RE-OPENING JFK CASE

[LiAnn Simpson]

This article is a bit dated, but it gives good information on all the aspects of a possible new investigation of the assassination.
http://www.ratical.org/ratville/JFK/Bil ... dJury.html

This article recommends a "federal" case, not state. But we shouldn't rule out anything at this point.

I still say the case will be solved in retrospect. When 9/11 is finally exposed for what it is, everything will fall into place. It all fits like the pieces of a very scary puzzle. The same forces are behind both.

LiAnn

[Pennyworth]

LiAnn Simpson wrote:This article is a bit dated, but it gives good information on all the aspects of a possible new investigation of the assassination.http://www.ratical.org/ratville/JFK/Bil ... y.htmlThis article recommends a "federal" case, not state. But we shouldn't rule out anything at this point. I still say the case will be solved in retrospect. When 9/11 is finally exposed for what it is, everything will fall into place. It all fits like the pieces of a very scary puzzle. The same forces are behind both.LiAnnThanx for sharing this post with us Li Ann...

[Pennyworth]

http://www.archives.gov/research/jfk/faqs.html#sealed

[Billy Boggs]

And, I would suggest that to get a federal investigation, an open and completely honest one, the people of America will have to unite, and take back their government from the scum that now "Own" it.

And, that process of re-unification is ongoing presently under the banner of freedom, and the one person that represents this effort, is RON PAUL.

A Truly United, USA, is something to be feared, by the "Owners", and Loved, by the peoples of the world.

[Pennyworth]

History Professors Study Our Greatest Murder MysteryCrime of the Century. Michael Kurtz, author of The JFK Assassination ... “This case remains the greatest unsolved murder mystery in American history… ...
flagpole.com/News/BookRev/JFK/2007-06-27 - 34k - Cached - Similar pages

History Professors Study Our Greatest Murder Mystery - Professor ...McKnight believes that JFK’s murder must have been the result of a ... [A] solution to the crime of the twentieth century in American history [is] unlikely. ...
http://www.law.uga.edu/academics/profil ... ssors.html - 12k - Cached - Similar pages

DEUS EX MAFIA: THE SOLUTION TO AMERICA’S GREATEST MURDER MYSTERY ...The assassination of President John F. Kennedy is, in the words of journalist David Talbot, “the greatest unresolved mystery of the 20th century. ...
http://www.law.uga.edu/academics/profil ... 3deus.html - 14k - Cached - Similar pages
[ More results from www.law.uga.edu ]

Amazon.com: Bloody Treason: On Solving History's Greatest Murder ...Amazon.com: Bloody Treason: On Solving History's Greatest Murder Mystery : The Assassination of John F. Kennedy: Books: Noel Twyman by Noel Twyman.
http://www.amazon.com/Bloody-Treason-Hi ... 0965439909 - 156k - Cached - Similar pages

Amazon.com: The JFK Assassination Debates: Lone Gunman Versus ...Southern Louisiana University historian Kurtz (Crime of the Century: The ..... After reading some 90 plus books on the greatest murder mystery of all time. ...
http://www.amazon.com/JFK-Assassination ... 0700614745 - 194k - Cached - Similar pages
[ More results from www.amazon.com ]

Solving the Great American Murder Mystery : A National Symposium ...Solving the Great American Murder Mystery: A National Symposium on the 40th Anniversary of the JFK Assassination. Michael L. Kurtz, Ph.D. ...
www.jfk.duq.edu/bioKurtz.html - 9k - Cached - Similar pages

Did Castro order JFK's murder?He says he has single-handedly solved the number one murder mystery of the murder of the 20th century. Huismann bases his theory on important witnesses, ...
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Great mysteries grow intertwined (JFK assassination's link to ...There were some great mysteries during the 20th century. Many involved missing persons .... To: Destro. JFK's Assassination Link to Watergate. Arlen Specter ...
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[PDF] "CRACKING THE JFK CASE" CONFERENCE (WASHINGTON, D .C., November 18 ...File Format: PDF/Adobe Acrobat - View as HTML
Has the case really been closed on the murder of President. John F. Kennedy? Is it too late to solve the greatest mystery of. the 20th Century? ...
http://www.aarclibrary.org/notices/Crac ... -29-05.pdf - Similar pages

History Matters - The JFK AssassinationThe second story has to do with the framing of Lee Oswald for the murder, .... This book argues forcefully that the "mystery" of the JFK assassination is ...
www.history-matters.com/jfkmurder.htm - 22k - Cached - Similar pages

[Pennyworth]

http://www.huffingtonpost.com/jefferson ... 69414.html

[PHIL]

Ron Paul is our best hope of reopening the JFK investigation

[Pennyworth]

http://www.fas.org/blog/secrecy/2007/12 ... _foia.html

[Bob]

Here are specifics of the court decision...

