1 IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF NEW YORK

2

3
Independent Research Associates
4 318 3rct Avenue #520
New York, New York 10010 Case No.
5

6
Plaintiff,
7
vs. COMPLAINT FOR DECLARATORY AND
8 CENTRAL INTELLIGENCE AGENCY INJUNCTIVE RELIEF
Office of General Counsel
9
Washington, DC 20505,
10
Defendant
11

12

13
Plaintiff, Independent Research Associates, brings this
14
action against Defendant Central Intelligence Agency ("CIA") to
15
compel compliance with the Freedom of information Act, 5 U.S.C.
16
§ 552 ("FOIA"). As grounds therefore, Plaintiff alleges as
17
follows:
18
JURISDICTION AND VENUE
19
1. · The Court has jurisdiction over this action pursuant to 5
20
U.S. C. § 552(a) (4) (B) and 28 U.S. C. § 1331.
21

22
2. Venue is proper in this district pursuant to 28 U.S.C. § 1391
23
(e).
24
PARTIES
25
3. Plaintiff is ·a researcher working closely with the Government
26
of Portugal to finally solve the mystery of Camarate. On
27
December 4, 198 0 the Prime Minister of Portugal, Sa Carneiro,
28
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

- 1 -
 1 and the Defense Minister, Amaro da Costa, were on board a plane
2 which crashed immediately after takeoff. Also on the plane were
3 Snu Abecassis, the Prime Minister's partner, the wife of the
4 Defense Minister, Antonio Patrica Gouveia an aide, and two
5 pilots. All were killed along with an unidentified man on the
6 ground. The plane crashed in Camarate, in the suburbs of Lisbon,
7 and thus the mystery of Camarate was born. Plaintiff seeks to
s promote integrity, transparency, and accountability in
9 government and fidelity to the rule of law. In furtherance of
lo its public interest mission, Plaintiff regularly serves FOI
11 requests on federal, state, and local government agencies,
12 entities, and offices, and disseminates its findings to the
13 public and in this case to the Portuguese Parliament. SEE

14 EXHIBIT A.

15 4. Defendant is an agency of the United States Government and is

l6 headquartered at Central Intelligence Agency, General Counsel's

17 Office, Washington, DC 20505. Defendant has possession, custody,

18 and control of records to which Plaintiff seeks access.

19 STATEMENT OF FACTS

20 5. On May 21, 2013, Plaintiff electronically sent a FOIA request

21 to Defendant, seeking access to the following records: All CI

22 documents on Fernando Farinha Simoes and Jose Antonio dos Santos

23 Esteves along with identifying data. Defendant acknowledge

24 receipt of Plaintiffs FOIA request by letter dated June 4, 2013.

25 See EXHIBIT B. Defendant refused to acknowledge the existence

26 of non existence of requested records. On July 4, 2013 Plaintiff

27 appealed this determination. See EXHIBIT C. On July 26, 2013

28
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

- 2 -
 1 Defendant acknowledged receipt of appeal. See EXHIBIT D. On

2 September 27, 2013 Plaintiff's appeal was denied. See EXHIBIT E.

3 6. The following are the reasons the documents were withheld in
4 their entirety.

5 CODE OF FEDERAL REGULATIONS FROM EXECUTIVE ORDER 13526

6

7
Sec. 3.6. Processing Requests and Reviews.

8 Notwithstanding section 4.1 ( i) of this

order, in response to a request for
9
information under the Freedom of Information
10 Act, the Presidential Records Act, the
Privacy Act of 1974, or the mandatory review
11
provisions of this order: (a) An agency may
12 refuse to confirm or deny the existence or
nonexistence of requested records whenever
13
the fact of their existence or nonexistence
14 is itself classified under this order or its
predecessors.
15

16 GLOMAR RESPONSE

Refusal by the agency to either confirm or deny the

existence or non-existence of records responsive to a FOI
18
request. See exemptions (b) ( 1) ' (b) ( 6) ' and (b) ( 7) ( c) at
19 subpart D of this part.
20 How can CIA classify something that doesn't exist? This
21 indicates that documents on these men do exist.

