United States District Court, D. Massachusetts
MEMORANDUM AND ORDER
ALLISON D. BURROUGHS U.S. DISTRICT JUDGE
George Katsiaficas (“Plaintiff”) sued the United
States Central Intelligence Agency (the “CIA” or
“Defendant”) to compel disclosure under the
Freedom of Information Act (“FOIA”), 5 U.S.C.
§ 552, of CIA documents pertinent to the 1961 South
Korean coup d'état and the 1979 assassination of
former-South Korean President Park Chung-hee. [ECF No. 1].
Presently pending before this Court are Plaintiff's
Motion for Summary Judgment [ECF No. 53] and Defendant's
Cross Motion for Summary Judgment [ECF No. 69]. For the
reasons stated below, the Court GRANTS
Defendant's Motion for Summary Judgment and
DENIES Plaintiff's Motion for Summary Judgment.
April 29, 2013, Plaintiff, a professor at Wentworth Institute
of Technology, filed a complaint against Defendant in this
Court. [ECF No. 1]. On January 1, 2014, Plaintiff filed a
Motion for Summary Judgment. [ECF No. 17]. On February 28,
2014, Defendant filed a Cross Motion for Summary Judgment.
[ECF No. 26]. On March 21, 2016, the Court entered electronic
orders denying both motions as moot, and setting a schedule
for both parties to file renewed motions. [ECF Nos. 51-52].
April 18, 2016, Plaintiff filed a Renewed Motion for Summary
Judgment. [ECF No. 53]. Plaintiff's Renewed Motion for
Summary Judgment lacks a clearly identifiable
“statement of the material facts of the record as to
which the moving party contends there is no genuine issue to
be tried, ” as required under Local Rule, D. Mass. 56.1
(“LR 56.1”), but does include a general
“Facts” section. [ECF No. 53]. On October 4,
2016, Defendant filed a Cross Motion for Summary Judgment
[ECF No. 69] and a Memorandum in Support that also contains
an Opposition to Plaintiff's Renewed Motion for Summary
Judgment [ECF No. 70]. Defendant's Memorandum includes a
Statement of Undisputed Material Facts, none of which appear
to contradict the general facts alleged by
Plaintiff. Id.; see also [ECF No.
53]. Defendant also relies on two declarations: the
Declarations of Antoinette B. Shiner [ECF No. 71] and of
Chief Martha M. Lutz [ECF No. 28]. Finally, Defendant
submitted Vaughn indices for both the Coup Request
[ECF No. 72] and the Assassination Request [ECF No.
as otherwise noted, the following facts are taken from the
Statement of Undisputed Material Facts contained in
Defendant's Motion for Summary Judgment [ECF Nos. 69-70].
Because Plaintiff did not file an opposition to
Defendant's pending Motion for Summary Judgment, the
Court considers the facts contained therein to be admitted by
Plaintiff. See Zimmerman v. Puccio, 613 F.3d 60, 63
(1st Cir. 2010) (noting that where a party opposing summary
judgment fails to file an opposition including a
“concise statement of the material facts of record as
to which it is contended that there exists a genuine issue to
be tried, ” material facts asserted by the moving party
“will be deemed for purposes of the motion to be
admitted by opposing parties”).
letter dated March 4, 2010, Plaintiff submitted two separate
FOIA requests to the CIA. The first request (the “Coup
Request”) asked for “records related [to],
describing, and/or concerning the coup d'état of
May 16, 1961 in South Korea through which General Park
Chung-hee seized power, ” and specifically requested
CIA communications with United States Army officer James
Hausman and the CIA, the Defense Intelligence Agency (DIA),
and other government documents related to Park
Chung-hee's meetings with United States government
personnel. The second request (the “Assassination
Request”) asked for “records related [to],
describing, and/or concerning the assassination of the South
Korean President Park Chung-hee on October 26, 1979 in Seoul,
South Korea.” The request included all CIA, DIA, and
other government documents “related to the
assassination, to his assassin (Korean Central Agency
chairman Kim Jae-kyu), to [United States] persons'
meetings with both [individuals] named above, and to any
other materials referring to President Park's
March 29, 2011, the CIA responded to Plaintiff's Coup
Request by producing documents totaling 29
pages. Katsiaficas appealed this production as
insufficient. On February 19, 2014, the CIA's Agency
Release Panel (“ARP”) denied Plaintiff's
appeal, stating that the previously-withheld information was
properly protected under FOIA exemptions (b)(1) and (b)(3).
