(SANITIZED), PLAINTIFF, V. NATIONAL TRANSPORTATION SAFETY BOARD, ET AL., DEFENDANTS

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0005567359
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 23
• Document Creation Date: June 24, 2015
• Document Release Date: October 13, 2010
• Case Number: F-2010-00465
• Publication Date: July 10, 2006

PETER D. KEISLER
Assistant Attorney General
DEBRA W. YANG
United States Attorney
ELIZABETH J. SHAPIRO, DC Bar 418925
DAVID M. GLASS, DC Bar 544549
Attorneys, Department of Justice
20 Mass. Ave., N.W., Room 7140
Washington, D.C. 20530
Tel: [phone]/Fax: [phone]
E-Mail: [e-mail]
Attorneys for Defendants
DRAFT`6/22/06
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
H. RAY LAHR,
Plaintiff,
No. CV 03-08023-AHM (RZx)
Date: July 10, 2006
Time: 10 a.m.
Judge:. Hon A. Howard Matz
NATIONAL TRANSPORTATION
SAFETY BOARD, et al.,
Defendants.
1. REPLY IN SUPPORT OF DEFENDANTS' SECOND
MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO
THE CENTRAL INTELLIGENCE AGENCY
THIRD DECLARATION OF DAVID M. GLASS
APPROVED FOR
RELEASE^ DATE:
17-Sep-2010
 TABLE OF CONTENTS
REPLY IN SUPPORT OF DEFENDANTS' SECOND MOTION FOR PARTIAL
SUMMARY JUDGMENT AS TO THE CENTRAL INTELLIGENCE
AGENCY ...........................................................
STATEMENT ......................................................
ARGUMENT ................... ..................................
1. PLAINTIFF HAS NOT SHOWN THAT THE CIA HAS CONDUCTED AN
INSUFFICIENT SEARCH FOR RECORDS .........................
II. PLAINTIFF HAS NOT SHOWN THAT ANY OF THE STATUTORY
EXEMPTIONS HAS BEEN MISAPPLIED TO ANY RECORD COVERED
BY SECOND CIA MOTION ........................... ....... .
III. PLAINTIFF HAS NOT SHOWN THAT ANY SEGREGABLE
NONEXEMPT MATERIAL HAS BEEN WITHHELD FROM ANY
RECORD COVERED BY THE SECOND CIA MOTION ..............
IV. PLAINTIFF HAS NOT SHOWN THAT ANY RECORD COVERED BY
THE SECOND CIA MOTION SHOULD BE REVIEWED IN
CAMERA ................................................. .
CONCLUSION .....................................................
THIRD DECLARATION OF DAVID M. GLASS .......... ............... .
 TABLE OF AUTHORITIES
Citizens Comm 'n on Human Rights v. FDA, 45 F.3d 1325 (9th Cir. 1995) .......
Fla. Immigrant Advocacy Or. v. NSA, 380 F. Supp. 2d 1332 (S.D. Fla. 2005) ....
Goland v. CIA, 607 F.2d 339.(D.C. Cir. 1979) .............................
Hardy v. Bureau ofAlcohol, Tobacco & Firearms, 631 F.2d 653 (9th Cir.
1980) .............................................................
Hayden v. NSA/Cent. Sec. Serv., 608 F.2d 1381 (D.C. Cir. 1979) ..............
Linder v. NSA, 94 F.3d 693 (D.C. Cir. 1996) ..................... ...... .
Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1089 (9th Cir. 1997) ....
McDonnell v. United States, 4 F.3d 1227 (3d Cir. 1993) ................... .
Meyerhoff v. U S., EPA, 95 8 F.2d 1498 (9th Cir. 1992) ......................
Minier v. CIA, 88 F.3d 796 (9th Cir. 1996) ................................
Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157 (2004) .............
NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214 (1976) ...................
Sherwood & Roberts - Kennewick, Inc. V. St. Paul Fire & Marine Ins. Co., 322
F.2d 70 (9th Cir. 1963) ... .......................................... .
Solaia Tech. LLC v. Arvinmeritor, Inc., 361 F. Supp. 2d 797 (N.D. Ill. 2005) ... .
United States v. Olano, 507 U.S. 725 (1993) ......................... .. .
U.S. Dep't of Defense v. Fed. Labor Relations Auth., 510 U.S. 487 (1994) ......
