UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLUMBIA

Civil Action No. 87-3349 (CKK) 

MEMORANDUM OPINION 

(September 26, 2013) 

 Carl Oglesby filed suit in 1987 challenging several agencies’ responses to a Freedom of 

Information Act (“FOIA”) request Mr. Oglesby submitted in August 1985. Since that time, the 

case has reached the United States Court of Appeals twice then lay dormant for nearly eleven 

years. In December 2011, Aron DiBacco and Barbara Webster, the domestic partner and 

daughter of the now-deceased Mr. Oglesby, sought to replace Mr. Oglesby as the Plaintiffs in 

this action, which the Court permitted. Only three issues remain for the Court to resolve: (1) 

whether the National Security Agency has submitted an adequate Vaughn index; (2) whether the 

Central Intelligence Agency and United States Department of the Army conducted an adequate 

search for potentially responsive records; and (3) whether the CIA and the Army properly 

invoked certain FOIA exemptions. Upon consideration of the pleadings,1

 the relevant legal 

 1

 The Court’s analysis focused on the following documents, in chronological order 

according to motion: (1) Defs.’ Renewed Mot. for Summ. J. (“Defs.’ Mot.”), ECF No. [240]; 

Pls.’ Opp’n & Cross-Mot. for Summ. J. (“Pls.’ Mot.”), ECF No. [241]; Parties’ Notices of Filing, 

ECF Nos. [243, 244]; Defs.’ Reply & Opp’n to Cross-Mot. (“Defs.’ Reply”), ECF No. [246]; 

Pls.’ Reply, ECF No. [248]; Defs.’ Sur-Reply, ECF No. [254-1]; (2) Pls.’ Mot. to Compel, ECF 

No. [249]; Defs.’ Opp’n, ECF No. [251]; Pls.’ Reply, ECF No. [252]; (3) Defs.’ Mot. for Leave 

ARON DIBACCO, et al., 

 Substitute Plaintiffs for Carl Oglesby, 

 v. 

U.S. DEPARTMENT OF THE ARMY, et 

al., 

 Defendants. 
2 

authorities, and the record as a whole, the Court finds the Defendants have met their burden to 

show, through detailed declarations and Vaughn indices, that the CIA and the Army conducted 

adequate searches for responsive records, and that the NSA, the CIA, and the Army properly 

withheld certain information pursuant to various FOIA exemptions. Accordingly, the 

Defendants’ [254] Motion for Leave to File Sur-Reply is GRANTED; the Plaintiffs’ [249] 

Motion to Compel Disclosure of Ex Parte Declarations is DENIED; the Defendants’ [240] 

Renewed Motion for Summary Judgment is GRANTED; and the Plaintiffs’ [241] Cross-Motion 

for Summary Judgment is DENIED. 

I. BACKGROUND 

Since the early 1970s, [Carl] Oglesby has relentlessly pursued the story of 

General Reinhard Gehlen, who served as chief of a Nazi spy ring during World 

War II and who allegedly later negotiated an agreement with the United States 

which allowed his spy network to continue in existence despite post-war denazification programs. After World War II, his group, then known as the Gehlen 

Organization, was reportedly reconstituted as a functioning espionage network 

under U.S. command. According to Oglesby, control of the Gehlen Organization 

shifted back to the newly-sovereign West German Federal Republic as the BND 

(for Bundesnachrichtendienst, or “the Federal Intelligence Service”) after ten 

years of U.S. control. 

Oglesby v. U.S. Dep’t of Army (“Oglesby II”), 79 F.3d 1172, 1175 (D.C. Cir. 1996). To that end, 

between August 21 and September 19, 1985, Carl Oglesby submitted nearly identical Freedom 

of Information Act requests to the Central Intelligence Agency, the United States Departments of 

the Army and State, the National Security Agency, the Federal Bureau of Investigation, and the 

National Archives and Records Administration (“NARA”). Oglesby v. U.S. Dep’t of Army 

(“Oglesby I”), 920 F.2d 57, 60 (D.C. Cir. 1990). “[W]ith minor variations,” Oglesby sought the 

following records from each agency: 

 

to File Sur-Reply, ECF No. [254]; Pls.’ Resp., ECF No. [255]. 
3 

(1) records on General Gehlen during the period 1944 through 1956; 

(2) records on meetings held at Fort Hunt, Virginia, in the summer of 1945 

between General Gehlen and U.S. Army General George Strong and Office of 

Strategic Services (“OSS”) officer Allen Dulles; 

(3) records on the U.S. Army’s “Operation Rusty,” carried out in Europe between 

1945 and 1948; 

(4) records on post-war Nazi German underground organizations such as 

“Odessa,” “Kamaradenwerk,” “Bruderschaft,” “Werewolves” and “Die Spinne”; 

(5) records on the OSS’s “Operation Sunrise” carried out in 1945; and 

(6) records on Gehlen's relationship with William J. Donovan and Allen Dulles of 

the OSS, records on Operation Rusty and Gehlen collected by the Central 

Intelligence Group (“CIG”), and records on the Nazi underground organization 

“La Arana.” 

Id. The agencies released a total of 384 pages, many with redactions, but withheld other 

responsive documents. Id. The Army, CIA, NARA, and NSA denied Mr. Oglesby’s request for 

a fee waiver. Id. at 61. 

 Mr. Oglesby filed suit on December 11, 1987. The District Court, per Judge Norma 

Holloway Johnson, granted summary judgment in favor of the Defendants. 5/22/1989 Mem. Op. 

& Order. On appeal, the D.C. Circuit found that Oglesby had failed to exhaust his administrative 

remedies with respect to his requests to the Army, CIA, FBI, NSA, and NARA, but had 

constructively exhausted his administrative remedies concerning his request to Department of 

State. Oglesby I, 920 F.2d at 59-60. The court remanded the case, instructing Oglesby to 

exhaust his remedies, and leaving for the District Court the issue of whether the Department of 

State conducted an adequate search in response to Oglesby’s request. Id. 

 Following the Oglesby I decision, Oglesby exhausted his administrative remedies, and 

once again challenged the Defendants’ responses. Oglesby II, 79 F.3d at 1176. The District 

Court granted summary judgment in favor of the Defendants, concluding that each Defendant 
4 

agency conducted an adequate search for documents and properly withheld information pursuant 

to various FOIA exemptions. Id. Mr. Oglesby appealed, challenging (1) NARA’s refusal to 

grant Oglesby a fee waiver; (2) the adequacy of the searches conducted by the Army, CIA, FBI, 

NSA, and State Department; (3) the adequacy of the Vaughn indices submitted by the Army, 

CIA, and NSA; and (4) the CIA’s and Army’s withholding of certain responsive documents. Id.

at 1175. The D.C. Circuit agreed that the CIA and the Army failed to show they conducted 

adequate searches, and that the CIA, Army, and NSA failed to adequately justify their 

withholdings. Id. The court affirmed the District Court in all other respects. Id. Upon remand, 

the Army, CIA, and NSA eventually filed a renewed motion for summary judgment. 9/25/97 

Mot. for Summ. J., ECF No. [129]. Just short of one year later, Oglesby filed an opposition to 

the Defendants’ motion and cross-moved for summary judgment. 9/14/98 Cross Mot., ECF No. 

[176].2

 

 On October 8, 1998, President William Clinton signed into law the “Nazi War Crimes 

Disclosure Act,” or “NWCDA.” P.L. 105-246, 5 U.S.C. § 552 note. The act “required the U.S. 

