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Dibacco v. United States Department of Army

United States Court of Appeals, District of Columbia Circuit

June 14, 2019

Aron DiBacco and Barbara Webster, Appellants
United States Department of the Army, et al., Appellees

          Argued November 6, 2018

          Appeal from the United States District Court for the District of Columbia (No. 1:87-cv-03349)

          James H. Lesar argued the cause and filed the briefs for appellants.

          Brinton Lucas, Counsel, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Jessie K. Liu, U.S. Attorney, and R. Craig Lawrence and Fred E. Haynes, Assistant U.S. Attorneys.

          Before: Henderson, Griffith, and Wilkins, Circuit Judges.



         In 1985, Carl Oglesby filed Freedom of Information Act requests seeking documents about the government's relationship with Reinhard Gehlen, a former Nazi general. Believing the relevant agencies had failed to comply with their disclosure obligations under the statute, Oglesby filed this lawsuit. More than thirty years of litigation later, we consider his case for the fourth time. When the court last did so in 2015, we affirmed the district court's grant of summary judgment against Oglesby, but remanded the case so that the district court could consider, in the first instance, issues related to a batch of documents the government released during the appeal. The district court has now done so, concluding that the government adequately searched for documents and justified its redactions. We agree, and affirm.


         This court has previously recounted the facts of this case in detail. See DiBacco v. U.S. Army, 795 F.3d 178, 184-88 (D.C. Cir. 2015); Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1175-76 (D.C. Cir. 1996); Oglesby v. U.S. Dep't of Army, 920 F.2d 57, 60-61 (D.C. Cir. 1990). In brief, Reinhard Gehlen was a senior Nazi intelligence official in Eastern Europe during World War II. DiBacco, 795 F.3d at 184. Following the Nazis' defeat, Gehlen was recruited by the United States to operate a European spy network known as the Gehlen Organization. Id. The Gehlen Organization was eventually absorbed by West Germany's intelligence service, which Gehlen led until he retired in 1968. Id.

         Carl Oglesby was a journalist interested in the relationship between Gehlen and the United States, and in 1985 he submitted requests under the Freedom of Information Act (FOIA), 5 U.S.C. § 552, to six government agencies. DiBacco, 795 F.3d at 185. The requests sought numerous records relating to Gehlen's involvement with the U.S. Army and the Office of Strategic Services, a predecessor to the Central Intelligence Agency (CIA). Id. Dissatisfied with the government's initial productions, Oglesby filed this FOIA suit in 1987. Id. As a result, the government released thousands of documents to Oglesby over the next two decades. Id. at 187. His dogged pursuit of records (aided by intervening congressional action) led the CIA to admit for the first time its relationship with Gehlen and his spies. Id. at 186.

         Oglesby passed away in September 2011. Id. at 187. His daughter, Aron DiBacco, and his domestic partner, Barbara Webster (collectively, "DiBacco"), were substituted as plaintiffs at their request. Id. Soon afterward, DiBacco and the remaining defendants-the CIA, Department of the Army, and National Security Agency (NSA)-filed cross-motions for summary judgment. Id. The district court granted the defendants' motion and denied DiBacco's. Id. DiBacco appealed, and we affirmed. Id. at 200.

         That would have been the end of the matter, except that while the appeal was pending, the Army disclosed a new batch of 2,863 pages of records that were responsive to Oglesby's initial FOIA requests (the "Remand Records"). Id. at 190. All but eleven of the nearly three thousand pages were produced in full. Id.; DiBacco v. U.S. Dep't of the Army, 234 F.Supp.3d 255, 265 (D.D.C. 2017). We remanded the case to the district court "to allow the parties to create a record and the district court to decide in the first instance the narrow question of whether those withholdings" made under FOIA Exemptions 1 and 3 on the eleven partially redacted pages "were permissible." DiBacco, 795 F.3d at 194; id. at 200 ("Our remand is limited to issues arising from the Army's release to DiBacco during the appeal of responsive but redacted Army documents that had been held by the National Archives."). The Army later released one of the eleven pages in full, leaving in controversy only ten pages with limited redactions. DiBacco, 234 F.Supp.3d at 265.

         The parties subsequently filed renewed cross-motions for summary judgment. DiBacco argued that the Army had not conducted an adequate search for responsive records and that the redactions to the newly produced records were improper. The district court rejected those contentions, concluding that nothing about the most recent production of documents called into question the adequacy of the Army's search, which we had already approved, and that the minimal redactions were justified. Id. at 266-79. DiBacco timely appealed.

         The district court had jurisdiction over this FOIA action under 28 U.S.C. § 1331 and 5 U.S.C. § 552(a)(4)(B). We have jurisdiction under 28 U.S.C. § 1291, and we review de novo the adequacy of the search and the ...

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