the obvious name under which the paper records should be searched. For example, the search of the WRNC records for F. Mark Felton shows that such records are filed under the full name of the passport applicant, in his case “Wyatt, Felton Mark”. See, e.g., DOS Doc. No. C06350813. In regard to the production of documents for Mr. Felton, the use of “William King Harvey” in the first electronic database searches of PLOTS, ACRQ, PIERS, CLASS and ACS+, the omission of his full name in the searches conducted in paper records for the period actually covered in the request appears to be, at best, disingenuous. Consequently, it is clear that this search was not reasonable and logically organized to find responsive documents and was not conducted in good faith.

DOS’s search for records was limited by the Office of Information Programs and Services (“IPS”) to PPT records. Stein Decl. ^ 14, Doc. No.17-3. “[T]he agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Oglesby, 920 F.2d at 68. DOS’s limitation to PPT records is belied by the information provided by Talbot and the nature of the parts of the search conducted by the DOS. Talbot indicated that both Harvey and Wyatt were CIA officials. Talbot advised DOS that Harvey had worked for the CIA in Berlin in the 1950’s and in Rome in the 1960’s. Harvey was the CIA Chief of Base in Berlin in the 1950’s, a position usually filed by someone operating under diplomatic cover in a diplomatic facility. See, Hardway Decl. ^ 7, Ex. 7b & 7c. In spite of this DOS did not describe any records system relating to passport services provided to CIA officers in cooperation with the CIA although it is apparent from publicly disclosed records that such records should exist and that there were departments within the DOS in the relevant period of time covered by the FOIA request that worked with CIA in this regard. See Simpich Decl. ^ 4, 8. DOS did not identify such components nor search for such records. At a minimum the security clearances DOS required should be available for Harvey and Wyatt if the search was logically designed to look for them. DOS did acknowledge that each Foreign Service office, post and mission maintains files concerning its operations but no search was conducted of offices, posts or missions in, or concerning, diplomatic posting to Berlin or Rome nor were any searches conducted of records in any office responsible for coordination with CIA for CIA officers serving in Foreign Service postings overseas, specifically in Berlin in the 1950’s and Rome in the 1960’s.

To assert that there are no records showing Harvey’s passports beggars belief. Not only is it known that Harvey was a CIA officer serving in overseas posts in the 1950’s and 1960’s, it has been well documented that he travelled extensively during that time. See, e.g. Hardway Decl. ^ 7 & Exs. 7a-7d (showing among other travel assignments of Harvey as an Operations Officer in Bonn, Germany, in December 1952, as an Chief of Base in Berlin, Germany, in November 1953, returning to D.C. in October, 1959, as Chief of FI/D at CIA Headquarters, as Chef of Station, Rome in June 1963, and his return to CIA Headquarters in February 1967); CIA Document No. C01228663 showing approval for Harvey to travel so as to return to an overseas station in 1955; Document No. C01228527 and Document No. C01228567 giving Harvey final instructions for overseas TDY travel in 1949 and 1950 respectively; Document No. C01228575 indicating that Harvey will be TDY for approximately 30 days before returning to Washington in 1950 or 1951; Document No. C01228914 is a routing slip indicating that Harvey filed a travel voucher in March of 1967; Document No. C01228873, Document No. C01228812, Document No. C01228880, and Document No. C01228790 which are Verified Records of Overseas Service showing Harvey departure and arrival dates for overseas travel in 1962, 1963 and 1966; Document No. C01228774, Document No. C01228809, Document No. C01228879, Document No. C01228622 and Document No. C01228661 being copies of cables indicating Harvey international travel in 1952, 1955, 1960, 1963, and 1966; Bayard Stockton, Flawed Patriot, 237 (2006); Stockton at 240 (Harvey traveled from Rome to Germany in the mid-1960’s on at least two occasions). This type of travel is highly unlikely without a passport.

The Director of IPS relied on the WNRC Records Management Specialist to “determine the files and locations reasonably likely to house responsive records” at the WNRC and “the best means of locating such records” because such employees of the bureau where the search is conducted “are in the best position to know how their files are organized.” Stein Decl. ^ 14, Doc. No. 17-3. How such determination is made, the nature of the records systems available, and the details of how the search is conducted is not described. There is no explanation of the curious selection and limitation of search terms chosen in regard to different file systems and searches. Here, as in Oglesby, there is no description of how the Specialist conducted or completed his search of the paper records nor the electronic database for microfilmed records at WRNC. See Reporters Comm. for Freedom of Press v. Fed. Bureau of Investigation, No. 17-5042, slip op. at 7 (D.C. Cir. 2017). An affidavit identifying who conducted a search “but not explaining ‘how [the offices searched within those files’ [is] insufficient to support summary judgment.” Id. at 8, quoting Aguiar, 865 F.3d at 738-39.

1. Wyatt Search

The DOS search for records on Wyatt suffered from deficiencies similar to those of the search for records on Harvey in that significant time was spent searching the PLOTS, ACRQ, PIERS, CLASS and ACS+ electronic databases and the paucity of description of the records systems available and searched at WNRC. It should be noted, however, in view of the search term anomalies pointed out in regard to Harvey, that the only search term used by the paralegal in searching the electronic databases searching for records on “Felton Mark Wyatt” was “Felton Wyatt.” Stein Decl., ^ 20, Doc. No. 17-3. Talbot did not provide the DOS with Wyatt’s first name, “Felton,” asking for a search on F. Mark Wyatt. It is not indicated how DOS knew to search under Wyatt’s first name.

The Records Management Specialist who conducted the search at WNRC searched the paper records and the electronic index of microfilmed records for records on “Felton Mark Wyatt.” Stein Decl. ^ 21, Doc. No. 17-3, p. 8. No other variation on his name was used. Id. It is not disclosed whether the Specialist who conducted the Wyatt search was the same as the one who conducted the Harvey search at WNRC. No explanation is offered as to why the Specialist searching for Wyatt records used his full name even though the request had been for records on “F. Mark Felton” or why the Specialist searching for Harvey records searched multiple variations of the names submitted but not the full name requested and most reasonably likely to lead to responsive records, “William King Harvey.”

While the DOS search of the paper records at WNRC did result in the release, in full or part, of 10 responsive records, DOS disregarded indications in those released records of other existing records and other potential components where such records may be located. Initially, it must be noted that the records provided by DOS indicate that Wyatt was serving overseas under diplomatic cover for the CIA. See, e.g., Complaint Ex. 3, Doc. No. 1-8, p. 7, DOS Document No.

