Opinion
MELINDA HAAG, United States Attorney, ALEX G. TSE, Chief, Civil Division, MICHELLE LO, Assistant United States Attorney, San Francisco, CA, Attorneys for the Central Intelligence Agency.
ANTHONY P.X. BOTHWELL, San Francisco, CA, Plaintiff, Pro Se.
JOINT STATUS REPORT AND [PROPOSED] ORDER
JACQUELINE SCOTT CORLEY, Magistrate Judge.
Pursuant to the Court's Order of June 30, 2015, Plaintiff, Anthony P.X. Bothwell, and Defendant, the Central Intelligence Agency ("CIA" or "Agency"), respectfully submit this further joint status update to advise the Court as to whether any further proceedings remain necessary in this case arising under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, as amended. The parties report as follows:
1. This case involves challenges to the CIA's responses to two FOIA requests that Plaintiff submitted in 2009 seeking certain records pertaining to five individuals allegedly connected to the assassinations of President John F. Kennedy and Robert F. Kennedy. Compl. ¶¶ 3-4.
2. On October 9, 2014, the Court issued an order granting in part and deferring in part the CIA's motion for summary judgment. ECF No. 34. The Court found that the CIA issued a proper Glomar response in response to Plaintiff's request for records concerning "Jean Souetre, a.k.a. Michel Roux, a.k.a Michel Mertz" under Exemption 3, and granted summary judgment in favor of the CIA on this issue. Bothwell v. CIA, No. 13-cv-05439-JSC, 2014 WL 5077186, at *1 (N.D. Cal. Oct. 9, 2014). The Court otherwise deferred judgment on the adequacy of the CIA's search for responsive records.
3. Following the parties' submission of supplemental briefing and evidence on the CIA's renewed motion for summary judgment, the Court issued an Order on June 4, 2015, granting in part and denying in part the CIA's renewed motion. ECF No. 46. The Court found that the CIA's search was adequate, except for its search for documents generated in July 1976 regarding Johnny Roselli. See id. at 16. The Court concluded that the Roselli documents fell within 50 U.S.C. § 3141(c), which required the CIA to search operational files. See id.
4. In their joint status report of June 29, 2015, the parties agreed that the CIA would complete a search of operational files that is reasonably calculated to uncover records responsive to Plaintiff's request for "[a]ll records within the possession, custody, or control of the CIA, generated in July 1976 that relate to Johnny ROSELLI, a.k.a. John ROSELLI, a.k.a. Filippo SACCO, " and file a declaration describing its search. ECF No. 47.
5. On July 27, 2015, the CIA filed the Third Supplemental Declaration of Martha M. Lutz, Information Review Officer for the Litigation Information Review Office of the CIA, to describe its supplemental search of all databases which might reasonably contain operational files relating to Roselli generated in July 1976. ECF No. 49-1. The declaration specifically described three National Clandestine Service databases that were searched. See id. ¶ 3.
6. The parties have now conferred on whether any further proceedings remain necessary in this case. The parties are in disagreement over the reasonableness of the CIA's search of archived CIA paper records, as described in Paragraph 3 of Third Supplemental Declaration of Martha M. Lutz:
a. Plaintiff's position: Plaintiff takes the position that the CIA should either [1] provide a supplemental declaration affirming that the electronic index it searched is one that lists all paper documents generated in July 1976 related to the U.S. Senate Committee (the Church Committee) before which Johnny Roselli (Roselli) testified, or [2] conduct a manual search of paper files for that one single month for such records related to the Church Committee before which Roselli testified. Perhaps in a box of records generated after the Church Committee report was issued.
b. CIA's position: As Paragraph 4 of Ms. Lutz's September 16, 2014 declaration states, there is a CIA database that consists of compiled indexes of archived CIA paper records that are no longer used for current office activities. If a search of these indexes suggests the existence of paper files likely to contain records responsive to a particular FOIA request, CIA personnel can then retrieve the archived paper files and review them for responsive individual paper documents. Here, as described in Paragraph 3 of Third Supplemental Declaration of Martha M. Lutz, the CIA searched the indexes of archived paper records through a simple keyword search using the name and aliases for Roselli. Because the search of the index did not suggest the existence of any paper files pertaining to Roselli, there would not have been any paper files that could reasonably have been retrieved and reviewed further for responsive records generated in July 1976. The CIA believes its declarations have fully explained the reasonableness of the Agency's search of the paper files. Although it believes a supplemental declaration as requested in item 1 of Plaintiff's position would be duplicative, the CIA indicated its willingness to provide a supplemental declaration further reiterating that "the compilation of indexes which catalogue archived CIA paper records that it searched is one that would identify the existence of any paper records files likely to contain records relating to Johnny Roselli."
c. Plaintiff's further response: Plaintiff still believes it would not be unreasonable to do a manual search of paper records generated in July 1976 in relation to the Church Committee assassinations investigation. Plaintiff does not believe it would be an excessive burden to flip through one month of those physical files to see if Roselli's name pops up.
7. In light of this remaining disputed issue, the parties propose that they submit further briefing on the reasonableness of the CIA's search of archived paper records for records relating to Roselli, with the CIA to file its brief by September 9, 2015, Plaintiff to file his response by September 23, 2015, and the CIA to file its reply by September 30, 2015.
Respectfully submitted.
Pursuant to the parties' joint status report, the parties' proposed schedule is approved. The parties are to submit further briefing on the reasonableness of the CIA's search of archived paper records for records relating to Roselli under the following schedule:
IT IS SO ORDERED.