Notice: This opinion is subject to formal revision before publication in theFederal Reporter or U.S.App.D.C. Reports. Users are requested to notify theClerk of any formal errors in order that corrections may be made before thebound volumes go to press.United States Court of AppealsFOR THE DISTRICT OF COLUMBIA CIRCUITArgued October 22, 2007 Decided December 7, 2007No. 06-5382JEFFERSON MORLEY,APPELLANTv.CENTRAL INTELLIGENCE AGENCY,APPELLEEAppeal from the United States District Courtfor the District of Columbia(No. 03cv02545)James H. Lesar argued the cause and filed the briefs forappellant.John C. Truong, Assistant U.S. Attorney, argued the causefor appellee. With him on the brief were Jeffrey A. Taylor, U.S.Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.2Before: HENDERSON, ROGERS and TATEL, Circuit Judges.Opinion for the Court filed by Circuit Judge ROGERS.ROGERS, Circuit Judge: Journalist Jefferson Morleyappeals the grant of summary judgment to the CentralIntelligence Agency (“CIA”) on his request under the Freedomof Information Act (“FOIA”) for documents pertaining toGeorge Joannides, a deceased CIA officer. Although the CIAdisclosed some records, it withheld others pursuant to variousFOIA exemptions. On appeal, Morley contends that the CIA didnot conduct an adequate search or provide an adequate Vaughnindex and that it failed to meet its burden to justify withholdingdocuments under FOIA exemptions. Upon de novo review, wereverse the grant of summary judgment. We hold that Morleymet his burden to show that his request falls within an exceptionto the Central Intelligence Agency Information Act of 1984(“CIA Act”), 50 U.S.C. § 431(c)(3), and we remand the case sothat the CIA may search its operational files in response toMorley’s FOIA request. Additionally, its release of recordspursuant to the John F. Kennedy Assassination RecordsCollection Act of 1992 (“JFK Act”), 44 U.S.C. § 2107 note,does not relieve the CIA of its obligations under the FOIA. Onremand, the CIA must also expand its description of the searchby its component units and supplement its justification forwithholding documents under FOIA Exemptions 2, 5 and 6.I.On July 4, 2003, Morley submitted a FOIA request to theCIA for “all records pertaining to CIA operations officer GeorgeEfythron Joannides (also known as ‘Howard,’ ‘Mr. Howard’ or‘Walter Newby’).” Letter from Jefferson Morley to KatherineDyer, Information and Privacy Coordinator, CIA (July 4, 2003)(“2003 Letter”), at 1. Morley is a journalist and news editorwho has written about the assassination of President Kennedy.In his view, information on Joannides could shed new light onthe assassination because of Joannides’ position as the CIA case3officer for the anti-Castro organization known as the DirectorioRevolucionario Estudantil (“DRE”) in 1963. As Morley’swriting discusses, the DRE had contact with Lee Harvey Oswaldin the months before President Kennedy’s assassination.Disclosure of CIA records pursuant to his FOIA request will,Morley contends, help to “complete the historical record ofKennedy’s assassination, specifically CIA operations that mighthave collected intelligence on Oswald.” Appellant’s Br. at 3.The CIA sent Morley a preliminary response on November5, 2003, informing him that “CIA records on the assassinationof President Kennedy have been re-reviewed under theclassification guidelines for assassination-related records of the[JFK Act]” and that such records “have been transferred to theNational Archives and Records Administration (“NARA”) incompliance with this Act.” Letter from Robert T. Herman,Information and Privacy Coordinator, CIA, to Jefferson Morley,at 1 (Nov. 5, 2003). The CIA directed Morley to submit hisrequest to NARA, supplied him with NARA’s address, andadvised him that records can be electronically searched throughNARA’s website. Id. at 2.On December 16, 2003, Morley filed a complaint forinjunctive relief, requesting the district court to order the CIA tomake available all documents responsive to his FOIA request.The CIA filed a motion to stay the proceedings pending itsfurther processing of Morley’s FOIA request, which the districtcourt granted on September 2, 2004. By letter of December 22,2004, the CIA responded to Morley’s FOIA request, enclosingthree documents in their entirety and 112 documents withredactions pursuant to FOIA Exemptions 1, 2, 3, 5, 6, 7(C), and7(E). The CIA noted that it had located additional responsivematerial that it was withholding in its entirety under FOIAExemptions 1, 3, and 6. It also explained that two documentsrequired consultation with another agency and that 78documents previously released under the JFK Act were on filewith NARA. The CIA asserted that it could “neither confirmnor deny the existence of records responsive” to Morley’s4request pertaining to Joannides’ participation in any covertoperation. Letter from Scott Koch, Information and PrivacyCoordinator, CIA, to Jefferson Morley, at 2 (Dec. 22, 2004)(“2004 Letter”). The CIA later released the two documentsrequiring consultation with another agency in segregable form.Three months later, on May 9, 2005, the CIA sent Morley apartially redacted document that it had “inadvertently failed toinclude” in its earlier response and identified additional materialthat was withheld in its entirety under Exemptions 1, 2, 3, 5, 6,7(C), 7(D), and 7(E). Letter from Scott Koch, Information andPrivacy Coordinator, CIA, to Jefferson Morley (May 9, 2005).Morley sought discovery from the CIA on February 27,2005. After the CIA filed a motion for a protective order onMarch 24, 2005, the district court referred all discovery disputesto a magistrate judge. The CIA filed a motion for summaryjudgment on November 15, 2005. On February 6, 2006, themagistrate judge granted the CIA’s motion for a protective orderand directed Morley to file his opposition to the CIA’s summaryjudgment motion, which Morley did on March 14, 2006 alongwith a cross-motion for summary judgment. On September 29,2006, the district court granted the CIA’s motion for summaryjudgment and denied Morley’s cross-motion. It found that theCIA had conducted an adequate search, giving deference to theagency’s decisions as explained in the October 26, 2005Declaration of Marilyn A. Dorn, the Information Review Officerfor the Directorate of Operations of the CIA (“DornDeclaration”), and that the Dorn Declaration and the CIA’sVaughn index had adequately justified invocation of the claimedFOIA exemptions. Morley appeals, and we review the grant ofsummary judgment de novo. See Iturralde v. Comptroller ofCurrency, 315 F.3d 311, 313 (D.C. Cir. 2003).II.Congress enacted the FOIA in order to “‘pierce the veil ofadministrative secrecy and to open agency action to the light ofpublic scrutiny.’” Dep’t of Air Force v. Rose, 425 U.S. 352, 3615(1976) (quoting Rose v. Dep’t of Air Force, 495 F.2d 261, 263(2d Cir. 1974)). To prevail on summary judgment, then, thedefending “agency must show beyond material doubt [] that ithas conducted a search reasonably calculated to uncover allrelevant documents.” Weisberg v. U.S. Dep’t of Justice, 705F.2d 1344, 1351 (D.C. Cir. 1983). “The court applies a‘reasonableness’ test to determine the ‘adequacy’ of a searchmethodology, consistent with congressional intent tilting thescale in favor of disclosure,” Campbell v. U.S. Dep’t of Justice,164 F.3d 20, 27 (D.C. Cir. 1998) (quoting Weisberg, 705 F.2dat 1351), and “impose[s] a substantial burden on an agencyseeking to avoid disclosure” through the FOIA exemptions,Vaughn v. Rosen, 484 F.2d 820, 828 (D.C. Cir. 1973). As such,exemptions from disclosure must be narrowly construed, id. at823, and “‘conclusory and generalized allegations ofexemptions’ are unacceptable,” Founding Church of Scientologyof Wash., D.C., Inc. v. Nat’l Sec. Agency, 610 F.2d 824, 830(D.C. Cir. 1979) (quoting Vaughn, 484 F.2d at 826).A. StandardAs a threshold matter, we conclude that the CIA properlyprocessed Morley’s request under the traditional standards of theFOIA, rather than the less restrictive standards of the JFK Act.In enacting the JFK Act, Congress declared that “allGovernment records concerning the assassination of PresidentJohn F. Kennedy should carry a presumption of immediatedisclosure,” in part because the FOIA, “as implemented by theexecutive branch, has prevented the timely public disclosure” ofthese records. JFK Act § 2(a)(2), (a)(5). The JFK Act requiredthat all assassination records be transmitted to NARA tocomprise its JFK Assassination Records Collection. Id. § 4.The JFK Act also established the Assassination Records ReviewBoard (“Review Board”) to determine whether agencydocuments constitute assassination records and to renderdecisions on whether a particular record qualifies forpostponement of disclosure. Id. § 7(i). Upon expiration of theReview Board’s operations on September 30, 1998, the CIA,NARA, and the Review Board signed a Memorandum of6Understanding (“MOU”) providing that the CIA will transmit tothe JFK Collection at NARA a number of specifically identifieddocuments, along with “[a]ny other non-duplicate assassinationrelatedrecords created or discovered by the CIA afterSeptember 30, 1998.” Memorandum of UnderstandingRegarding Continuing Obligations of the CIA Under the JFKAct, at 3 (Sept. 30, 1998).In Assassination Archives & Research Center v.Department of Justice, 43 F.3d 1542, 1544 (D.C. Cir. 1995)(“AARC I”), the court determined that “[t]he JFK Act and theFOIA are separate statutory schemes with separate sets ofstandards and separate (and markedly different) enforcementmechanisms. There is no evidence that Congress intended thatthe JFK Act standards be applied to FOIA review of documentsinvolving the Kennedy assassination.” The court stated thatFOIA requesters could not skirt the JFK Act’s procedures inorder to capitalize on its substance. See id.Morley maintains that the termination of Review Boardoperations and the creation of the MOU distinguish his casefrom AARC I because there the court rejected efforts to “secureimmediate judicial application