C06350813 (Consular duty in Italy); Id. at p. 9, (“Vice Consul of the USA at Rome, Italy.”); Id. at p. 23, DOS Document No. C06350825 (“Occupation Vice Consul in the Consulate General of the United States of America at Genoa, Italy”). Such notations indicate, at a minimum, that employment and personnel records relating to employees who receive “special passports,” see Id., at pp. 5, 21, DOS Document Nos. C06350813, C06350825, should have been included in any search reasonably and logically designed to find potentially responsive records.

A DOS Request for Passport Services from a Personnel Officer in CA/FS/EUR whose further identification is redacted indicates that records are likely to exist in the DOS’s CA/FS/EUR office or section, Id. at 34, DOS Document No. C06350860. No explanation is offered as to why those records were not searched. At the time of that request in 1973, Wyatt was serving under the diplomatic title of Attache-Second Secretary at the American Embassy in Luxemburg. Id.

Similarly, a Memorandum to “PPT” from “EUR/EX” dated September 20, 1976, included in the initial production made by DOS on September 24, 2015, but absent from the documents produced by DOS on July 9, 2017, indicates that at that time Wyatt was assigned to the DOS’s Bureau of European Affairs. Id. at 35. A DOS stamp on that Memorandum indicates that Wyatt may have at that time been “abroad on a diplomatic assignment for the government of the United States.” Id. There is, however, no indication that a search was conducted of records maintained by “EUR/EX” nor any explanation offered of why such records systems were excluded from the search conducted. It is very possible that redacted parts of these documents may also have provided additional specific indications that would reasonably lead to additional searches.

While DOS produced many passport applications for Wyatt, the records produced indicated additional passports were issued for records of which no search was made. Applications were made by Wyatt for passports issued on October 17, 1948 (DOS Document No. C06350813),

August 31, 1956 (DOS Document No. C06350822), January 11, 1957 (DOS Document No. C06350825), May 7, 1964 (DOS Document No. C06350833), June 13, 1967 (DOS Document No. C06350844), June 2, 1972 (DOS Document No. C06350848), and June 8, 1973 (DOS Document No. C06350860). Id. at pp. 5, 13, 21, 26, 29, 31 & 32. These disclosed documents make reference to additional passports that were issued: Passport No. 64745 (Sp-58556) issued on August 12, 1952 (DOS Document No. C06350822), Id. at pp. 16 & 23; and Passport No. 2390122 issued on July 19, 1960 (DOS Document No. C06350833), Id. at p. 26. DOS did not attempt to search for records regarding Passport Nos. 64745 & 2390122 in any of the files or records of any component. That such records should exist is a given. Due to the sparseness of the description of the WRNC records it is impossible to determine whether the Records Management Specialist made any effort to find such records. In addition, there is no explanation as to whether there exists any system of records that would have allowed a search by passport number or whether such a search was attempted in this case.

DOS explains that no search was made in regard to visa records because “the Department would not possess such records.” Stein Decl. ^ 4, n. 1, Doc. No. 17-3. Two documents produced by DOS in response to Talbot’s request would seem to indicate that representation is not accurate and have indications of other possible places where searches could have been fruitfully made: A document dated October 12, 1949, apparently addressed to “PD-Mr. A. J. Nicholas” from Louis

1949. Mundy and indicating routing at the bottom of “PER:FP:LEMUNDY:jt” requests delivery of a passport to Wyatt as Vice Consul in Rome. A responsive note to Mr. Mundy, dated 13 October 1949, requests that he procure a visa for Italy under the passport issued to Wyatt for a departure on 31 October 1949. DOS Document No. C06350813. In this one instance, at least, if not others in the handling of visas for special passports, it appears that DOS should have records relating to visas, but no search was conducted and no explanation was offered. DOS relies, rather, on a simple flat denial with no detail. Stein Decl. ^ 14, n. 1, Doc. No. 17-3.

There are multiple positive indications of the possible existence of additional records including positive indications of where to search for such records in the documents DOS has produced. DOS simply disregarded all such indications, choosing rather to do a pro forma search in databases they had to know were unlikely to contain records using the least likely search terms so as to be able to present the appearance of a more thorough search. “Summary judgment must be denied “if a review of the record raises substantial doubt, particularly in view of well-defined requests and positive indications of overlooked materials[.]” DiBacco, 795 F.3d at 188, quoting Valencia-Lucena, 180 F.3d at 326. The bad faith exhibited by the search design and limitation should also preclude summary judgment. Military Audit Project, 656 F.2d at 738.

For the foregoing reasons, the Defendant’s Motion for Summary Judgment should be denied and the Plaintiff’s Cross Motion for Summary Judgment finding the DOS search to be inadequate should be granted and DOS should be required to conduct an adequate search of all indicated components logically designed to produce results.

1. Talbot’s April 16, 2016, FOIA Request.

On April 16, 2016, Talbot addressed a second request under the FOIA based upon the DOS’s indication that it could not find any documents responsive to the May 6, 2013, request for records relating to Harvey and the limited response to requests for documents regarding Wyatt. Complaint Ex. 5 Addition, Doc. No. 12-1. The April 16 request asked for records related to the searches DOS had conducted for materials responsive to Talbot’s May 6, 2013, request for records pertaining to Harvey and Wyatt. Talbot requested that DOS search for search slips, routing forms, routing slips, telephone messages, emails, reports, memoranda, instructions, guidelines, indices (electronic, digital or hard copy) or other form of communicating or recording information. The letter was addressed to Jonathan M. Rolbin, Office of Legal Affairs and Law Enforcement Liaison, Bureau of Consular Affairs, Passport Services, U.S. Department of State, Washington, D.C. 20520 and was sent by certified U.S. Mail, with a certified mail tracking number of 70151730000110318080. According to the United States Postal Service this letter was delivered to the addressee on April 21, 2016. Hardway Decl. ^ 5 & Ex. 5.

DOS claims that it’s “case tracking system does not contain any record of an April 16, 2016 letter from Plaintiff.” Rolbin Decl. ^ 15, Doc. No. 17-4. No search was made for the requested documents. DOS argues that summary judgment should be granted because the date of the request was erroneously reported in paragraph 14 of the Complaint as April 14, 2017, and that error was corrected by an erratum rather than by a motion for leave to amend the Complaint.