22 CIA ACT OF 1949

23 Protection of Nature of Agency's Functions

24 Sec. 6. [50 U.S.C. Sec. §403g]

25 In the interests of the security of the

foreign intelligence activities of the
26
United States and in order further to
27 implement section 403-1 (i) of this title
that the Director of National Intelligence
28
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

- 3 -
 1 shall be responsible for protecting
intelligence sources and methods from
2 unauthorized disclosure, the Agency shall be
3 exempted from the provisions of sections 1
and 2 of the Act of August 28, 1935 (49
4
Stat. 956, 957; 5 U.S.C. §654), and the
5 provisions of any other law which require
the publication or disclosure of the
6
organization, functions, names, official
7 titles, salaries, or numbers of personnel
employed by the Agency: Provided, That in
8
furtherance of this section, the Director of
9 the Office of Management and Budget shall
make no reports to the Congress in
10
connection with the Agency under section 607
11 of the Act of June 30, 1945, as amended (5
12
u.s.c. §947(b)).
13 This indicates the men were connected with CIA or CIA
had intelligence on them.
14
(i) PROTECTION OF INTELLIGENCE SOURCES AND METHODS.
15
ill
16
The Director of National Intelligence shall
17 protect intelligence sources and methods
from unauthorized disclosure.
18

19 (2) Consistent with paragraph (1), in order

to maximize the dissemination of
20 intelligence, the Director of National
Intelligence shall establish and implement
21
guidelines for the intelligence community
22 for the following purposes:

23 (A) Classification of information under

applicable law, Exe cu ti ve orders, or other
24
Presidential directives.
25
(B) Access to and dissemination of
26 intelligence, both in final form and in the
form when initially gathered.
27

28

COMPLAINT FOR DECLARATORY AND

INJUNCTIVE RELIEF

- 4 -
 (C) Preparation of intelligence products in
1
such a way that source information is
2 removed to allow for dissemination at the
lowest level of classification possible or
3 in unclassified form to the extent
practicable.
4

5
(3) The Director may only delegate a duty or
6 authority given the Director under this
7
subsection to the Principal Deputy Director
of National Intelligence.
8
This indicates that since the Director has to get involved this
9
is information that links CIA to the Camarate event.
10
7. The Court should note that the most recent development in
11 this case is the confession of two long time suspects, Fernando
12
Farinha Simoes and Jose Antonio dos Santos Esteves, who bot
admitted to conspiring to place a bomb on board the ill fate
13 flight. Both named Watergate burglar Frank Sturgis as a co-
14
conspirator. This researcher has written extensively on Camarate
as well ~s on Frank Sturgis.
15
8. As a result this is an exceptional case and the need to
16
protect the information is outweighed by the public's need to
17 know.
18 COUNT l
19
(Violation of FOIA)
20
9. Plaintiff re-alleges paragraphs 1 through 8 as stated herein.
21
10. Defendant has violated FOIA by failing to produce any an
22 all records responsive to Plaintiffs May 21, 2013 request.
23
11. Plaintiff is being irreparably harmed by reason of
24 Defendant's violation of FOIA, and Plaintiff will continue to be
irreparably harmed unless Defendant is compelled to conform its
25
conduct to the requirements of the law.
26
WHEREFORE, Plaintiff respectfully requests that the Court: ( 1)
27 declare Defendant's failure to comply with FOIA to be unlawful;
28 (2) order Defendant to search for and produce any and all non-
COMPLAINT FOR DECLABATORY AND
INJUNCTIVE RELIEF

- 5 -
 exempt records responsive to Plaintiffs May 21, 2013 request an
1
a Vaughn index of allegedly exempt records responsive to the
2 request by a date certain; compel defendants to provide to the
3
Court and plaintiff a detailed and specific justification,
itemization, and indexing, as required by law, for their refusal
4 to disclose the requested records and documents. Vaughn v.
5 Rosen, 484 F. 2d 820 (DC Cir. 1973), Ash Grove Cement Co. v.
FTC, 511 F. 2d 815 (DC Cir 1975), Pacific Architects an
6 Engineers. Inc. v. Renegotiation Board, 505 F 2d 383 (DC Ci
7 1974); Cuneo v. Schlesinger, 484 F 2d 1086 (DC Cir. 1973).

