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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 22, 2007 Decided December 7, 2007

No. 06-5382

JEFFERSON MORLEY,

APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 03cv02545)

James H. Lesar argued the cause and filed the briefs for

appellant.

John C. Truong, Assistant U.S. Attorney, argued the cause

for appellee. With him on the brief were Jeffrey A. Taylor, U.S.

Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.
2

Before: HENDERSON, ROGERS and TATEL, Circuit Judges.

Opinion for the Court filed by Circuit Judge ROGERS.

ROGERS, Circuit Judge: Journalist Jefferson Morley

appeals the grant of summary judgment to the Central

Intelligence Agency (“CIA”) on his request under the Freedom

of Information Act (“FOIA”) for documents pertaining to

George Joannides, a deceased CIA officer. Although the CIA

disclosed some records, it withheld others pursuant to various

FOIA exemptions. On appeal, Morley contends that the CIA did

not conduct an adequate search or provide an adequate Vaughn

index and that it failed to meet its burden to justify withholding

documents under FOIA exemptions. Upon de novo review, we

reverse the grant of summary judgment. We hold that Morley

met his burden to show that his request falls within an exception

to the Central Intelligence Agency Information Act of 1984

(“CIA Act”), 50 U.S.C. § 431(c)(3), and we remand the case so

that the CIA may search its operational files in response to

Morley’s FOIA request. Additionally, its release of records

pursuant to the John F. Kennedy Assassination Records

Collection Act of 1992 (“JFK Act”), 44 U.S.C. § 2107 note,

does not relieve the CIA of its obligations under the FOIA. On

remand, the CIA must also expand its description of the search

by its component units and supplement its justification for

withholding documents under FOIA Exemptions 2, 5 and 6. 

I.

On July 4, 2003, Morley submitted a FOIA request to the

CIA for “all records pertaining to CIA operations officer George

Efythron Joannides (also known as ‘Howard,’ ‘Mr. Howard’ or

‘Walter Newby’).” Letter from Jefferson Morley to Katherine

Dyer, Information and Privacy Coordinator, CIA (July 4, 2003)

(“2003 Letter”), at 1. Morley is a journalist and news editor

who has written about the assassination of President Kennedy.

In his view, information on Joannides could shed new light on

the assassination because of Joannides’ position as the CIA case
3

officer for the anti-Castro organization known as the Directorio

Revolucionario Estudantil (“DRE”) in 1963. As Morley’s

writing discusses, the DRE had contact with Lee Harvey Oswald

in 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 of

Kennedy’s assassination, specifically CIA operations that might

have collected intelligence on Oswald.” Appellant’s Br. at 3.

The CIA sent Morley a preliminary response on November

5, 2003, informing him that “CIA records on the assassination

of President Kennedy have been re-reviewed under the

classification guidelines for assassination-related records of the

[JFK Act]” and that such records “have been transferred to the

National Archives and Records Administration (“NARA”) in

compliance 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 his

request to NARA, supplied him with NARA’s address, and

advised him that records can be electronically searched through

NARA’s website. Id. at 2. 

On December 16, 2003, Morley filed a complaint for

injunctive relief, requesting the district court to order the CIA to

make available all documents responsive to his FOIA request.

The CIA filed a motion to stay the proceedings pending its

further processing of Morley’s FOIA request, which the district

court granted on September 2, 2004. By letter of December 22,

2004, the CIA responded to Morley’s FOIA request, enclosing

three documents in their entirety and 112 documents with

redactions pursuant to FOIA Exemptions 1, 2, 3, 5, 6, 7(C), and

7(E). The CIA noted that it had located additional responsive

material that it was withholding in its entirety under FOIA

Exemptions 1, 3, and 6. It also explained that two documents

required consultation with another agency and that 78

documents previously released under the JFK Act were on file

with NARA. The CIA asserted that it could “neither confirm

nor deny the existence of records responsive” to Morley’s
4

request pertaining to Joannides’ participation in any covert

operation. Letter from Scott Koch, Information and Privacy

Coordinator, CIA, to Jefferson Morley, at 2 (Dec. 22, 2004)

(“2004 Letter”). The CIA later released the two documents

requiring consultation with another agency in segregable form.

Three months later, on May 9, 2005, the CIA sent Morley a

partially redacted document that it had “inadvertently failed to

include” in its earlier response and identified additional material

that was withheld in its entirety under Exemptions 1, 2, 3, 5, 6,

7(C), 7(D), and 7(E). Letter from Scott Koch, Information and

Privacy 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 on

March 24, 2005, the district court referred all discovery disputes

to a magistrate judge. The CIA filed a motion for summary

judgment on November 15, 2005. On February 6, 2006, the

magistrate judge granted the CIA’s motion for a protective order

and directed Morley to file his opposition to the CIA’s summary

judgment motion, which Morley did on March 14, 2006 along

with a cross-motion for summary judgment. On September 29,

2006, the district court granted the CIA’s motion for summary

judgment and denied Morley’s cross-motion. It found that the

CIA had conducted an adequate search, giving deference to the

agency’s decisions as explained in the October 26, 2005

Declaration of Marilyn A. Dorn, the Information Review Officer

for the Directorate of Operations of the CIA (“Dorn

Declaration”), and that the Dorn Declaration and the CIA’s

Vaughn index had adequately justified invocation of the claimed

FOIA exemptions. Morley appeals, and we review the grant of

summary judgment de novo. See Iturralde v. Comptroller of

Currency, 315 F.3d 311, 313 (D.C. Cir. 2003). 

II.

Congress enacted the FOIA in order to “‘pierce the veil of

administrative secrecy and to open agency action to the light of

public scrutiny.’” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
5

(1976) (quoting Rose v. Dep’t of Air Force, 495 F.2d 261, 263

(2d Cir. 1974)). To prevail on summary judgment, then, the

defending “agency must show beyond material doubt [] that it

has conducted a search reasonably calculated to uncover all

relevant documents.” Weisberg v. U.S. Dep’t of Justice, 705

F.2d 1344, 1351 (D.C. Cir. 1983). “The court applies a

‘reasonableness’ test to determine the ‘adequacy’ of a search

methodology, consistent with congressional intent tilting the

scale 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.2d

at 1351), and “impose[s] a substantial burden on an agency

seeking 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. at

823, and “‘conclusory and generalized allegations of

exemptions’ are unacceptable,” Founding Church of Scientology

of 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. Standard

As a threshold matter, we conclude that the CIA properly

processed Morley’s request under the traditional standards of the

FOIA, rather than the less restrictive standards of the JFK Act.