The Federal Rules of Civil Procedure require only that a complaint “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Each averment is required to be “simple, concise and direct. No technical forms of pleadings … are required. Fed. R. Civ. P. 8(e)(1). Finally, the pleadings are to be “construed as to do substantial justice.” Fed. R. Civ. P. 8(f). “the Federal Rules of Civil Procedure do not require a claimant to set out in detail the facts upon which he bases his claim. To the contrary, all the Rules require is ‘a short and plain statement of the claim’ that will give the defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests….” Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99 (1957), overruled on other grounds, Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955 (2007). A complaint need not ‘set out in detail the facts upon which he bases his claim,’ [citation omitted]” but must state facts so as to meet the requirement that the complaint provide fair notice of the nature of the claim made and the grounds upon which the claim rests. Bell

Atlantic Corp., 550 U.S. at 556, n. 3. The Defendant does not allege that paragraph 14 of the complaint did not provide fair notice of the nature of the claim made or of the grounds upon which the claim rested. Any confusion created by the typographical error and missing part of the exhibit were corrected by the erratum filed on July 23, 2017, while the case was still early in the litigation process. In the context of this case there is no prejudice shown by the Defendants arising from the late clarification of the date of the FOIA request.

Defendant, citing Thomas v. FCC, 534 F. Supp. 2d 144, 146 (D.D.C. 2008), argues that it should be granted summary judgment “in the absence of any evidence that plaintiff submitted a proper FOIA request to which defendant would have been obligated to respond.” This is not a case with an absence of any evidence. Counsel for Plaintiff has filed an affidavit indicating that the request was mailed by co-counsel. Presumed delivery by deposit in a receptacle maintained by the United States Postal Service has long been a cornerstone of pleading service in both the Federal and state court systems. In this case, however, Plaintiff does not have to rely on presumed delivery in due course because his counsel sent the request by certified mail. The U.S. Postal Service’s records show actual delivery of the letter on April 21, five days after it was mailed. Hardway Decl. ^ 5, Ex. 5. Such proof is sufficient to show proper delivery. Plaintiff cannot be required to do more.

For the foregoing reasons, the Defendant’s Motion for Summary Judgment in regard to the April 16, 2016 letter, should be denied and the Plaintiff’s Cross Motion for Summary Judgment should be granted and DOS should be ordered to search for, and provide, the documents requested in Talbot’s April 16, 2016, FOIA request.

III. THE DOS EXEMPTION 6 CLAIM IS WITHOUT BASIS

FOIA Exemption 6 requires a balancing of individual’s privacy interests against the interest of open government, “a balancing of the individual’s right to privacy against the preservation of the basic purpose” of the FOIA. Dep’t of Air Force v. Rose, 425 U.S. 352, 372, 96 S.Ct. 1592 (1976). The balancing test is required by the statutes requirement that disclosure constitute “a clearly unwarranted invasion of personal privacy.” Id. This requires courts to “tilt the balance in favor of disclosure.” Getman v. NLRB, 450 F.2d 670, 674 (D.C. Cir. 1971). The threat to a privacy interest must be tangible and substantial. Mere possibilities are not sufficient. Rose, 425 U.S. at 380 n. 19. However, it is the actual production of the records, not the speculation about what such production may give rise to, that is the measure of the invasion of privacy. Arieff v. Dep’t of the Navy, 712 F.2d 1462, 1468-1469 (D.C. Cir. 1983) (Exemption 6 “does not apply to an invasion of privacy produced as a secondary effect of the release” (emphasis in the original)). Exemption 6 “does not categorically exempt individuals’ identities.” Judicial Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 153 (D.C. Cir. 2006). “The scope of a privacy interest under Exemption 6 will always be dependent on the context in which it has been asserted.” Armstrong v. Exec. Office of the President, 97 F.3d 575, 581 (D.C.Cir.1996).

It is presently unsettled whether a deceased person has any privacy interest protected by FOIA Exemption 6. Exemption 7(C) of the FOIA “provides a broader privacy protection than Exemption 6 and thus establishes a lower bar for withholding material.” Citizens for Resp. & Ethics v. Dep’t of Justice, 746 F.3d 1082, 1091 n. 2 (D.C. Cir. 2014). Courts have held that the privacy interest provided by Exemption 7(C) may or may not end with the death of the person who has the privacy interest. The person’s death is only one of the factors to be considered, especially where surviving family members could be harmed by the revelation of criminal matters which are the subject of Exemption 7(c). Schrecker v. U.S. Dept. of Justice, 254 F.3d 162 (D.C. Cir., 2001).

In the case of the narrower protection offered by Exemption 6, the death of a person whose privacy

is asserted as the basis of the exemption should strongly militate against such interest meeting the

higher standard of being a clearly unwarranted invasion of personal privacy. A person’s death

should be sufficient to overcome the privacy interest in the absence of other clear evidence that

such a revelation would rise to the level of an unwarranted invasion of personal privacy.

DOS asserts the privacy interest of DOS employees in regard to Exemption 6 redactions in

three documents provided: Document C06350860, a passport application dated May 31, 1973;

Document C06350848, a passport application dated May 22, 1972; and Document C06350860, an

internal DOS memorandum dated September 20, 1976. Rolbin Decl. ^ 10-12, Doc. No. 17-4. In

each circumstance DOS attempts to justify the redaction on the basis of a boilerplate assertion that:

“Department employees involved in processing passports can render unfavorable decisions during the course of adjudicating a passport application and, as a result, could be and have been targets for unsolicited attention by members of the public. Release of their identities may subject them (and their family members) to harassment, violence, or even improper civil judgments outside of the workplace.

In the past, Department employees involved in passport adjudication process have been named personally in state court lawsuits seeking personal monetary civil judgment (lawsuits which are prohibited by law); and have been subject to personal threats and harassing communications.”

Id.

