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Katsiaficas v. United States Central Intelligence Agency

United States District Court, D. Massachusetts

May 17, 2017

GEORGE KATSIAFICAS, Plaintiff,
v.
UNITED STATES CENTRAL INTELLIGENCE AGENCY, Defendant.

          MEMORANDUM AND ORDER

          ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

         I. INTRODUCTION

         Plaintiff 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.

         II. PROCEDURAL BACKGROUND

         On 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].

         On 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.[1] 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. 73].[2]

         III. FACTUAL BACKGROUND

         Except 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”).

         By 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 assassination.”

         On March 29, 2011, the CIA responded to Plaintiff's Coup Request by producing documents totaling 29 pages.[3] 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).

         On July 20, 2012, the CIA mailed Plaintiff its final response to the Assassination Request. The CIA's letter referenced an April 2010[4] 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.

         On April 30, 2013, before having exhausted the CIA's appeals process with respect to his Assassination Request, Plaintiff filed this lawsuit.[5] 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.

         Subsequent 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[6] 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.

         IV. LEGAL STANDARD

         A. Summary Judgment Generally

         Summary 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).

         “To 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.

         On a 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).

         When a 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.”).

         B. Summary Judgment ...


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