8
12. Plaintiff seeks an order of this Court compelling the
9
defendants to provide the information mandated by the law, as
10
stated in Vaughn v. Rosen, so that plaintiff can adequatel
11
perform his adversary role as proponent of disclosure of the
12
requested documents and records, and so that the Court can base
13
its decision on the type of detailed records which our Court o
14
Appeals require in FOIA cases. The order sought, on the other
15
hand, would not significantly burden the defendants, but onl
16
require them to provide the Court and the plaintiff with
17
information which defendants should have prepared in the court
18
of the administrative determination of the problem at issue.
19
Furthermore, such an order will contribute to the expedition to
20
which FOIA cases are entitled by statute.
21
13. A. Enjoin Defendant from continuing to withhold any and all
22
non-exempt records responsive to the request;
23
B. Enjoin Defendants from charging Plaintiffs search, review, or
24
duplication fees for the processing of the Request
25
14. Grant Plaintiff an award of filing fees and other litigation
26
costs reasonably incurred in this action pursuant to 5 U.S.C. §
27

28
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

- 6 -
 1 552 (a) ( 4) (E); and (5) grant Plaintiff such other relief as the
2 Court deems just and proper.
3

4
Respectfully submitted,
5

7
A. J. Webermah, pro se
Independent Research Associates
8 345 East 94th St New York NY 10128
212-987-8659
9 Attorneys/or Plaintiff
10

11

12 Dated this February 2014

'
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
COMPLAINT FOR DECLARATORY AND
INJUNCTIVE RELIEF

- 7 -
 EXHIBIT A .

. . .
 TO \VJJOlvl JT rAA Y CONCE!RN

J an1 presently pnrticlpattng in a Con1n1ission in the Portuguese Parlian1cnl; dedicated to

annlyse the cfrcumstnnces in which the plane, that carried the l'orlugucse Prime 1'"1inister,
fell, in December 1980. 1.t is expected that this Commission wiLI continue lo work for ihc
ne.~l five months.

I pa1iicipule in this Commission as H representative of01e victims of this aeroplnne crash,

since .I am the bother of one of the 1•ictims, Antonio Pntricio Gouveia. Antonio was at. the
time, the chief of eubinel of the Portuguese Prime Minister.

We know l11at Mr. .Tim Hunt and ~·Ir. A .r Webcrman. bave been in contact with ·same
entities, na1ncly the Cl.A, ln order to gather infon11ation reg11rding this event, in
accor<la11cc with the Freedom or lnfom1ation Act. Under fOil-\/PA I wish all INS
doctlments on Frank Anthony Sturgis, AKA Frank Anthony Fiorini born December 9,
1924 - died December 4, !. 993. Proof of death. I am willing lo assume all costs of search
and duplication. I. am especially inicrcstecl in any travel he made to Portugal or Europe
from 1975 to l 985.

As a member of ihis Portuguese Parliament Commission, l would be grateful if the

information concerning this matter, requested by both J'vfr. Jim H.unt and JV.Ir. A J
\Vebermnn, be granted, since it will also be taken into consideration by this Commission.

With our best regards

Alexandre Patricio Gouveia

Lisbon, July 20 l 3

Alexandre Patricio Gouveia

~l'ravCssa do .la..')n1in1 11.c 5
1200-230 Lisboa
Portugal
•.

. EXHIBIT B

. ·~' ;·
.
Central lruelHgence Agency

Wa.shing!On. D.C. 20505

4 June 2013
lvlr. Alan 'Wcbennan
. .tbt -·· ...._,. ·~ '"'g( ;,,
·' ....
"'- ... ,_
New York, NY 10128

Reference: F-2013-01762

Denr Mr. Weberrnan:

This is n Gnni response to yout 21 Mny 2013 Freedom of lnfonnntion Act (FOfA) request,
received. in the office of !he lnfor111ai-ion 1rnd Priv_aty Coard inti tor on 22-l\{n)' 20 t3. for infonn:Hion
on the fdl!O\Ving:

I.. Fernnndo Farinha Si1n6es, bon1 in Lisbcin, Portugal, on 23 Noveinber ! 952,

P6rluguese citizen: presentl)'-injail at \ 1ale de.Judeus, Portugal.

2. Jose Anl6nio dos Santos Esteves, born in.Angola (forn1er Portuguese colony),
on 14 ilfoy 1953, presently alive, Portuguese citizen, living in Usbon, Portugal.

\Ve have nssigned your request the reference nu1nber above. Please use this nun1ber \\lhcn
co1Tesponding so that \Ve can identify it ensily.