of the substantive standards ofthe JFK Act without having to wait for the Act’s procedures torun their course.” Id. at 1543. Now that they have, Morleyasserts that the MOU should govern his request for documents.But the MOU provides its own enforcement mechanism forprocuring relevant documents from the CIA; Morley can nomore sidestep these procedures than he could those of the JFKAct, see id. at 1545. Notably, the MOU neither mentions theFOIA nor addresses the release of relevant documents to FOIArequesters; it merely provides that the appropriate records shallbe released to NARA. If Morley has identified newassassination-related records, then NARA can seek their releasepursuant to the MOU. To the extent that Congress sought toremedy the executive branch’s overzealous shielding ofassassination-related records under the FOIA, the JFK Act andthe MOU supply the process by which to obtain these7documents. Morley cannot invoke this Congressional purposeto “engraft[]” “the concerns of the JFK Act . . . onto FOIArequests,” Minier v. CIA, 88 F.3d 796, 802 (9th Cir. 1996).Accordingly, the CIA properly conceived of Morley’s FOIArequest as requiring application of FOIA standards, and we turnto Morley’s challenges to the adequacy of the CIA’s search andVaughn index and to the CIA’s invocation of FOIA exemptionsto withhold documents.B. Adequacy of the Search“n adjudicating the adequacy of the agency’sidentification and retrieval efforts, the trial court may bewarranted in relying upon agency affidavits.” Founding Churchof Scientology, 610 F.2d at 836. However, such reliance is onlyappropriate when the agency’s supporting affidavits are“‘relatively detailed’ and nonconclusory and . . . submitted ingood faith.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)(quoting Vaughn, 484 F.2d at 826). “Even if these conditionsare met the requester may nonetheless produce countervailingevidence, and if the sufficiency of the agency’s identification orretrieval procedure is genuinely in issue, summary judgment isnot in order.” Founding Church of Scientology, 610 F.2d at 836.The district court found that Dorn’s declaration “described ingreat detail” the CIA’s actions in response to Morley’s FOIArequest, Mem. Op. Sept. 29, 2006 at 8, and concluded, “mindfulof the deference due agency decisions in this context,” id. at 9,that the CIA’s search was adequate. The district court did notspecifically address the individual contentions that Morley raisesregarding the adequacy of the CIA’s search. We turn to theseenumerated issues.1. Search of Operational Files. The CIA admits that it didnot search its operational files for records responsive toMorley’s request. See Dorn Declaration ¶ 97. Operational filesare exempt from FOIA disclosure under the CIA Act, 50 U.S.C.§ 431(a), and generally include records “which document theconduct of foreign intelligence or counterintelligenceoperations,” id. § 431(b)(1). Morley, however, contends that81 Originally, the exception in the CIA Act provided thatoperational files should be searched when a FOIA request concerned“the specific subject matter of an investigation by the intelligencecommittees of the Congress.” Pub. L. No. 98-477, § 701(c)(3), 98Stat. 2209 (1984). The legislative history of the CIA Act indicatesthat the Church Committee qualifies as “intelligence committees of thecongress” within the meaning of § 431(c)(3). See H.R. Rep. NO.98-726, at 29 (1984), reprinted in 1984 U.S.C.C.A.N. 3741, 3767.because the Senate Select Committee to Study GovernmentalOperations with Respect to Intelligence Activities (“ChurchCommittee”) and the House Select Committee on Assassinations(“HSCA”) investigated DRE activities in 1963, his FOIArequest falls under an exception in the CIA Act.Section 431(c) of the CIA Act provides that:[E]xempted operational files shall continue to besubject to search and review for informationconcerning . . . (3) the specific subject matter of aninvestigation by the congressional intelligencecommittees, the Intelligence Oversight Board, theDepartment of Justice, the Office of General Counselof the Central Intelligence Agency, the Office ofInspector General of the Central Intelligence Agency,or the Office of the Director of National Intelligencefor any impropriety, or violation of law, Executiveorder, or Presidential directive, in the conduct of anintelligence activity. [emphasis added]For exception (3) to apply, the plain text directs that threequestions must be answered in the affirmative. First, does theChurch Committee or the HSCA qualify as “congressionalintelligence committees” under the CIA Act? The CIA does notchallenge that the two committees qualify as intelligencecommittees, and treating the Church Committee as such appearsto be consistent with congressional intent.1 The Church9However, the Intelligence Authorization Act of 2003, Pub. L. No.107-306, § 353(b)(10), 116 Stat. 2383, 2402, struck the term“intelligence committees of the Congress” and substituted“congressional intelligence committees,” defining this phrase as “(A)the Select Committee on Intelligence of the Senate; and (B) thePermanent Select Committee on Intelligence of the House ofRepresentatives,” 50 U.S.C. § 401a(7).2 The Church Committee Final Report states: “Thisexperience underscores the need for an effective legislative oversightcommittee which has sufficient power to resolve such fundamentalconflicts between secrecy and democracy.” Select Committee toStudy Governmental Operations with Respect to IntelligenceActivities (“Church Committee”), Foreign and Military Intelligence,S. Rep. No. 94-755, Book I, at 424 (1976). The Senate SelectCommittee on Intelligence was established by S. Res. 400, 94th Cong.,122 Cong. Rec. 4754 (1976).Committee was the predecessor to the Senate Select Committeeon Intelligence, which is specifically named in the definition of“congressional intelligence committees,” 50 U.S.C. § 401a(7);the permanent body was created on the recommendation of theChurch Committee.2 Moreover, according to evidence profferedby Morley, Congress created the HSCA to follow up on theChurch Committee recommendation that Congress investigatefurther “why Oswald’s contacts with the DRE . . . had beenexamined so superficially.” Decl. of G. Robert Blakey, ¶¶ 9, 10.(June 27, 2006). However, it was the House Select Committeeon Intelligence (“Pike Committee”), not the HSCA, that gaverise to the Permanent Select Committee on Intelligence of theHouse of Representatives. See Lt. Gerald F. Reimers II, ForeignIntelligence Surveillance Act, 4 J. Nat’l Security L. 55, 74(2000). It matters not, however, that the HSCA does notnecessarily fall within the definition of a congressionalintelligence committee for purposes of § 431(c), for the ChurchCommittee does and that is sufficient for the exception to apply.Second, does Morley’s request concern “the specific subject10matter of an investigation by the congressional intelligencecommittees”? 50 U.S.C. 431(c)(3). The legislative history ofthe CIA Act indicates that “[t]he specificity requirement in thephrase ‘specific subject matter of the investigation’ tailors thescope of information remaining subject to the FOIA process tothe scope of the specific subject matter of the investigation.”H.R. Rep. No. 98-726, at 31 (1984), reprinted in 1984U.S.C.C.A.N. 3741, 3769. In fact, the scope of the ChurchCommittee investigation specifically encompassed operations ofthe CIA and other federal agencies in investigating theassassination. See Church Committee, The Investigation of theAssassination of President John F. Kennedy: Performance of theIntelligence Agencies, S. Rep. No. 94-755, Book V, at 1 (1976).Significantly, the Church Committee found that “the CIAinquiry [] was deficient on the specific question of thesignificance of Oswald’s contacts with pro- and anti-Castrogroups for the many months before the assassination.” Id. at 6.Morley proffers evidence that Joannides had access to relevantinformation concerning the assassination through hisconnections with the DRE. As the DRE’s CIA case officerbetween 1962 and 1964 (a fact that the CIA neither denies norconfirms), Morley maintains that Joannides would have beencentral to the CIA’s inquiry into Oswald’s contacts with thatparticular anti-Castro group.The CIA contends that this congressional investigation doesnot trigger § 431(c)(3) because it was not specifically aboutJoannides. See Appellee’s Br. at 16; Oral Arg. Tape at 21:37,22:13 (Oct. 22, 2007). This restrictive reading of the statute isforeclosed by its literal meaning. See Gen. Dynamics Land Sys.,Inc., v. Cline, 540 U.S. 581, 600 (2004); Skidmore v. Swift &Co., 323 U.S. 134 (1944). Congress chose to use the word“concerning” in § 431(c), “a broadly inclusive term,” ACLU v.Dep’t of Defense, 351 F. Supp. 2d 265, 272 (S.D.N.Y. 2005),that precludes the interpretation offered by the CIA.In support of its proposition, the CIA relies on the onlyopinion by a circuit court of appeals to address § 431(c)(3). In11Sullivan v. CIA, 992 F.2d 1249, 1255 (1st Cir. 1993), the FirstCircuit held that the exception was inapplicable because “t issimply not enough that information which bore in some remoteway on the request surfaced in the course of an officialinvestigation.” In that case, the court addressed a FOIA requestpertaining to the disappearance of the requester’s father whileallegedly on an airborne CIA-sponsored mission to droppropaganda over Cuba. The court construed the exception torequire more than “a congressional investigation that touches onCIA conduct in a particular incident or region,” id. at 1254.Sullivan addressed a situation substantially different fromMorley’s case. Joannides has more than a “remote” relationshipto the purpose of the investigation, according to Morley’sevidence, as he was the case officer for an anti-Castro group thathad documented contacts with Oswald.We hold that the requirement of § 431(c)(3) that a FOIArequest concern “the specific subject matter of an investigation”is satisfied where the investigating committee would havedeemed the records at issue to be central to its inquiry. Thisinterpretation is supported by the legislative history of the CIAAct, which indicates that information that merely “surfaced inthe course of the investigation” should not trigger the §431(c)(3) exception. H.R. Rep. No. 98-726, at 31. Morley doesnot seek information that bears only a “remote” relationship tothe investigation by the Church Committee, but ratherinformation central to the committee’s “direct investigation.”Sullivan, 992 F.2d at 1255. The Church Committee posed atargeted inquiry investigating the performance of theintelligence agencies surrounding a particular event. The role ofindividual CIA officers during this event was key to such aninquiry, information that the committee would have sought outrather than merely happened upon. Even the CIA recognizesthat the focus of the committee’s investigation was therelationship between organizations like the DRE and theKennedy assassination. See Appellee’s Br. at 16. The evidenceproffered by Morley indicates that Joannides was in a positionof central importance to such an investigation and was thus12covered by its “specific subject matter.”Third, was the investigation “for any impropriety, orviolation of law, Executive order, or Presidential directive, in theconduct of an intelligence activity”? 