UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ROGER HALL, Plaintiff, v. Civil Action No. 98-1319 PLF

CENTRAL INTELLIGENCE AGENCY, Defendant.

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF'S OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Plaintiff, by and through his counsel, hereby opposes the Motion for Summary Judgment filed by Defendant with this Court on October 15, 1998 and supports his opposition with this memorandum of points and authorities.

Historical Background
On March , 1973 President Nixon declared the controversial Vietnam war at an end and announced all our troops, including those missing in action and prisoners of war, were coming home. Dozens of families, however, knew that their loved ones did not return and the explanations given to them by the U.S. government were far from complete or satisfactory.

As the years went by, rumors of prison camps still existing and sightings of Americans in Laos and other South East Asia countries sprang up and families engaged private investigators and, in some cases rescuers, to track down their missing family members.

More and more reports began to surface not only that prisoners of war and others still missing were left behind but that the U.S. government may have known in 1973 (or at least had information available to it) that men were being left behind. Public outrage increased with each such report and finally pressure was brought to bear on Congress. In 1991 the Senate appointed a Select Committee on POW/MIA Affairs to investigate and "ensure that our nation meets its obligation to the missing" and their families.

Final Report of the Senate Select Committee on POW/MIA Affairs, S.Rept. No. 103-1 (103rd Cong., 1st Sess., January 13, 1993)(hereinafter "Senate Report") at p. 2.

The Committee conducted hundreds of interviews and took sworn depositions of military and civilian personnel who served in Vietnam, who worked for intelligence gathering agencies or were in policy-making positions, as well as outsiders who might have had relevant information.

The Committee studied thousands of pages of records from government agencies. The Committee reached the conclusion that men were definitely left behind and that the US government knew about these abandoned men and had continued over the years to gather information about them possibly to try to secure their release. The Committee, however, was unconvinced that any of these men remain alive today.
Senate Report at p. 7.

During its work, the Committee encountered a great deal of frustration and stonewalling by government agencies over the release of records on POW/MIAs.
Senate Report at p. 243.

This prompted the Senate to enact Senate Resolution 324 demanding that the President issue an executive order commanding all federal agencies to "declassify and publicly release without compromising U.S. national security all documents, files and other materials pertaining to POWs and MIAs."

138 Cong. Rec. No. 98, S. 9664 (102d Cong., 2d Session, 1992).
See also, Senate Report at pp. 239-40.

President Bush duly issued the Executive Order (No. 12812) on July 22, 1992 and in 1993 President Clinton reiterated that order in Presidential Decision Directive NSC 8 (hereinafter "PDD NSC 8) and demanded all agencies complete their review by Veterans' Day, 1993.

Procedures were established for the Department of Defense through the Defense Prisoner of War/Missing Personnel Office ("DPMO") to coordinate assembling the documents, and the Library of Congress (National Archives and Records Service) was designated the final repository of all publicly releasable materials.

Procedural Background of these Requests
Plaintiff is an independent researcher who became interested in information on POW/MIAs during the course of his graduate school studies. He now conducts research not only for articles he writes on the subject but also to assist families of individual POW/MIAs who remain unaccounted for from the Vietnam war. He currently works with 19 such families as well as with the National Alliance of Families. See Affidavit of Roger Hall, appended as Exhibit 1 to this memorandum (hereinafter "Hall Affid.") at 2.

In January, 1994 Plaintiff made the first Freedom of Information Act ("FOIA") request to the Central Intelligence Agency that is the basis of Count I in this litigation. His initial request was a broad, all encompassing one asking for any and all information on POW/MIAs still remaining in South East Asia whether held in prisoner status or not. He further clarified his request by stating that it included information about POW/MIAs taken from, transported through, and residing in various countries, including Laos, Cambodia, Vietnam, China, North Korea, the Soviet Union, and Cuba.

Rather than conduct a search in response to his request, the CIA pointed Plaintiff to lists of documents previously released in response to other requests or to the collection of records at the Library of Congress. Plaintiff appealed the agency's decision on February 9, 1995, stating that the agency's failure to conduct a search was a refusal to release documents in violation of the FOIA. Defendant denied this appeal on March 13, 1995.

On April 23, 1998, Plaintiff, through his counsel, made four additional, separate requests to the CIA for specific categories of records, all of which had been covered by Plaintiff's initial request. The first sought information on broadcast and newspaper intercepts from 1968 through 1973 which relate to POW/MIAs other than those in the published Foreign Broadcast Information Service (FBIS) Far East volume. (This request is the basis of Count II in this litigation).

The second sought information from January 1, 1971 through December 31, 1975 on the status of any POW/MIAs in Laos (Count III in this litigation). The third asked for records of the Senate Select Committee on POW/MIA Affairs withdrawn from the collection at the National Archives and returned to the CIA (Count IV in this litigation). The fourth sought all documents relating to nineteen named individuals who are POW/MIAs from the Vietnam era (Count V in this litigation).