In enacting the JFK Act, Congress declared that “all

Government records concerning the assassination of President

John F. Kennedy should carry a presumption of immediate

disclosure,” in part because the FOIA, “as implemented by the

executive branch, has prevented the timely public disclosure” of

these records. JFK Act § 2(a)(2), (a)(5). The JFK Act required

that all assassination records be transmitted to NARA to

comprise its JFK Assassination Records Collection. Id. § 4.

The JFK Act also established the Assassination Records Review

Board (“Review Board”) to determine whether agency

documents constitute assassination records and to render

decisions on whether a particular record qualifies for

postponement of disclosure. Id. § 7(i). Upon expiration of the

Review Board’s operations on September 30, 1998, the CIA,

NARA, and the Review Board signed a Memorandum of
6

Understanding (“MOU”) providing that the CIA will transmit to

the JFK Collection at NARA a number of specifically identified

documents, along with “[a]ny other non-duplicate assassinationrelated records created or discovered by the CIA after

September 30, 1998.” Memorandum of Understanding

Regarding Continuing Obligations of the CIA Under the JFK

Act, 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 the

FOIA are separate statutory schemes with separate sets of

standards and separate (and markedly different) enforcement

mechanisms. There is no evidence that Congress intended that

the JFK Act standards be applied to FOIA review of documents

involving the Kennedy assassination.” The court stated that

FOIA requesters could not skirt the JFK Act’s procedures in

order to capitalize on its substance. See id. 

Morley maintains that the termination of Review Board

operations and the creation of the MOU distinguish his case

from AARC I because there the court rejected efforts to “secure

immediate judicial application of the substantive standards of

the JFK Act without having to wait for the Act’s procedures to

run their course.” Id. at 1543. Now that they have, Morley

asserts that the MOU should govern his request for documents.

But the MOU provides its own enforcement mechanism for

procuring relevant documents from the CIA; Morley can no

more sidestep these procedures than he could those of the JFK

Act, see id. at 1545. Notably, the MOU neither mentions the

FOIA nor addresses the release of relevant documents to FOIA

requesters; it merely provides that the appropriate records shall

be released to NARA. If Morley has identified new

assassination-related records, then NARA can seek their release

pursuant to the MOU. To the extent that Congress sought to

remedy the executive branch’s overzealous shielding of

assassination-related records under the FOIA, the JFK Act and

the MOU supply the process by which to obtain these
7

documents. Morley cannot invoke this Congressional purpose

to “engraft[]” “the concerns of the JFK Act . . . onto FOIA

requests,” Minier v. CIA, 88 F.3d 796, 802 (9th Cir. 1996).

Accordingly, the CIA properly conceived of Morley’s FOIA

request as requiring application of FOIA standards, and we turn

to Morley’s challenges to the adequacy of the CIA’s search and

Vaughn index and to the CIA’s invocation of FOIA exemptions

to withhold documents. 

 

B. Adequacy of the Search

“[I]n adjudicating the adequacy of the agency’s

identification and retrieval efforts, the trial court may be

warranted in relying upon agency affidavits.” Founding Church

of Scientology, 610 F.2d at 836. However, such reliance is only

appropriate when the agency’s supporting affidavits are

“‘relatively detailed’ and nonconclusory and . . . submitted in

good faith.” Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978)

(quoting Vaughn, 484 F.2d at 826). “Even if these conditions

are met the requester may nonetheless produce countervailing

evidence, and if the sufficiency of the agency’s identification or

retrieval procedure is genuinely in issue, summary judgment is

not in order.” Founding Church of Scientology, 610 F.2d at 836.

The district court found that Dorn’s declaration “described in

great detail” the CIA’s actions in response to Morley’s FOIA

request, Mem. Op. Sept. 29, 2006 at 8, and concluded, “mindful

of the deference due agency decisions in this context,” id. at 9,

that the CIA’s search was adequate. The district court did not

specifically address the individual contentions that Morley raises

regarding the adequacy of the CIA’s search. We turn to these

enumerated issues.

1. Search of Operational Files. The CIA admits that it did

not search its operational files for records responsive to

Morley’s request. See Dorn Declaration ¶ 97. Operational files

are exempt from FOIA disclosure under the CIA Act, 50 U.S.C.

§ 431(a), and generally include records “which document the

conduct of foreign intelligence or counterintelligence

operations,” id. § 431(b)(1). Morley, however, contends that
8

1

 Originally, the exception in the CIA Act provided that

operational files should be searched when a FOIA request concerned

“the specific subject matter of an investigation by the intelligence

committees of the Congress.” Pub. L. No. 98-477, § 701(c)(3), 98

Stat. 2209 (1984). The legislative history of the CIA Act indicates

that the Church Committee qualifies as “intelligence committees of the

congress” 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 Governmental

Operations with Respect to Intelligence Activities (“Church

Committee”) and the House Select Committee on Assassinations

(“HSCA”) investigated DRE activities in 1963, his FOIA

request falls under an exception in the CIA Act. 

Section 431(c) of the CIA Act provides that:

[E]xempted operational files shall continue to be

subject to search and review for information

concerning . . . (3) the specific subject matter of an

investigation by the congressional intelligence

committees, the Intelligence Oversight Board, the

Department of Justice, the Office of General Counsel

of the Central Intelligence Agency, the Office of

Inspector General of the Central Intelligence Agency,

or the Office of the Director of National Intelligence

for any impropriety, or violation of law, Executive

order, or Presidential directive, in the conduct of an

intelligence activity. [emphasis added]

For exception (3) to apply, the plain text directs that three

questions must be answered in the affirmative. First, does the

Church Committee or the HSCA qualify as “congressional

intelligence committees” under the CIA Act? The CIA does not

challenge that the two committees qualify as intelligence

committees, and treating the Church Committee as such appears

to be consistent with congressional intent.1

 The Church
9

However, 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) the

Permanent Select Committee on Intelligence of the House of

Representatives,” 50 U.S.C. § 401a(7). 

