IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
___________________________________ STEVEN AFTERGOOD ) ) Plaintiff, ) ) Case No. 01-2524 (RMU) v. ) ) CENTRAL INTELLIGENCE AGENCY ) ) Defendant. ) ___________________________________)
DEFENDANT'S RESPONSE TO PLAINTIFF'S MOTION FORSince its inception over one and a half years ago, this Freedom of Information Act case has been about the disclosure of two numbers -- the aggregate intelligence budget totals for fiscal years 1947 and 1948. (See Pl.'s Compl. for Declaratory and Injunctive Relief Under the Freedom of information Act at 1.) By letter dated June 27, 2003, and in accordance with the Joint Status Report filed by the parties on May 22, 2003, defendant made a good-faith effort to provide those two numbers to plaintiff. (See Pl.'s Mot. for Leave to File an Amended Supplemental Compl. [hereinafter Pl.'s Mot.] Attach. 2.) Accordingly, under the terms of the parties' Joint Status Report, the next step in this case should have occurred on July 21, when either plaintiff was to file a motion for summary judgment challenging defendant's June 27 response or the parties were to file another joint status report addressing this case's further disposition. (See Joint Status Report at 2.)
LEAVE TO FILE AN AMENDED SUPPLEMENTAL COMPLAINT
Rather than abiding by the mutually agreed-upon terms of the parties' Joint Status Report,1 plaintiff has instead filed a motion seeking leave to file an amended supplemental complaint that would radically expand the scope of this litigation to encompass all intelligence budget data from 1947 through 1970, as he originally sought in his request.2 Plaintiff attempts to justify his untimely motion by claiming that defendant's June 27 response was "unexpectedly limited" because it addressed only the aggregate intelligence budget totals for fiscal years 1947 and 1948.3 (Pl.'s mot. at 1.)
However, as demonstrated below, it is clear from plaintiff's very own statements to the Court, to defendant's principal counsel, and to the public at large that the scope of defendant's June 27 response fully comported with plaintiff's previously stated expectations for it. Thus, given these contrary statements, plaintiff cannot now credibly claim "that granting [him] leave to amend the complaint in this case would serve the interests of justice, including the faithful implementation of the Freedom of Information Act." (Pl.'s Mot. at 5.)
Although leave to file a supplemental pleading is to be freely permitted, see, e.g., Aftergood v. CIA, 225 F. Supp. 2d 27, 30 (D.D.C. 2002), and the decision to grant such leave rests in the discretion of the Court, see Foman v. Davis, 371 U.S. 178,. 182 (1962), defendant respectfully suggests that such an exercise of discretion in this case should not be premised solely upon plaintiff's blatant misrepresentation of the nature of defendant's June 27 response to his request. Nevertheless, defendant recognizes that if the Court were to deny plaintiff's motion for leave, he most likely would initiate a new, separate action against defendant by filing yet another complaint. Therefore, in the interest of preserving both agency and judicial resources, defendant does not oppose plaintiff's motion.
The reasons that plaintiff cannot credibly purport that defendant's June 27 response was "unexpectedly limited" to the aggregate intelligence budget totals for 1947 and 1948 are manifold. First, there is the obvious fact that both of the complaints that plaintiff has filed in this case sought the disclosure of those two numbers only. (See Pl.'s Compl. for Declaratory and Injunctive Relief Under the Freedom of Information Act at 1; Pl.'s Supplemental Compl. for Injunctive Relief Under the Freedom of Information Act at 1.) Indeed, plaintiff's proffered explanation for the discrepancy between the expansive scope of his request and the much narrower scope of his complaints directly contradicts his contention that he expected defendant's June 27 response to encompass more than the 1947 and 1948 aggregate intelligence budget totals:
I framed the complaint and supplemental complaint [to seek the 1947 and 1948 budget totals only] because I believed that doing so would simplify the proceeding, making it easier for me to argue in favor of disclosure and for the defendant to comply with the narrowly circumscribed complaint. My hope was that successful resolution of the circumscribed dispute over the 1947 and 1948 figures would establish a clear precedent for subsequent disclosure outside of litigation of the additional historical budget information sought in the request.(Pl.'s Mot. at 2-3 (emphasis added).)
Second, during a telephone conversation between plaintiff and defendant's principal counsel concerning the drafting of the Joint Status Report that was subsequently filed on May 22, plaintiff explicitly confirmed that through this litigation he sought the disclosure of the 1947 and 1948 aggregate intelligence budget totals only.4 (See Pl.'s Mot. Attach. 2.)