50 U.S.C. § 431 (c)(3).The inclusion of the word “impropriety” alongside “violation oflaw” suggests that Congress intended the terms to apply broadly;the misconduct need not amount to illegality. This requirementis satisfied when a congressional investigation is spawned byalleged improprieties and seeks to uncover them. The ChurchCommittee investigation meets this criteria because it sought toassess the performance of the intelligence agencies inconducting their own investigations of the assassination; in fact,the Church Committee found that the CIA was “deficient” in itsperformance, further indicating that it was specificallyinvestigating the possibility of CIA “impropriety.” Such aninvestigation implicates Joannides, who, according to Morley’sproffers, was a figure central to the CIA’s investigation bothbefore and after the assassination, and someone who may havebeen directly implicated in the CIA’s alleged deficiencies.Language in Sullivan that suggests that the ChurchCommittee did not investigate CIA “impropriety, or violation oflaw” was unnecessary to its holding and limited by its context.The First Circuit stated that the Church Committee’s inquiry felloutside of the exception because it “was not a directinvestigation into CIA wrongdoing,” despite the fact that “therewere instances in which the Committee searched for agencymisconduct.” 992 F.2d at 1255. However, once the First Circuitconcluded that information about the requester’s father had onlya tenuous relationship to the Church Committee’s investigation,and thus did not concern “the specific subject matter of aninvestigation,” it had no need to reach the issue of whether theChurch Committee investigated CIA impropriety. Further,Sullivan acknowledges that the Church Committee “consideredAmerican operations against Castro and, inevitably, theirlegality.” Id. An investigation of an illegal agency operationsatisfies the dictates of § 431(c)(3), and thus our holding that the13Church Committee investigated agency “impropriety, orviolation of law” is not in tension with Sullivan.For these reasons, we hold that Morley’s FOIA requestmeets the § 431(c)(3) criteria for mandating the search of theCIA’s operational files under the FOIA. Because the CIA didnot search these files, we remand the case to the district court sothat the CIA may do so.2. Search of Records Released to NARA. Morley alsocorrectly contends that the search was inadequate because theCIA did not search records that had been transferred to NARApursuant to the JFK Act. The Supreme Court has held that “anagency has [] ‘withheld’ a document under its control when, indenying an otherwise valid request, it directs the requester to aplace outside of the agency where the document may be publiclyavailable.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,150 (1989).The FOIA has a “settled policy” of “‘full agencydisclosure.’” Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d1060, 1064 (D.C. Cir. 1988) (quoting S. Rep. No. 89-813, at 3(1965)), aff’d, 492 U.S. 136. Congress has authorized only ninecategories of exemption from this policy, and practicalconsiderations that documents exist in another forum outside ofthe agency is not amongst them. “[A] categorical refusal torelease documents that are in the agency’s ‘custody’ or ‘control’for any reason other than those set forth in the Act’s enumeratedexceptions would constitute ‘withholding.’” McGehee v. CIA,697 F.2d 1095, 1110 (D.C. Cir. 1983) (quoting Kissinger v.Reporters Comm. for Freedom of the Press, 445 U.S. 136, 150-51 (1980)). Because the CIA does not deny that it has retainedcopies of the records transferred to NARA and concedes thatsome transferred records are likely to be responsive, it wasobligated to search those records in response to Morley’s FOIArequest.The same holds true for the 1,100 CIA documents contained14in the protected collection at NARA. The JFK Act provides forthe postponement of disclosure given “clear and convincingevidence” of enumerated circumstances requiring secrecy. JFKAct § 6; see also id. § 2(a)(7). The CIA confirms that “1,100documents are located in NARA’s protected collection, and willbe released in 2017.” Dorn Decl. ¶ 29 n.5. Although the CIAasserts on appeal that it “is not required to search thesedocuments . . . because the ‘postponed collection’ under the JFKAct is not reasonably likely to contain information responsive to[Morley]’s request,” Appellee’s Br. at 19, this post hocexplanation cannot make up for the Dorn Declaration’s silence.See Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins.,463 U.S. 29, 50 (1983). The CIA did not distinguish betweenthe protected and unprotected records when it directed Morleyto the NARA collection, instead indicating that the JFKCollection as a whole is likely to contain responsive documents.Moreover, even if the protected records could be withheld underone of the FOIA exemptions, that does not absolve the CIA ofits duty to identify responsive documents, claim the relevantexemptions in the Vaughn index, and explain its reasoning forwithholding the documents in its affidavit. Indeed, the JFK Actitself indicates that release of records to NARA does not absolveagencies of their duties under the FOIA: “Nothing in this Actshall be construed to eliminate or limit any right to file requestswith any executive agency or seek judicial review of thedecisions pursuant to [the FOIA].” JFK Act § 11(b).In sum, the blanket statement in the Dorn Declaration thatthe CIA did not search records made available through NARAdoes not warrant summary judgment on this aspect of Morley’sFOIA request. On remand the district court shall direct the CIAto search these documents.3. Search for “Missing” Documents. Morley is lesspersuasive in contending that the search was inadequate becausethere are certain documents that he suspects the CIA has in itspossession but withheld. First, Morley’s FOIA request sought“[a]ll records in the Office of General Counsel pertaining to the15selection of George Joannides as liaison to the [HSCA] in May1978.” 2003 Letter at 2. Morley relies on a passage in a bookwritten by Scott Breckinridge, the former General Counsel ofthe CIA, that refers to “George J.” who was chosen as theagency’s liaison to the HSCA. Morley also states in his sworndeclaration that the CIA’s meetings with Joannides “wereundoubtedly memorialized by one or more of the participants.”Decl. of Jefferson Morley ¶ 13 (Apr. 25, 2005). This is hardlyproof that such documents exist. See Weisberg v. U.S. Dep’t ofJustice, 745 F.2d 1476, 1487 (D.C. Cir. 1984). But even ifcitations to Morley’s own affidavit were sufficient to show thatfiles pertaining to Joannides’ selection as liaison once did exist,“failure of an agency to turn up one specific document in itssearch does not alone render a search inadequate.” Iturralde,315 F.3d at 315. Paragraph 44 of the Dorn Declaration statesthat the CIA directed the Office of General Counsel to search itsrelevant database and that responsive documents were releasedto Morley.Second, Morley contends that the CIA has failed to producethe “daily diary” of its activity concerning the HSCA. AgainMorley relies on his declaration and asserts in his brief that it“strains credulity” to think that the documents that he seeks donot exist. Appellant’s Br. at 28. This assertion amounts tonothing more than “mere speculation that as yet uncovereddocuments might exist,” which is not enough to “undermine thedetermination that the agency conducted an adequate search forthe requested records.” Wilbur v. CIA, 355 F.3d 675, 678 (D.C.Cir. 2004).Third, Morley notes that the CIA did not disclose any of themonthly progress reports filed by Joannides while he was thecase officer for the DRE. Morley relies on the fact that themonthly reports of the DRE case officers’ both before and afterJoannides’ assignment are available at NARA. The CIA’s briefexplains in a footnote that it addressed these “missing” monthlyreports in a memorandum to the Review Board’s ExecutiveDirector: “The memorandum states that notwithstanding rather16extensive efforts, searches conducted by the Agency failed tolocate any of the reports that appear to be missing [between]December 1962 [and] April 1964 and provided backgroundwhich may explain the lack of such reports for this time period.”Appellee’s Br. at 23 n.6 (internal citations omitted).However, the CIA’s failure to provide a similar explanationin its affidavit or provide the memorandum itself to Morleymakes it impracticable for the court to review the adequacy ofits search. It does not suffice for purposes of summary judgmentthat the CIA has written a memorandum to NARA that “mayexplain” the lack of responsive documents; rather, the courtmust be able to ascertain