United States Court of Appeals, District of Columbia Circuit
November 6, 2018
from the United States District Court for the District of
Columbia (No. 1:87-cv-03349)
H. Lesar argued the cause and filed the briefs for
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.
GRIFFITH, CIRCUIT JUDGE:
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.
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.
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.
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.
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.
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.
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 ...