This is an example of an assertion of speculative secondary effect condemned in Arieff DOS does not provide anything concrete to justify the redactions, especially in the context of the facts and circumstances of this case. The balancing test required by Exemption 6 is fact-intensive and delicate. Summers v. Dep’t of Justice, 140 F.3d 1077, 1083 (D.C. Cir. 1998). The boilerplate assertion of potential abstract harm is not sufficient to justify an Exemption 6 redaction. DOS specifically references feared harm arising from unfavorable decisions. But there is no indication that Wyatt was ever the recipient of any unfavorable treatment by any DOS employee. In this circumstance, the DOS fear that the employees whose names were redacted from these documents might be subject to suits, harassment, violence and the like seems far-fetched to put it mildly. A more relevant comparative circumstance might be employees who provided very positive treatment in cases of friendly applications for “special” passports. DOS does not address such a circumstance and cannot because it would not justify the “fear” they claim to have. The asserted basis advanced in boilerplate of the Rolbin Declaration bears no relationship to the facts of this case. See, e.g., United America Financial, Inc. v. Potter, 667 F.Supp.2d 49 (D.D.C., 2009); Stonehill v. I.R.S., 534 F.Supp.2d 1 (D.D.C., 2008).

In spite of these assertions, DOS did release names of individuals involved in processing Wyatt’s passport applications in the 1940’s, 1950’s and 1960’s. No explanation is provided about how or why the names of employees involved in the 1970’s is different. In each instance, in all four decades, the actions taken were always favorable. None were “unfavorable decisions during the course of adjudicating a passport application.” There is no rational basis for the distinction made by DOS between those employees acting in the 1970’s and those who acted in the earlier decades.

In 1978 a group of historians made an FOIA request for the DOS’s Diplomatic Register for the years 1975, 1976 and 1977. Simpson v. Vance, 648 F.2d 10 (D.C. Cir. 1980). DOS argued the information in the Register was exempt under Exemption 6. In addition to the employees’ names, the Registers included each employee’s date and place of birth, work and military experience, date first appointed to Government position, promotion history, post assignments, awards, foreign language skills, marital status and spouse’s name. Id. at 14. The Court ruled that Exemption 6 prevented only the release of the employee’s marital status and the name of their spouse. Id. at 17. In rejecting the DOS argument that Exemption 6 was necessary to protect employees from physical harm and possible terrorists, the Court observed: “The information contained in the Register does not fall within the meaning of “personnel” files or “similar” files, and the additional fact that foreign service personnel are subject to terrorist attacks does not change the personal quality of the information contained in the materials at issue: no fact of an intimate nature or no embarrassing disclosure suddenly appears because we are told that the information might be abused by terrorists once disclosed.” Id.

The redactions in issue in this case are neither medical nor personnel files nor are they files similar to medical or personnel files. The name of DOS employees appearing in passport applications of third parties are clearly neither medical nor personnel files. Such an instance, as well does not bear any similarity to such files. Put simply, these files are not about the employees whose names are redacted. Nothing about those employees is revealed other than their names and employment. Here, as in Simpson, DOS’s bogus concern about employees “may not find refuge” in Exemption 6. Id.

Since the redacted information sought is neither medical nor personnel files nor is it similar to such files, here, as in Simpson, the Court need not reach the balancing test of public interest in the information. Id. at 16. DOS asserts, however, that the revelation of the redacted names of the individuals involved in processing these documents from the 1970’s “would shed no light on the operations and activities of the U.S. Government.” Rolbin Decl. ^10, Doc. No. 17-4. Revelation of the redacted information, however, would in fact further public understanding of a little understood area of government operations in which there is public interest. It has long been known that CIA uses DOS diplomatic cover for many of its officers operating overseas. Simpich Decl. ^ 4, 8; David Atlee Phillips, The Night Watch, pp. 61, 130 & 214 (1977); Miles Copeland, The Real Spy World, p. 273 (1974). How those arrangements are made – the offices through which they are conducted, how records are kept, etc. – are matters of some significant interest to the public as well as to historians. The release of the names of employees involved in the process in these documents will further the understanding of this historical process of government that is still largely shrouded in mystery although the fact of its existence is well established. Simpich Decl. ^ 7.

1. CIA HAS FAILED TO ADEQUATELY SEARCH FOR, LOCATE, RETRIEVE AND

PRODUCE RESPONSIVE SEARCHES.

1. Wyatt Records Search.

Unidentified CIA personnel within CIA’s Information Management Services determined that Wyatt’s Personnel File (“OPF”) was the “likely repository” for records sought by Talbot and the search was tasked to the Directorate of Support Information Review Officer (“IRO”). Declaration of Antoinette B. Shiner (“Shiner Decl.) ^ 21, Doc. No. 17-5. The unidentified IRO apparently delegated the actual initial search to unidentified personnel in the Office of Human Resources (“HR”) in December 2014. Id. ^ 22. This search revealed that Wyatt’s archived OPF had been “recalled (or requested)” by HR around November, 2006, “but was never returned to the records center and could not be located in HR’s own files.” Id. A subsequent search of HR files again failed to locate the file “or any other records pertaining to Wyatt.” Id. In spite of this, CIA notified Talbot by letter dated 20 February 2015, had conducted a search “that would reveal an openly acknowledged Agency affiliation existing up to and including the date the Agency started its search and did not locate any responsive documents.” Id. at Exhibit I, Doc. No. 17-5, p. 57. The letter went on to “neither confirm nor deny the existence or nonexistence” of responsive records. Id. The fact that Wyatt had been an officer of CIA and that an OPF file existed but was allegedly lost was not disclosed by CIA until the filing of the Shiner Declaration in this case although this was known by CIA at the time of the misleading 20 February 2015 letter to Talbot.

CIA did not search any component other than HR for the missing Wyatt OPF. CIA did not search any other component, or HR, for any other records potentially responsive to Talbot’s request.

1. Harvey Records Search.

As with Wyatt, unidentified staff within IMS determined that Harvey’s OPF was the “likely repository” for records covered by Talbot’s request. Id. at ^ 23. The search was further limited as the OPF file had been the subject of a previous FOIA request which request was used “to inform the response to the plaintiff in this case.” Id. HR was again tasked to conduct the search. Id. at ^ 24. Initially, 277 documents were located and provided to Talbot. Id. at ^ 12. As CIA prepared the Vaughn Index for this case “a significant number” of other responsive document comprising approximately 300 pages that “had not been processed” were somehow “discovered”. Id. at ^ 15. CIA offered no explanation how this significant number of other document were discovered, where they were discovered, by whom they were discovered or how they had not been discovered in CIA’s prior searches.