In accordance with section 3.G(u) or Executive Order l3526, the CIA can nei.ther confinn
nor tleny the existence or nonc.\istcnce or records responsive Lo your request ·rhc·fiict of lhe
existence or nonexistence or requested records is currently and properly classiJicd and is
intelligence sources nnd methods infonnntion that is protected from disclosure by section 6 of the
CIA Act of 1949., ns amended, and section L02A(i)(I) of the Nationnl Security Act of 1947, as
amended. I have enclosed an explanation of these exemptions for your reference and rete'ntion. As
the CIA fnfomialion and Privacy Coordinator, I am the Clf\ official responsible ft)r this
dctcnniitalion. You ha1•e the right lo appenl this response lo the Ageilcy Release Panel, in my care,
within 45 days from the date oftbis leller. Please include the basis of your appeal.

Sincci·el)',

./f~v1. ~1~/
Michele Meeks
lnl"orn1f1Lion and Privacy Coordinntor

Enclosure
EXHIBIT C
I 1:- .;.·
~ '

A J. Weberman
345 East 94th Street 28C
New York, New York 10128

CIA FOIA/PA
Washington, D.C. 20205

Under provision FOi/PA I wish to appeal the determination in F-2013-01762. The

automatic declassification provisions of Executive Order 13256 (formerly EO 12958, as
amended) require the declassification of nonexempt historically valuable records 25
years or older. Camarate was December 1980. From the exemptions cited in the initial
letter I know this request is fruitless but do so anyway to exhaust all my administrative
appeals.

Signed

A J. Weberman
Thursday, July 04, 2013
EXHIB.IT D
 Central Intelligence Agency

\.Vashington, D.C. 20505

26 July2013
Mr. Alan Weberman
345 East 94th Street
Apaiiment 28C
New York, NY 10128

Reference: F-2013-01762

Dear Mr. Webcrman:

We received your 22 May 2013 facsimile appealing our 8 April 2013 final response to your
Freedom of Information Act request for the following:

1. Fernando Farinha Simoes, born in Lisbon, Portugal, on 23 November 1952,

Pmiuguese citizen, presently in jail at Vale de Judeus, Portugal.

2. Jose Antonio dos Santos Esteves, born in Angola (former Portuguese colony),
on 14 May 1953, presently alive, Portuguese citizen, living in Lisbon, Portugal.

Please continue to use this case reference number so ihat \".e can more easily identify
your appeal.

You are appealing our initial determination to neither confirm nor deny you material
responsive to your request. Your appeal has been accepted and arrangements are being made
for its consideration by the Agency Release Panel.

You will be advised of the panel's determination. In order to afford requesters the most
equitable treatment possible, we have adopted the policy of handling appeals on a first-received,
first-out basis. Despite our best efforts, however, the large number of public access requests CIA
receives creates processing delays making it unlikely that we can respond to you within 20
working days. In view of this, some delay in our reply must be expected, but every reasonable
effort will be made to respond as soon as possible.

Sincerely,

/(rdA /f!!t.~/
Michele Meeks
Information and Privacy
r
Coordinator
i
' .

·EXHIBIT E
 Centntl Intclligcm.:c Agency

\Vashington, D.C. 20505

27 September 2013
Mr. Alan Weberman
345 East 94th Street
Apartment 28C
New York, NY 10128

·Reference: F-2013-01762

Dear Mr. Weberman:

This responds to your 4July 2013 letter appealing our 4 June 2013 final response
to your Freedom ofinformation Act (FOIA}for information on the following:

1. Fernando Farinha Simoes, born in Lisbon, Portugal, on 23 November 1952,

Portuguese citizen, presently in jail at Vale de Judeus, Portugal.

2. Jose Antonio dos Santos Esteves, born in Angola (former Portuguese colony),
on 14 May 1953, presently alive, Portuguese citizen, living in Lisbon,
Portugal.