Wilbur v. CIA, 355 F.3d 675 (D.C. Cir. 2004) ....... .................... .
 Xerox Corp. v. United States, 12 Cl. Ct. 93 (1987) ... ................... .
 REPLY IN SUPPORT OF DEFENDANTS'
SECOND MOTION FOR PARTIAL SUMMARY JUDGMENT
AS TO THE CENTRAL INTELLIGENCE AGENCY
STATEMENT
In this action under the Freedom of Information Act (FOIA), 5 U.S.C.
? 5.52, plaintiff, H. Ray Lahr, seeks compliance with certain requests for records
that he submitted to the National Transportation Safety Board (NTSB) and the
Central Intelligence Agency (CIA) by letters dated October 8, 2003. See 2d Am.
Compl. 116-8, 12, 19. The requested records deal with the explosion in 1996 of
TWA Flight 800. Moye Decl, at 48; 1st Buroker Decl. at 72. Plaintiff is a
conspiracy theorist who believes that "[t]he government covered up the true cause
of the disaster - missile fire" and that "a conspiracy to obstruct justice" existed.
Pl.'s Opp'n CIA's Mot. Partial Summ. J. (June 5, 2006) (Pl. Mem.).at 10, 21.
Defendants, the NTSB, the CIA, and the National Security Agency (NSA),
have filed three motions for partial summary judgment: (1) NTSB's Motion for
Partial Summary Judgment (NTSB Motion); (2) Defendants' Motion for Partial
Summary Judgment as to the CIA (First CIA Motion); and (3) Defendants' Second
Motion for Partial Summary Judgment as to the CIA (Second CIA Motion). The
NTSB Motion addresses the search for records that the NTSB conducted and 29
records from which material has been withheld pursuant to the statutory
 exemptions to FOIA, 5 U.S.C. ? 552(b). Mem. P. & A. Supp't NTSB's Mot.
Partial Summ. J at 4-5, 5 n.2, 10-25; see Moye Decl. 303-452, 456-60, 463-98.
The First CIA Motion addresses the search for records that the CIA conducted and
26 records from which material has been withheld pursuant to the statutory
exemptions. Mem. P. &. A. Supp't Defs.' Mot. Partial Summ. J. as to CIA at 8-25;
see 2d Buroker Decl. 18. The Second CIA Motion addresses 12 records from
which material has been withheld pursuant to the statutory exemptions. Mem. P.
& A. Supp't Defs.' 2d Mot. Partial Summ. J. at 2-16; see Giles Decl. ? 7; 3d
Buroker Decl. at 50-56; 1st Supp. Moye Decl. ?? 6(a)-(d). Taken together, the
three motions address all issues presented in this case, including all responsive
records from which contested withholdings have been made.
Plaintiff opposes the Second CIA Motion. However, he has not shown that
the CIA has conducted an insufficient search for records; that any of the statuary
exemptions has been misapplied to any of the records covered by the Second CIA
Motion; that any segregable nonexempt material has been withheld from any of
those records; or that any such record should be reviewed in camera. The Second
CIA Motion should therefore be granted.
 ARGUMENT
PLAINTIFF HAS NOT SHOWN THAT THE CIA HAS CONDUCTED AN
INSUFFICIENT SEARCH FOR RECORDS.
When plaintiff responded to the First CIA Motion, he alleged that the CIA
had conducted an insufficient search for records because he believed that certain
records existed for which the CIA had failed to account. See Pl.'s Mem. Opp'n
CIA's Mot. Partial Summ. J. (Sept. 13, 2005) at 26, 28; Pl.'s Sur-Reply CIA's
Reply Opp'n Mot. Partial Summ. J. at 11-13. In his opposition to the Second CIA
Motion, he recycles the same argument. Pl. Mem. at 23. However, the argument
has no more merit now than it did when plaintiff first made it. An agency
receiving a FOIA request must conduct "`a search reasonably calculated to
uncover all relevant documents."' Citizens Comm 'n on Human Rights v. FDA, 45
F.3d 1325, 1328 (9th Cir. 1995) (quoting Zemansky v. EPA, 767 F.2d 569, 571
(9th Cir. 1985)). In adjudicating the sufficiency of a search, "`the issue to be
resolved is not whether there might exist any other documents possibly responsive
to the request, but rather whether the search for those documents was adequate."