if it has explained the records’ absence.In Weisberg v. U.S. Department of Justice, 627 F.2d 365, 369(D.C. Cir. 1980), the court stated that the FBI agent’s affidavitassert[ed] no personal knowledge that the [record]really was discarded, so [one] permissible inference isthat [the agent] is incorrect in his belief and that the[record] remains somewhere in the FBI’s domain. Afactual question thus persists, and it was inappropriatefor the District Court to undertake to resolve it at thestage of summary judgment.The evidence here similarly indicates that there is a factualquestion as to whether or not the “missing” monthly reports stillexist. Although the CIA indicates these documents areresponsive, it has provided neither Morley nor the court with anexplanation regarding the reports’ whereabouts. Cf. Maynard v.CIA, 986 F.2d 547, 565 (1st Cir. 1993). On remand the CIAmust supplement its explanation.4. Search of Other Files. The Dorn Declaration neveraddresses Morley’s request that the CIA search its “soft files.”Although the CIA states in its brief that “soft” files wereincluded in its search, see Appellee’s Br. at 14, this post hocexplanation cannot make up for the fact that the CIA providedan inadequate description of its search in its response to Morley17and in the Dorn Declaration. However, to the extent Morleyalso contends that the search was inadequate because the CIAfailed to search records referenced in the responsive documentsthat were released, Steinberg v. U.S. Department of Justice, 23F.3d 548, 552 (D.C. Cir. 1994), is dispositive:[M]ere reference to other files does not establish theexistence of documents that are relevant to appellant’sFOIA request. If that were the case, an agencyresponding to FOIA requests might be forced toexamine virtually every document in its files,following an interminable trail of cross-referenceddocuments like a chain letter winding its way throughthe mail. [] FOIA clearly does not impose this burdenupon federal agencies . . . .5. Adequacy of CIA’s Description. Morley is correctthat the CIA failed to describe its search adequately. The DornDeclaration does not “explain in reasonable detail the scope andmethod of the search conducted by the agency [sufficient] todemonstrate compliance with the obligations imposed by theFOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).Dorn states that the “CIA produced records that were a productof a reasonable, diligent and thorough search.” Dorn Decl. ¶ 43.But Dorn provides little more than conclusory adjectives anddoes not provide sufficient detail for the court itself to determinethe search’s adequacy.The Declaration incorporates a general explanation of howthe agency responds to all FOIA requests, and after describinghow a single FOIA request must be divvied up between multiplecomponent units within the CIA, Dorn states that “eachcomponent must then devise its own search strategy, whichincludes identifying which of its records systems to search aswell as what search tools, indices, and terms to employ.” Id. ¶13. But the two brief paragraphs in the Declaration explainingthe search itself, Dorn Decl. ¶ 43-44, provide no informationabout the search strategies of the components charged with18responding to Morley’s FOIA request. Dorn merely identifiesthe three directorates that were responsible for findingresponsive documents without “identify[ing] the terms searchedor explain[ing] how the search was conducted” in eachcomponent. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68(D.C. Cir. 1990). Neither does Dorn provide any indication ofwhat each directorate’s search specifically yielded. See, e.g.,Nation Magazine v. U.S. Customs Serv., 71 F.3d 885, 891 (D.C.Cir. 1995). The remainder of the Declaration describes onlybasic CIA policy regarding FOIA responses and a description ofthe CIA’s correspondence with Morley. Consequently, theDeclaration’s terse treatment of the CIA’s efforts to locatedocuments that were responsive to Morley’s FOIA request lacksthe detail “necessary to afford a FOIA requester an opportunityto challenge the adequacy of the search and to allow the districtcourt to determine if the search was adequate in order to grantsummary judgment.” Oglesby, 920 F.2d at 68.In view of Morley’s various concerns about the adequacy ofthe CIA’s search, and the CIA’s response with a “single,conclusory affidavit,” Perry, 684 F.2d at 128, that generallyasserts adherence to the reasonableness standard, the DornDeclaration is insufficient to carry the CIA’s burden onsummary judgment to “prove[] that no substantial and materialfacts are in dispute and that [it] is entitled to judgment as amatter of law.” Nat’l Cable Television Assoc. v. FCC, 479 F.2d183, 186 (D.C. Cir. 1973). On remand, the CIA must expand itsdescription of the search it conducted. Because the CIAinadequately explained its search, we need not address Morley’sobjection that the court should not defer to the Dorn Declarationin view of the CIA’s alleged bad faith.C. Adequacy of Vaughn indexMorley further challenges the sufficiency of the Vaughnindex because it does not identify the specific exemptioninvoked to justify each redaction in the released documents.The court has provided repeated instruction on the specificityrequired of a Vaughn index. In King v. U.S. Department of19Justice, 830 F.2d 210 (D.C. Cir. 1987), the court stated that“when an agency seeks to withhold information, it must provide‘a relatively detailed justification, specifically identifying thereasons why a particular exemption is relevant and correlatingthose claims with the particular part of a withheld document towhich they apply,’” id. at 219 (quoting Mead Data Cent., Inc. v.U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977)).The court held that a “[c]ategorical description of redactedmaterial coupled with categorical indication of anticipatedconsequences of disclosure is clearly inadequate.” Id. at 224.At the same time, in Judicial Watch, Inc. v. Food & DrugAdministration, 449 F.3d 141, 147 (D.C. Cir. 2006), the courtstated that “[w]e have never required repetitive, detailedexplanations for each piece of withheld information – that is,codes and categories may be sufficiently particularized to carrythe agency’s burden of proof.” The court observed that“[e]specially where the agency has disclosed and withheld alarge number of documents, . . . particularity may actuallyimpede court review and undermine the functions served by aVaughn index.” Id. In holding that the Vaughn index wasadequate, the court noted the index included eleven categoriesof information describing the nature of each record. Id. at 146-47.The Morley Vaughn index contains many of the samecategories as in Judicial Watch, including an identificationnumber, the document’s subject, and the date. Although theCIA has not matched each redaction with a specific exemption,its Vaughn index does identify the exemptions claimed for eachindividual document. In Judicial Watch the index and theagency affidavit worked in tandem, the court validating theindex because it “tied each individual document to one or moreexemptions, and the [agency’s] declaration linked the substanceof each exemption to the documents’ common elements.” Id. at147. The released portion of the document supplements theVaughn index, so that “[t]he released content of the documentsserved to illuminate the nature of the redacted material.” Id. at145. As described below in discussing several of the claimed20FOIA exemptions, the Dorn Declaration is less fulsome in tyingtogether the exempted documents and justifying theirwithholding. Still, the descriptions of the documents in theVaughn index, while categorical and with little variation frompage to page, convey enough information for Morley and thecourt to identify the records referenced and understand the basicreasoning behind the claimed exemptions. Summary judgmentwas therefore appropriate on the adequacy of the CIA’s Vaughnindex.D. SegregabilityMorley notes that the district court failed to address thesegregability of the withheld documents. The FOIA requiresthat “[a]ny reasonably segregable portion of a record shall beprovided to any person requesting such record after deletion ofthe portions which are exempt.” 5 U.S.C. § 552(b). “[T]heDistrict Court had an affirmative duty to consider thesegregability issue sua sponte.” Trans-Pac. Policing Agreementv. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).Thus, “a district court clearly errs when it approves thegovernment’s withholding of information under the FOIAwithout making an express finding on segregability.” PHE, Inc.v. Dep’t of Justice, 983 F.2d 248, 252 (D.C. Cir. 1993). Thedistrict court’s failure to fulfill this responsibility requires aremand.E. ExemptionsExemption 1 provides that the disclosure provisions of theFOIA do not apply to matters that are “(A) specificallyauthorized under criteria established by an Executive order to bekept secret in the interest of national defense or foreign policyand (B) are in fact properly classified pursuant to such Executiveorder.” 