Government to locate, declassify, and release in their entirety, with few exceptions, remaining 

classified records about war crimes committed by Nazi Germany and its allies.” Nazi War 

Crimes & Japanese Imperial Gov’t Records Interagency Working Group (“IWG” or “the 

working group”), Final Report to the United States Congress 1 (Apr. 2007). To oversee the 

implementation of NWCDA and the Japanese-Imperial Government Disclosure Act of 2000, the 

President created an Interagency Working Group, consisting of the Archivist of the United 

States, designated representatives of the FBI, the CIA, the National Security Council, the U.S. 

 2

 Pleadings and orders submitted prior to 2006 are not on the electronic docket, but can 

be located in the case file maintained by the Clerk of Court. 
5 

Holocaust Memorial Museum, and the Departments of Defense, Justice, and State, as well as 

three public members. Id. Although General Gehlen is not considered a Nazi war criminal, “the 

CIA pledged to acknowledge the intelligence relationship with General Gehlen in records 

processed for release under the [NWCDA].” Id. at 48. Accordingly, “the CIA approved the 

release of the 2,100-page Army Gehlen file, and in addition released nearly 2,100 pages of 

materials relating to Gehlen from its own files as well as files on many of Gehlen’s personnel 

and agents—including the operational information in all of these files.” Id.

 While the parties’ cross-motions were pending, the Defendants submitted a declaration 

from William H. McNair, the Information Review Officer for the Directorate of Operations for 

the CIA, indicating that the Director of Central Intelligence declassified the relationship between 

the United States Government and the Gehlen Organization. Pls.’ Opp’n, Ex. 1 (McNair Decl.) 

at ¶ 9. In light of the declassification, the CIA indicated it needed to reprocess its previous 

releases to Oglesby and its referrals to the CIA from other agencies “because additional 

information may now be appropriate for release.” 10/31/00 Status Report, ECF No. [211], at 3. 

Unsure of what effect the declassification might have on the Defendants’ motion for summary 

judgment with respect to the NSA and the Army, the Defendants withdrew the pending motion 

for summary judgment. Id. at 6. Oglesby noted that his cross-motion may also be moot due to 

the classification. 11/17/00 Order, ECF No. [214], at 2. The Court thus ordered the Defendants 

to file a status report by no later than December 11, 2000, indicating “how much time is needed 

to complete its review of responsive material” and “how much time is needed to prepare and file 

a Vaughn declaration and accompanying motion for summary judgment.” Id. 

 Pursuant to the Court’s November 2000 Order, the Defendants submitted a status report 

indicating that “recent CIA searches conducted in response to the portion of the plaintiff’s FOIA 
6 

request regarding General Gehlen have resulted in locating approximately 251 boxes of material, 

and 2,901 folders, with documents that likely contain records regarding General Gehlen.”3 

12/11/00 Status Report, ECF No. [215], at 1-2. The Defendants explained that “CIA reviewers 

processing documents for release under the NWCDA [would] be most familiar with the material 

at issue in plaintiff’s FOIA request,” therefore the CIA proposed “incorporate[ing] the 

processing of plaintiff’s FOIA request into the processing of the documents to be reviewed 

pursuant to the NWCDA.” Id. at 2. The Defendants suggested this approach would benefit Mr. 

Oglesby because “the CIA [would] release responsive documents to the plaintiff as they [were] 

released under the NWCDA, instead of waiting until all documents are processed,” as was the 

CIA’s general procedure in FOIA cases. Id. The Defendants estimated that the processing of all 

responsive documents under the NWCDA would be completed ‘within a year,” but that 

“additional documents that go beyond the scope of the Act—which the CIA anticipates 

locating—will also need to be processed.” Id. Accordingly, the CIA requested two years in 

which to complete its review of documents and to file a Vaughn index. Id. at 3. The parties 

discussed many of the issues raised in the Defendants’ status report during a status hearing on 

January 9, 2001. Noting that many of the documents were likely to be in German and thus need 

translating before processing, the Court asked the Defendants to submit a further status report in 

approximately three weeks. 1/9/01 Tr. 18:21-19:2. The Court anticipated that the Defendants 

would file additional status reports as the documents were being processed, but advised 

Plaintiffs’ counsel that if he was dissatisfied with the pace at which documents were be reviewed 

or produced, he should contact the Court and request another status hearing. Id. 20:15-21. 

 3

 During the status hearing on January 9, 2001, the Defendants estimated that the 251 

boxes might contain between 251,000 and 775,000 pages of material. 1/9/01 Tr. 4:15-23. 
7 

In a further status report submitted on February 5, 2001, the Defendants explained that 

the CIA had identified “numerous code words associated with Gehlen and the Gehlen 

Organization, and conducted a search of the applicable records systems using these code words,” 

identifying “a potential universe of over 25,000 responsive documents.” 2/5/01 Status Report, 

ECF No. [216] at 2. The CIA intended to conduct another search “within the next two months” 

using additional search terms. Id. at 3-4. The agency estimated that the review of all potentially 

responsive documents, including referrals to other agencies as necessary, would take two years 

to complete, “but because of the many variables, the CIA suggest[ed] that it provide interim 

status reports on the CIA’s Progress every four to six months.” Id. at 4. The Court did not issue 

any orders in response to the February 2001 status report. In fact, between February 2001 and 

December 2011, neither party submitted any documentation to the Court, save notice of change 

of addresses for counsel and notices of substitution of counsel for the Defendants. 

Nearly eleven years after the Defendants’ last status report, the Plaintiffs filed a motion to 

substitute Mr. DiBacco and Ms. Webster as Plaintiffs, which Judge James E. Boasberg granted in 

his capacity as the motions Judge. 12/1/11 Mot., ECF No. [224]; 1/5/12 Minute Order. The 

Plaintiffs then moved to compel the Defendants to, among other things, describe the searches 

conducted for potentially responsive documents, provide copies of all draft status reports created 

after February 2001, provide copies of all Vaughn indices submitted to the Plaintiffs since 

February 2001, “[l]ist and provide copies of all correspondence which was sent to Carl Oglesby 

or his attorney regarding this case subsequent to the February 5, 2001 status report,” and “[l]ist 

and provide copies of all records released pursuant to this lawsuit subsequent to the February 5, 

2001 status report.” Pls.’ Mot. to Compel, ECF No. [227]. Once the Plaintiff’s motion was fully 

briefed, the case was randomly reassigned to the undersigned. 5/30/12 Reassignment of Civil 
8 

Case, ECF No. [237]. The Court promptly denied the Plaintiff’s motion to compel, and ordered 

the parties to submit a proposed briefing schedule for dispositive motions. 5/30/12 Minute 

Order. The Court adopted the parties’ suggested schedule, and the motions are now ripe for 

consideration by the Court. 

II. LEGAL STANDARD 

 Congress enacted the Freedom of Information Act, 5 U.S.C. § 552, 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 (1976) (citation omitted). Congress remained sensitive to 

the need to achieve balance between these objectives and the potential that “legitimate 

governmental and private interests could be harmed by release of certain types of information.” 

Critical Mass Energy Project v. Nuclear Regulatory Comm’n, 975 F.2d 871, 872 (D.C. Cir. 

1992) (en banc) (citation omitted), cert. denied, 507 U.S. 984 (1993). To that end, FOIA 

“requires federal agencies to make Government records available to the public, subject to nine 

exemptions for categories of material.” Milner v. Dep’t of Navy, 131 S.Ct. 1259, 1261-62 

(2011). Ultimately, “disclosure, not secrecy, is the dominant objective of the act.” Rose, 425 

U.S. at 361. For this reason, the “exemptions are explicitly made exclusive, and must be 

narrowly construed.” Milner, 131 S.Ct. at 1262 (citations omitted). 