Citizens Comm 'n, 45 F.3d at 1328 (quoting Zemansky, 45 F.3d at 1328) (emphasis
in the original). Accordingly, "the agency's failure to turn up a particular
document, or mere speculation that. as yet uncovered documents might exist, does
 not undermine the determination that the agency conducted an adequate search for
the requested records." Wilbur v. CIA, 355 F.3d 675, 678 (D.C.Cir. 2004).
In this case, the CIA has described in detail the search for responsive
records that it has made. See 1st Buroker Decl. ?? 15-25. Plaintiff has not
identified any place where the CIA should have looked, but did not. Nor has he
shown that the CIA has failed otherwise to "`conduct[] a search reasonably
calculated to uncover all relevant documents."' See Citizens Comm'n, 45 F.3d at
1328 (quoting Zemansky, 767 F.2d at 571). His allegation that the CIA has
conducted an insufficient search for records should therefore be rejected.
II. PLAINTIFF HAS NOT SHOWN THAT ANY OF THE STATUTORY
EXEMPTIONS HAS BEEN MISAPPLIED TO ANY RECORD COVERED
BY THE SECOND CIA MOTION.
A. Plaintiff Has Not Shown That Exemption 2 to Has Been Misapplied to
Any of the Records Covered by the Aforesaid Motion.
The NSA has relied on Exemption 2 to withhold, from the records covered
by the Second CIA Motion, the computer program that the CIA used to prepare its
simulation of the explosion of TWA Flight 800. See Giles Decl. 117, 11. Plaintiff
contests the withholding by alleging that Exemption 2 "`relates only to the internal
rules [or] practices of an agency."' P1. Mem. at 21 (purporting to quote "the
Attorney General's Oct[.] 12, 2001 Report"; in fact quoting S. Rep. No. 813, 89th
 Cong., 1st Sess. 8 (1965)). However, the interpretation of Exemption 2 upon
which plaintiff relies was rejected in Hardy v. Bureau of Alcohol, Tobacco &
Firearms, 631 F.2d 653 (9th Cir. 1980). Adopting the interpretation of Exemption
2 contained in H.R. Rep. No. 1497, 89th Cong, 2d Sess. 10 (1966), Hardy held
that "law enforcement materials, the disclosure of which may risk circumvention
of agency regulation, are exempt under Exemption 2." 631 F.2d at 656.
In this case, the NSA has relied on the interpretation of Exemption 2
adopted in Hardy to withhold the computer program used by the CIA to prepare its
simulation of the explosion of TWA Flight 800. See Giles Decl. 1110-11.
Plaintiff has not attempted to show - let alone shown - that the program is not
entitled to protection under that interpretation. See Pl. Mem. at 21. The
withholding of the program should therefore be upheld.
Plaintiff Has Not Shown That Exemption 3 Has Been Misapplied to
Any of the Records Covered by the Second CIA Motion.
Plaintiff Has Not Shown That Exemption 3 Has Been
Misapplied by the NSA to Any of the Records Covered by the
Second CIA Motion.
As an alternative ground for withholding the aforementioned computer
program, the NSA has relied on Exemption 3 and ? 6(a) of the NSA Act of 1959,
50 U.S.C. ? 402 note. See Giles Decl. ?? 12-14. Plaintiff contests the withholding
 on two grounds. First, he alleges that the CIA, the NSA, or both have placed
improper reliance on Exemption 3 and ? 6(a) to withhold simulations prepared
through the use of the program, or material input into the program to produce the
simulations. See Pl. Mem. at 19, 20. Plaintiff is mistaken. Only the program has
been withheld pursuant to Exemption 3 and ? 6(a), and only the NSA has withheld
Second, plaintiff alleges that the "Vaughn index" that the NSA has
submitted in support of the withholding contains insufficient information to permit
the withholding. See Pl. Mem. at 19. Here, too, plaintiff is mistaken. "[W]hen the
affidavit submitted by an agency is sufficiently detailed to establish that the
requested documents should not be disclosed, a Vaughn index is not required."
Minier v. CIA, 88 F.3d 796, 804 (9th Cir. 1996). Accordingly, "no need for a
Vaughn index" exists "when a FOIA requester has sufficient information to
present a full legal argument." Id.