The Agency Release Panel (ARP) considered your appeal and determined that, in
accordance with Section 3.6(a) of Executive Order 13526, the CIA can neither confirm
nor deny the existence or nonexistence of records responsive to your request. The "fact
of' the existence or nonexistence of requested records is currently and properly classified
and relates to intelligence sources and methods information that is protected from
disclosure by Section 6 of the CIA Act of 1949, as amended, and Section !02A(i)(l) of
the National Security Act of 1947, as amended. Therefore, in accordance with Agency
regulations set forth in part 1900 of title 32 of the Code of Federal Regulations, the ARP
denied your appeal on the basis ofFOIA exemptions (b)(l) and (b)(3). In accordance
with the provisions of the FO!A, you have the right to seek judicial review of this
determination in a United States district court.

Sincerely,

/(4,A /(!,;;-/
Michele Meeks
Executive Secretary
Agency Release Panel
 1 IN THE UNITED STATES DISTRICT COURT
2 FOR THE SOUTHERN DISTRICT OF NEW YORK
3

4 Independent Research Associates

5 318 3rct Avenue #52 0
6 New York, New York 10010 )

8 Plaintiff, Case No.

9 VS.

10 CENTRAL INTELLIGENCE AGENCY

11 Office of General Counsel
12 Washington, DC 20505,
13 Defendant
14 MEMORANDUM OF LAW

15

16

17 THE BURDEN OF PROOF IS ON THE CIA TO SHOW WHY THIS INFORMATION

18 IS EXEMPT

19 ''An agency seeking to withhold information under an

20 exemption to FOIA has the burden of proving that the information

21 falls under the claimed exemption. " GC Micro Corp. v. Defens

22 Logistics Agency, 33 F.3d 1109, 1113 (9th Cir. 1994); see also
23 Lewis v. IRS, 823 F.2d 375, 378 (9th Cir.1987) Federal courts
24 have jurisdiction to "enjoin the agency from withhoiding. agenc
r
25 records" 5 U.S.C. § 552 (a) (4) (B)

26

27

28 -1-

MEMORANDUM OF LAW
 1 PRESIDENT OBAMA'S EXECUTIVE ORDERS TO CIA MANDATE

2 DECLASSIFICATION EXECUTIVE ORDER 13526 (EO) CLASSIFIED NATIONAL

3 SECURITY INFORMATION PART 3 -- DECLASSIFICATION AND DOWNGRADING

4 (d) It is presumed that information that continues to

5 meet the classification requirements under this order

6 requires continued protection. In some exceptional

7 cases, however, the need to protect such information

8 may be outweighed by the public interest in disclosure

9 of the information, and in these cases the information

10 should be declassified. When such questions arise,

11 they shall be referred to the agency head or the

12 senior agency official. That official will determine,

13 as an exercise of discretion, whether the public

14 interest in disclosure outweighs the damage to the

15 national security that might reasonably be expected

16 from disclosure. This provision does not:

17 (1) Amplify or modify the substantive criteria or

18 procedures for classification; or

19 (2) Create any substantive or procedural rights

20 subject to judicial review.

21 PRESIDENTIAL DOCUMENTS 4683 FEDERAL REGISTER VOL. 74, NO. 15

22 MONDAY, JANUARY 26, 2009 TITLE 3

23 The President

24 Memorandum of January 21, 2009

25 Freedom of Information Act

26 Memorandum for the Heads of Executive Departments and

27 Agencies

28
-2-

MEMORANDUM OF LAW
 1 A democracy requires accountability, and
2 accountability requires transparency. As Justice Louis
3 Brandeis wrote, "sunlight is said to be the best of
4 disinfectants.n In our democracy, the Freedom of
5 Information Act, which encourages accountability
6 through transparency, is the most prominent expression
7 of a profound national commitment to ensuring an open
8 Government. At the heart of that commitment is the
9 idea that accountability is in the interest of the
10 Government and the citizenry alike. The Freedom of
11 Information Act should be administered with a clear
12 presumption:

13 In the face of doubt, openness prevails. The

14 Government should not keep information confidential

15 merely because public officials might be embarrassed

16 by disclosure, because errors and failures might be

17 revealed, or because of speculative or abstract fears.

18 Nondisclosure should never be based on an effort to

19 protect the personal interests of Government officials

20 at the expense of those they are supposed to serve. In

21 responding to requests under the FOIA, executive

22 branch agencies (agencies) should act promptly and in

23 a spirit of cooperation, recognizing that such

24 agencies are servants of the public.