2

 The Church Committee Final Report states: “This

experience underscores the need for an effective legislative oversight

committee which has sufficient power to resolve such fundamental

conflicts between secrecy and democracy.” Select Committee to

Study Governmental Operations with Respect to Intelligence

Activities (“Church Committee”), Foreign and Military Intelligence,

S. Rep. No. 94-755, Book I, at 424 (1976). The Senate Select

Committee on Intelligence was established by S. Res. 400, 94th Cong.,

122 Cong. Rec. 4754 (1976). 

Committee was the predecessor to the Senate Select Committee

on 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 the

Church Committee.2 Moreover, according to evidence proffered

by Morley, Congress created the HSCA to follow up on the

Church Committee recommendation that Congress investigate

further “why Oswald’s contacts with the DRE . . . had been

examined so superficially.” Decl. of G. Robert Blakey, ¶¶ 9, 10.

(June 27, 2006). However, it was the House Select Committee

on Intelligence (“Pike Committee”), not the HSCA, that gave

rise to the Permanent Select Committee on Intelligence of the

House of Representatives. See Lt. Gerald F. Reimers II, Foreign

Intelligence Surveillance Act, 4 J. Nat’l Security L. 55, 74

(2000). It matters not, however, that the HSCA does not

necessarily fall within the definition of a congressional

intelligence committee for purposes of § 431(c), for the Church

Committee does and that is sufficient for the exception to apply.

Second, does Morley’s request concern “the specific subject
10

matter of an investigation by the congressional intelligence

committees”? 50 U.S.C. 431(c)(3). The legislative history of

the CIA Act indicates that “[t]he specificity requirement in the

phrase ‘specific subject matter of the investigation’ tailors the

scope of information remaining subject to the FOIA process to

the scope of the specific subject matter of the investigation.”

H.R. Rep. No. 98-726, at 31 (1984), reprinted in 1984

U.S.C.C.A.N. 3741, 3769. In fact, the scope of the Church

Committee investigation specifically encompassed operations of

the CIA and other federal agencies in investigating the

assassination. See Church Committee, The Investigation of the

Assassination of President John F. Kennedy: Performance of the

Intelligence Agencies, S. Rep. No. 94-755, Book V, at 1 (1976).

Significantly, the Church Committee found that “the CIA

inquiry [] was deficient on the specific question of the

significance of Oswald’s contacts with pro- and anti-Castro

groups for the many months before the assassination.” Id. at 6.

Morley proffers evidence that Joannides had access to relevant

information concerning the assassination through his

connections with the DRE. As the DRE’s CIA case officer

between 1962 and 1964 (a fact that the CIA neither denies nor

confirms), Morley maintains that Joannides would have been

central to the CIA’s inquiry into Oswald’s contacts with that

particular anti-Castro group.

The CIA contends that this congressional investigation does

not trigger § 431(c)(3) because it was not specifically about

Joannides. See Appellee’s Br. at 16; Oral Arg. Tape at 21:37,

22:13 (Oct. 22, 2007). This restrictive reading of the statute is

foreclosed 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 only

opinion by a circuit court of appeals to address § 431(c)(3). In
11

Sullivan v. CIA, 992 F.2d 1249, 1255 (1st Cir. 1993), the First

Circuit held that the exception was inapplicable because “[i]t is

simply not enough that information which bore in some remote

way on the request surfaced in the course of an official

investigation.” In that case, the court addressed a FOIA request

pertaining to the disappearance of the requester’s father while

allegedly on an airborne CIA-sponsored mission to drop

propaganda over Cuba. The court construed the exception to

require more than “a congressional investigation that touches on

CIA conduct in a particular incident or region,” id. at 1254.

Sullivan addressed a situation substantially different from

Morley’s case. Joannides has more than a “remote” relationship

to the purpose of the investigation, according to Morley’s

evidence, as he was the case officer for an anti-Castro group that

had documented contacts with Oswald. 

We hold that the requirement of § 431(c)(3) that a FOIA

request concern “the specific subject matter of an investigation”

is satisfied where the investigating committee would have

deemed the records at issue to be central to its inquiry. This

interpretation is supported by the legislative history of the CIA

Act, which indicates that information that merely “surfaced in

the course of the investigation” should not trigger the §

431(c)(3) exception. H.R. Rep. No. 98-726, at 31. Morley does

not seek information that bears only a “remote” relationship to

the investigation by the Church Committee, but rather

information central to the committee’s “direct investigation.”

Sullivan, 992 F.2d at 1255. The Church Committee posed a

targeted inquiry investigating the performance of the

intelligence agencies surrounding a particular event. The role of

individual CIA officers during this event was key to such an

inquiry, information that the committee would have sought out

rather than merely happened upon. Even the CIA recognizes

that the focus of the committee’s investigation was the

relationship between organizations like the DRE and the

Kennedy assassination. See Appellee’s Br. at 16. The evidence

proffered by Morley indicates that Joannides was in a position

of central importance to such an investigation and was thus
12

covered by its “specific subject matter.”

Third, was the investigation “for any impropriety, or

violation of law, Executive order, or Presidential directive, in the

conduct of an intelligence activity”? 50 U.S.C. § 431 (c)(3).

The inclusion of the word “impropriety” alongside “violation of

law” suggests that Congress intended the terms to apply broadly;

the misconduct need not amount to illegality. This requirement

is satisfied when a congressional investigation is spawned by

alleged improprieties and seeks to uncover them. The Church

Committee investigation meets this criteria because it sought to

assess the performance of the intelligence agencies in

conducting their own investigations of the assassination; in fact,

the Church Committee found that the CIA was “deficient” in its

performance, further indicating that it was specifically

investigating the possibility of CIA “impropriety.” Such an

investigation implicates Joannides, who, according to Morley’s

proffers, was a figure central to the CIA’s investigation both

before and after the assassination, and someone who may have

been directly implicated in the CIA’s alleged deficiencies. 