When presented with a motion for summary judgment in this context, the district court 

must conduct a “de novo” review of the record, which requires the court to “ascertain whether 

the agency has sustained its burden of demonstrating that the documents requested . . . are 

exempt from disclosure under the FOIA.” Multi Ag. Media LLC v. Dep’t of Agriculture, 515 

F.3d 1224, 1227 (D.C. Cir. 2008) (citation omitted). The burden is on the agency to justify its 

response to the plaintiff’s request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden 
9 

by means of affidavits, but only if they contain reasonable specificity of detail rather than merely 

conclusory statements, and if they are not called into question by contradictory evidence in the 

record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (citation omitted). 

“If an agency’s affidavit describes the justifications for withholding the information with specific 

detail, demonstrates that the information withheld logically falls within the claimed exemption, 

and is not contradicted by contrary evidence in the record or by evidence of the agency’s bad 

faith, then summary judgment is warranted on the basis of the affidavit alone.” Am. Civil 

Liberties Union v. U.S. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (citations omitted). 

“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the 

exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep’t of State, 641 F.3d 

504, 509 (D.C. Cir. 2011) (citation omitted). Summary judgment is proper when the pleadings, 

the discovery materials on file, and any affidavits or declarations “show[] that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. 

R. Civ. P. 56(a). With these principles in mind, the Court turns to the merits of the parties' crossmotions for summary judgment. 

III. DISCUSSION 

A. Miscellaneous Motions 

 Over a month after filing their Opposition and Cross-Motion, and three days after 

submitting their Reply in support of their Cross-Motion, the Plaintiffs filed a motion seeking to 

compel the Defendants to disclose four ex parte, classified declarations submitted to the Court in 

support of the Defendants’ 1997 renewed motion for summary judgment. Pl.’s Mot. to Compel 

at 1. The Plaintiffs cite no legal basis on which the Court may order the Defendants to declassify 

and disclose the declarations. Furthermore, the unclassified declarations submitted by the 
10 

Defendants in support of the same motion indicate the classified declarations were maintained in 

the possession of the United States Attorney’s Office, but would be available to the Court for 

review at the Court’s request. There is no indication that the Court ever sought to review the 

declarations or took possession of the classified declarations, and the Court never ruled on the 

Defendants’ motion, which was subsequently withdrawn. On the present record, the unclassified 

declarations submitted on the issues identified in the Plaintiffs’ motion to compel appear 

sufficient to enable the Plaintiffs to respond to the Defendants’ motion for summary judgment. 

Absent any legal basis for ordering the Defendants to review and possibly disclose classified 

pleadings, the Plaintiffs’ motion to compel is denied. 

 The Defendants have also moved for leave to file a surreply. The Plaintiffs do not 

oppose the motion, but have asked for additional time to file a response to the surreply. In light 

of the numerous arguments raised for the first time in the Plaintiffs’ reply brief in support of their 

cross-motion—most if not all of which could have and should have been raised in their initial 

motion—a surreply from the Defendants would be useful to the Court in resolving the parties’ 

dispositive motions. However, a further response from the Plaintiffs would be neither useful nor 

equitable. Therefore, the Defendants’ motion for leave to file a surreply is granted, and the 

Court shall file the Defendants’ proposed surreply in resolving the parties’ cross-motions. 

B. Parties’ Cross-Motions for Summary Judgment

The Defendants move for summary judgment regarding all outstanding issues as to the 

responses to Oglesby’s FOIA request by the CIA, the Army, and the NSA. The Court begins 

with the Plaintiffs’ objections to a report relied on by the CIA and the Army to explain how 

records were processed under the NWCDA. Turning to the claims against the CIA, the Court 

finds the CIA conducted an adequate search for records, and no genuine dispute remains as to the 
11 

CIA’s use of certain FOIA exemptions to justify withholding certain information from the 

records produced to the Plaintiffs. With respect to the Army, the Court finds the Army’s 

decision to transfer its records to the National Archives and Records Administration as part of 

NWCDA review process was not suspect, therefore the Army is entitled to summary judgment 

on the grounds it has not wrongfully withheld any responsive records. Finally, the Plaintiffs fail 

to raise a genuine dispute as to the adequacy of the Vaughn declaration submitted by the NSA. 

Accordingly, the Court grants summary judgment in favor of the Defendants on all outstanding 

claims. 

 Initially, the Plaintiffs take issue with the Defendants’ reliance on the IWG Report to 

establish the scope of documents reviewed in connection with the NWCDA. Federal Rule of 

Evidence 803(8) provides, in relevant part, that a record or statement of a public office is not 

excluded under the rule against hearsay so long as the record (A) sets out the office’s activities or 

a matter observed while under a legal duty to report, and (B) neither the source of information 

nor other circumstances indicate a lack of trustworthiness.” Fed. R. Evid. 803(8)(A)-(B). The 

Plaintiffs do not dispute that because the IWG Report was created pursuant to the group’s legal 

obligation to report to Congress, the report satisfies the requirements of Rule 803(8)(A). Pub. L. 

105-246 § 2(c)(3) (requiring the IWG to “submit a report to Congress . . . describing all such 

records, the disposition of such records, and the activities of the [IWG] and agencies under this 

section”). However, the Plaintiffs contend the report is unreliable because of the following 

statement from the cover letter accompanying the report: 

In order to avoid further delay of the release of this report, members of the IWG 

did not seek unanimous agreement on a single “official” version of their 

declassification effort. Instead, this report presents the larger issues that arose 

while affording participants an opportunity to present personal or institutional 

perspectives on issues important to them and to those whom they represent. 
12 

These appear in a separate chapter at the end of the report 

IWG Report at v (Apr. 2007 Ltr. from A. Weinstein). Nothing in this statement “raises 

concerns” regarding the trustworthiness of the report as the Plaintiffs suggest. If an agency or 

IWG member disagreed with the description of the agency’s response to the NWCDA provided 

in the report, they could address those issues in the final chapter report. For example, Elizabeth 

Holtzman, one of the public members of the IWG, indicates that although the CIA was reluctant 

to declassify large swaths of documents, but “is not in full compliance with the law and is giving 

[the IWG] all the material [the IWG] believe[s] is relevant” under the NWCDA. Id. at 93. The 

Plaintiffs offer no other evidence to suggest the IWG Report description of the processing of 

documents by the Army or the CIA is not credible. Therefore, the Court finds the IWG Report to 

be proper non-hearsay evidence pursuant to Rule 803(8).4

 Citing Federal Rule of Civil Procedure 56(e), the Plaintiffs’ also suggest the report cannot 

be used as evidence regarding the adequacy of the Defendants’ searches because the report was 

not made under oath. Pls.’ Cross-Mot. at 19-20. It appears the Plaintiffs intended to cite Rule 

56(b)(4), which provides that “[a]n affidavit or declaration used to support or oppose a motion 

must be made on personal knowledge, set out facts that would be admissible in evidence, and 

show that the affiant or declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 

56(b)(4). Nothing in Rule 56 requires that evidence be submitted only in the form of an 

affidavit, so long as the evidence can be presented in a form that would be admissible at trial. 