The sufficiency of searches conducted pursuant to FOIA requests was most recently addressed in Reporters Comm No. 17-5042, slip op. at 7. In that case the defendant conducted a search targeted on one division of the agency. In justifying the limited search, the government relied on the “35 year old decision in Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982) (per curium).” Reporters Comm., at 9. Here, even more than in Reporters Comm., the government search was limited: in this case it was limited to one file and no further search even within the division that maintained that file was conducted. CIA’s declaration does not “explain in reasonable detail the scope and method of the search conducted.” Reporters Comm., No. 17-5042, slip op. at 7, quoting Perry at 127. In spite of multiple references to other division involvement in travel and assignments of Harvey, CIA offers no explanation as to why these other divisions are not likely to hold relevant records nor why no search was conducted of their files. Id. at 10. The declaration filed in support of the search in this case does not describe how the one tasked division conducted its search, evidently because it determined not to search for anything other than what had been found in an earlier search for Harvey’s OPF. Shiner Decl. at ^ 23, Doc. No. 17-5. “[A]n affidavit containing “no information about the search strategies of the [agency] components charged with responding to [a] FOIA request” and providing no “indication of what each [component’s] search specifically yielded” is inadequate to carry the government’s summary-judgment burden. Reporters Comm., No. 17-5042, slip op. at 7, quoting Morley, 508 F.3d at 1122. The Shiner Declaration similarly does not describe how any search was conducted, fails to denote which files were searched by whom and does not provide information specific enough to enable an informed challenge to the procedures used. Reporters Comm., No. 17-5042, slip op. at 8. Consequently, CIA has failed to meet the requirement that “[a] reasonably detailed affidavit, setting forth the search terms and the type of search performed, . . . is necessary to afford a FOIA requester an opportunity to challenge the adequacy of the search and to allow the district court to determine if the search was adequate in order to grant summary judgment.” Reporters Comm., No.17-5042, slip op. at 8-9, quoting Oglesby, 920 F.2d at 68.

CIA acknowledges that it never considered whether operational files of the CIA may have

been likely repositories of responsive records because such files are “exempt from the search …

requirements of the FOIA.” Id. at ^ 24 n. 4. Operational files are exempted from the FOIA by 50

U.S.C. § 3141. The statutory definition of “Operational file” is limits the covered file to specific

types of files in three specific branches of CIA:

“(1) files of the National Clandestine Service which document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services;

• files of the Directorate for Science and Technology which document the means by which foreign intelligence or counterintelligence is collected through scientific and technical systems; and
• files of the Office of Personnel Security which document investigations conducted to determine the suitability of potential foreign intelligence or counterintelligence sources;

except that files which are the sole repository of disseminated intelligence are not operational files.”

50 U.S.C. § 3141(b). Some operational files, including “special activity the existence of which is not exempt from disclosure” under specific FOIA exemptions or that were “the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice, the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity”, are not protected by the operational file exclusion. 50 U.S.C. § 3141(c).

The law does not provide blanket exemptions for all files maintained by the Office of Personnel Security (“OPS”). Only those files from that office documenting investigations of foreign intelligence and counterintelligence sources are exempted. 50 U.S.C. § 3141(b)(3). Both Harvey and Wyatt, as employees of CIA, have OPS files which would be likely to contain information about TDY travel as well as their assignments to any station, post, base, unit or other component of CIA. These are employee files and are not covered under the provision exempting foreign intelligence and counterintelligence sources.

Additionally, much of the information sought by Talbot falls under both the special activity and investigation exception of 50 U.S.C. § 3141(c). Harvey’s travel and assignments have been the subject of investigation by, at least, congressional intelligence committees and the CIA’s Inspector General. During these investigations, CIA officials have acknowledged the existence of

Harvey’s involvement in the CIA anti-Castro operations; the planning and set-up of an executive action capability for the CIA; and involvement in Castro assassination attempts, including those involving plots with members of criminal elements in the United States such as Johnny Roselli and Sam Giancana. In order to avoid searching such files, CIA must “demonstrate to the court by sworn written submission that exempted operational files likely to contain responsive records currently perform the functions set forth in subsection (b) of this section.” 50 U.S.C. § 3141(f)(4)(A). Operational files regarding these special activities should clearly have been searched. CIA has offered no information that all operational files either perform the functions required by subsection (b) nor that they do not fall under the exceptions of subsection (c). Provision of a conclusory statement such as that in the Steiner Decl. at ^ 24 is insufficient. Inst. for Policy Studies v. CIA, 153 F.Supp.3d 352, 355 (D.D.C., 2016).

Harvey’s activities, including his travel and assignments, between at least 1959 and his retirement were one of the subjects of investigated by the Senate Select Committee on Intelligence (“Church Committee”) as part of its investigation into plots to overthrow and/or assassinate Fidel Castro and the assassination of President Kennedy. See Interim Report of the Select Committee to Study Governmental Operations with respect to Intelligence Activities, United States Senate (“Church Committee ”), The Investigation of the Assassination of President John F. Kennedy: Performance of the Intelligence Agencies, S.Rep. No. 94-755, Book V, at 1 (1976). As such, operational files related to such activities are not exempted from FOIA file searches. Morley, 508

1117. 3d at 1117.

The scope of the Church Committee’s investigation also included plots to overthrow and/or assassinate Fidel Castro in 1963, including the plot involving AMLASH and a related program to foster dissension in the Cuban military and possibly provoke a coup. “Alleged Assassination Plots

Involving Foreign Leaders”, Church Committee, 94^th Congress, Report No. 94-465, November 20, 1975, page 86 and fn. 2. At least one document in the National Archives, RIF: 157-10014-10102 from the Church Committee available on the National Archives website at https://www.archives.gov/files/research/ifk/releases/157-10014-10102.pdf, indicates a relationship between Harvey and the AMLASH operation. CIA must also search the AMLASH operational records.

CIA plots to assassinate Fidel Castro were also the subject of an investigation by the Inspector General (“IG”) of the CIA ordered by President Johnson in 1967. CIA IG Report on Plots to Assassinate Fidel Castro dated May 23 1967. This IG investigation specifically investigated the activities of Harvey during the period subject to Talbot’s FOIA request. Such Inspector General investigations are also exceptions from the FOIA search exemption of 50 U.S.C. Sec. 3141(c). CIA must search the operational records involved in this investigation.

