The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
This matter comes before the Court on a motion for summary judgment
brought by defendant Central Intelligence Agency (the "Government", the
"CIA" or "Defendant"), pursuant to Federal Rule of Civil Procedure 56.
Plaintiff Simona Pipko ("Pipko" or "Plaintiff") opposes the Government's
Plaintiff instituted this action, pursuant to the Freedom of
Information Act, 5 U.S.C. § 552 ("FOIA"), and the Privacy Act,
5 U.S.C. § 552a, concerning a denial by the CIA to release certain
documents requested by Plaintiff.
This Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b) and (e).
For the reasons discussed below, Defendant's motion for summary
judgment is GRANTED.
The parties do not dispute the background leading up to the current
Plaintiff submitted a written FOIA/Privacy Act request to the CIA by
letter dated October 29, 2001. (Compl. Ex. A.) Plaintiff's request sought
any and all records maintained by the CIA on Simona Pipko a/k/a Simona
Pipko-Bercovici. By letter dated January 2, 2002, Plaintiff's counsel
provided the CIA with additional information, including copies of
Plaintiff's birth certificate and United States Certificate of
Naturalization, in support of Plaintiff's request. (Compl. Ex. B.)
By letter dated January 7, 2002, the CIA acknowledged receipt of
Plaintiff's FOIA/Privacy Act request, assigned the request a reference
number of P-2001-00660, and agreed to process the request. (Compl. Ex.
C.) By letter dated January 15, 2002, the CIA issued its final response
to Plaintiff's FOIA/Privacy Act
request. The CIA represented that there were no documents available
to Plaintiff under either FOIA or the Privacy Act. (Id.) The
Government's January 15th letter stated: "You may construe this as a
denial on the basis of FOIA exemptions (b)(1) and (b)(3) and Privacy Act
exemptions (j)(1) and (k)(1)." (Id.) The CIA also notified
Plaintiff of her right to file an appeal with the Agency Release Panel
within 45 days of the date of the CIA's final response. (Id.)
By letter dated February 28, 2002, Plaintiff appealed the CIA's final
determination and requested "an explanation as to why [Plaintiff's]
request for information was denied." (Compl. Ex. D.) Plaintiff counsel's
February 28th letter stated that the "requested documents should be
released under the FOIA due to the fact that the records are not being
sought for commercial use." (Id.) Plaintiff further contended:
"[I]t is in the public interest for the requested documents to be
released, especially since the records will likely contribute
significantly to public understanding of the operations or activities of
the government." (Id.)
By letter dated March 11, 2002, the CIA acknowledged receipt of
Plaintiff's appeal. (Compl. Ex. E.) By letter dated May 23, 2002, the CIA
denied Plaintiff's appeal, again concluding that there were no records
available to Plaintiff under either FOIA or the Privacy Act.
(Id.) The CIA also informed Plaintiff in its
May 23rd letter that Plaintiff had the right to seek
judicial review of the CIA's decision in United States District Court.
Plaintiff filed the current action on July 3, 2002. The CIA answered
Plaintiff's Complaint and thereafter moved for summary judgment.
I. Summary Judgment Standard
A party seeking summary judgment must "show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 47 U.S. 317, 322 (1986). The applicable substantive law
determines whether or not a fact is material. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is genuine
only "if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. at 248. In determining
whether genuine issues of material fact exist, all inferences must be
drawn, and all doubts must be resolved, in favor of the non-moving party.
Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302,
305-306 (3d Cir. 2001) (citing Anderson, 477 U.S. at 248).
The moving party has the initial burden of showing that no genuine
issue of material fact exists. Celotex Corp., 477 U.S. at 323.
If the moving party satisfies this requirement, the burden shifts to the
nonmoving party to present evidence that
there is a genuine issue of fact. Id. at 324.
Courts apply the same summary judgment standard in FOIA and Privacy Act
suits as in any other type of case. See Wojciechowicz v. Dep't of the
Army, 763 F.2d 149, 153 (3d Cir. 1985) (Privacy Act); Perry v.
Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (FOIA).
For an agency to succeed on a motion for summary judgment in a FOIA
suit, it must "prove that each document that falls within the class
requested either has been produced, is unidentifiable, or is wholly
exempt from the (FOIA's) inspection requirements." Perry, 684
F.2d at 126 (internal quotations and citations omitted). An agency is
entitled to summary judgment only "when the agency's affidavits describe
the withheld information and the justification for withholding with
reasonable specificity, demonstrating a logical connection between the
information and the claimed exemption . . ., and are not controverted
by either contrary evidence in the record nor by evidence of agency bad
faith." Davin v. United States Dep't of Justice, 60 F.3d 1043,
1050 (3d Cir. 1995) (citations and internal quotation marks omitted).
Because the requested documents are often solely in the possession of
the defending agency, when evaluating the adequacy of the agency's
identification and retrieval efforts, "the trial court may be warranted
in relying upon agency affidavits, for
these are equally trustworthy when they aver that all documents
have been produced or are unidentifiable as when they aver ...