 4

 In a footnote in their Reply brief, the Plaintiffs imply that certain statements in the IWG 

are not admissible because they are not “factual findings.” Pls.’ Reply at 4 n.2. The Plaintiffs 

appear to be referring to Federal Rule of Evidence 803(8)(A)(iii), which provides that in a civil 

case or against the government in a criminal case, “factual findings from a legally authorized 

investigation” are not barred as hearsay. The Defendants do not rely on subsection (iii) to 

establish the admissibility of the IWG report, making the Plaintiffs’ argument irrelevant. 
13 

1. Central Intelligence Agency’s Search for Responsive Records 

“An agency fulfills its obligations under FOIA if it can demonstrate beyond material 

doubt that its search was ‘reasonably calculated to uncover all relevant documents.’” ValenciaLucena v. U.S. Coast Guard, 180 F.3d 321, 390 (D.C. Cir. 1999) (citation omitted). “At 

summary judgment, a court may rely on [a] reasonably detailed affidavit, setting forth the search 

terms and the type of search performed, and averring that all files likely to contain responsive 

materials (if such records exist) were searched.” Ancient Coin Collectors Guild, 641 F.3d at 514 

(citation omitted). “The agency cannot limit its search to only one or more places if there are 

additional sources that are likely to turn up the information requested.” Valencia-Lucena, 180 

F.3d at 391 (citation omitted). Ultimately, the adequacy of a search is “determined not by the 

fruits of the search, but by the appropriateness of [its] methods.” Iturralde v. Comptroller of the 

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

A five person team from the CIA conducted a page-by-page review of 1.2 million pages 

of OSS records, that is, records from the wartime and immediate post-war period. Defs.’ Ex. D 

(IWG CIA Excerpt) at 45. The CIA “opened its OSS records in their entirety,” and consulted 

with foreign governments to clarify the sensitivity of foreign government information rather than 

automatically withholding such information, as was the CIA’s usual practice. Id. Utilizing 

search terms suggested by historians and staff from the CIA and IWG, as well as interviews with 

former OSS and CIA personnel, the agency also conducted searches of electronic and manual 

indices of the CIA-era records (post-1947). Id. The CIA conducted a line-by-line 

declassification review of the relevant files, and conducted further searches based on information 

located within the files being reviewed. Id. at 45-46. Prior to 2005, the CIA utilized a narrow 

definition of relevance, and “maintained that files were subject to the act[] only if they contained 
14 

either direct information about war crimes or information suggesting that there were grounds to 

believe that the subject was involved in war crimes, acts of persecution, or looting.” Id. at 47. 

Under this approach, the CIA declassified and released approximately 50,000 pages of 

documents. Id. at 49. However, in February 2005 the CIA shifted course, and agreed to, among 

other things, “[d]eclassify information on individuals connected to the Nazis whether war 

criminals or not,” “[d]eclassify and release operational project files where Nazis were involved,” 

and “[u]ndertake additional searches that the IWG historians or CIA thought necessary.” Id. at 

50. As a result, the agency revised the redactions to 47,400 pages, and released over 65,000 new 

pages. Id. All told, the agency released approximately 114,200 pages of CIA-era records. 

Defs.’ Ex. E (First Lutz Decl.) ¶ 13.5

 On May 14, 2012, the CIA provided plaintiffs’ counsel 

with seven disks containing all CIA records released pursuant to the NWCDA. Id. ¶ 12. The 

cover letter provided with the disks explained how the records were organized and identified 

where on the disks records relating to Reinhard Gehlen and the Gehlen Organization’s 

relationship to the United States Government could be located. Id. 

In order to comply with the NWCDA, the CIA conducted a search for records far more 

expansive than searches usually undertaken in responding to FOIA requests. All directorates 

were instructed to search for relevant documents, using both name and codeword searches. For 

example, with respect to documents concerning General Gehlen, the CIA searched for files 

retrievable by name, in addition to conducting searches for codewords, aliases, and cryptonyms 

for Gehlen and his organization. First Lutz Decl. ¶ 16. Ultimately the CIA released 

approximately 2,100 pages of material relating to Gehlen. Id. ¶ 17. Ms. Lutz avers that, based 

 5

 Martha Lutz is the Chief of the Litigation Support Unit for the Central Intelligence 

Agency. First Lutz Decl. ¶ 1. 
15 

on the breadth and thoroughness of the CIA’s search for responsive documents, the searches 

performed in response to the NWCDA were reasonably calculated to discover any records 

responsive to Oglesby’s request. Id. ¶ 18. 

The Plaintiffs raise a number of objections to the search performed by the CIA, none of 

which have merit. First, the Plaintiffs note that in its December 11, 2000, status report, the CIA 

explained that it anticipated locating documents potentially responsive to Oglesby’s request that 

were beyond the scope of the NWCDA. 12/11/00 Status Report at 2. Ms. Lutz explains that this 

statement was based on CIA’s initial, narrow interpretation of its obligations under the NWCDA 

insofar as the CIA believed it would not be required to produce documents relating to General 

Gehlen under the NWCDA because General Gehlen is not considered a war criminal. Defs.’ 

Reply Ex. D (Second Lutz Decl.) ¶ 4. In 2005, the CIA elected to review and declassify 

information regarding all Nazis (not just war criminals), including operational files concerning 

those Nazis. Id. (emphasis added). “As a result, all Gehlen related records responsive to 

Oglesby’s request fell within the scope of NWCDA and all were released in whole or in part 

under the NWCDA and provided to Plaintiffs.” Id. The Plaintiffs fail to raise a genuine issue of 

material fact with respect to the scope of Oglesby’s request vis a vis the CIA’s release of 

documents pursuant to the NWCDA. 

Second, the Plaintiffs take issue with the fact that the Lutz Declaration does not explicitly 

indicate that the records of all directorates were searched. Pls.’ Cross-Mot. at 30-31. Ms. Lutz 

explained in her initial declaration that “[a]ll CIA records are maintained by one of four 

directorates and the independent offices and other entities under the Director, Central 

Intelligence Agency (D/CIA): the National Clandestine Service (NCS), Directorate of 

Intelligence (DI), Directorate of Science and Technology (DS&T), Directorate of Support (DS), 
16 

and the Director’s Area.” First Lutz Decl. ¶ 14. “All directorates were tasked to search for such 

records, with the CIA’s Nazi War Crimes Task Force overseeing the search and review of these 

records.” Id. ¶ 15 (emphasis added). Moreover, the NWCDA 

expressly precluded agencies from invoking Sec. 701(a) of the National Security 

Act of 1947, as amended, which exempts operational files designated by the 

Director of the CIA from the search and review requirements of the FOIA. Thus, 

CIA’s records search under the NWCDA included searches of all operational files 

reasonably likely to contain responsive information. Indeed, the majority of the 

records located were from operational files. 

Second Lutz Decl. ¶ 7. Thus, the Plaintiffs’ argument lacks merit. 

 Third, the Plaintiffs argue that the CIA’s failure to release any documents regarding 

meetings between the United States and General Gehlen at Fort Hunt demonstrates the CIA’s 

search was inadequate. Pls.’ Cross-Mot. at 15-16. To be clear, Oglesby did not request all

records concerning Fort Hunt; rather he requested only “records on meetings held at Fort Hunt, 

Virginia, in the summer of 1945 between General Gehlen and U.S. Army General George Strong 

and Office of Strategic Services (“OSS”) officer Allen Dulles.” The D.C. Circuit addressed this 

precise argument: 

Appellant also contends that the search was unreasonable because the agency did 

not find responsive documents that appellant claims must exist, namely, 

documents concerning the meeting at Fort Hunt. However, appellant provides no 

proof that these documents exist and his own conviction that the Fort Hunt 

meeting was of such importance that records must have been created is pure 

speculation. Such hypothetical assertions are insufficient to raise a material 

question of fact with respect to the adequacy of the agency’s search. 

