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Robert v. Central Intelligence Agency

United States District Court, E.D. New York

March 31, 2018

CHARLES ROBERT II, also known as Snowflake 5391, Plaintiff,
v.
THE CENTRAL INTELLIGENCE AGENCY and THE DEPARTMENT OF JUSTICE, Defendants.

          For Plaintiff: Charles Robert, II, pro se

          For Defendants: Diane C. Leonardo-Beckmann, Esq. United States Attorney's Office

          MEMORANDUM & ORDER

          JOANNA SEYBERT, U.S.D.J.

         Presently pending before the Court in this Freedom of Information Act (“FOIA”) action is Defendants Central Intelligence Agency (“CIA”) and Department of Justice's (“DOJ, ” and collectively, “Defendants”) motion for summary judgment, (Defs.' Mot., Docket Entry 115). For the following reasons, Defendants' motion is GRANTED.

         BACKGROUND

         In light of the Court's February 28, 2017 Memorandum and Order denying the parties' cross-motions for summary judgment, Robert v. CIA, No. 02-CV-6788, 2017 WL 782296, at *1 (E.D.N.Y. Feb. 28, 2017), familiarity with the facts is assumed. In short, Plaintiff Charles Robert, also known as Snowflake 5391 (“Plaintiff”), alleges that Department of Health and Human Services (“HHS”) funds had been diverted through the International Medical Center, Inc. (“IMC”) to the Contras. Id. He claims that he sent relevant documents to Independent Counsel Lawrence Walsh, who was appointed to investigate the Iran-Contra scandal, and that on March 29, 1989, Federal Bureau of Investigation (“FBI”) Agent Allison interviewed him regarding these documents. Id. (footnote and citation omitted). In this action, Plaintiff seeks, inter alia, “part of a mosaic of documents that reveal whether HHS General Counsel Juan del Real (1981-1985) had been CIA Director William Casey's E.O. 12333 illegal CIA domestic covert agent when he made his 1982-1985 Jackson v. Schweiker, 683 F.2d 1076 (7th Cir. 1982), ‘nonacquiescence' policy decisions.” (Pl.'s Opp., Docket Entry 126, at 1 (citations omitted).)

         As the Court previously indicated, it “liberally construes [Plaintiff's] Amended Complaint as asserting FOIA claims based on two separate document requests: (1) Plaintiff's alleged September 29, 2000, FOIA request to the CIA ‘seeking the CIA documents withheld pursuant to FOIA Exemption 3 by [the National Archives and Records Administration (“NARA”)] . . . as identified in [its] April 4, 1996 page two attachment, '” (the “CIA Request”), and (2) Plaintiff's alleged March 1, 2001, FOIA request to DOJ, ” (the “DOJ Request”).[1] Robert, 2017 WL 782296, at *4 (citations omitted) (ellipsis and third alteration in original).

         The parties cross-moved for summary judgment with respect to the CIA Request on April 19, 2016 and August 12, 2016. (See Pl.'s Mot., Docket Entry 91; Defs.' Aug. 2016 Mot., Docket Entry 98.) On February 28, 2017, the Court denied the parties' motions but granted Plaintiff leave to “submit documentary evidence supporting his allegation that he filed a FOIA request with the CIA and unsuccessfully appealed the CIA's denial of that request prior to the commencement of this action.” Robert, 2017 WL 782296, at *5 (emphasis in original). The Court also granted Defendants leave to renew their motion with respect to the CIA Request and to move for summary judgment with respect to Plaintiff's DOJ Request. Id.

         On March 16, 2017, Plaintiff filed a seventy-three-page affidavit along with his January 16, 2002 letter to the CIA. (Pl.'s Mar. 2017 Aff., Docket Entry 112.) According to Defendants, the letter contained a specific reference number that allowed the CIA to locate Plaintiff's September 2000 request. (Defs.' Br., Docket Entry 123 at 1.) Defendants filed the present motion on June 2, 2017, renewing their motion for summary judgment on the CIA request and moving for summary judgment on the DOJ Request. (See Defs.' Mot.) Plaintiff filed his opposition, as well as an additional forty-page affidavit, on July 24, 2017.[2] (See Pl.'s Opp.; Pl.'s July 2017 Aff., Docket Entry 127.)