Further, the assassination of President Kennedy was the subject of an investigation by the Department of Justice, the Warren Commission appointed by President Johnson, the Church Committee and the House Select Committee on Assassinations (“HSCA”). Former CIA Director Richard Helms has publicly stated that CIA initiated an investigation of the assassination of President Kennedy that began with an effort to find out if CIA operatives were in Dallas at the time of the assassination. https://www.youtube.com/watch?v=e3nDUEgh05o. So far as Plaintiff knows, these records have never been produced and CIA must search them in response to Talbot’s request for information on Harvey and Wyatt’s TDY travel and assignments. Jack Whitten, a CIA officer who was in charge of the CIA’s initial investigation into the Kennedy assassination testified under his pseudonym, John Scelso, about William Harvey before the HSCA. He characterized Harvey as “a man without sentiment, considerable stamina, great determination, high-skilled.

Surrounded himself wherever he was with a group of people compatible with his personality and worked very purposefully towards certain ends.” John Scelso Testimony, HSCA Executive Session, 95^th Cong., p. 1-150, (16 May 1978) RIF: 180-10131-10330. Whitten testified that he wondered whether Harvey had been involved in the murder of Sam Giancana but he denied any specific knowledge of his possible involvement in the assassination of President Kennedy but went on to talk at length about Harvey being a “gun-fanatic.” Id. at 1-149. Shortly thereafter, when asked if he had any idea what might have been in Harvey’s personal papers that he had instructed his wife to burn upon his death, he responded, “He was too young to have assassinated McKinley and Lincoln.” Id. at 1-150.

Government investigative agencies, and in particular the CIA, did not inform the Warren Commission about plots to kill Fidel Castro undertaken or developed by U.S. government agencies. Foreword by former President Gerald R Ford (member of the Warren Commission), “A Presidential Legacy and The Warren Commission”, FlatSigned Press, Nashville, TN, 2007, p. XXII. CIA, by way of its official historian, has admitted to participation in a cover-up of information from the Warren Commission. David Robarge, “DCI John McCone and the Assassination of President John F. Kennedy,” Studies in Intelligence, (Vol. 57, No. 3, 09/2013), Approved for Release and declassified, 09/29/2014, available at http://nsarchive.gwu.edu/NSAEBB/NSAEBB493/docs/intell_ebb_026.PDF. This misconduct adds weight to the public interests at issue here, and CIA must search its records of plots to assassinate Fidel Castro for documents responsive to Talbot’s request.

The HSCA investigated all of these issues as part of its investigation of the assassination of President Kennedy. The Congress of the United States unanimously passed a law in 1992, enacted by the President, requiring the expeditious release to the public of all government records

related to the assassination of President Kennedy and investigations of the assassination. President John F. Kennedy Records Collection Act of 1992 (JFK Records Act or JFK Act), codified at 44 U.S.C. Sec. 2107 notes. President Trump on October 26, 2017 ordered that all records related to the assassination of President Kennedy be released forthwith with minimal redactions. These official acts add even more weight to the public interests at issue, and CIA must search its JFK Act records related to these actions.

The documents released by CIA to Talbot also contain positive indications of other file systems that are likely to contain documents responsive to Talbot’s FOIA request for records related to both Harvey and Wyatt. Among the many such indications, for example, are CIA Document No. C01228873, one of several produced Verified Records of Overseas Service which indicate that the Statistical Reporting Branch of the Office of Personnel and the C&T Division should contain records of Harvey’s Departure and arrival dates when traveling to overseas duty posts, both permanent and TDY. This document also indicates that the source document for the record was a cable identified as “IN 26160” indicating that a search of cable traffic could produce additional possibly responsive documents. Multiple documents produced show that there are likely to be Office of Security files that contain documents responsive to Talbot’s FOIA Request. CIA Document No. C01229003 is a Final Clearance Record Form that indicates that, at the time of his retirement, the following branches of CIA, among others, were considered likely to have records on Harvey: Office of Logistics, Central Procession Branch, Medical Staff, Commo Security, Records RID, Special Clearances OS, Central Cover Staff, Office of Security, Office of Finance and Benefits & Counseling Branch. CIA Document No. C01228600 indicates that the Finance Division is likely to have records responsive to Talbot’s request based upon the payment of travel expenses to Harvey and Wyatt. CIA Document No. C01228586 also indicates that the

Transportation Division as well as the Finance Division are likely to have records related to travel expenses incurred by the subjects of Talbot’s request. INS is likely to have registered aliases for Harvey and Wyatt under which aliases responsive records are likely to exist. Hardway Decl. ^ 9, Exs. 9a-9b.

For the forgoing reasons CIA’s Motion for Summary Judgment should be denied and CIA should be ordered to expand its search for documents responsive to Talbot’s FOIA requests to include, at a minimum, searches for registered aliases of Wyatt and Harvey and searches of CIA components where positive indications exist using all known names, pseudonyms, registered aliases, and all reasonable variations of such names, pseudonyms and aliases.

1. CIA VAUGHN INDEX IS DEFICIENT.

“The significance of agency affidavits in a FOIA Case cannot be underestimated.” King, 830 F.2d at 218. The reason for this is that ordinarily the agency alone possesses knowledge of the precise content of documents withheld. Thus, “the FOIA requester and the court both must rely upon its representations for an understanding of the material sought to be protected.” Id. The agency’s declarations are critical because “‘[t]his lack of knowledge by the party see[k]ing disclosure seriously distorts the traditional adversary nature of our legal system’s form of dispute resolution, ‘with the result that ‘[a]n appellate court, like the trial court, is completely without the controverting illumination that would ordinarily accompany a lower court’s factual determination.'” Id., quoting Vaughn, 484 F.2d at 824-825. As King also stated: “Specificity is the defining requirement of the Vaughn index and affidavit; affidavits cannot support summary judgment if they are ‘conclusory, merely reciting statutory standards or sweeping.’ To accept an inadequately supported exemption claim “would constitute an abandonment of the trial court’s obligation under the FOIA to conduct a de novo review.” Id. at 219 (citations omitted). This index “must describe each document or portion thereof withheld, and for each withholding it must discuss the consequences of disclosing the sought-after information.” Id, at 223-224.

In this case, the Vaughn index submitted by CIA is wholly deficient. It fails to specifically link asserted FOIA exemptions to rationales for withholding, and instead makes blanket assertions for multiple FOIA exemptions. Since FOIA exemptions were enacted to meet specific factual situations, this blanket assertion of rationales for exemptions is inappropriate and does not justify the withholdings.