Language in Sullivan that suggests that the Church

Committee did not investigate CIA “impropriety, or violation of

law” was unnecessary to its holding and limited by its context.

The First Circuit stated that the Church Committee’s inquiry fell

outside of the exception because it “was not a direct

investigation into CIA wrongdoing,” despite the fact that “there

were instances in which the Committee searched for agency

misconduct.” 992 F.2d at 1255. However, once the First Circuit

concluded that information about the requester’s father had only

a tenuous relationship to the Church Committee’s investigation,

and thus did not concern “the specific subject matter of an

investigation,” it had no need to reach the issue of whether the

Church Committee investigated CIA impropriety. Further,

Sullivan acknowledges that the Church Committee “considered

American operations against Castro and, inevitably, their

legality.” Id. An investigation of an illegal agency operation

satisfies the dictates of § 431(c)(3), and thus our holding that the
13

Church Committee investigated agency “impropriety, or

violation of law” is not in tension with Sullivan.

For these reasons, we hold that Morley’s FOIA request

meets the § 431(c)(3) criteria for mandating the search of the

CIA’s operational files under the FOIA. Because the CIA did

not search these files, we remand the case to the district court so

that the CIA may do so.

2. Search of Records Released to NARA. Morley also

correctly contends that the search was inadequate because the

CIA did not search records that had been transferred to NARA

pursuant to the JFK Act. The Supreme Court has held that “an

agency has [] ‘withheld’ a document under its control when, in

denying an otherwise valid request, it directs the requester to a

place outside of the agency where the document may be publicly

available.” U.S. Dep’t of Justice v. Tax Analysts, 492 U.S. 136,

150 (1989). 

The FOIA has a “settled policy” of “‘full agency

disclosure.’” Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d

1060, 1064 (D.C. Cir. 1988) (quoting S. Rep. No. 89-813, at 3

(1965)), aff’d, 492 U.S. 136. Congress has authorized only nine

categories of exemption from this policy, and practical

considerations that documents exist in another forum outside of

the agency is not amongst them. “[A] categorical refusal to

release documents that are in the agency’s ‘custody’ or ‘control’

for any reason other than those set forth in the Act’s enumerated

exceptions 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 retained

copies of the records transferred to NARA and concedes that

some transferred records are likely to be responsive, it was

obligated to search those records in response to Morley’s FOIA

request.

The same holds true for the 1,100 CIA documents contained
14

in the protected collection at NARA. The JFK Act provides for

the postponement of disclosure given “clear and convincing

evidence” of enumerated circumstances requiring secrecy. JFK

Act § 6; see also id. § 2(a)(7). The CIA confirms that “1,100

documents are located in NARA’s protected collection, and will

be released in 2017.” Dorn Decl. ¶ 29 n.5. Although the CIA

asserts on appeal that it “is not required to search these

documents . . . because the ‘postponed collection’ under the JFK

Act is not reasonably likely to contain information responsive to

[Morley]’s request,” Appellee’s Br. at 19, this post hoc

explanation 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 between

the protected and unprotected records when it directed Morley

to the NARA collection, instead indicating that the JFK

Collection as a whole is likely to contain responsive documents.

Moreover, even if the protected records could be withheld under

one of the FOIA exemptions, that does not absolve the CIA of

its duty to identify responsive documents, claim the relevant

exemptions in the Vaughn index, and explain its reasoning for

withholding the documents in its affidavit. Indeed, the JFK Act

itself indicates that release of records to NARA does not absolve

agencies of their duties under the FOIA: “Nothing in this Act

shall be construed to eliminate or limit any right to file requests

with any executive agency or seek judicial review of the

decisions pursuant to [the FOIA].” JFK Act § 11(b). 

In sum, the blanket statement in the Dorn Declaration that

the CIA did not search records made available through NARA

does not warrant summary judgment on this aspect of Morley’s

FOIA request. On remand the district court shall direct the CIA

to search these documents.

3. Search for “Missing” Documents. Morley is less

persuasive in contending that the search was inadequate because

there are certain documents that he suspects the CIA has in its

possession but withheld. First, Morley’s FOIA request sought

“[a]ll records in the Office of General Counsel pertaining to the
15

selection of George Joannides as liaison to the [HSCA] in May

1978.” 2003 Letter at 2. Morley relies on a passage in a book

written by Scott Breckinridge, the former General Counsel of

the CIA, that refers to “George J.” who was chosen as the

agency’s liaison to the HSCA. Morley also states in his sworn

declaration that the CIA’s meetings with Joannides “were

undoubtedly memorialized by one or more of the participants.”

Decl. of Jefferson Morley ¶ 13 (Apr. 25, 2005). This is hardly

proof that such documents exist. See Weisberg v. U.S. Dep’t of

Justice, 745 F.2d 1476, 1487 (D.C. Cir. 1984). But even if

citations to Morley’s own affidavit were sufficient to show that

files pertaining to Joannides’ selection as liaison once did exist,

“failure of an agency to turn up one specific document in its

search does not alone render a search inadequate.” Iturralde,

315 F.3d at 315. Paragraph 44 of the Dorn Declaration states

that the CIA directed the Office of General Counsel to search its

relevant database and that responsive documents were released

to Morley. 

Second, Morley contends that the CIA has failed to produce

the “daily diary” of its activity concerning the HSCA. Again

Morley relies on his declaration and asserts in his brief that it

“strains credulity” to think that the documents that he seeks do

not exist. Appellant’s Br. at 28. This assertion amounts to

nothing more than “mere speculation that as yet uncovered

documents might exist,” which is not enough to “undermine the

determination that the agency conducted an adequate search for

the 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 the

monthly progress reports filed by Joannides while he was the

case officer for the DRE. Morley relies on the fact that the

monthly reports of the DRE case officers’ both before and after

Joannides’ assignment are available at NARA. The CIA’s brief

explains in a footnote that it addressed these “missing” monthly

reports in a memorandum to the Review Board’s Executive

Director: “The memorandum states that notwithstanding rather
16

extensive efforts, searches conducted by the Agency failed to

locate any of the reports that appear to be missing [between]

December 1962 [and] April 1964 and provided background

which 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 explanation

in its affidavit or provide the memorandum itself to Morley

makes it impracticable for the court to review the adequacy of

its search. It does not suffice for purposes of summary judgment

that the CIA has written a memorandum to NARA that “may

explain” the lack of responsive documents; rather, the court

must 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 affidavit

assert[ed] no personal knowledge that the [record]

really was discarded, so [one] permissible inference is

that [the agent] is incorrect in his belief and that the

[record] remains somewhere in the FBI’s domain. A

factual question thus persists, and it was inappropriate

for the District Court to undertake to resolve it at the

stage of summary judgment. 