The text of ? 6(a) permits the withholding of "any information with respect
to the activities of [the NSA]." The protection provided by ?. 6(a) "is, by its very
terms, absolute." Linder v. NSA, 94 F.3d 693, 698 (D.C. Cir. 1996). Accordingly,
the, NSA need only show that a particular record "concern[s] a specific NSA
 activity" and that its disclosure "would reveal information integrally related to that
activity." Hayden v. NSA/Cent. Sec. Serv., 608 F.2d 1381, 1390 (D.C. Cir. 1979).
In this case, the NSA alleges that the disclosure of the above computer
program "could expose how the U.S. Government analyzes the performance
characteristics of foreign weapons systems that are aerodynamic or ballistic."
Giles Decl. ? 11. By so alleging, NSA has given the parties "sufficient
information to present a full legal argument" as to the applicability of.? 6(a) to the
program. See Minier, 88 F.3d at 804. Plaintiff makes no attempt to present such
an argument, much less a persuasive attempt. See Pl. Mem. at 19-20.
2. PlaintiffHas Not Shown That Exemption 3 Has Been
Misapplied by the CIA to the Records Covered by the Second
CIA Motion.
The CIA has relied on Exemption 3 and 50 U.S.C. ? 403g to withhold, from
five of the records covered by the Second CIA Motion, the names of CIA
personnel. 3d Buroker Decl. ? 9. Conceding that he "could not find a case where
a court ordered the disclosure of CIA names," plaintiff asks that a "balancing test"
be applied to Exemption 3 and that the names be disclosed. See P1. Mem. at 20-
21. However, "the sole issue for decision [under Exemption 3] is the existence of
a relevant statute and the inclusion of withheld material within that statutes's
coverage." Goland v. CIA, 607 F.2d 339, 350 (D.C. Cir. 1979). Accordingly, it is
 well established that no "balancing test" exists under Exemption 3. See, e.g.,
McDonnell v, United States, 4 F.3d 1227, 1248 (3d Cir. 1993) (holding that the
withholding of grand jury material under Exemption 3 does not require application
of a "`factual balancing test"'); id. at 1250 n.17 (holding that "a court reviewing an
agency's withholding under Exemption .3 does not balance the privacy interest of
the subject of the documents, as it should in applying Exemption 7(C)") & 1250
n.17; Meyerhoff v. U.S. EPA, 958 F.2d 1498, 1505 n.3 (9th Cir. 1992) (Rymer, J.,
concurring) (stating that "presuming a balancing result in the face of congressional
silence" would "render Exemption 3 superfluous"); Fla. Immigrant Advocacy Ctr.
v. NSA, 380 F. Supp. 2d 1332, 1334 (S.D. Fla. 2005) (holding that, "if either
Exemption 1 or 3 of the FOIA applies, that is an absolute bar to the Plaintiff's
request without resort to the balancing of Plaintiff's need for the information
verses [sic] the extent of the national security interests involved").
Even assuming, arguendo, that a "balancing test" did exist under Exemption
3, disclosure of the names that the CIA has withheld would not be justified.
Plaintiff alleges that the individuals whose names have been withheld "have
committed crimes." Pl. Mem. at 20. However, he points to no evidence that
would "warrant a belief by a reasonable person" that anyone engaged in criminal
behavior when he or she took part in the analysis of the explosion of TWA Flight
 800 that the CIA conducted. See Nat'l Archives & Records Admin. v. Favish, 541
U.S. 157, 174 (2004). Accordingly, no justification would exist for disclosure of
the names that the CIA has withheld even assuming, arguendo, that a balancing
test existed under Exemption 3.
C. Plaintiff Has Not Shown That Exemption 4 Has Been Misapplied to
Any of the Records Covered by the Second CIA Motion.
The CIA has relied on Exemption 4 to withhold, from two records covered
by the Second CIA Motion, "information relate[d] to the flight characteristics and
performance of Boeing 747, for example, lift coefficient, drag coeffiecient, and
pitching moment coefficient data." 3d Buroker Decl. 1 10. The Boeing Company
(Boeing) considers this information to be proprietary and so, therefore, does the
CIA. See id.
Contesting the withholding of this information, plaintiff alleges that "there
is no chance that Boeing would suffer a substantial competitive injury upon
disclosure" because the Boeing 747 is "an aircraft placed in service 38 years ago,
and since succeeded by three successive models." P1. Mem. at 12, 13. However,
this allegation is undercut by Boeing's continued production and marketing of new
and modified 747s. As a recent news article stated:
 Boeing has confirmed that first deliveries of its stretched
fuselage B747-8 freighter will take place in 2009.