          I. The CIA Request

         As described in CIA Information Review Officer Antoinette B. Shiner's (“Shiner”) Supplemental Declaration, [3] by letter dated September 29, 2000, Plaintiff requested that the CIA release “documents withheld by the CIA pursuant to FOIA Exemption 3 as defined by” the “[NARA] FOIA Officer McReynolds April 4, 1996 page two attachment.”[4] (Supp. Shiner Decl. ¶ 3; Sept. 2000 Letter, Supp. Shiner Decl. Ex. A, Docket Entry 120, at ECF p. 7-8, at 7.) Additionally, in his letter, Plaintiff indicated that “the CIA FOIA Officer refers to a ‘one page' document, ” but expressed his belief that the document is two pages because it bears the notation “Page: 2.” (See Sept. 2000 Letter at ECF p. 7.)

         Plaintiff attached to his September 29, 2000 request a letter dated April 4, 1996 from R. Michael McReynolds, Director of NARA's Textual Reference Division, to Plaintiff (the “April 1996 Letter”). (Apr. 1996 Letter, Supp. Shiner Decl. Ex. A, Docket Entry 120, at ECF p. 9.) In pertinent part, the NARA letter reads:

This is in further response to your October 30, 1995, [FOIA] request . . . regarding certain records of Independent Counsel Lawrence Walsh.
After consultation with the [CIA], we have determined that we must continue to withhold portions of the enclosed document under [FOIA], 5 USC 552(b)(3). The statute for withholding is 50 USC 403.

(Apr. 1996 Letter at ECF p. 9.)[5]

         Enclosed with the April 1996 Letter was a one-page document dated April 5, 1990 (the “April 1990 Document”), that reads, in full[6]:

TOP SECRET CODEWORD WORKING PAPERS rch for IMC

Page: 2 Dated: 4/5/90

E

NORTH NOTEBOOK

THDATE

April 22, 1985

LDATE

April 22, 1985

EBOOK

1 Mar 85 - 23 Apr 85

PAGE

AMX000620

PAGE

AMX000620

ESSNO1

14096

ESSNO2

85-04-22

- Call from Clarridge - Nothing on [Redacted]

- Nothing on [Redacted]
- Nothing on Names

(Apr. 1990 Doc, Supp. Shiner Decl. Ex. A, Docket Entry 120, at ECF p. 10.) The document is notated as follows: “RESTRICTED INFORMATION DELETED PER FOIA EXEMPTION b(3) 50 USC 403 BY EKL NARA, DATE 4/3/96.” (Apr. 1990 Doc. at ECF p. 10.)

         The CIA responded to Plaintiff's request by letter dated July 11, 2001. (July 2001 Letter, Supp. Shiner Decl. Ex. B, Docket Entry 120, at ECF p. 12-13.) With respect to the “portion of [his] request pertaining to the ‘universe of documents, '” the CIA advised him that the April 1990 Document is not a CIA record and “does not reasonably describe any ‘universe of documents' for which this agency can conduct a search.” (July 2001 Letter at ECF p. 12.) The CIA directed Plaintiff to contact NARA for further assistance. (July 2001 Letter at ECF p. 12.) However, the CIA accepted the portion of Plaintiff's request for the first page of the April 1990 Document, though it noted that the document “is not a CIA originated document.” (July 2001 Letter at ECF p. 13.)

         By letter dated December 7, 2001, the CIA explained to Plaintiff that it searched for the first page of the April 1990 Document, but “[n]o records responsive to [his] request were located.” (Dec. 2001 Letter, Supp. Shiner Decl. Ex. C, Docket Entry 120, at ECF p. 14-15.) On January 16, 2002, Plaintiff appealed the CIA's December 7, 2001 decision, requesting, inter alia, that it perform a more diligent search. (Jan. 2002 Letter, Supp. Shiner Decl. Ex. D, Docket Entry 120, at ECF p. 16-33, at 17.) By letter dated December 2, 2002, the CIA's Agency Release Panel affirmed the CIA's decision, informing Plaintiff that it directed a thorough search but was unable to identify “records responsive to [his] request” “for the first page of the [April 1990 Document] . . . which referred to ‘North notebook' and was described in [his] correspondence as an FBI Agency Allison document.” (Dec. 2002 Letter, Supp. Shiner Decl. Ex. E, Docket Entry 120, at ECF p. 34-36, at 35.)

         II. The DOJ Request

         Plaintiff alleges that on March 1, 2001, he filed a FOIA request seeking

“CIA Litigation” documents . . . relied upon by Attorney General Ashcroft's attorneys when they litigated Robert v. CIA[, 00-CV-4325 (Seybert, J), ] in order to determine whether AG Ashcroft's attorneys were providing AG Ashcroft with the truth, the whole truth, and nothing but the truth, regarding litigation decisions being made by CIA assets within the DOJ, who were consulting with their CIA handlers, who were making decisions on behalf of CIA ...

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