The evidence here similarly indicates that there is a factual

question as to whether or not the “missing” monthly reports still

exist. Although the CIA indicates these documents are

responsive, it has provided neither Morley nor the court with an

explanation regarding the reports’ whereabouts. Cf. Maynard v.

CIA, 986 F.2d 547, 565 (1st Cir. 1993). On remand the CIA

must supplement its explanation.

4. Search of Other Files. The Dorn Declaration never

addresses Morley’s request that the CIA search its “soft files.”

Although the CIA states in its brief that “soft” files were

included in its search, see Appellee’s Br. at 14, this post hoc

explanation cannot make up for the fact that the CIA provided

an inadequate description of its search in its response to Morley
17

and in the Dorn Declaration. However, to the extent Morley

also contends that the search was inadequate because the CIA

failed to search records referenced in the responsive documents

that were released, Steinberg v. U.S. Department of Justice, 23

F.3d 548, 552 (D.C. Cir. 1994), is dispositive:

[M]ere reference to other files does not establish the

existence of documents that are relevant to appellant’s

FOIA request. If that were the case, an agency

responding to FOIA requests might be forced to

examine virtually every document in its files,

following an interminable trail of cross-referenced

documents like a chain letter winding its way through

the mail. [] FOIA clearly does not impose this burden

upon federal agencies . . . .

5. Adequacy of CIA’s Description. Morley is correct

that the CIA failed to describe its search adequately. The Dorn

Declaration does not “explain in reasonable detail the scope and

method of the search conducted by the agency [sufficient] to

demonstrate compliance with the obligations imposed by the

FOIA.” Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982).

Dorn states that the “CIA produced records that were a product

of a reasonable, diligent and thorough search.” Dorn Decl. ¶ 43.

But Dorn provides little more than conclusory adjectives and

does not provide sufficient detail for the court itself to determine

the search’s adequacy. 

The Declaration incorporates a general explanation of how

the agency responds to all FOIA requests, and after describing

how a single FOIA request must be divvied up between multiple

component units within the CIA, Dorn states that “each

component must then devise its own search strategy, which

includes identifying which of its records systems to search as

well as what search tools, indices, and terms to employ.” Id. ¶

13. But the two brief paragraphs in the Declaration explaining

the search itself, Dorn Decl. ¶ 43-44, provide no information

about the search strategies of the components charged with
18

responding to Morley’s FOIA request. Dorn merely identifies

the three directorates that were responsible for finding

responsive documents without “identify[ing] the terms searched

or explain[ing] how the search was conducted” in each

component. Oglesby v. U.S. Dep’t of Army, 920 F.2d 57, 68

(D.C. Cir. 1990). Neither does Dorn provide any indication of

what 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 only

basic CIA policy regarding FOIA responses and a description of

the CIA’s correspondence with Morley. Consequently, the

Declaration’s terse treatment of the CIA’s efforts to locate

documents that were responsive to Morley’s FOIA request lacks

the detail “necessary to afford a FOIA requester an opportunity

to challenge the adequacy of the search and to allow the district

court to determine if the search was adequate in order to grant

summary judgment.” Oglesby, 920 F.2d at 68. 

In view of Morley’s various concerns about the adequacy of

the CIA’s search, and the CIA’s response with a “single,

conclusory affidavit,” Perry, 684 F.2d at 128, that generally

asserts adherence to the reasonableness standard, the Dorn

Declaration is insufficient to carry the CIA’s burden on

summary judgment to “prove[] that no substantial and material

facts are in dispute and that [it] is entitled to judgment as a

matter of law.” Nat’l Cable Television Assoc. v. FCC, 479 F.2d

183, 186 (D.C. Cir. 1973). On remand, the CIA must expand its

description of the search it conducted. Because the CIA

inadequately explained its search, we need not address Morley’s

objection that the court should not defer to the Dorn Declaration

in view of the CIA’s alleged bad faith.

C. Adequacy of Vaughn index

Morley further challenges the sufficiency of the Vaughn

index because it does not identify the specific exemption

invoked to justify each redaction in the released documents.

The court has provided repeated instruction on the specificity

required of a Vaughn index. In King v. U.S. Department of
19

Justice, 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 the

reasons why a particular exemption is relevant and correlating

those claims with the particular part of a withheld document to

which 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 redacted

material coupled with categorical indication of anticipated

consequences of disclosure is clearly inadequate.” Id. at 224.

At the same time, in Judicial Watch, Inc. v. Food & Drug

Administration, 449 F.3d 141, 147 (D.C. Cir. 2006), the court

stated that “[w]e have never required repetitive, detailed

explanations for each piece of withheld information – that is,

codes and categories may be sufficiently particularized to carry

the agency’s burden of proof.” The court observed that

“[e]specially where the agency has disclosed and withheld a

large number of documents, . . . particularity may actually

impede court review and undermine the functions served by a

Vaughn index.” Id. In holding that the Vaughn index was

adequate, the court noted the index included eleven categories

of information describing the nature of each record. Id. at 146-

47. 