Luxembourg airline Cargolux has already ordered 10, while
Nippon Cargo Airlines has placed a firm order for eight of the
aircraft.
Further orders are anticipated from Nippon Cargo because the
carrier, an offshoot of leading shipping line Nippon Yusan Kaisha,
has said it will operate 14 advanced Boeing 747-8Fs in 2009 and up
to 24 in 2015.
[Boeing sales and marketing vice-president Randy Tinseth
said] production of the 747-400 freighter would stop when the 747-8
variant entered service.
The company had "a handful of positions left" for the 747-400
freighter, he said. Cathay Pacific Airways has already expressed
interest in taking some of the aircraft, according to media reports.
Asked * * * if the 747-8 freighters would compete for orders
with the existing 747-400 freighters and Boeing's programme to
10
 convert 747-400s to freighters, Mr. Tinseth believed there was
enough demand for all three types.
Keith Wallis, Lengthened Boeing Freighters Earmarked for 2009 Delivery,
Lloyd's List Int'l (June 5, 2006) (3d Glass Decl. at X).
Because the 747 continues to be an important part of Boeing's business,
plaintiff is wrong to suggest that "there is no chance that Boeing would suffer a
substantial competitive injury" if the material withheld pursuant to Exemption 4
were disclosed. Pl. Mem. at 12. Accordingly, plaintiff has not shown that
defendants have misapplied Exemption 4 to the records covered by the Second
CIA Motion.
D. Plaintiff Has Not Shown That Exemption 5 Has Been Misapplied to
Any of the Records Covered by the Second CIA Motion.
The NTSB has relied on Exemption 5 and the deliberative process privilege
to withhold, from two of the records covered by the Second CIA Motion, certain
"preliminary radar data." 1st Supp. Moye Decl. ?? 6(a), (d). Contesting the
withholding of the data from one of those records, plaintiff alleges that "[c]harts
of radar data are simply factual evidence, to which there is no deliberative process
privilege." Clarke Decl. at 59.' However, .plaintiff ignores the fact that "[t]he
'This objection appears in an exhibit to plaintiff s memorandum in
(continued...)
11
 author(s) culled these data from an enormous collection of radar returns to
contribute to the flight path derived from the [NTSB's] simulations." 1st Supp.
Moye Decl. ? 6(d). Accordingly, he ignores the fact that "[t]he very act of
distilling the significant facts from the insignificant facts constituted an exercise of
judgment by agency personnel." Id.
The NTSB has also relied on Exemption 5 and the deliberative process
privilege to withhold, from two of the records covered by the Second CIA Motion,
certain graphs that "depict various versions of the radar data provided by the
Federal Aviation Administration (FAA) for TWA flight 800" and certain graphs
that "depict various outcomes of the Main Wreckage Simulation for TWA flight
800, depicting differing parmeters on the x and y axes." 1st Supp. Moye Decl.
?? 6(b), (c). Contesting the withholding of these graphs, plaintiff alleges without
having seen the graphs that they involve "false assumptions." Clarke Decl. at 58.
However, the deliberative process privilege protects "`subjective .documents which
'(...continued)
opposition to the Second CIA Motion, not in the memorandum itself. The same is
true of other objections that plaintiff makes. See, e.g., Clarke Decl. at 58.
However, plaintiff's memorandum is already as long as L.R. 11-6 permits. For
this reason alone, this objection should be rejected. See Solaia Tech. LLC v.
Arvinmeritor, Inc., 361 F. Supp. 2d 797, 826 (N.D. Ill. 2005) (striking a "seven-
page extended exegesis" on the ground that the exegesis constituted "an improper
attempt to file seven additional pages of argument in violations of page limits for
the briefs") (emphasis omitted).
12
 reflect the personal opinions of the writer rather than the policy of the agency.
Maricopa Audubon Soc'y v. U.S. Forest Serv., 108 F.3d 1089, 1093 (9th Cir.
1997) (quoting Assembly of the State of Cal. v. U.S. Dept of Commerce, 968 F.2d
916, 920 (9th Cir. 1992)). In this case, the graphs that the NTSB has withheld
reflect just such "personal opinions" 1st Supp. Moye Decl. ? 6(c) & p. 74.
Accordingly, the graphs are entitled to protection under Exemption 5 and the
deliberative process privilege even assuming, arguendo, that the assumptions they
involve are "false."