20, 2012, the CIA mailed Plaintiff its final response to the
Assassination Request. The CIA's letter referenced an
April 2010 phone call during which Plaintiff agreed
to limit the scope of his request to CIA documents. The
CIA's final response consisted of ten pages containing
four documents, which were released with “deletions
made on the basis of FOIA exemptions (b)(1) and
(b)(3).” The CIA's response letter also noted that
additional documents had been withheld in their entirety
under these exemptions.
April 30, 2013, before having exhausted the CIA's appeals
process with respect to his Assassination Request, Plaintiff
filed this lawsuit. On May 19, 2014, Plaintiff and Defendant
agreed to stay this Court's proceedings until Plaintiff
had completed the CIA appeals process while Plaintiff
appealed the CIA's response to his Assassination Request.
On September 29, 2015, the ARP issued a final response to
Plaintiff's administrative appeal. This response included
additional information from the four partially-redacted
documents that Plaintiff received on July 20, 2012.
to the productions detailed above, the CIA conducted another
review of its records and released additional,
previously-redacted information relevant to Plaintiff's
requests. As of today, the CIA has released 15
documents in response to Plaintiff's Coup
Request (with no documents withheld in full) and 14 documents
in response to Plaintiff's Assassination Request (with 16
documents withheld in full). Plaintiff, who has now exhausted
the CIA's internal appeals process, continues to
challenge the adequacy of the CIA's searches and the
completeness of its productions.
Summary Judgment Generally
judgment is appropriate where “the movant shows 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. An issue is considered “genuine”
when “the evidence of record permits a rational
factfinder to resolve it in favor of either party.”
Borges ex rel. S.M.B.W. v. Serrano-Isern, 605 F.3d
1, 4-5 (1st Cir. 2010) (citing Medina-Munoz v. R.J.
Reynolds Tobacco Co., 896 F.2d 5, 8 (1st Cir. 1990)). A
fact is considered “material” when “its
existence or nonexistence has the potential to change the
outcome of the suit.” Id. at 5 (citing
Martínez v. Colón, 54 F.3d 980, 984
(1st Cir. 1995).
succeed in showing that there is no genuine dispute of
material fact, the moving party must direct [the Court] to
specific evidence in the record that would be admissible at
trial.” Ocasio-Hernández v.
Fortuño-Burset, 777 F.3d 1, 4 (1st Cir. 2015).
“That is, it must ‘affirmatively produce evidence
that negates an essential element of the non-moving
party's claim, ' or, using ‘evidentiary
materials already on file . . . demonstrate that the
non-moving party will be unable to carry its burden of
persuasion at trial.'” Id. at 4-5 (citing
Carmona v. Toledo, 215 F.3d 124, 135 (1st Cir.
2000)). Once the moving party has laid out its basis for
summary judgment, the burden shifts to the party opposing
summary judgment to demonstrate, “with respect to each
issue on which she would bear the burden of proof at trial, .
. . that a trier of fact could reasonably resolve that issue
in her favor.” Borges, 605 F.3d at 5.
motion for summary judgment, the Court reviews “the
entire record in the light most hospitable to the party
opposing summary judgment.” Podiatrist Ass'n,
Inc. v. La Cruz Azul De P.R., Inc., 332 F.3d 6, 13 (1st
Cir. 2003). Where inferences are to be drawn from the stated
facts, those inferences “must be viewed in the light
most favorable to the party opposing the motion.”
Oleskey, 658 F.Supp.2d at 294 (citing Founding
Church of Scientology of Wash., D.C., Inc. v. Nat'l Sec.
Agency, 610 F.2d 824, 836 (D.C. Cir. 1979)). The Court,
however, “safely may ignore conclusory allegations,
improbable inferences, and unsupported speculation.”
Cochran v. Quest Software, Inc., 328 F.3d 1, 6 (1st
Cir. 2003) (internal quotation and citation omitted).
court faces cross motions for summary judgment, it applies
the above analysis, unaltered, “to each motion in
turn.” Wilkinson v. Chao, 292 F.Supp.2d 288,
291 (D.N.H. 2003) (citing Wightman v. Springfield
Terminal Ry. Co., 100 F.3d 228, 230 (1st Cir. 1996));
see also Cochran, 328 F.3d at 6 (“This
framework is not altered by the presence of cross-motions for
Summary Judgment ...