The Morley Vaughn index contains many of the same

categories as in Judicial Watch, including an identification

number, the document’s subject, and the date. Although the

CIA has not matched each redaction with a specific exemption,

its Vaughn index does identify the exemptions claimed for each

individual document. In Judicial Watch the index and the

agency affidavit worked in tandem, the court validating the

index because it “tied each individual document to one or more

exemptions, and the [agency’s] declaration linked the substance

of each exemption to the documents’ common elements.” Id. at

147. The released portion of the document supplements the

Vaughn index, so that “[t]he released content of the documents

served to illuminate the nature of the redacted material.” Id. at

145. As described below in discussing several of the claimed
20

FOIA exemptions, the Dorn Declaration is less fulsome in tying

together the exempted documents and justifying their

withholding. Still, the descriptions of the documents in the

Vaughn index, while categorical and with little variation from

page to page, convey enough information for Morley and the

court to identify the records referenced and understand the basic

reasoning behind the claimed exemptions. Summary judgment

was therefore appropriate on the adequacy of the CIA’s Vaughn

index. 

D. Segregability

Morley notes that the district court failed to address the

segregability of the withheld documents. The FOIA requires

that “[a]ny reasonably segregable portion of a record shall be

provided to any person requesting such record after deletion of

the portions which are exempt.” 5 U.S.C. § 552(b). “[T]he

District Court had an affirmative duty to consider the

segregability issue sua sponte.” Trans-Pac. Policing Agreement

v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999).

Thus, “a district court clearly errs when it approves the

government’s withholding of information under the FOIA

without making an express finding on segregability.” PHE, Inc.

v. Dep’t of Justice, 983 F.2d 248, 252 (D.C. Cir. 1993). The

district court’s failure to fulfill this responsibility requires a

remand.

E. Exemptions

Exemption 1 provides that the disclosure provisions of the

FOIA do not apply to matters that are “(A) specifically

authorized under criteria established by an Executive order to be

kept secret in the interest of national defense or foreign policy

and (B) are in fact properly classified pursuant to such Executive

order.” 5 U.S.C. § 552(b)(1). The CIA relies on Executive

Order 12,958, “Classified National Security Information,” 60

Fed. Reg. 19,825 (Apr. 17, 1995), in exempting certain material.

Morley makes three points: (1) The Dorn Declaration makes

only conclusory statements about national security threats under

Exemption 1; (2) The passage of time since the Cold War no
21

longer warrants protection of documents concerning the CIA’s

operations in Cuba; and (3) The CIA has already released to

NARA the same kind of information he seeks under the JFK

Act, undercutting any potential damage to national security that

the CIA currently claims.

 

Dorn’s justification for the invocation of Exemption 1 is

terse. She briefly identifies the two categories of the Executive

Order under which information was classified – “intelligence

activities . . . , intelligence sources or methods, or cryptology”

and “foreign relations or foreign activities of the United States,

including confidential sources.” Dorn Decl. ¶ 48. She then

restates the Executive Order’s standard for classifying certain

information “which reasonably could be expected to cause

damage to the national security.” Id. 

Although the court has “consistently maintained that vague,

conclusory affidavits, or those that merely paraphrase the words

of a statute, do not allow a reviewing judge to safeguard the

public’s right of access to government records,” Church of

Scientology of Cal., Inc. v. Turner, 662 F.2d 784, 787 (D.C. Cir.

1980) (per curiam), the text of Exemption 1 itself suggests that

little proof or explanation is required beyond a plausible

assertion that information is properly classified. Morley’s

argument for declassification does not overcome the

“substantial weight” the court must accord “to an agency’s

affidavit concerning the details of the classified status of the

disputed record.” Military Audit Project v. Casey, 656 F.2d 724,

738 (D.C. Cir. 1981) (emphasis in original) (internal quotation

marks omitted). Furthermore, where courts have called for more

detailed explanations of the potential dangers to national

security 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 conflated

Exemption 1 and Exemption 3, which also deals with national

security concerns. Upon considering the CIA’s more thorough

discussion of the national security implications in Exemption 3,

we conclude that, taken together, the Dorn declaration made a
22

proper showing under Exemption 1. 

As for Morley’s assertion that this kind of information has

already been released under the JFK Act, the only evidence he

proffers is a declaration by John M. Newman, Professor of

History at the University of Maryland. Notably, in

Assassination Archives & Research Center v. CIA (“AARC II”),

334 F.3d 55, 59 (D.C. Cir. 2003), the court rejected a nearly

identical declaration by Newman. In that case, the court noted

that the previously disclosed material must be “as specific as”

the sought material. Id. at 60. “Prior disclosure of similar

information does not suffice; instead, the specific information

sought by the plaintiff must already be in the public domain by

official disclosure. The insistence on exactitude recognizes ‘the

Government’s vital interest in information relating to national

security 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 of

information has been revealed” under the JFK Act. Decl. of

John M. Newman ¶ 9 (Mar. 5, 2006). Unable to point to

specific information that was previously released and is now

withheld, Morley’s challenge to the CIA’s reliance on

Exemption 1 fails. 

Exemption 2 protects from disclosure records that are

“related solely to the internal personnel rules and practices of an

agency.” 5 U.S.C. § 522(b)(2). In Schwaner v. Department of

Air Force, 898 F.2d 793 (D.C. Cir. 1990), the court identified a

two-step process for determining if records fall within

Exemption 2: “‘First, the material withheld should fall within

the terms of the statutory language.’” Id. at 794 (quoting

Founding Church of Scientology of Wash., D.C., Inc. v. Smith,

721 F.2d 828, 830 n.4 (D.C. Cir. 1983)). Second, “[i]f so, the

agency may defeat disclosure by proving that either ‘disclosure

may risk circumvention of agency regulation,’” id. (quoting

Rose, 425 U.S. at 369), “or ‘the material relates to trivial

administrative matters of no genuine public interest,’” id. at 794

(quoting Founding Church of Scientology, 721 F.2d at 830 n.4).
23

Notably, “[t]his exemption does not shield information on the

sole 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 of

explanation regarding the agency’s reason for withholding

documents under this exemption: “There is no public interest in

the disclosure of such internal procedures and clerical

information that would justify the administrative burden that

would be placed upon CIA.” Dorn Decl. ¶ 51. This statement

seems to place the burden on Morley to assert a public interest

before such information will be released. Indeed, the district

court, after determining that the withheld information is

“sufficiently related to the internal concerns of [the] agency,”

concluded that Morley’s arguments were “unavailing” because

he “failed to provide a scintilla of evidence to show how release

of information pertaining to purely personnel rules and practices

of 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 that

the information withheld is too trivial to warrant disclosure. See

5 U.S.C. 552(a)(4)(B); Tax Analysts, 492 U.S. at 142 n.3. The

Vaughn index for the nine documents withheld under this

exemption adds little insight into whether the type of

information deemed exempt is trivial, vaguely referring only to

“CIA internal organizational data” and “internal Agency

regulations and practices.” The CIA “has failed even to suggest

any . . . reason or need to keep secret” the administrative routing

information and internal data. Fitzgibbon, 747 F. Supp. at 57.