E. Plaintiff Has Not Shown That Exemption 6 Has Been Misapplied to Any of
the Records Covered by the Second CIA Motion.
The CIA has relied on Exemption 6 to withhold, from three of the records
covered by the Second CIA Motion, the names of special agents of the Federal
Bureau of Investigation (FBI) and of eyewitnesses to the explosion of TWA Flight
800. 3d Buroker Decl. 19. Plaintiff contests its having done so. Pl. Mem. at 16
n.48. For two reasons, he has no basis for doing so.
First, Exemption 6 requires "`a court [to] balance the. public interest in
disclosure... against the interest that an individual possesses in the "`control of
information concerning his or her persona"' U.S. Dept of Defense v. Fed. Labor
Relations Auth. (FLRA), 510 U. S. 487, 495, 500 (1994) (quoting Dep't of Justice
13
 v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 763, 776 (1989)).
"[T]he only relevant `public interest in disclosure' to be weighed in this balance is
the extent to which disclosure would serve `the core purpose of the FOIA,' which
is `contribut[ing] significantly to public understanding of the operations or
activities of the government. "' FLRA, 510 U.S. at 495 (quoting Reporters Comm.,
489 U.S. at 775) (emphasis omitted). In this case, plaintiff alleges that the names
of the eyewitnesses should be disclosed because disclosure "would enable the
public to ask these eyewitnesses whether they are amenable. to being interviewed,
and would shed light on the agency's performance." Clarke Decl. at 69.
However, none of the eyewitnesses whose names have been withheld took part in
the analysis of the explosion of TWA Flight 800 that the CIA conducted.
Accordingly, none of them could "shed [any] light on the agency's performance."
See id.
Second, the eyewitnesses as a group have an interest in avoiding
"annoyance or harassment." See 1st Buroker Decl. 1 34. However, "annoyance
[and] harassment" are precisely what would happen if "the public" were given
14
 information about the eyewitnesses that would lead to their being pestered for
interviews. The withholding of their names should therefore be upheld.'
F. Plaintiff Has Not Shown That Exemption 7(C) Has Been Misapplied
to Any of the Records Covered by the Second CIA Motion.
Alternatively, the CIA has relied on Exemption 7(C) as a ground for
withholding the names of the aforesaid FBI agents and eyewitnesses. 3d Buroker
Decl. ? 9. Contesting its having done so, plaintiff alleges that the CIA "does not
have law enforcement power to conduct an investigation." P1. Mem. at 17.
However, Exemption 7(C) applies by its terms to "records or information
compiled for law enforcement purposes," not merely to investigatory records.
Accordingly, it is immaterial whether the CIA "ha[s] law enforcement power to
conduct an investigation." Even assuming, arguendo, that it were material, the
2When plaintiff responded. to the First CIA Motion, he did not oppose the
use of Exemption 6 or, in the alternative Exemption 7(C) to withhold, from the
records covered by the First CIA Motion, the names of FBI agents or of
eyewitnesses to the explosion of TWA Flight 800. To the contrary, he said:
"Plaintiff does not contest the CIA's withholdings of the names of individuals."
Pl.'s Mem. Opp'n CIA's Mot. Partial Summ. J. (Sept. 13, 2005) at 21. Changing
his position, he now alleges that he does contest the use of the above exemptions
to withhold, from those records, the names of FBI agents and eyewitnesses. See,
e.g., Clarke Decl. at 68. However, his statement that he did not contest the
withholding of such names from such records should be should be treated as a
binding waiver. See United States v. Olano, 507 U.S. 725, 733 (1993) (defining a
waiver as the "`intentional relinquishment or abandonment of a known right"')
(quoting Johnson v. Zerbst, 304 U.S. 458, 464 (1938)).
15
 CIA conducted its analysis of the explosion of TWA Flight 800 solely because the
FBI asked it to do so as part of the criminal investigation, concerning the
explosion, that the FBI was conducting. 1st Buroker Decl. ? 50. In addition, the
CIA has withheld the names of the FBI agents and eyewitnesses solely because the
FBI asked it to do so. 3d Buroker Decl. ? 9. Plaintiff does not allege that the FBI
lacks "law enforcement power to conduct an investigation."
Plaintiff also contests the withholding of the names on the ground that
Exemption 7(C) may not be used to redact the names of "high level government
employees." Pl. Mem. at 17. However, the names of "high level government
employees" have not been redacted here. To the contrary, the names that have
been redacted are the names of "FBI special agents." 3d Buroker Decl. ? 9.