5 U.S.C. § 552(b)(1). The CIA relies on ExecutiveOrder 12,958, “Classified National Security Information,” 60Fed. Reg. 19,825 (Apr. 17, 1995), in exempting certain material.Morley makes three points: (1) The Dorn Declaration makesonly conclusory statements about national security threats underExemption 1; (2) The passage of time since the Cold War no21longer warrants protection of documents concerning the CIA’soperations in Cuba; and (3) The CIA has already released toNARA the same kind of information he seeks under the JFKAct, undercutting any potential damage to national security thatthe CIA currently claims.Dorn’s justification for the invocation of Exemption 1 isterse. She briefly identifies the two categories of the ExecutiveOrder under which information was classified – “intelligenceactivities . . . , intelligence sources or methods, or cryptology”and “foreign relations or foreign activities of the United States,including confidential sources.” Dorn Decl. ¶ 48. She thenrestates the Executive Order’s standard for classifying certaininformation “which reasonably could be expected to causedamage to the national security.” Id.Although the court has “consistently maintained that vague,conclusory affidavits, or those that merely paraphrase the wordsof a statute, do not allow a reviewing judge to safeguard thepublic’s right of access to government records,” Church ofScientology of Cal., Inc. v. Turner, 662 F.2d 784, 787 (D.C. Cir.1980) (per curiam), the text of Exemption 1 itself suggests thatlittle proof or explanation is required beyond a plausibleassertion that information is properly classified. Morley’sargument for declassification does not overcome the“substantial weight” the court must accord “to an agency’saffidavit concerning the details of the classified status of thedisputed record.” Military Audit Project v. Casey, 656 F.2d 724,738 (D.C. Cir. 1981) (emphasis in original) (internal quotationmarks omitted). Furthermore, where courts have called for moredetailed explanations of the potential dangers to nationalsecurity that justify the use of Exemption 1, see, e.g., Oglesby v.U.S. Dep’t of Army, 79 F.3d 1172, 1184 (D.C. Cir. 1996);Church of Scientology, 662 F.2d at 787, they have conflatedExemption 1 and Exemption 3, which also deals with nationalsecurity concerns. Upon considering the CIA’s more thoroughdiscussion of the national security implications in Exemption 3,we conclude that, taken together, the Dorn declaration made a22proper showing under Exemption 1.As for Morley’s assertion that this kind of information hasalready been released under the JFK Act, the only evidence heproffers is a declaration by John M. Newman, Professor ofHistory at the University of Maryland. Notably, inAssassination Archives & Research Center v. CIA (“AARC II”),334 F.3d 55, 59 (D.C. Cir. 2003), the court rejected a nearlyidentical declaration by Newman. In that case, the court notedthat the previously disclosed material must be “as specific as”the sought material. Id. at 60. “Prior disclosure of similarinformation does not suffice; instead, the specific informationsought by the plaintiff must already be in the public domain byofficial disclosure. The insistence on exactitude recognizes ‘theGovernment’s vital interest in information relating to nationalsecurity and foreign affairs.’” Wolf v. CIA, 473 F.3d 370, 378(D.C. Cir. 2007) (emphasis in original) (citation omitted).Newman’s declaration at most proves that “[a]ll of this kind ofinformation has been revealed” under the JFK Act. Decl. ofJohn M. Newman ¶ 9 (Mar. 5, 2006). Unable to point tospecific information that was previously released and is nowwithheld, Morley’s challenge to the CIA’s reliance onExemption 1 fails.Exemption 2 protects from disclosure records that are“related solely to the internal personnel rules and practices of anagency.” 5 U.S.C. § 522(b)(2). In Schwaner v. Department ofAir Force, 898 F.2d 793 (D.C. Cir. 1990), the court identified atwo-step process for determining if records fall withinExemption 2: “‘First, the material withheld should fall withinthe terms of the statutory language.’” Id. at 794 (quotingFounding Church of Scientology of Wash., D.C., Inc. v. Smith,721 F.2d 828, 830 n.4 (D.C. Cir. 1983)). Second, “f so, theagency may defeat disclosure by proving that either ‘disclosuremay risk circumvention of agency regulation,’” id. (quotingRose, 425 U.S. at 369), “or ‘the material relates to trivialadministrative matters of no genuine public interest,’” id. at 794(quoting Founding Church of Scientology, 721 F.2d at 830 n.4).23Notably, “[t]his exemption does not shield information on thesole basis that it is designed for internal agency use.”Fitzgibbon v. U.S. Secret Serv., 747 F. Supp. 51, 56 (D.D.C.1990) (citing Schwaner, 898 F.2d at 794, 796).The Dorn Declaration provides only a single sentence ofexplanation regarding the agency’s reason for withholdingdocuments under this exemption: “There is no public interest inthe disclosure of such internal procedures and clericalinformation that would justify the administrative burden thatwould be placed upon CIA.” Dorn Decl. ¶ 51. This statementseems to place the burden on Morley to assert a public interestbefore such information will be released. Indeed, the districtcourt, after determining that the withheld information is“sufficiently related to the internal concerns of [the] agency,”concluded that Morley’s arguments were “unavailing” becausehe “failed to provide a scintilla of evidence to show how releaseof information pertaining to purely personnel rules and practicesof the CIA . . . would shed light on the alleged activities of Mr.Oswald or the CIA’s knowledge thereof.” Mem. Op. Sept. 29,2006 at 14. However, it is the agency’s burden to establish thatthe information withheld is too trivial to warrant disclosure. See5 U.S.C. 552(a)(4)(B); Tax Analysts, 492 U.S. at 142 n.3. TheVaughn index for the nine documents withheld under thisexemption adds little insight into whether the type ofinformation deemed exempt is trivial, vaguely referring only to“CIA internal organizational data” and “internal Agencyregulations and practices.” The CIA “has failed even to suggestany . . . reason or need to keep secret” the administrative routinginformation and internal data. Fitzgibbon, 747 F. Supp. at 57.Morley need not produce dispositive evidence that there is apublic interest in this information; he need only provideevidence of a genuine issue of material fact, and in the face ofthe agency’s complete lack of evidence regarding thisexemption, he has done so. On remand the district court shalldirect the CIA to supply the explanation necessary to meet itsburden.243 The Dorn Declaration includes most of the features noted inChurch of Scientology, where[t]he affidavits include[d] a lengthy generaldiscussion of the adverse consequences that couldflow from releasing the information withheld. Therelease of any particular document, the CIA warned,could lead to one or more of the following harmfulresults: breaching agreements with foreignintelligence services, refusal of intelligence sourcesto share information in the future, revelation ofintelligence-gathering methods, and disclosure of theidentity of foreign or CIA intelligence operativeseither directly or by inference from the content of theinformation. The affidavits assert that release of amessage’s content could lead to the revelation of itssource, since certain types of information are knownExemption 3 covers records that are “specifically exemptedfrom disclosure by statute . . . provided that such statute (A)requires that the matters be withheld from the public in such amanner as to leave no discretion on the issue, or (B) establishesparticular criteria for withholding or refers to particular types ofmatters to be withheld.” 5 U.S.C. § 552(b)(3). The CIAexplains that some records are properly withheld under theNational Security Act and the CIA Act. See 50 U.S.C. §§ 403g,403-1(i). Certainly, the Dorn Declaration gives a much moreelaborate description on Exemption 3 than it does in relation toany other issue in the case, providing the court substantialinsight into the CIA’s reasons for protecting intelligence sourcesand methods along with other internal information. Indeed,Dorn draws causal connections between the release of certainkinds of information and the danger to national security thatwould result, satisfying the CIA’s obligation to identify the“particularized harm that could be expected to occur fromproduction of the requested information.” Church ofScientology, 662 F.2d at 785.3 This information “provide[s] the25to be in the possession of only a few.662 F.2d at 786.kind of detailed, scrupulous description that enables a DistrictCourt judge to perform a searching de novo review,” id. at 786.Morley’s assertions regarding specific documents thatshould have been released are to no avail. In Ass’n of RetiredRail Road Workers v. U.S. Rail Road Retirement Board, 830F.2d 331, 336 (D.C. Cir. 1987), the court explained that“Exemption 3 differs from other FOIA exemptions in that itsapplicability depends less on the detailed factual contents ofspecific documents; the sole issue for decision is the existenceof a relevant statute and the inclusion of withheld materialwithin the statute’s coverage.” It is particularly important toprotect intelligence sources and methods from public disclosure.See CIA v. Sims, 471 U.S. 159, 167-69 (1985). Given thespecial deference owed to agency affidavits on national securitymatters, Morley’s specific challenges to various documents areinsufficient to show that summary judgment on Exemption 3was inappropriate.However, the CIA’s unsubstantiated Glomar response, seePhillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976), is notsimilarly sufficient. In response to Morley’s FOIA request, theCIA stated: “With respect to that portion of your request seekingrecords regarding Mr. Joannides [sic] participation in any covertproject, operation, or assignment, unless of course previouslyacknowledged, the CIA can neither confirm nor deny theexistence or nonexistence of records responsive to yourrequest.” 2004 Letter at 2. The only question before the courtis whether the Dorn Declaration “explained in reasonablyspecific detail the danger to intelligence sources and methods ifthe existence of responsive records were disclosed,” Wolf, 473F.3d at 373. Within its explanation of its withholding of26intelligence sources under Exemption 3, the CIA asserts that“[a]n official acknowledgment of [clandestine activity] couldjeopardize the source’s career, family or even his life.” DornDecl. ¶ 57. But this is the only allusion to the need for a Glomarresponse in the CIA’s affidavit and it is not linked to the Glomarresponse. On remand, the CIA must substantiate its Glomarresponse with “reasonably specific detail.”Exemption 5 excludes from mandatory release “interagencyor intra-agency memorandums or letters which wouldnot be available by law to a party other than an agency inlitigation with the agency.” 