Morley need not produce dispositive evidence that there is a

public interest in this information; he need only provide

evidence of a genuine issue of material fact, and in the face of

the agency’s complete lack of evidence regarding this

exemption, he has done so. On remand the district court shall

direct the CIA to supply the explanation necessary to meet its

burden.
24

3

 The Dorn Declaration includes most of the features noted in

Church of Scientology, where

[t]he affidavits include[d] a lengthy general

discussion of the adverse consequences that could

flow from releasing the information withheld. The

release of any particular document, the CIA warned,

could lead to one or more of the following harmful

results: breaching agreements with foreign

intelligence services, refusal of intelligence sources

to share information in the future, revelation of

intelligence-gathering methods, and disclosure of the

identity of foreign or CIA intelligence operatives

either directly or by inference from the content of the

information. The affidavits assert that release of a

message’s content could lead to the revelation of its

source, since certain types of information are known

Exemption 3 covers records that are “specifically exempted

from disclosure by statute . . . provided that such statute (A)

requires that the matters be withheld from the public in such a

manner as to leave no discretion on the issue, or (B) establishes

particular criteria for withholding or refers to particular types of

matters to be withheld.” 5 U.S.C. § 552(b)(3). The CIA

explains that some records are properly withheld under the

National Security Act and the CIA Act. See 50 U.S.C. §§ 403g,

403-1(i). Certainly, the Dorn Declaration gives a much more

elaborate description on Exemption 3 than it does in relation to

any other issue in the case, providing the court substantial

insight into the CIA’s reasons for protecting intelligence sources

and methods along with other internal information. Indeed,

Dorn draws causal connections between the release of certain

kinds of information and the danger to national security that

would result, satisfying the CIA’s obligation to identify the

“particularized harm that could be expected to occur from

production of the requested information.” Church of

Scientology, 662 F.2d at 785.3 This information “provide[s] the
25

to be in the possession of only a few.

662 F.2d at 786.

kind of detailed, scrupulous description that enables a District

Court judge to perform a searching de novo review,” id. at 786.

Morley’s assertions regarding specific documents that

should have been released are to no avail. In Ass’n of Retired

Rail Road Workers v. U.S. Rail Road Retirement Board, 830

F.2d 331, 336 (D.C. Cir. 1987), the court explained that

“Exemption 3 differs from other FOIA exemptions in that its

applicability depends less on the detailed factual contents of

specific documents; the sole issue for decision is the existence

of a relevant statute and the inclusion of withheld material

within the statute’s coverage.” It is particularly important to

protect intelligence sources and methods from public disclosure.

See CIA v. Sims, 471 U.S. 159, 167-69 (1985). Given the

special deference owed to agency affidavits on national security

matters, Morley’s specific challenges to various documents are

insufficient to show that summary judgment on Exemption 3

was inappropriate.

However, the CIA’s unsubstantiated Glomar response, see

Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976), is not

similarly sufficient. In response to Morley’s FOIA request, the

CIA stated: “With respect to that portion of your request seeking

records regarding Mr. Joannides [sic] participation in any covert

project, operation, or assignment, unless of course previously

acknowledged, the CIA can neither confirm nor deny the

existence or nonexistence of records responsive to your

request.” 2004 Letter at 2. The only question before the court

is whether the Dorn Declaration “explained in reasonably

specific detail the danger to intelligence sources and methods if

the existence of responsive records were disclosed,” Wolf, 473

F.3d at 373. Within its explanation of its withholding of
26

intelligence sources under Exemption 3, the CIA asserts that

“[a]n official acknowledgment of [clandestine activity] could

jeopardize the source’s career, family or even his life.” Dorn

Decl. ¶ 57. But this is the only allusion to the need for a Glomar

response in the CIA’s affidavit and it is not linked to the Glomar

response. On remand, the CIA must substantiate its Glomar

response with “reasonably specific detail.” 

Exemption 5 excludes from mandatory release “interagency or intra-agency memorandums or letters which would

not be available by law to a party other than an agency in

litigation with the agency.” 5 U.S.C. § 552(b)(5). The CIA

withheld only two documents under this exemption. 

In Coastal States Gas Corp. v. Department of Energy, 617

F.2d 854, 866 (D.C. Cir. 1980), the court established the

standard for review of agency claims under Exemption 5: “To

test whether disclosure of a document is likely to adversely

affect the purposes of the privilege, courts ask themselves

whether the document is so candid or personal in nature that

public disclosure is likely in the future to stifle honest and frank

communication within the agency.” But the opacity of the

CIA’s explanation does not permit the court to apply the test.

“[I]t is enough to observe that where no factual support is

provided for an essential element of the claimed privilege or

shield, 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]s

shown in the attached Vaughn index, CIA has properly invoked

Exemption (b)(5) to withhold information protected by the

deliberative-process privilege from only two documents.” Dorn

Decl. ¶ 85. The first document exempted under this privilege is

denied in full, and the Vaughn index explains, “the document

contains recommendations – concerning the waiver of certain

reinvestigation methods – that are protected by the deliberative

process privilege.” The second document was partially released,
27

and the list of reasons for the various exemptions in the Vaughn

index includes “material that is predecisional and deliberative in

nature.” 