25 All agencies should adopt a presumption in favor

26 of disclosure, in order to renew their commitment to

27 the principles embodied in FOIA, and to usher in a new

28 -3-

MEMORANDUM OF LAW
 1 era of open Government. The presumption of disclosure
2 should be applied to all decisions involving FOIA.
3 The presumption of disclosure also means that
4 agencies should take affirmative steps to make
5 information public. They should not wait for specific
6 requests from the public. All agencies should use
7 modern technology to inform citizens about what is
8 known and done by their Government. Disclosure should
9 be timely.
10 I direct the Attorney General to issue new

11 guidelines governing the FOIA to the heads of

12 executive departments and agencies, reaffirming the

13 commitment to accountability and transparency, and to

14 publish such guidelines in the Federal Register. In

15 doing so, the Attorney General should review FOIA

16 reports produced by the agencies under Executive Order

17 13392 of December 14, 2005. I also direct the Director

18 of the Off ice of Management and Budget to update

19 guidance to the agencies to increase and improve

20 information dissemination to the public, including

21 through the use of new technologies, and to publish

22 such guidance in the Federal Register.

23 This memorandum does not create any right or

24 benefit, substantive or procedural, enforceable at law

25 or in equity by any party against the United States,

26 -4-

27

28

MEMORANDUM OF LAW
 1 its departments, agencies, or entities, its officers,

2 employees, or agents, or any other person. 1

3 THE GLOMAR RESPONSE

4 A FOIA request for information concerning the relationship

5 between the CIA and the Glomar Explorer was met with rejection

6 and an explanation that, "the fact of the existence or non-

1 existence of the records ... request[ed] would relate to information

s pertaining to intelligence sources and methods which the

9 Director of Central Intelligence has the responsibility to

10 protect from unauthorized disclosure." The Glomar Response was

11 designed to permit the CIA to remain silent in the face of

12 requests for information when the very fact of possession or

13 lack of possession of the requested documents would compromise

14 national security. Although the government abandoned its

15 position in the original case, Glomar responses are no
16 routinely accepted by the courts. As one all-star appellate

17 panel claimed in justifying judicial timidity, "When a pattern

18 of responses itself reveals classified information, the only wa

19 to keep secrets is to maintain silence uniformly. And this is

20 what the CIA has done." 2

21 THE CONFLICT BETWEEN THE GLOMAR RESPONSE AND VAUGHN V. ROSEN

22 The Supreme Court held that an agency which refuses access

23 to parts of documents must provide detailed justification

24
1. VerDate Nov<24>2008 20:28 Jan 23, 2009 Jkt 217001 PO 00000 Frm 00003 Fmt 4705 Sfmt 4790
25 E:\FR\FM\26JA01.SGM 26JA01 4684 Federal Register I Vol. 74 1 No. 15 I Monday, January 26, 2009 /
Presidential Documents The Director of the Office of Management and Budget is hereby authorized
26 and directed to publish this memorandum in the Federal Register. THE WHITE HOUSE, Washington,
January 21, 2009 [FR 484 F.2d 820 (D.C. Cir. 1973)

27
2. http-: I /www.boilingfrogspost.com/2010/0l/10/the-impulse-to-secrecy-the-glomar-
response/#sthash. kdQ2zuyy. dpuf
28 -5-

MEMORANDUM OF LAW
 1

2 for the withheld parts and specifically itemize and index the
3 documents or portions thereof so as to show which i terns were
3
4 exempt and which could be disclosed. "[The problem] may be

5 corrected by assuring government agencies that courts will

6 simply no longer accept conclusory and generalized allegations

7 of exemptions, such as the trial court was treated to in this

a case, but will require a relatively detailed analysis in
9 manageable segments. An analysis sufficiently detailed would not

10 have to contain factual descriptions that if made public woul

11 compromise the secret nature of the information, but coul

12 ordinarily be composed without excessive reference to the actual

13 language of the document. " 4

14 The purpose of the instant motion is to compel defendants

15 to provide to the Court and plaintiff a detailed and specific

16 justification, itemization, and indexing, as required by law,

17 for their refusal to disclose the requested records an

18 documents. Vaughn v. Rosen, 484 F. 2d 820 (DC Cir. 1973), As

19 Grove Cement Co. v. FTC, 511 F. 2d 815 (DC Cir 1975), Pacifi

20 Architects and Engineers. Inc. v. Renegotiation Board, 505 F 2

21 383 (DC Cir 1974); Cuneo v. Schlesinger, 484 F 2d 1086 (DC Cir.