Oglesby I, 920 F.2d at 68 n.13. The only new evidence6

 proffered by the Plaintiffs is two articles 

 6

 The “evidence” cited by the Plaintiffs for the proposition that transcripts of bugged 

conversations from General Gehlen’s quarters pre-dates Oglesby I, thus the Court assumes this 

information was presented to the D.C. Circuit. Pls.’ Cross-Mot. at 16. In any event, the 

Plaintiffs failed to provide either of the documents cited on page 16 to the Court in connection 

with the present motion practice. 
17 

published in 2006 and 2011, reporting that Fort Hunt was used as a secret prison camp where 

German scientists and soldiers were incarcerated and interrogated during World War II. Pls.’ 

Ex. 4 (Petula Dvorak, A Covert Chapter Opens for Fort Hunt Veterans, Wash. Post, Aug. 20, 

2006); Pls.’ Ex. 5 (Emma Brown, GWU Professor Extracted Nazi Secrets, Wash. Post, July 19, 

2011, at B5). Neither article supports the contention that documents regarding the specific 

meeting identified in Mr. Oglesby’s request exist, and fall far short of creating a genuine issue of 

fact with respect to the adequacy of the CIA’s search for documents. 

Finally, the Plaintiffs argue the CIA should be required to conduct additional searches for 

the terms “Fort Hunt,” “P.O Box 1142,”7

 and “GO,” an abbreviation for the Gehlen 

Organization. As set forth above, the Plaintiffs failed to raise a genuine issue as to whether 

records exist regarding the specific meetings at Fort Hunt at issue in the Plaintiffs’ request, thus 

there is no reason to believe searching for the terms “Fort Hunt” and/or “P.O. Box 1142” would 

be likely to locate additional responsive documents. Nor do the Plaintiffs offer any evidence to 

suggest a search for the term “GO” would uncover responsive documents not located by previous 

searches. Accordingly, the Court finds the CIA has met its burden to show that the agency’s 

search was reasonably calculated to uncover all relevant documents. 

2. Central Intelligence Agency’s Withholdings 

As the Vaughn index attached to Ms. Lutz’s declaration indicates, the CIA withheld 

certain information pursuant to FOIA exemptions (b)(1) and (b)(3). See Attach. to First Lutz 

Decl. Counsel for the Plaintiffs objected to the CIA’s Vaughn index on the grounds counsel was 

unable to correlate the entries on the index to the records provided to counsel. Pls.’ Cross-Mot. 

at 40. Although the Defendants argue that the Plaintiffs could have utilized the initial Vaughn 

 7

 P.O. Box 1142 was the codename for Fort Hunt. See Pls.’ Exs. 4, 5. 
18 

index using the letter that accompanied the disks containing the documents provided by the CIA. 

Defs.’ Reply at 16-17. Nevertheless, the CIA provided a revised Vaughn index, including 

references to the relevant pdf numbers on the disks. Second Lutz Decl. ¶ 9. The CIA also 

provided a supplemental index addressing the 66 documents discussed by the Plaintiffs for the 

first time in their motion to compel. Defs.’ Opp’n to Mot. to Compel, Ex. A (Fourth Lutz Decl.) 

¶ 7. Therefore, the Court considers whether the CIA is entitled to summary judgment in light of 

the revised and supplemental Vaughn indices. 

Exemption (b)(1) provides that agencies may withhold any information “(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). Exemption (b)(3) permits an agency to withhold 

information “specifically exempted from disclosure by statute (other than section 552b of this 

title),” if the relevant statute 

(A) (i) requires that the matters be withheld from the public in such a manner 

as to leave no discretion on the issue; or 

(ii) establishes particular criteria for withholding or refers to particular 

types of matters to be withheld; and 

(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009, 

specifically cites to this paragraph. 

Id. § 552(b)(3). The Court addresses each of the exemptions in turn. 

 a. Exemption (b)(1) 

 The CIA identifies four categories of information that it contends is properly classified 

and thus exempt from disclosure under FOIA exemption (b)(1): (1) the true names of covert CIA 

employees; (2) names of clandestine human intelligence sources and information that could be 

used to identify clandestine human intelligence sources; (3) cities and countries in which the CIA 
19 

maintained covert installations; and (4) information regarding specific intelligence methods, 

including cover mechanisms. First Lutz Decl. ¶ 29. Ms. Lutz determined that the withheld 

information “is currently and properly classified” pursuant to Executive Order 12958, the 

Executive Order in effect at the time the CIA’s NWCDA task force reviewed the documents and 

decided the information should remain classified. Id. ¶ 21. “Summary judgment may be granted 

on this issue on the basis of agency affidavits [only] if they contain reasonable specificity of 

detail rather than merely conclusory statements, and ... they are not called into question by 

contradictory evidence in the record or by evidence of agency bad faith.” Public Citizen v. Dep’t 

of State, 276 F.3d 634, 644 (D.C. Cir. 2002). 

 The Plaintiffs contend that Ms. Lutz’s declaration is insufficient to justify the agency’s 

use of FOIA exemption (b)(1) because Ms. Lutz does not aver that the information is properly 

classified under Executive Order 13526. Executive Order 13526, signed by President Barack 

Obama on December 29, 2009, currently governs classification decisions. This Order defines 

“classified information” to include “information that has been determined pursuant to this order 

or any predecessor order to require protection against unauthorized disclosure.” E.O 13256 

§ 6.1(i). 

A district court may, upon request by an agency, permit the agency to apply a 

superceding [sic] executive order during the pendency of FOIA litigation. 

However, absent a request by the agency to reevaluate an exemption 1 

determination based on a new executive order, the district court may not require 

the agency to apply the new order; instead, the court must evaluate the agency's 

decision under the executive order in force at the time the classification was 

made. This rule prevents undue delay and burden in the resolution of FOIA 

claims by introducing an element of finality into agency decisionmaking. 

Campbell v. U.S. Dep’t of Justice, 164 F.3d 20, 29 (D.C. Cir. 1998) (citations omitted). The 

Campbell court explained that the relevant question is whether the 2009 Executive Order “calls 

prior classification decisions under the [prior] Order into question.” Id. Like the superseding 
20 

order in Campbell, Executive Order 13256 “does not permit FOIA litigants to reopen 

classification decisions finalized before the Order’s effective date” because the superseding 

Order “defines classified information to include information classified under prior orders,” and 

“does not contain any provision that requires an agency to reconsider classification decisions in 

pending FOIA litigation.” Id. 

The Plaintiffs cite Campbell for the proposition that “D.C. Circuit cases have consistently 

held that where a case has been remanded to [sic] district court, review should occur under the 

new executive order.” Pls.’ Cross-Mot. at 33. The Campbell court rejected the FBI’s declaration 

as insufficient to justify its use of exemption (b)(1), and noted that 

In preparing a new declaration on remand, the FBI’s new declarant . . . 

presumably must re-review the redactions and withholdings. This rule is 

consistent with our reasoning in Lesar: when an agency has completed a FOIA 

review, principles of finality weigh against ordering a new review under a new 

order, but when a court orders a new review on other grounds, respect for the 

President’s authority to define national security priorities requires that the new 

review proceed under current law rather than the superceded law of a prior 

administration. 

Id. at 31 (citing Lesar v. U. S. Dep’t of Justice, 636 F.2d 472 (D.C. Cir. 1980)). Here, the D.C. 