5 U.S.C. § 552(b)(5). The CIAwithheld only two documents under this exemption.In Coastal States Gas Corp. v. Department of Energy, 617F.2d 854, 866 (D.C. Cir. 1980), the court established thestandard for review of agency claims under Exemption 5: “Totest whether disclosure of a document is likely to adverselyaffect the purposes of the privilege, courts ask themselveswhether the document is so candid or personal in nature thatpublic disclosure is likely in the future to stifle honest and frankcommunication within the agency.” But the opacity of theCIA’s explanation does not permit the court to apply the test.“t is enough to observe that where no factual support isprovided for an essential element of the claimed privilege orshield, the label ‘conclusory’ is surely apt.” Senate of P.R. v.U.S. Dep’t of Justice, 823 F.2d 574, 585 (D.C. Cir. 1987)(emphasis in original).The Declaration’s only statement of relevance is that “[a]sshown in the attached Vaughn index, CIA has properly invokedExemption (b)(5) to withhold information protected by thedeliberative-process privilege from only two documents.” DornDecl. ¶ 85. The first document exempted under this privilege isdenied in full, and the Vaughn index explains, “the documentcontains recommendations – concerning the waiver of certainreinvestigation methods – that are protected by the deliberativeprocess privilege.” The second document was partially released,27and the list of reasons for the various exemptions in the Vaughnindex includes “material that is predecisional and deliberative innature.”In order for the court to determine if information is“deliberative” it must “reflect the personal opinions of the writerrather than the policy of the agency.” Coastal States Gas, 617F.2d at 866. “Factual material that does not reveal thedeliberative process is not protected by this exemption.” Paisleyv. CIA, 712 F.2d 686, 698 (D.C. Cir. 1983) (citing EPA v. Mink,410 U.S. 73, 89-91 (1973)), vacated in part on other grounds,724 F.2d 201 (D.C. Cir. 1984). The minimal information givenin the affidavit and Vaughn index provide the court with no wayof knowing if the CIA has properly applied this standard inexempting material from the two records identified. Moreover,“[t]o ascertain whether the documents at issue are predecisional,the court must first be able to pinpoint an agencydecision or policy to which these documents contributed.” Id.at 698. The CIA has provided no hint of a final agency policyits “predecisional” material preceded. According to Morley, theCIA has deleted the identities of the author and recipient in thedocument that was partially released, giving the court littleindication about the nature of the records withheld. SeeAppellant’s Br. at 50. “The identity of the parties to thememorandum is important; a document from a subordinate to asuperior official is more likely to be predecisional, while adocument moving in the opposite direction is more likely tocontain instructions to staff explaining the reasons for a decisionalready made.” Coastal States Gas, 617 F.2d at 868.Because the Dorn declaration and Vaughn index fail toprovide “specific and detailed proof that disclosure woulddefeat, rather than further, the purposes of FOIA,” Mead DataCent., 566 F.2d at 258, on remand the CIA must supply at least“the minimal information necessary to make a determination,”Coastal States Gas, 617 F.2d at 279.Exemption 6 provides that agencies need not disclose28“personnel and medical files and similar files the disclosure ofwhich would constitute a clearly unwarranted invasion ofpersonal privacy.” 5 U.S.C. § 552(b)(6). “Exemption 6’srequirement that disclosure be ‘clearly unwarranted’ instructs usto ‘tilt the balance (of disclosure interests against privacyinterests) in favor of disclosure.’” Wash. Post Co. v. U.S. Dep’tof Health & Human Servs., 690 F.2d 252, 261 (D.C. Cir. 1982)(quoting Ditlow v. Shultz, 517 F.2d 166, 169 (D.C. Cir. 1975)).This exemption creates a “heavy burden”; indeed, “underExemption 6, the presumption in favor of disclosure is as strongas can be found anywhere in the Act.” Id.Morley does not contest that the biographical informationwithheld qualifies as personnel, medical, or similar files.Rather, he objects to the district court’s determination that theinformation withheld constitutes a clearly unwarranted invasionof personal privacy. The Dorn Declaration does not sufficientlyrespond to this claim. After finding that the records qualify aspersonnel or similar files, Dorn merely assumes the exemptstatus of the records. Dorn states that “because its disclosurewould constitute a clearly unwarranted invasion of the personalprivacy of third parties, it is subject to (b)(6) protection,” DornDecl. ¶ 87, neglecting any analysis of the “clearly unwarrantedinvasion” criterion. Dorn then asserts that there is “nooverriding public interest” in these records. Id. ¶ 88.Significantly, she applies the wrong standard: “Even if someminuscule public interest could be found in disclosing the thirdpartyinformation at issue, the balance would still tiltdramatically against disclosure.” Id. ¶ 88. Dorn’s circularreasoning only further highlights her failure to substantiate theasserted privacy interest: “Disclosure of this personalinformation would certainly violate the personal privacy of thesethird parties. Because the privacy interests involved will clearlyoutweigh the negligible public interest in disclosure, I havedetermined that the information should not be disclosed.” Id. ¶89.Despite its burden to show that withholding is necessary,29the CIA has failed even to articulate the privacy interest in therecords, let alone demonstrate that such privacy interests meetthe standard for an agency’s withholding under Exemption 6.This falls well below the information provided to the court inJudicial Watch, which upheld withholding documents underExemption 6. There, the court noted that the agency’sdeclaration “fairly asserted abortion-related violence as aprivacy interest for both the names and addresses of persons andbusinesses associated with [the abortion pill],” id. at 153, andbalanced that privacy interest against the public interest indisclosure. To the extent the CIA suggests that the privacyinterest in biographical information is self-evident, it ismistaken. In National Ass’n of Retired Federal Employees v.Horner, 879 F.2d 873, 877 (D.C. Cir. 1989), the court stated,We are thus left with circuit precedent establishingonly that the disclosure of names and addresses is notinherently and always a significant threat to the privacyof those listed; whether it is a significant or a deminimis threat depends upon the characteristic(s)revealed by virtue of being on the particular list, andthe consequences likely to ensue.As the CIA has failed to explain the extent of the privacyinterest or the consequences that may ensue from disclosure,summary judgment was inappropriate. On remand, the CIAmust show that disclosure would constitute a “clearlyunwarranted” invasion of personal privacy. See Wash. Post, 690F.2d at 261 (quoting Rose, 425 U.S. at 378 n.16).Exemption 7(E) protects from disclosurerecords or information compiled for law enforcementpurposes, but only to the extent that the production ofsuch law enforcement records or information . . . (E)would disclose techniques and procedures for lawenforcement investigations or prosecutions, or woulddisclose guidelines for law enforcement investigations30or prosecutions if such disclosure could reasonably beexpected to risk circumvention of the law.5 U.S.C. § 552(b)(7). In its discussion of Exemption 7(E), theDorn Declaration asserts: “The information that has beenwithheld could reasonably be expected to provide insight intoCIA Security Center’s clearance and investigatory processes, aswell as certain techniques and procedures used by lawenforcement agencies in coordination with CIA during thoseprocesses.” Background investigations conducted to assess anapplicant’s qualification, such as the CIA’s “clearance andinvestigatory processes,” inherently relate to law enforcement.See Mittleman v. Office of Pers. Mgmt., 76 F.3d 1240, 1243(D.C. Cir. 1996) (per curium).The CIA’s security clearance techniques involve a generalprocess applied to all background investigations of its officers.“[A]n agency may seek to block the disclosure of internalagency materials relating to guidelines, techniques, sources, andprocedures for law enforcement investigations and prosecutions,even when the materials have not been compiled in the courseof a specific investigation.” Tax Analysts v. IRS, 294 F.3d 71,79 (D.C. Cir. 2002). Furthermore, although the CIA onlymentions that release of this information could “provide insight”into the security clearance procedure, not that it “could beexpected to risk circumvention” of that procedure, we refrainfrom adopting an overly formalistic approach that would requirethe agency’s response to mirror the statutory text. It is selfevidentthat information revealing security clearance procedurescould render those procedures vulnerable and weaken theireffectiveness at uncovering background information on potentialcandidates. Agencies must apply the correct standards whenclaiming FOIA exemptions, but they need not parrot thestatutory language in doing so. Morley thus fails to showsummary judgment in favor of the CIA was inappropriate onExemption 7(E).Accordingly, although the CIA properly used the FOIA as31the governing standard in responding to Morley’s request fordocuments, presented an adequate Vaughn index, and supportedits withholding of material pursuant to FOIA Exemptions 1, 3and 7(E), we reverse the grant of summary judgment to the CIAand remand the case to the district court. On remand, the districtcourt shall direct the CIA to search its operational files and therecords released to NARA and to supplement the description ofits search and the explanation for withholding material pursuantto Exemptions 2, 5, and 6. See Campbell, 164 F.3d at 31. Thedistrict court also shall make the requisite segregabilitydetermination.

