United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY, Senior District Judge.
Plaintiff Michael Kuzma challenges Defendant Central Intelligence Agency's response to his request under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, for records and photographs pertaining to himself, generally, and to his participation in a January 16, 2010 protest with Cindy Sheehan and others near CIA headquarters in Langley, VA. Presently before this Court are the parties' Motions for Summary Judgment, brought under Rule 56 of the Federal Rules of Civil Procedure. (Docket Nos. 10, 12.) For the following reasons, the CIA's motion is granted and Plaintiff's motion is denied.
A. Plaintiff's FOIA Request
The facts concerning Plaintiff's FOIA request are generally not in dispute.
On February 15, 2013, Plaintiff submitted a FOIA request to the CIA seeking "all records maintained by your agency pertaining to me, including but not limited to files and documents captioned in, or whose captions include my name in the title for the years 2000 to the present." (Defendant's Statement of Undisputed Facts ("Defendant's Statement"), Docket No. 10-3, ¶ 1; Declaration of Martha M. Lutz ("Lutz Decl."), Docket No. 10-1, Exhibit A.) Plaintiff's request specifically included "any and [all] records that were generated as a result of my participation in a protest that took place near CIA Headquarters in Langley, Virginia with Cindy Sheehan and other activists on January 16, 2010" and "copies of photographs that were taken of me by CIA personnel and/or its contractors on that day." (Id.)
The CIA responded by letter dated April 15, 2013, wherein it acknowledged receipt of Plaintiff's request and informed him that it was unable to locate any responsive information or records. (Defendant's Statement, ¶ 2; Lutz Decl., Exhibit B.) The CIA also advised Plaintiff that "with respect to responsive records that would reveal a classified connection to the CIA... the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request." (Id.)
By letter dated April 25, 2013, Plaintiff appealed the CIA's response, insisting that the CIA photographed him at the protest and arguing that it conducted an inadequate search of its records systems. (Defendant's Statement, ¶ 3; Lutz Decl., Exhibit C.)
The CIA subsequently advised Plaintiff by letter dated June 25, 2013, that his appeal was under review. (Defendant's Statement, ¶ 4; Lutz Decl., Exhibit D.) Approximately three months later, the CIA notified Plaintiff by letter dated September 30, 2013, that his appeal was denied. (Defendant's Statement, ¶ 4; Lutz Decl., Exhibit E.) The CIA again advised Plaintiff that it could not locate any responsive records and it reiterated its Glomar response in conjunction with asserting exemptions under 5 U.S.C. §§ 552 (b)(1) and (3) ("Exemptions 1 and 3"). (Id.)
Plaintiff thereafter filed suit in this court on December 6, 2013. (Defendant's Statement, ¶ 5; Docket No. 1.) On April 30, 2014, the CIA filed a motion for summary judgment, along with its Vaughn index. (Docket Nos. 10, 10-1, 13.) The Vaughn index (comprised of the Declaration of Martha M. Lutz (Docket No. 10-1) and the Supplemental Declaration of Martha M. Lutz ("Supp. Lutz Decl.") (Docket No. 13)) explains the CIA's search for responsive records and details its Glomar response in conjunction with Exemptions 1 and 3. Plaintiff filed his own motion for summary judgment on June 2, 2014. (Docket No. 12.) After full briefing, which concluded on June 19, 2014, this Court took the motions under advisement without oral argument.
B. The CIA's Vaughn Index
As indicated above, the Vaughn index was prepared by Martha M. Lutz, Chief of the Litigation Support Unit of the CIA. (Lutz Decl., ¶¶ 1-5.) Therein, Lutz states that upon receipt of Plaintiff's FOIA request, the CIA forwarded it as a matter of course to the Information and Privacy Coordinator, Information Management Services ("IMS"). (Lutz Decl., ¶ 11.) IMS professionals then assessed Plaintiff's request to determine which of five CIA directorates might reasonably be expected to possess responsive documents: the National Clandestine Service ("NCS"); the Directorate of Intelligence; the Directorate of Science and Technology; the Directorate of Support ("DS"); and the Director's Area. (Lutz Decl., ¶¶ 11, 12.)
The CIA identified the NCS and DS directorates as reasonably likely to possess responsive records and then searched those records systems using the search term "Michael Kuzma." (Lutz Decl., ¶¶ 20, 21, 22, 24; Lutz Supp. Decl., ¶ 4.) Those searches failed to locate responsive records or photographs that reflected an open and acknowledged CIA affiliation with Plaintiff. (Lutz Decl., ¶¶ 21, 22, 24.) As for any responsive records that would reveal a classified connection to the CIA-as opposed to an open and acknowledged connection-the CIA invokes a Glomar response, because in its view, confirming or denying the existence or nonexistence of such records would itself reveal classified information that is protected from disclosure for national security purposes. (Lutz Decl., ¶¶ 26, 34.) Specifically, the CIA has determined that the mere fact of the existence or nonexistence of records ...