When the agency failed to respond to these four requests within the statutorily-provided twenty- business-day period, Plaintiff brought suit on May 28, 1998. The CIA ultimately acknowledged receipt of each of the requests. In each of these letters the agency pointed out that all responsive documents would be either on the lists previously provided to Mr. Hall or on the agency's website. By letter dated August 14, 1998, Defendant sent Plaintiff 148 pages of previously released documents on five of the nineteen named individuals covered by Plaintiff's fifth request. The agency contends it has no records on the remaining thirteen named individuals.
See copy of August 14, 1998 letter attached as Exhibit 2 to this memorandum.

The documents released in response to Count V contain numerous deletions which the agency has failed to explain. At some point after this case was filed, Defendant discovered and reviewed classified documents gathered by the agency in response to E.O. 12812 and PDD NSC 8 that, because of their classification status, were not included on previously-released agency lists. Defendant identified only eleven of these documents as responsive to Plaintiff's request and is withholding them in whole or part. See McNair Declaration at 35 and 62.

Defendant has now moved for summary judgment as to all counts in this case. With respect to Counts I, II, III and V, the agency contends that it has conducted an adequate search and all responsive documents have either been released to Plaintiff personally or offered to him through the various lists of publicly-available documents, except for those eleven documents for which Defendant cites an exemption to justify their withholding.

With respect to Count II, the agency contends that no responsive documents exist. Finally, with respect to the documents from the Senate Select Committee on POW/MIA Affairs which were sent by the National Archives to the agency for declassification (Count IV), Defendant contends these records are Senate records and not accessible under the FOIA.

Plaintiff vigorously contests Defendant's motion for summary judgment on the grounds that there are many facts still in dispute with respect to Defendant's interpretation of Plaintiff's request and the adequacy of its search for responsive documents.

Facts surrounding the creation and transfer of the documents from the Senate Select Committee on POW/MIA Affairs Plaintiff seeks demonstrate that these records are within the possession and control of the CIA and, thus, are agency records subject to FOIA.

Plaintiff also opposes summary judgment as to documents released in part because with respect to some records Defendant has failed to offer any explanation to justify the deletions and for other records (the eleven documents described in the McNair Declaration), there is evidence that some of this information may have already been publicly disclosed, and thus, Defendant's claim of exemptions may not be supportable by law.

The remainder of this memorandum will detail Plaintiff's grounds for opposing Defendant's motion for summary judgment.

ARGUMENT
Summary judgment is not appropriate when there are material facts in dispute or where the agency has failed to meet the burden of proof placed upon it by the FOIA to justify the withholding of records. See Washington Post Co. v. Department of State, 840 F.2d 26, 29(D.C. Cir. 1988); Afshar v. Department of State, 702 F.2d 1125, 1143 (D.C. Cir. 1983).

The Court's review in FOIA cases must be de novo and agency affidavits and declarations are to be carefully scrutinized to ensure they are detailed, non-conclusory and substantively sufficient. 5 U.S.C. § 552(a)(4)(B) and Miller v. Casey, 730 F.2d 773, 776 and n.17(D.C. Cir. 1984); and Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 861 (D.C. Cir. 1980).

I. Defendant Has Not Met Its Burden of Showing That It Has Conducted A
Reasonable Search for Documents Responsive to Plaintiff's Requests. The FOIA imposes upon federal agencies a duty to conduct a "reasonable" search for records responsive to a request. In reviewing the adequacy of a particular search, the court must "expressly conclude that the search was adequate or that it satisfied the reasonableness standard."

Krikorian v. Department of State, 984 F.2d 461 (D.C. Cir. 1993). While normally an agency is permitted to establish the adequacy of its search by affidavits, when those affidavits are conclusory or the record raises serious doubts as to the completeness of the agency's search, or there is evidence of agency bad faith, summary judgment for the defendant agency on the basis of affidavits alone is inappropriate. Perry v. Block, 684 F.2d 121 (D.C. Cir. 1982)

In such cases, plaintiffs are entitled to take discovery to determine the nature and scope of the search undertaken by the agency. See, e.g., Neugent v, Department of the Interior, 640 F.2d 386 (D.C. Cir. 1981); Founding Church of Scientology of Washington v. NSA, 610 F.2d 824 (D.C. Cir. 1979); Weisberg v. Department of Justice, 542 F.2d 308 (D.C. Cir. 1976).

Where the agency's affidavits regarding the adequacy of the search conducted are challenged, the facts concerning the adequacy of that search must be construed in the light most favorable to the requester/plaintiff. Zemansky v. EPA, 767 F.2d 569, 571 (9th Cir. 1985), citing Weisberg v. Webster, 749 F.2d 864 (D.C. Cir. 1984).

If there is a "substantial doubt" as to the adequacy of the search that was conducted, summary judgment cannot be granted to the agency. Krikorian v. Department of State, supra. 984 F.2d at 468, citing, Truitt v. Department of State, 897 F.2d 540, 542 (D.C. Cir. 1990).