1. CIA EXEMPTION 1 CLAIMS ARE WITHOUT BASIS

Categorization does not supplant the need for particularity. King, 830 F.2d at 224. The King Court laid down specific instructions for evaluating such claims: Categorical description of redacted material coupled with categorical indication of anticipated consequences of disclosure is clearly inadequate. To support its Exemption 1 claims the agency affidavits must, for each redacted document or portion thereof, identify the document, by type and location in the body of documents requested; (2) note that Exemption 1 is claimed; (3) describe the document withheld or any redacted portion thereof, disclosing as much information as possible without thwarting the exemption’s purpose; explain how this information falls within one or more of the categories of information authorized by the governing executive order, and (5) explain how disclosure of the material in question would cause the requisite degree of security to the national security. Id. at 224.

In this case, CIA claims an FOIA b (1) national security exemption for material that is in excess of 50 years old, despite the provisions of Executive Order 13526 that mandate automatic declassification for aged material. Executive Order 13526 § 3.3, 75 Fed. Reg. 707 (Jan. 5, 2010), reprinted in 50 U.S .C. § 3161 note (“E. O. 13526”). E.O. 13526 § 3.3(a) automatically declassifies documents that are more than 25 years old that have permanent historical value. Paragraph (b) of that subsection allows an agency head to exempt some records from declassification for an additional 25 years. Of those exceptions to automatic 25-year classification, the ones found at (b)(1) relating to revelation of human sources, a relationship with a foreign intelligence or security service, or impair the effectiveness of an intelligence method currently in use, available for use or under development, and (b)(6) relating to information that would cause serious harm to relations between the U.S. and foreign governments may be at issue here. In order to avail itself of this 25- year extension § 3.3(c) requires the agency head provide notice to the Interagency Security Classification Appeals Panel (ISCAP) according to a specified procedure and timetable for “any specific file series of records” which the agency desires to exempt from automatic declassification at the end of the first 25-year period. Id. at § 3.3(c)(1). ISCAP then must rule on the extension request. In this case, CIA has provided no proof that the documents involved in this case are part of a file series of records in which such an extension has been approved.

All of the documents at issue in this case are more than 50 years past the date of their origination. As such, they are automatically declassified “on December 31 of a year that is no more than 50 years from the date of origin.” Id. at § 3.3(h). Only those “that contain information the release of which should clearly and demonstrably be expected to reveal … the identity of a confidential human source or a human intelligence source” are exempted from automatic declassification. Id. at § 3.3(h)(1). Unless the head of CIA specifically requested an extension in regard to information that would cause serious harm to relations between the U.S. and foreign governments under § 3.3(h)(2), then this exemption is no longer available to CIA and no proof has been offered in regard to such an extension having been obtained for any document involved in this case. These possible extensions of time are not mentioned in the CIA Declaration. In the Defendant’s memorandum the 50-year automatic declassification is not mentioned although the

Defendant does seek to rely upon the now irrelevant 25-year exemption. Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment (“Defendants’ Memo”), Talbot v. CIA, Case No. 17-cv-588 CRC (Jan 17, 2017), Doc. No. 17-1 at pp. 19-20. In addition, the Defendant does not indicate that any of these documents have been the subject of decennial review.

CIA made no attempt to provide documents that were only responsive to Talbot’s request in this case but rather released all documents found in his OPF as a result of a prior search as well as an additional 300 pages of documents inexplicably found while preparing a Vaughn Index. The index lists 508 documents. Shiner Decl., Ex. L, Doc. No. 17-5, p. 211. Exemption (b)(1) is invoked in regard to 291 of the 508 documents. Id. pp. 80-211. CIA claims four types of information are redacted under this exemption: 1) Foreign Liaison Information; 2) Overseas Field Installations; 3) Cover and Cover Methods; and 4) Coding Information. Shiner Decl. ^ 28, Doc. No. 17-5. None of these types constitute “information the release of which should clearly and demonstrably be expected to reveal … the identity of a confidential human source or a human intelligence source.” E.O. 13526 § 3.3(h)(1) and, therefore, cannot be legitimately redacted since all the documents are over 50 years old.

It should be noted here that analysis of CIA claims in regard to specific documents is rendered difficult by the fact that the 582 pages constituting the 508 documents produced were not produced in the same order as they are listed in the Entry Numbers in the Vaughn Index and have no indications on them in regard to the Index entry number. The produced documents were also not provided in the order of the Cadre Numbers assigned on the documents. The produced documents, including the Cadre Numbers, are not electronically text searchable. In most instances, however, the Index justifies the use of the exemption with repetitive boilerplate language. For example, the sentence: “Exemptions (b)(1) and (b)(3) (National Security Act) were invoked to withhold information relating to intelligence sources, methods, and activities that is classified pursuant to paragraph 1.4(c) of E.O. 13526” is repeated 295 times. The Vaughn Index has 26 entries citing “overseas assignment” as the justification for the exemption of which 11 also cite “permanent presence overseas.” Two of the (b)(1) entries cite only “permanent presence overseas” as the justification. “Cover” and “cover-related information” is mentioned in 84 instances. “Coding” is mentioned in 110 instances. “Foreign Liaison” is cited in regard to one document. No further explanation is provided for the remaining 72 documents that have claimed (b)(1) redactions.

For the foregoing reasons CIA has not met its burden of showing that the redactions are justified and its Motion for Summary Judgment should be denied and judgment should be entered on behalf of Talbot directing the CIA to release the documents without any of the claimed (b)(1) redactions.

• CIA EXEMPTION 3 CLAIMS FAIL.

The CIA has invoked 50 U.S.C. § 3507 (“CIA Act”) and 50 U.S.C. § 3024 (“NSA Act”) in support of the redactions it claims to have been made under FOIA Exemption 3.

The CIA Act exempts the Agency from publishing or disclosing “the organization, names, official titles, salaries, or numbers of personnel employed by the [CIA].” 50 U.S.C. §3507. The Act, however, does not permit the CIA “to refuse to provide any information at all about anything it does.” Phillippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976). The CIA Act was also addressed in Baker v. CIA, 580 F.2d 664 (D.C. Cir. 1978), where it the court held the Act to apply “personnel information.” Id. at 669. “The phrase ‘of personnel employed by the Agency’ applies to each item in the list ‘organization, functions, names, official titles, salaries, or numbers’ and thus the CIA Act only applies to personnel information.” Sack v. CIA, 49 F. Supp. 3d 15, 22 (D.D.C. 2014).