22 1973).

23 The Government's failure to adequately describe the records

24 withheld and its defenses to disclosure forces the plaintiff to

25 -6-

26 3. http://www.articlel9.org/resources.php/resource/2358/en/united-states:-vaughn-v.-
rosen#sthash.RUe0xAHL.dpuf
27 4. (at 826, footnote omitted) - See more at:
http://www.article19.org/resources.php/resource/2358/en/united-states:-vaughn-v.-
rosen#sthash.RUe0xAHL.dpuf
28

MEMORANDUM OF LAW
 1 proceed virtually in the dark. Although the plaintiff knows that
2 the requested records and documents exist, everything else about
3 them is a mystery_ The CIA' s refusal to make any substantive
4 reply turns this lawsuit on its head; the citizen is, as a
s practical matter, required to bear the burden of proof which the
6 statute expressly imposes on the agency, 5 USC 552 (a) (4) (B) _
7 The Court of Appeals for the 9th Circuit (California),
s sought to remedy just such problems in Vaughn v. Rosen. In that
9 case, the plaintiff sought disclosure of various government
10 documents concerning certain agencies' personnel management
11 programs. The defendant Civil Service Commission refused to
12 produce the documents at the plaintiff's request and the

13 plaintiff filed suit. The defendant submitted an affidavit

14 containing conclusory statements that three named exemptions

15 applied, and the trial court granted the defendant's motion for

16 summary judgment. The Court of Appeals reversed and remanded the

17 case to the trial court for further proceedings. Upon so doing,

18 the Court vigorously insisted that the FOIA's requirements

19 of de nova review with the burden of proof on the government

20 means that the agency is obligated to "undertake to justify in

21 much less conclusory terms its assertion of exemption and to

22 index the information in a manner consistent with guide-lines

23 set forth by the Court. 484 F. 2d at 828. The Court of Appeals

24 has recently reiterated that it requires a thorough and specific

25 justification for the withholding of requested information an

26 records.

27 The Vaughn and Cuneo decisions mandate more than mere

28 -8-

MEMORANDUM OF LAW
 1 indexing of allegedly exempt documents. They contemplate a

2 procedure whereby the agency resisting disclosure must present a

3 "detailed j ustification ... for application of the exemption to the

4 specific documents in dispute. Pacific Architects and engineers.

1
5 Inc. v. Renegotiation Board, supra, 505 F 2d at 385.
6 The Court in Vaughn recognized that "it is anomalous but
7 obviously inevitable that the party with the greatest interest

8 in obtaining disclosure is at a loss to argue with desirable

9 legal precision for the revelation of the concealed information

10 The best (plaintiff) can do is to argue that the exception is

11 very narrow and plead that the general nature of the documents

12 and records sought make it unlikely that they contain such

13 (exempt) information. 484 F 2d at 823-24. In order to avoi

14 shifting the burden of proof from the agency to the citizen (or

15 to the court on in camera inspection), the Vaughn court mandate

16 a procedure to allow the lawsuit to proceed efficiently in the

17 traditional adversary manner, with the burden of proof borne b

18 the Government as the Act requires. It is that procedure,

19 outlined in Vaughn, 484 F 2d at 826-28, which plaintiff wishes

20 this Court to incorporate at this stage of the instant

21 proceedings by granting this motion. The order sought b

22 plaintiff would compel defendants to provide the type of

23 information, required by Vaughn, to proceed with this lawsuit.

24 .For example, if defendants are relying on exemption (b) ( 7) ,

25 they must bear the burden of proof on a number of points with

26 respect to records which are claimed to fall within the

27 exemption: (1) that each record and document is both

28 -9-

MEMORANDUM OF LAW
 1 "investigatory and complied for authorized law enforcement
2 purposes. ( 2) That the records and documents were originall
3 compiled for law enforcement. (3) That there was an actual
4 lawful criminal investigation, progress and ( 4) That the
5 information in the records and documents is in fact
6 confidential, (5) only from a confidential source, and (6) the
7 disclosure itself would reveal the confidential source.