Third, and most telling, plaintiff wrote and posted on his employer's Web site a May 27 newsletter article in which he described the expected scope of defendant's upcoming June 27 response. In his very own words, plaintiff reported that "[t]he Central Intelligence Agency says that it has not finally determined whether the total amount of money spent on intelligence in 1947 and 1948 can be declassified . . . . [b]ut it told a federal court that it will make such a determination by June 27." Steven Aftergood, CIA May Declassify 1947 Intel Budget Total, Secrecy News, Vol. 2003, No. 45, at http://www.fas.org/sgp/news/secrecy/2003/05/052703.html (copy attached as Attach. A) (emphasis added). Thus, in light of his own unambiguous statements to the contrary,5 it simply strains credulity for plaintiff now to attempt to justify his motion for leave on the purported basis that defendant's June 27 response was "unexpectedly limited" to the 1947 and 1948 aggregate intelligence budget totals.
Likewise, plaintiff cannot now plausibly contend that defendant "provided no basis" for what plaintiff calls defendant's "administrative refusal to provide" the subsidiary budget figures contained in the document released to him on June 27. (Pl.'s Mot. at 4.) During the course of the telephone conversation referenced above, plaintiff stated to defendant's principal counsel in no uncertain terms that he was not interested in receiving such subsidiary budget figures. Accordingly, as noted in defendant's June 27 response letter, the subsidiary budget figures contained in the document released to plaintiff were not provided. (See Pl.'s Mot. Attach. 2.)
Again, this response was entirely consistent with plaintiff's expectations, as reflected in his very own words in his newsletter. See Steven Aftrgood, CIA May Declassify 1947 Intel Budget Total, Secrecy News, Vol. 2003, No. 45, at http://www.fas.org/sgp/news/secrecy/2003/05/052703.html ("The Central Intelligence Agency says that it has not finally determined whether the total amount of money spent on intelligence in 1947 and 1948 . . . . [b]ut it told a federal court that it will make such a determination by June 27.") (emphasis added). Thus, plaintiff cannot now complain to the Court so unequivocally that he did not receive the very subsidiary budget figures that he affirmed to defendant's principal counsel he did not want. See Nation Magazine v. Dep't of State, No. 92-2303, slip op. at 15-16 (D.D.C. Aug. 18, 1995) (holding that plaintiff was bound to scope of request as narrowed during the course of litigation) (copy attached as Attach. B).
In sum, although defendant does not oppose Plaintiff's Motion for Leave to File an Amended Supplemental Complaint, it must point out that it has fully responded to plaintiff's request as circumscribed by him and that the motion should not be granted based solely upon plaintiff's misrepresentation of that response as being "unexpectedly limited."
Dated: July 16, 2003
ROSCOE C. HOWARD, JR.
(D.C. Bar #246470)
United States Attorney
MARK E. NAGLE
(D.C. Bar #416364)
Assistant United States Attorney
FRANK P. MENNA
Office of Information and Privacy
United States Department of Justice
Flag Building, Suite 570
Washington, D.C. 20530-0001
1. It appears that by filing his motion for leave, plaintiff has unilaterally mooted the July 21 deadline established by the parties' Joint Status Report.
2. Defendant respectfully suggests that the full scope of plaintiff's FOIA request as written is so broad that it may be seen as unreasonably burdensome. See, e.g., AFGE v. United States Dep't of Commerce, 907 F.2d 203, 209 (D.C. Cir. 1990) (holding that a request that would require an agency "to locate, review, redact, and arrange for inspection a vast quantity of material" is "so broad as to impose an unreasonable burden on the agency"). As written, plaintiff's request encompasses records concerning every budgetary and financial transaction for every intelligence program of every intelligence agency for twenty-four years -- potentially an enormous volume of records requiring an unprecedented, wide-ranging search. Cf. CIA v. Sims, 471 U.S. 159, 163 n.5 (1985) (FOIA case involving 8000 pages of financial records from one intelligence program of one intelligence agency). Indeed, it appears that within defendant's office of the Chief Financial officer alone, every record dated from 1947 through 1970 would be responsive to plaintiff's request.
3. Plaintiff also asserts that defendant's June 27 response was not "productive" because the budget totals for 1947 and 1948 could not be located. (See Pl.'s Mot. at 3 & Attach. 2.) However, the adequacy of the search that resulted in defendant's response is measured by its "reasonableness, not whether the fruits of the search met plaintiff's aspirations." Boggs v. United States, 987 F. Supp. 11, 20 (D.D.C. 1997).
4. Although the notes taken by defendant's principal counsel during this conversation do not reflect the exact date on which it occurred, it took place shortly before the filing of the Joint Status Report.
5. It is quite ironic that plaintiff's motion neglects to mention these contrary statements, given that in another FOIA case currently pending before this Court plaintiff has accused defendant of "bad faith" borne of its "tendentious presentation of evidence." Pl.'s Mem. of P. & A. in Support of Pl.'s Cross-Mot. for Summ. J. and Opp'n to Def.'s Mot. for Summ. J. at 5-6, Aftergood v. CIA, No. 02-1146-RMU (D.D.C.).