Circuit did not instruct the Court to reevaluate the CIA’s classification decisions upon remand. 

To the contrary, the D.C. Circuit upheld the CIA’s application of exemption (b)(1) with respect 

to the documents listed in the Vaughn index, and only remanded the case to the extent the CIA 

failed to include certain documents in the index in the first place. Oglesby II, 79 F.3d at 1182-

83. 

 For the first time in their Reply, the Plaintiffs suggest that Executive Order 13256 should 

govern the use of exemption (b)(1) in this case because Ms. Lutz’s review of the documents took 

place while Executive Order 13256 was in effect. The D.C. Circuit explained 
21 

when an agency first receives a FOIA request, it may wish to reevaluate its initial 

classification decision to determine whether the materials requested require 

declassification or reclassification at a higher level, if circumstances so dictate. 

The agency looks to the procedures and substantive criteria contained in the 

Executive Order then in force rather than those found in the Executive Order 

under which the initial classification decision was made. On review, the court 

should also assess the documents according to the terms of the Executive Order 

under which the agency made its ultimate classification determination. 

Lesar, 636 F.2d at 480. The agency made its ultimate determination regarding the documents at 

issue in this case between 2005 and 2007. Second Lutz Decl. ¶ 8. Thus, the question for the 

Court is whether the agency properly determined the information was classified and thus exempt 

from disclosure under the Executive Order in force during that time frame, namely Executive 

Order 12958. Ms. Lutz’s declarations provides support for the agency’s position, but the agency 

reached a final determination with respect to this information years before the litigation reached 

this stage. 

 With respect to the substance of the agency’s application of exemption (b)(1), the 

Plaintiffs proffer only two arguments. First, the Plaintiffs argue that the agency failed to take 

into consideration “the passage of time.”8

 The D.C. Circuit rejected this argument once before: 

Oglesby has not demonstrated that an agency's national security concerns 

automatically disappear with the passage of time, and therefore has not rebutted 

the affidavits stating that the material had been reviewed at the time of the 

request, and had been determined to pose a current threat to national security if 

released. 

Oglesby II, 79 F.3d at 1183. The Plaintiffs once again have “merely made the naked assertion 

that the passage of time renders the national security claims questionable.” Id. 

 8

 Apart from the Plaintiffs’ disagreement regarding what Executive Order controls the 

classification decision, the Plaintiffs fail to articulate how Ms. Lutz’s declarations have been 

“controverted by contrary evidence.” Pls.’ Reply at 15. 
22 

As long as an agency declares through its affidavits that the responsive material 

has been reviewed to assure the continuing accuracy of its original classification, 

and that a determination has been made that the withheld information still poses a 

security risk if released, the mere passage of time is not a per se bar to reliance on 

exemption 1. 

Id. This is particularly true in this case, where much of the information withheld under 

exemption (b)(1) may expose locations and techniques still utilized by the agency. Second, for 

the first time in their Reply the Plaintiffs argue that the documents were not properly classified 

under Executive Order 12958 because they do not contain the classification markings required 

by section 1.7 of that Order. Pls.’ Reply at 9. Section 1.7(f) of Executive Order 12958 

specifically provides that “[i]nformation assigned a level of classification under this or 

predecessor orders shall be considered as classified at that level of classification despite the 

omission of other required markings.” The documents at issue in this case were marked 

according to the requirements in place at the time the documents were initially classified, 

generally between 1951 and 1954. Third Lutz Decl., ECF No. [254-2], ¶ 9. Ms. Lutz’s 

unrebutted declaration establishes with a reasonable level of specificity that the information at 

issue was properly classified and marked under Executive Order 12958, and thus was properly 

withheld under FOIA exemption (b)(1). Therefore, the agency is entitled to summary judgment 

on this issue. 

 b. Exemption (b)(3) 

 Invoking FOIA exemption (b)(3), the CIA argues that it properly withheld certain 

information as provided by the National Security Act of 1947, as amended, 50 U.S.C. 

§ 3024(i)(1), and the Central Intelligence Agency Act of 1949, 50 U.S.C. § 3507. The National 

Security Act provides that “[t]he Director of National Intelligence shall protect intelligence 

sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). “The Director may 
23 

only delegate a duty or authority given the Director under this subsection to the Principal Deputy 

Director of National Intelligence.” Id. § 3024(i)(3). The relevant provision of the CIA Act 

provides that the CIA shall be exempt from disclosing “the organization, functions, names, 

official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. § 3507. 

The Plaintiffs argue that because the National Security Act vests the power to protect 

intelligence sources and methods in the Director of National Intelligence, the CIA cannot rely on 

this statute to withhold information regarding intelligence sources and methods pursuant to FOIA 

exemption (b)(3). Judge Beryl A. Howell thoroughly analyzed this issue and ultimately rejected 

an identical argument in Mobley v. CIA, 924 F. Supp. 2d 24 (D.D.C. 2013). For the reasons 

stated by Judge Howell in Mobley, 924 F. Supp. 2d at 53, and as recognized by the D.C. Circuit 

in Larson v. Department of State, 565 F.3d 857, 862 (D.C. Cir. 2009), the Court finds that 

agencies other than the Director of National Intelligence may rely upon the National Security Act 

to withhold information regarding intelligence sources and methods pursuant to FOIA exemption 

(b)(3). The Plaintiffs do not otherwise challenge the CIA’s use of exemption (b)(3). Based on 

the detailed description of the information withheld pursuant to this exemption provided in the 

First Lutz Declaration, the Court finds there is no genuine dispute that the CIA properly invoked 

FOIA exemption (b)(3) in this case. 

3. Army’s Search for Responsive Records 

During the initial stages of this litigation, the Army produced an estimated 1,240 pages of 

information to Oglesby. See generally Third Nichols Decl., Attach. B., ECF No. [124].9

 Prior to 

the enactment of the NWCDA, the Army had transferred most of its World War II combat and 

 9

 Mr. Nichols, then the Chief of the Freedom of Information/Privacy Office for 

INSCOM, submitted the declaration in support of the Defendants’ motion for summary judgment 

in 1997. Third Nichols Decl., ECF No. [124], ¶ 1. 
24 

operational documentation to NARA. Defs.’ Ex. A (IWG Report, Army Excerpt) at 52. Thus, 

the Army’s response to the NWCDA focused on the classified intelligence and 

counterintelligence records maintained by the Intelligence and Security Command (“INSCOM”) 

Investigative Records Repository at Fort Meade, Maryland. Id. These “IRR” files generally 

concerned three topics: (1) “foreign personnel and organizations”; (2) “intelligence and 

counterintelligence sources”; and (3) “counterintelligence security investigations.” Id. The 

records were comprised of 13,000 reels of 35mm microfilm (holding approximately 1.3 million 

files), and approximately 460,000 individual paper files, all of which had to be searched. Id. In 

order to process the documents, 

the Army scanned the microfilm to create digitized images of the files, which it 

then searched electronically for relevant files using the 60,000 Names List. The 

Army then reviewed and declassified the files identified as relevant and turned 

them over to the National Archives as digitized images. Simultaneously, IRR 

staff conducted a manual review of the files that the Army still maintained in 

paper form. 