8 Similarly, to the extent that defendant relys upon

9 exemption 5 they must provide a thorough explanation of how an
10 why the records claimed to fall within the exemption are part of
11 a pro-decisional, deliberative process. "Crucial to the decision
12 of this (exemption 5) case is an understanding of the function
13 of the documents in issue in the context of the administrative
14 process which generated them. NLRB v. Sears. Roebuck & ~ 421 US

15 132 95 S Ct 1804, 1518. Defendants must further demonstrate that

16 the records contain no factual matters which can be separate

17 from deliberative materials. Environmental Protection Agency v.
18 Mink, 410 U.S. 73, 91 (1973).

19 As to those records pertaining to Plaintiff himself,

20 Defendants should be required to state that no documents or

21 parts thereof describes how any individual exercises rights

22 guaranteed by the First Amendment. Or, unable to do so,

23 Defendants should be required to state whether such information

24 is (1) authorized by statute, (2) authorized by the Plaintiff,

25 or ( 3) pertinent to and within the scope of an authorized la

26 enforcement activity.

27 In addition to such detailed justification of claimed

28 10.

MEMORANDUM OF LAW
 1 exemptions, the Court of Appeals in Vaughn also require
2 defendants to itemize and index the disputed records an
3 documents so as to correlate statements in the j ustificatio
4 with actual portions of the documents. This requirement is
5 particularly important in a case such as the instant action
6 where the disputed documents are substantial in number an
7 diverse in nature. The proposed order will require defendants to

8 correlate the statements in their justification to actual

9 portions of the requested records. As the Court of Appeals

10 suggested in Vaughn:
11 It seems probable that some portions may fit under one

12 exemption, while other segments tall under another, while still

13 other segments are not exempt at all and should be disclosed.

14 The itemization and indexing that we herein require shoul

15 reflect this. Vaughn V. Rosen. supra. Upon receipt of the

16 information mandated by Vaughn, plaintiff may be able to prepare

17 a motion for summary judgment which would subject defendants'

18 rationale to the "adequate adversary testing (484 F 2d at 828)

19 which the Vaughn decision sought to encourage in Freedom of

20 Information Act-Privacy Act cases. Moreover, this information

21 will allow the Court ''to meet the. requirements

22 of Vaughn v. Rosen that judicial determination under the FOIA be

23 based upon a detailed record. Ash Grove Cement Co. v.FTC supra,

24 511 F. 2d at 817.

25 The proposed order, which will enable the parties to join

26 issue at the earliest possible date, is further warranted by the

27 requirement that FOIA cases be ''expedited in every way, 5 USC

28
-11-

MEMORANDUM OF LAW
 1 552 (a) ( 4) (D) Indeed, in executing the Vaughn mandate,
2 several judges of this Court have explicitly ordered defendants
3 to supply plaintiffs with a detailed itemization, justification
4 and index, and the instant motion is consistent with this
5 procedure, E.g., Cutler Y...:_ CAB, 375 F Supp. 722, 724-25 (1974)
6 (Gesell, J.); Robertson v. Department of Defense; Civ. NO. 74

7 644 (Order of Aug. 23; 1974) (Parker; J.); Owens v. Bureau o

8 Prisons; Civ. No. 74-78 (Order of Feb. 13; 1974 and Apr 8, 1974)

9 (Waddy; J.); Consumers Union v. ICC; Civ. No. 1859-73 (order o

10 Dec. 18; 1973) (Corcoran; J.).

11 In Clarkson vs. IRS and John Henderson. District Director-

22 GA in USDO ND-GA #79-1650, District Judge Richard C. Freeman
13 ruled:
14 "Under the FOIA, the agency must show that each document
15 requested has been produced, is unidentifiable, or is
16 exempt. Marx vs. US 578 F 2nd 2 61. The justification for the
17 non-disclosure of information may not consist of conclusor
18 allegations of exemption; and requires a relatively detaile

19 analysis; correlating the documents or portions of the documents

20 claimed to be exempt with the reason for their exemption.

21 Cuneo vs. Schlessinger 484 F 2nd 1086. The government has not

22 provided plaintiff with an adequate accounting of why his

23 request is exempt from disclosure.

24 -12-

25

26

27

28

MEMORANDUM OF LAW
 Dated this Feb 2014
1 '
A. J. Weberman, pro se
2 Independent Research
Associates
3 345 East 94 th St New
York NY 10128
4 212-987-8659
5
-13-
6

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MEMORANDUM OF LAW