Plaintiff further contests the withholding of the names on the ground that
"overwhelming evidence" exists of "the CIA's dishonesty with regard to
eyewitness accounts." Pl. Mem. at 16. However, a requester who wishes to
contest the withholding of material under Exemption 7(C) by "show[ing] that
responsible officials acted negligently or otherwise improperly in the performance
of their duties * * * must produce evidence that would warrant a .belief by a
reasonable person that the alleged Government impropriety might have occurred."
Favish, 541 U.S. at 173. In this case, plaintiff has produced no evidence
16
 suggesting that anyone who worked for the CIA handled any eyewitness account
"dishonest[ly]," i.e., in a manner "`characterized by fraud; indicating a lack of
probity; knavish; fraudulent; unjust' or `disposed to cheat or defraud."' See
Sherwood & Roberts - Kennewick, Inc. v. St. Paul Fire & Marine Ins. Co., 322
F.2d 70, 74-75 (9th Cir. 1963) (quoting Webster's New International Dictionary
(2d ed.)). Accordingly, plaintiff has not shown that the CIA has misapplied
Exemption 7(C) to any record covered by the Second CIA Motion.
III. PLAINTIFF HAS NOT SHOWN THAT ANY SEGREGABLE
NONEXEMPT MATERIAL HAS BEEN WITHHELD FROM ANY
RECORD COVERED BY THE SECOND CIA MOTION.
Plaintiff alleges that defendants have failed to release segregable non-
exempt material from nine of the records at issue in this case. Clarke Decl. at 61-
66. However, none of those records is a record covered by the Second CIA
Motion. See id.
IV. PLAINTIFF HAS NOT SHOWN THAT ANY RECORD COVERED BY
THE SECOND CIA MOTION SHOULD BE REVEWED IN CAMERA.
FOIA "does not mandate that the documents be individually examined in
every case." NLRB v. Robbins Tire & Rubber Co., 437 U.S.' 214, 224 (1976). To
the contrary, the in camera review of responsive records is a "discretionary"
procedure, to be employed "when the issue before the District Court could not be
17
 otherwise resolved." Id. Accordingly, "an in camera inspection, even of one
document, should not be undertaken to satisfy the whim of a party that a searching
inquiry is required if only to provide peace of mind. * * * * In other words, in
camera review should not be used routinely on the theory `it can't hurt."' Xerox
Corp. v. United States, 12 Cl. Ct. 93, 95 n.3 (1987) (quoting Ray v. Turner, 587
F.2d 1187, 1195 (D.C. Cir. 1978)).
In this case, plaintiff asks the Court conduct an in camera review of one of
the records covered by the Second CIA Motion because he believes that the CIA
has relied on Exemption 3 and 50 U.S.C. ? 403g to redact the names of "high level
officials." Clarke Decl. at 79. However, plaintiff is wrong to believe that the
names of "high level officials" are not protected by ? 403g:
Section 403g provides "that in order to implement [50 U.S.C.
? 403-1(i)], . . . the Agency shall be exempted" from disclosing "the
organization, functions, names, official titles, salaries, or numbers of
personnel employed by the agency." Reading these two statutes
together, the CIA may withhold the names of its employees because
release of this information would disclose "sources and methods" of
intelligence gathering. Thus, the plain language of ?? [403-=1(i)] and
18
 403g expressly provides that the CIA is exempted from disclosing the
names of its employees.
Minier, 88 F.3d at 801 (citations omitted; emphasis in the original).
Section 403g does not provide that the CIA may withhold the names of
certain of its employees, but not the names of others.. The request of plaintiff that
the Court conduct an in camera review of the above record should therefore be
denied.
CONCLUSION
For the foregoing reasons, the Second CIA Motion should be granted.
Respectfully submitted,
PETER D. KEISLER
Assistant Attorney General
DEBRA W. YANG
United States Attorney
ELIZABETH J. SHAPIRO, DC Bar 418925
DAVID M. GLASS, DC Bar 544549
Attorneys, Department of Justice
20 Mass. Ave., N.W., Room 7140
Washington, D.C. 20530
Tel: [phone]/Fax: [phone]
E-mail:. [e-mail]
Dated: June 26, 2006 Attorneys for Defendants
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