Id. at 54. Between 2000 and 2001, the Army provided NARA with over 20,000 digitized and 

paper files located in response to searches for individuals on the Names List. Id. “While the vast 

majority of the files were declassified in full, the Army had redacted limited portions, primarily 

foreign government information or intelligence sources and methods.” Id. “After it finished 

digitizing its files, IRR staff undertook further searches as the IWG staff, IWG historians, and 

other participating agencies identified additional relevant names, projects, and operations that 

came to their attention during the course of their work.” Id. The Army eventually transferred 

copies of all 1.3 million microfilm files to NARA. Defs.’ Ex. B (Murphy Decl.) ¶ 12(d). The 

Army did not retain any copies of the files transferred to NARA. Defs.’ Reply Ex. B (Second 

Dorris Decl.) ¶ 5. 

Once the files were transferred to NARA, the NARA staff conducted searches using a 
25 

variety of keywords, outlined in paragraphs 13, 15, and 16 of the Declaration of Martha Wagner 

Murphy, the Chief of the Special Access and Freedom of Information Branch, Research 

Services, for NARA. Murphy Decl. ¶ 1. The searches did not locate any responsive records 

regarding the relevant meetings at Fort Hunt, id. ¶ 14, but NARA located a number of other 

responsive documents, which are listed in paragraph 17 of Ms. Murphy’s Declaration. Ms. 

Murphy indicates that “electronic image files identified [in the declaration] are available for 

public inspection at NARA’s headquarters,” but if the Plaintiffs agreed to pay duplication fees, 

the files would be copied and mailed to the Plaintiffs. Id. ¶ 18. INSCOM also searched its 

remaining hard copy and electronic files but failed to locate any documents responsive to 

Oglesby’s request. Defs.’ Reply Ex. B (Second Dorris Decl.) ¶ 6. 

 The Plaintiffs argue the Army’s search was inadequate, for two reasons. First, the 

Plaintiffs note that the declaration submitted by Bradley Dorris, the Director of the Freedom of 

Information Act/Investigative Records Repository Office at INSCOM, states that “[t]he records 

most likely responsive” to Oglesby’s request would have been in the IRR at INSCOM, but does 

not state that all responsive documents were likely to be located at the IRR. Defs.’ Ex. C (Dorris 

Decl.) ¶ 6. Mr. Dorris subsequently clarified that 

The records which would be responsive to the FOIA requests would have been in 

the Investigative Records Repository at INSCOM. However, all of these records 

were transferred to NARA. I am unaware of any other locations of any records 

related to the subject FOIA request. Due to the fact that the requested records 

were intelligence files in nature, the only location the documents would be located 

would be at INSCOM. INSCOM is the only Army intelligence records 

repository. The files would not be retained by any other Army agencies. 

Second Dorris Decl. ¶ 7. The Plaintiffs suggest that Mr. Dorris’s “credibility is damaged” due to 

the change in his supplemental declaration. Pls.’ Reply at 4. If Mr. Dorris had submitted a new 

declaration merely parroting the relevant standard, the Court might agree that the supplemental 
26 

declaration would be insufficient. But Mr. Dorris’s second declaration goes beyond mere 

recitation, and describes why, based on the nature of the information requested by Oglesby, any 

responsive documents would have been maintained in the IRR files transferred to NARA. The 

Plaintiffs offer no evidence to contradict or call into question Mr. Dorris’s supplemental 

statement that any documents responsive to the Plaintiffs’ request would likely be found in the 

IRR files.10 

 Second, the Plaintiffs argue that the Army’s transfer of documents to NARA violated the 

Freedom of Information Act. “The FOIA provides a claimant with a remedy only against an 

agency that has ‘improperly withheld’ a record.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 

1201 (D.C. Cir. 1991) (quoting 5 U.S.C. § 552(a)(4)(B)). Thus, “[i]f the agency is no longer in 

possession of the document, for a reason that is not itself suspect, then the agency is not 

improperly withholding that document and the court will not order the agency to take further 

action in order to produce it.” Id. (emphasis added). Here, the Army’s transfer of documents is 

anything but suspicious. The NWCDA specifically ordered that agencies make relevant 

documents available to the public at the National Archives and Records Administration. Pub. L. 

105-246 § 2(c)(1). The Army did not transfer only those documents potentially responsive to 

Oglesby’s request, rather it transferred all combat and operational files related to World War II. 

Second Dorris Decl. ¶ 5. Moreover, NARA conducted an extensive search for responsive 

documents, and has made those documents available for the Plaintiffs to review or copy (at the 

 10 The Plaintiffs note that Martha Murphy averred that “the most likely untapped location 

for finding Army documents responsive to the NWCDA” were the IRR files. Murphy Decl. ¶ 

10. The scope of information to be reviewed under the NWCDA was broader than and in some 

ways distinct from the topics identified in Mr. Oglesby’s request. Without more, Ms. Murphy’s 

statement is not inconsistent with Mr. Dorris’s averments regarding where documents responsive 

to Oglesby’s request were likely to be located. 
27 

Plaintiffs’ expense). This is not a situation in which the agency destroyed documents or 

otherwise made them unavailable to the requesting party. Cf. Chambers v. Dep’t of Interior, 568 

F.3d 998, 1004 (D.C. Cir. 2009) (“Thus, summary judgment is inappropriate, as the Government 

all but acknowledged, if, viewing all inferences in a light most favorable to Chambers, a triable 

issue exists as to whether Murphy (or any one [sic] else at Interior) intentionally destroyed the 

appraisal Chambers requested.”). The fact that the Army produced over 1,420 pages of 

information to Oglesby prior to 1997 and did not transfer the IRR files to NARA until nearly 

sixteen years after the receipt of Oglesby’s request undermines any suggestion that the transfer 

was motivated by a desire to avoid complying with the Army’s statutory obligations under the 

FOIA. Drawing all inferences in favor of the Plaintiffs, no reasonable trier of fact could find that 

the Army destroyed or attempted to prevent the Plaintiffs from accessing documents relevant to 

Oglesby’s request by transferring all World War II related files to NARA. The record indicates 

the motivation behind the Army’s transfer of documents is not itself suspect. Therefore, the 

Army is entitled to summary judgment on the grounds it has not improperly withheld any records 

responsive to Oglesby’s request. 

4. National Security Agency’s Vaughn Declaration 

After conducting a search for potentially responsive documents, the National Security 

Agency identified fifteen documents containing information responsive to Oglesby’s Request. 

See generally Defs.’ Ex. G (Grantham Decl.) ¶¶ 14-42. Four of the documents were released in 

their entirety by the NSA to Oglesby, two documents were withheld in their entireties, one 

document was referred to the Army for review, and the remaining documents were produced 

with redactions. Id. In support of its motion for summary judgment following Oglesby I, the 

NSA submitted two declarations from Michael Smith, then the Director of Policy for the 
28 

National Security Agency, describing in very general terms the withheld information and the 

bases for the withholdings. Defs.’ Ex. F (NSA Decls.) at 1-6, 13-16. The D.C. Circuit found 

Mr. Smith’s declarations to be inadequate to justify the withholdings, noting that the declarations 

contain 

only sweeping and conclusory assertions that the agency withheld the documents 

because they contained material which could reasonably be expected to cause 

damage to national security. The affidavits offer no functional description of the 

documents; NSA has failed to disclose the types of documents, dates, authors, 

number of pages, or any other identifying information for the records it has 

withheld. 

Oglesby II, 79 F.3d at 1183. The D.C. Circuit remanded the Oglesby’s claim against the NSA to 

this Court, and indicated the Court “should order NSA to submit an index describing the 

documents to the greatest extent possible without disclosing information that must be protected.” 

Id. 

 The NSA now submits a detailed declaration executed in February 1997 by Gary L. 