In this case, Defendant has submitted the declaration of William H. McNair to support the adequacy of its search. In that declaration Mr. McNair concedes that the agency did not actually conduct a search in response to Plaintiff's requests, but rather relied exclusively upon a search done by the agency at some point prior to November, 1993 in response to E.O. 12812 and PDD NSC 8. McNair Declaration at 16.

While the Executive Order and directive mandated comprehensive searches for all records on the subject of POW/MIAs, the adequacy of the agency's search must be reviewed in accordance with what Plaintiff actually requested.

A. Defendant May Not Have Properly Interpreted Plaintiff's Request. Plaintiff states in his Affidavit, at 15, that his initial FOIA letter was intended as a very broad request for any and all information pertaining to any individuals considered prisoners of war or missing in action from the Vietnam era who are or have been believed to be remaining in Southeast Asia or other countries now or in the past whether in a prisoner status or not.

Plaintiff provided additional information to aid the agency's search after being told that all responsive documents had been previously reviewed and released in response to presidential orders. That additional information was intended to provide additional search aids, not to narrow, in any way, the scope of his request.

Id. Defendant, however, characterizes plaintiff's attempts as a "narrowing" of his request. This limited interpretation may well have led to an incomplete search.

Plaintiff's initial request specified by name a number of countries where Plaintiff believed POW/MIAs might have been taken at some point over the years. He provided these names to ensure that the agency's search encompassed information about POW/MIAs in all possible locations.

The named countries included North and South Vietnam, Laos, Cambodia, North Korea, Cuba, China and the Soviet Union. The McNair Declaration describes various key words that were used by the agency's Directorate of Operations to search for responsive documents. McNair Decl. at 26.

Only Vietnam, Laos, and Cambodia appear on the list in the McNair Declaration. Therefore, without further discovery there is no way to know if the agency's search for documents on POW/MIAs encompassed information relating to POW/MIAs in countries specified in the request but not mentioned as a search term. Plaintiff, in his affidavit which is submitted pursuant to Fed.R.Civ.Proc. 56(f), provides examples of a number of types of records that he can document exist but have not been acknowledged or released in response to his requests.

These include aerial reconnaissance photography, Hall Affid. at 25-29, briefing boards and notes, id. at 35, reports of coordinated efforts with other agencies, id. at 22, and minutes or other notes of meetings of various policy groups on which the CIA served, id. at 32. The absence of any documents of these kinds suggest that, not only may the agency have conducted an inadequate search, but it also may have given

Plaintiff's request such a narrow interpretation that these documents were not considered responsive. Without discovery on this issue, there is no factual basis to determine if Defendant's processing of Plaintiff's requests was proper.

B. The Description of the Search Conducted by Defendant is Incomplete. In order for an agency declaration to be afforded deference, it must be complete and non- conclusory. Allen v. Central Intelligence Agency, 636 F.2d 1287, 1291 (D.C. Cir. 1980)(

"The affidavits must show, with reasonable specificity," and they "will not suffice if the agency's claims are conclusory . . . or if they are too vague or sweeping."). See also Perry v. Block, 684 F.2d 121, 126 (D.C. Cir. 1982)("supporting affidavits must be relatively detailed and nonconclusory and must be submitted in good faith."[citations omitted]).

The McNair Declaration, particularly with respect to the description of the search conducted for responsive documents, is neither relatively detailed nor non-conclusory. His declaration is incomplete in many respects. He fails to provide such simple information as when the searches were actually conducted. He states, at 16, that the search was conducted pursuant to E.O. 12812 but he does not say when the search was actually ordered by DCI Robert M. Gates or when search criteria were developed and presented to the agency components.

In fact, he makes no representation about any effort to standardize or coordinate criteria for conducting the search across the various components of the agency. While he states that the search is on-going, he does not explain how the on-going search (presumably for newly created documents) is being handled.

While the McNair Declaration indicates that five components of the CIA were searched, he never certifies that these are the only components of the agency or even those most likely to have responsive records.

The McNair Declaration then goes on to describe the conduct of the searches in only two of those five components. McNair Declaration at 26-30. What was done in the other three components is unknown. He describes certain key words used to conduct the search for the Directorate of Operations. Id. at 26.

The omission of similar details with respect to the searches of other components leaves it unclear whether those same terms may have been used in other directorates or whether other search keys were employed. In the description of the search conducted at the Directorate of Intelligence, McNair describes the types of files that were searched, e,g, "subject files, chrono files, reference materials, analyst files and listings of archived records." McNair Decl. at 30.

By contrast, in his description of the search of Directorate of Operations files, he talks only of "soft and hard files", "chronological subject files" and "numerous other specialized files." McNair Decl. at 26. Despite Mr. McNair's characterization of the searches as "thorough" and "exhaustive," the descriptions he provides of the searches are not detailed or complete enough for this Court to make a determination of the reasonableness of this search de novo.

Continue on to Part Two