[Pennyworth]

The Huffington Post

Court Orders CIA to Search for JFK Records
December 13, 2007 | 01:35 PM (EST)


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Last week, the CIA admitted that it had destroyed key evidence in the case of al-Qaeda leader Abu Zubudaya, triggering denunciations from congressional leaders and legal authorities who said the agency was behaving lawlessly.


Comment
Two days later, a three-judge panel in the U.S. Court of Appeals ordered the agency to search for long-suppressed files related to the assassination of President John F. Kennedy in 1963. The judges said the CIA had to search the files of a deceased Miami-based intelligence who hid what he knew about accused assassin Lee Harvey Oswald from investigators.

"The CIA has not changed its ways since JFK," said author Gerald Posner, a Huffington Post contributor, who has written about the Abu Zubadayah case. He is also the author of a book on Kennedy's assassination.

The appellate court ruling marked an unusual setback for the agency. "FOIA decisions against the CIA are relatively rare," notes Secrecy News.

"To paraphrase Ricky Ricardo," said the FOIA Blog, "it looks like the CA has "lot's of 'xplaining to do."

That was the gist of Judge Judith Rogers' 31-page decision in my Freedom of Information Act (FOIA) lawsuit seeking records of George Joannides, a career undercover officer. At the time of Kennedy's murder, Joannides served as chief of psychological warfare operations in south Florida. He also served as the CIA's liaison to congressional JFK investigators in 1978. He died in 1990.

Rogers, joined by two colleagues, rejected the CIA's argument that it had no obligation to search for documents about Joannides in the files of its secret operations in 1963. During oral arguments in October, the judges had grilled Agency lawyer about this claim. In their decision, the judges ruled that the law required a search of sensitive operational files, something the agency almost always resists.

The judges also said that the Agency had not adequately explained the whereabouts of monthly reports filed by Joannides in 1963.

In August 1963, Joannides was secretly funding a Cuban exile group whose members clashed repeatedly with Oswald, an ex-Marine and supporter of Cuban communist leader Fidel Castro. When Kennedy was killed in Dallas, apparently by Oswald, three months later, the group used CIA funds to publicize these contacts and blame the assassination on Castro.

The CIA did not reveal Joannides' financial relationship to the accused assassin's antagonists to the Warren Commission, which investigated the crime and concluded Oswald acted alone. Joannides' reports on his actions in 1963 have never surfaced.

"On remand the CIA must supplement its explanation" of why the reports cannot be found, the court ruled.

The judges ordered lower court Judge Richard Leon to supervise the implementation of its order, a process that is expected to take several months.

"The CIA has constantly been an active leader in hiding, distorting, and sometimes destroying evidence on key issues affecting our history and lives," Posner said in an email.

That's a harsh judgment but it is more plausible today than it was before the Abu Zubadayah revelations and the Rogers decision.