Grantham who at that time was the Acting Director of Policy for the NSA. Grantham Decl. ¶ 1. 

Mr. Grantham’s declaration describes each of the fifteen documents in detail, including the 

number of pages, agency responsible for drafting the document, the title of each document (if 

applicable), and a detailed description of the factual information released and withheld from each 

document. See, e.g., id. ¶¶ 17-19. Grantham’s declaration identifies how many pages were 

found to be non-responsive, how many pages were withheld in their entirety, and how many 

pages were released in part. E.g., id. ¶ 17. Finally, where appropriate, Grantham avers that the 

withheld information was properly classified pursuant to Executive Order 12958, and that release 

of the information could be expected to lead to the unauthorized disclosure of intelligence 

sources, methods, and foreign government information. E.g., id. ¶ 19. The NSA also submitted 

a declaration from Diane M. Janosek, the Deputy Associate Director for Policy and Records for 
29 

the NSA, signed in December 2012. Defs.’ Ex. H (Janosek Decl.) ¶ 1. Ms. Janosek explains that 

the information withheld from the documents at issue in the Grantham declaration, “was and 

remains currently and properly classified [] in accordance with [Executive Order] 13526.” Id.

¶¶ 3, 20. 

 The Plaintiffs’ opposition and cross-motion omits any reference to the Grantham 

declaration or the Defendants’ motion for summary judgment with respect to the NSA’s 

withholdings, and on that basis alone the Court may grant this portion of the Defendants’ motion. 

Hopkins v. Women’s Div., Gen. Bd. of Global Ministries, 284 F.Supp.2d 15, 25 (D.D.C. 2003) 

(“It is well understood in this Circuit that when a plaintiff files an opposition to a dispositive 

motion and addresses only certain arguments raised by the defendant, a court may treat those 

arguments that the plaintiff failed to address as conceded.”). For the first time in their Reply, the 

Plaintiffs raise four arguments in opposition to the NSA’s motion, none of which are persuasive. 

 First, the Plaintiffs argue that the Grantham Declaration is inadequate because it does not 

contain a Vaughn Index. This argument is nonsensical. The Grantham Declaration attached to 

the Defendants’ Renewed Motion for Summary Judgment filed on December 14, 2012, describes 

in detail each of fifteen documents identified by the NSA as containing information responsive to 

Oglesby’s request. Second, the Plaintiffs further suggest the Grantham Declaration is 

insufficient because “the NSA has made other releases which appear to consist of documents not 

part of the [Grantham Declaration].” Pls.’ Reply at 22. Specifically, the Plaintiffs point to a 

letter from the NSA to counsel for Mr. Oglesby dated January 17, 1992, which, as part of 

Oglesby’s administrative appeal of the NSA’s response to his request, explains that certain 

portions of a document have been withheld as non-responsive or as exempt. Pls.’ Reply Ex. B 

(1/17/92 Ltr. & Attach.). The letter attaches eighteen pages with markings indicating certain 
30 

redactions were for non-responsive information, while other redactions omitted exempt 

information. See generally id. at 3-20. The pages come from at least two different documents, 

and on their face correlate with portions of documents 3 and 5 as set forth in the Grantham 

declaration. Cf. Pls.’ Reply Ex. B at 4 (dated June 14, 1954) with Grantham Decl. ¶ 20; cf. Pls.’ 

Reply Ex. B at 8 with Grantham Decl. ¶¶ 26-27. The Plaintiffs failed to proffer a sufficient basis 

from which the Court could conclude the Grantham declaration failed to reference any of the 

documents produced (even in part) to Oglesby. 

 Third, the Plaintiffs contend that the Grantham declaration is inadequate because it was 

signed in 1997 and thus does not establish that release of the withheld information today could 

reasonably be expected to cause damage to national security. Pls.’ Reply at 22. This argument 

completely ignores the Janosek Declaration, executed in December 2012, which explains both 

that the withheld information is properly classified under the Executive Order that has governed 

classification since 2009, and that release of the information in the present could reasonably be 

expected to damage national security. Janosek Decl. ¶¶ 3, 20. 

Fourth and finally, the Plaintiffs seem to suggest that the “‘document-by-document’ review 

performed by Grantham . . . is [inconsistent] with the rigors of the segregability analysis 

required.” Pls.’ Reply at 23. “An agency cannot justify withholding an entire document simply 

by showing that it contains some exempt material.” Hodge v. FBI, 703 F.3d 575, 582 (D.C. Cir. 

213) (citation omitted). “[E]ven if the agency establishes an exemption, it must nonetheless 

disclose all reasonably segregable, nonexempt portions of the requested record(s).” Roth v. U.S. 

Dep’t of Justice, 642 F.3d 1161, 1167 (D.C. Cir. 2011) (citation omitted); see also 5 U.S.C. 

§ 552(a)(4)(B). The agency is entitled to a presumption that it complied with the obligation to 

disclose reasonable segregable material. Hodge, 703 F.3d at 583. The Plaintiffs offer no 
31 

evidence to rebut Grantham’s averment that all reasonably segregable information has been 

produced to the Plaintiffs. The fact that the “major redactions have been made” to some of the 

pages produced to Oglesby is not at all surprising given the subject matter of the documents; one 

could reasonably expect that details of the United States’ signal intelligence would properly 

remain classified years after any particular document was created. Moreover, the Grantham 

Declaration reflects the fact that in reviewing the documents for purposes of drafting the 

declaration, Mr. Grantham determined additional information in four documents was segregable, 

and released it to Mr. Oglesby. Grantham Decl. ¶¶ 34, 36, 38, 40. The extent of the redactions 

itself is insufficient to overcome the presumption that the NSA complied with its segregability 

obligations. Hodge, 703 F.3d at 582. 

 In sum, the Grantham declaration adequately describes the documents the NSA 

determined contained information responsive to Oglesby’s request, the nature of the documents, 

as well as the information released to and withheld from Oglesby. Combined with the Janosek 

Declaration’s averment that the information remains properly classified as of the filing of the 

Defendants’ present motion, and that release of the information reasonably could be expected to 

harm national security, the Court finds the NSA has adequately justified its withholdings. 

IV. CONCLUSION 

 For the foregoing reasons, the Court finds the Defendants are entitled to summary 

judgment on all remaining issues. In the context of complying with the Nazi War Criminal 

Disclosure Act, the CIA conducted an adequate search for records responsive to Oglesby’s FOIA 

request. The Plaintiffs failed to create a genuine issue of material fact as to the adequacy of the 

CIA’s Vaughn index, including the CIA’s use of FOIA exemptions (b)(1) and (b)(3). The 

Army’s decision to transfer all of its World War II related files from the Army’s Intelligence and 
32 

Security Command’s Investigative Records Repository to the National Archives and Records 

Administration was not suspect, and thus the Army did not wrongfully withhold any relevant 

documents. Finally, the Plaintiffs failed to create a genuine issue of material fact as to the 

adequacy of the Vaughn declaration submitted by the National Security Agency. Accordingly, 

the Defendants’ [254] Motion for Leave to File Sur-Reply is GRANTED; the Plaintiffs’ [249] 

Motion to Compel Disclosure of Ex Parte Declarations is DENIED; the Defendants’ [240] 

Renewed Motion for Summary Judgment is GRANTED; and the Plaintiffs’ [241] Cross-Motion 

for Summary Judgment is DENIED. An appropriate Order accompanies this Memorandum 

Opinion. 

 /s/ 

 COLLEEN KOLLAR-KOTELLY

 UNITED STATES DISTRICT JUDGE