In order for the court to determine if information is

“deliberative” it must “reflect the personal opinions of the writer

rather than the policy of the agency.” Coastal States Gas, 617

F.2d at 866. “Factual material that does not reveal the

deliberative process is not protected by this exemption.” Paisley

v. 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 given

in the affidavit and Vaughn index provide the court with no way

of knowing if the CIA has properly applied this standard in

exempting 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 agency

decision or policy to which these documents contributed.” Id.

at 698. The CIA has provided no hint of a final agency policy

its “predecisional” material preceded. According to Morley, the

CIA has deleted the identities of the author and recipient in the

document that was partially released, giving the court little

indication about the nature of the records withheld. See

Appellant’s Br. at 50. “The identity of the parties to the

memorandum is important; a document from a subordinate to a

superior official is more likely to be predecisional, while a

document moving in the opposite direction is more likely to

contain instructions to staff explaining the reasons for a decision

already made.” Coastal States Gas, 617 F.2d at 868.

Because the Dorn declaration and Vaughn index fail to

provide “specific and detailed proof that disclosure would

defeat, rather than further, the purposes of FOIA,” Mead Data

Cent., 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 disclose
28

“personnel and medical files and similar files the disclosure of

which would constitute a clearly unwarranted invasion of

personal privacy.” 5 U.S.C. § 552(b)(6). “Exemption 6’s

requirement that disclosure be ‘clearly unwarranted’ instructs us

to ‘tilt the balance (of disclosure interests against privacy

interests) in favor of disclosure.’” Wash. Post Co. v. U.S. Dep’t

of 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, “under

Exemption 6, the presumption in favor of disclosure is as strong

as can be found anywhere in the Act.” Id. 

Morley does not contest that the biographical information

withheld qualifies as personnel, medical, or similar files.

Rather, he objects to the district court’s determination that the

information withheld constitutes a clearly unwarranted invasion

of personal privacy. The Dorn Declaration does not sufficiently

respond to this claim. After finding that the records qualify as

personnel or similar files, Dorn merely assumes the exempt

status of the records. Dorn states that “because its disclosure

would constitute a clearly unwarranted invasion of the personal

privacy of third parties, it is subject to (b)(6) protection,” Dorn

Decl. ¶ 87, neglecting any analysis of the “clearly unwarranted

invasion” criterion. Dorn then asserts that there is “no

overriding public interest” in these records. Id. ¶ 88.

Significantly, she applies the wrong standard: “Even if some

minuscule public interest could be found in disclosing the thirdparty information at issue, the balance would still tilt

dramatically against disclosure.” Id. ¶ 88. Dorn’s circular

reasoning only further highlights her failure to substantiate the

asserted privacy interest: “Disclosure of this personal

information would certainly violate the personal privacy of these

third parties. Because the privacy interests involved will clearly

outweigh the negligible public interest in disclosure, I have

determined that the information should not be disclosed.” Id. ¶

89. 

Despite its burden to show that withholding is necessary,
29

the CIA has failed even to articulate the privacy interest in the

records, let alone demonstrate that such privacy interests meet

the standard for an agency’s withholding under Exemption 6.

This falls well below the information provided to the court in

Judicial Watch, which upheld withholding documents under

Exemption 6. There, the court noted that the agency’s

declaration “fairly asserted abortion-related violence as a

privacy interest for both the names and addresses of persons and

businesses associated with [the abortion pill],” id. at 153, and

balanced that privacy interest against the public interest in

disclosure. To the extent the CIA suggests that the privacy

interest in biographical information is self-evident, it is

mistaken. 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 establishing

only that the disclosure of names and addresses is not

inherently and always a significant threat to the privacy

of those listed; whether it is a significant or a de

minimis threat depends upon the characteristic(s)

revealed by virtue of being on the particular list, and

the consequences likely to ensue.

As the CIA has failed to explain the extent of the privacy

interest or the consequences that may ensue from disclosure,

summary judgment was inappropriate. On remand, the CIA

must show that disclosure would constitute a “clearly

unwarranted” invasion of personal privacy. See Wash. Post, 690

F.2d at 261 (quoting Rose, 425 U.S. at 378 n.16).

Exemption 7(E) protects from disclosure

records or information compiled for law enforcement

purposes, but only to the extent that the production of

such law enforcement records or information . . . (E)

would disclose techniques and procedures for law

enforcement investigations or prosecutions, or would

disclose guidelines for law enforcement investigations
30

or prosecutions if such disclosure could reasonably be

expected to risk circumvention of the law. 

5 U.S.C. § 552(b)(7). In its discussion of Exemption 7(E), the

Dorn Declaration asserts: “The information that has been

withheld could reasonably be expected to provide insight into

CIA Security Center’s clearance and investigatory processes, as

well as certain techniques and procedures used by law

enforcement agencies in coordination with CIA during those

processes.” Background investigations conducted to assess an

applicant’s qualification, such as the CIA’s “clearance and

investigatory 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 general

process applied to all background investigations of its officers.

“[A]n agency may seek to block the disclosure of internal

agency materials relating to guidelines, techniques, sources, and

procedures for law enforcement investigations and prosecutions,

even when the materials have not been compiled in the course

of a specific investigation.” Tax Analysts v. IRS, 294 F.3d 71,

79 (D.C. Cir. 2002). Furthermore, although the CIA only

mentions that release of this information could “provide insight”

into the security clearance procedure, not that it “could be

expected to risk circumvention” of that procedure, we refrain

from adopting an overly formalistic approach that would require

the agency’s response to mirror the statutory text. It is selfevident that information revealing security clearance procedures

could render those procedures vulnerable and weaken their

effectiveness at uncovering background information on potential

candidates. Agencies must apply the correct standards when

claiming FOIA exemptions, but they need not parrot the

statutory language in doing so. Morley thus fails to show

summary judgment in favor of the CIA was inappropriate on

Exemption 7(E). 

Accordingly, although the CIA properly used the FOIA as
31

the governing standard in responding to Morley’s request for

documents, presented an adequate Vaughn index, and supported

its withholding of material pursuant to FOIA Exemptions 1, 3

and 7(E), we reverse the grant of summary judgment to the CIA

and remand the case to the district court. On remand, the district

court shall direct the CIA to search its operational files and the

records released to NARA and to supplement the description of

its search and the explanation for withholding material pursuant

to Exemptions 2, 5, and 6. See Campbell, 164 F.3d at 31. The

district court also shall make the requisite segregability

determination.