While the CIA’s Declaration indicates that the documents produced were “informed by” a prior search for Harvey’s OPF file, Shiner Decl. ^ 12, Doc. No. 17-5, there is no statement that all the records produced are personnel documents, and a review of the documents indicates that not all were.

The NSA Act protects against the unauthorized disclosure of intelligence sources and methods. But this Exemption 3 statute is subject to the same concern pointed out in King, discussed above. Is the source still alive? Has the source or method been disclosed? Is the source or method really unknown to foreign governments and the press? Are disclosures made by Congress considered “unauthorized”? Can a disclosure in response to an FOIA request be unauthorized when the information has already been disclosed in other CIA declassified and released documents? Additionally, Exemption 3 only applies to unauthorized disclosure by its plain language. As discussed above, E. O. 13526, ^ 3.3 automatically declassifies material that is more than 50 years in age as all the documents are in this case. Such automatic declassification is authorization.

The Vaughn Index provides no information in regard to what sources and methods are sought to be protected with the exception of those co-cited with Exemption (b)(1) claims. See Shiner Decl. ^ 38, Doc. No. 17-5. The Vaughn Index cites the NSA by itself in regard to 45 documents, many of which contain no further explanation while those that do are very brief, such as “types of funds” or “types of pay.” Consequently, it is nigh on to impossible to determine whether such are already known or whether disclosure of them would be unauthorized and therefore protected by the statute.

For the foregoing reasons CIA has not met its burden of showing that the redactions are justified and its Motion for Summary Judgment should be denied and judgment should be entered on behalf of Talbot directing the CIA to release the documents without any of the claimed (b)(3) redactions.

• CIA EXEMPTION 6 CLAIMS ARE WITHOUT BASIS

CIA attempts to justify its invocation of Exemption (b)(6) on the basis that disclosure of identifiable information about CIA officers and other individuals would not contribute to the public’s understanding of CIA’s activities and could result in increased threats or harassment of such identified individuals. Shiner Decl. ^ 39, Doc. 17-5. The arguments made above in regard to the DOS invocation of Exemption 6 are equally applicable to CIA’s attempt to use the exemption in regard to Harvey’s records. Of the 508 documents produced by CIA 428 contain (b)(6) redactions. For the same reasons discussed above CIA has not met its burden of showing that the redactions are justified and its Motion for Summary Judgment should be denied and judgment should be entered on behalf of Talbot directing the CIA to release the documents without any of the claimed (b)(6) redactions.

1. SEGREGABILITY AND THE DOCUMENTS WITHHELD IN FULL.

Sixty responsive documents were denied in full (“DIF”). The only information on those documents provided to Talbot in regard to those sixty documents are the Vaughn Index entries on them. CIA did provide a separate Vaughn Index listing of denied in full documents which also provided the date of the document. No copy of any type of the DIF documents was provided. It is impossible to determine whether any of these documents may contain segregable information. CIA does not support its assertion of non-segregability except by stating that in DIF documents there was no segregable, non-exempt portions of documents [that] could be released without potentially compromising classified or other information protected under the FOIA.” Shiner Decl. ^40, Doc. No. 17-5.

The FOIA provides that “[a]ny reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt.” 5 U.S.C. 552(b). Consequently, any portion of a record responsive to an FOIA request that can be segregated from the document must be “disclosed unless they are inextricably intertwined with exempt portions.” Krikorian v. Dep’t of State, 984 F.2d 461, 466 (D.C.Cir.1993) (quoting Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 260 (D.C.Cir.1977)). The burden of showing that the withheld document has no segregable factual information is upon the government. Elec. Frontier Found. v. U.S. Dep’t of Justice, 739 F.3d 1, 12 (D.C. Cir., 2014); Mead Data, 566 F.2d at 260; Army Times Pub. Co. v. U.S. Dep’t of the Air Force, 998 F.2d 1067, 1068 (D.C. Cir. 1993). The government must show the lack of segregability with “reasonable specificity.” Armstrong 97 F.3d at 578; Quinon v. FBI, 86 F.3d 1222, 1227 (D.C.Cir.1996).

This Court is required to make an express finding on segregability and is charged with an affirmative duty to consider whether all segregable information has been released. Morley, 508 F.3d at 1123; PHE, Inc. v. Dep’t of Justice, 983 F.2d 248, 252 (D.C.Cir.1993). At a minimum, this Court can properly exercise this duty “only when the agency has correlated each exemption it claims with the particular portion of the document to which the exemption applies.” Hall 1., 668 F.Supp.2d at 194 (citing Schiller v. Nat’l Labor Relations Bd., 964 F.2d 1205, 1209-10 (D.C.Cir.1992)).

In Hall1 the agency argued that a declaration that stated “no further information could be segregated” constituted explaining “to the fullest extent possible without disclosing the information that is protected.” 668 F.Supp.2d at 194. A Vaughn index in that case contained statements in regard to withheld documents that “[n]o meaningful nonexempt information is reasonably segregable for release.” Id. In Halll the Court ordered the agency to provide more information “‘specifying] in detail which portions of the document are disclosable and which are allegedly exempt,’ … mak[ing] specific findings for each document withheld[,] … and ‘correlating] claimed exemptions with particular passages.'” Id. (quoting Animal Legal Defense Fund, Inc. v. Dep’t of Air Force, 44 F.Supp.2d 295, 302 (D.D.C.1999) quoting Schiller, 964 F.2d at 1209, 1210). An example of the acceptable detail required is found in Hall v. C.I.A., 881 F.Supp.2d 38, 72-73 (D.D.C. 2012) (“Hall2”).

In this case the government only asserts that there is no segregable information in any of the DIF documents. The Vaughn Index entries for the DIF documents contain boilerplate descriptions that are not different from the entries for partially redacted documents under the same exemptions. In regard to all of the DIF documents two, and often three, exemptions are asserted. Yet there is nothing in the Vaughn Index that would “correlate claimed exemptions with particular passages.” The government has failed to provide the court with the information it needs to properly exercise its duty to make an express finding in regard to segregability and its Motion for Summary Judgment should be denied. Hall 1, 668 F.Supp.2d at 194 (D.D.C 2009).

CONCLUSION

For the foregoing reasons the Defendants’ Motion for Summary Judgment should be

denied and Plaintiff’s Cross Motion for Summary Judgment should be granted.

Respectfully submitted,

S/James H. Lesar

James H. Lesar #xxxxx xxxxxxx xxxxxx Counsel for Plaintiff