Jens Porup v. CIA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2021 Decided May 21, 2021

No. 20-5144

JENS PORUP,

APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:17-cv-00072)

Kelly B. McClanahan argued the cause and filed the briefs

for appellant.

Joshua K. Handell, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Jeffrey Bossert Clark, Acting Assistant Attorney General, and

H. Thomas Byron III, Attorney.

Before: HENDERSON and KATSAS, Circuit Judges, and

EDWARDS, Senior Circuit Judge.

2

Opinion for the Court filed by Senior Circuit Judge

EDWARDS.

EDWARDS, Senior Circuit Judge: In 2015, Appellant Jens

Porup submitted a Freedom of Information Act (“FOIA”)

request to Appellee Central Intelligence Agency (the “Agency”

or “CIA”) seeking “any [and] all documents relating to CIA use

of poison for covert assassination.” Compl. ¶ 17, Joint

Appendix (“J.A.”) 14. On May 21, 2015, the CIA refused to

process Porup’s request because Executive Order 12,333

makes it unlawful for federal employees to engage in

assassination or conspiracy to assassinate. See 46 Fed. Reg.

59,941, 59,952 (Dec. 4, 1981). In other words, the CIA initially

refused to process the disputed FOIA request because it

pertained to matters that were arguably beyond the scope of the

Agency’s primary mission. In January 2017, after Porup and

the CIA were unable to resolve their differences, Porup filed a

complaint in the District Court alleging that the Agency had

failed to comply with FOIA in responding to his specific

request. He also alleged that the Agency had a “pattern or

practice” of violating FOIA by categorically refusing to

process requests seeking information related to conduct in

which the CIA believes it cannot lawfully engage.

In the months after Porup submitted his FOIA request, the

CIA adopted a revised approach to process requests of the sort

submitted by Porup. According to the CIA, under this new

policy, Agency personnel are prohibited from “declin[ing] to

process [FOIA] requests solely because they pertain to

activities or issues that are beyond the scope of the Agency’s

primary mission.” Decl. of Antoinette B. Shiner, Information

Review Officer for the Litigation Information Review Office,

CIA (hereinafter “Declaration” or “Decl.”) ¶ 18, J.A. 47.

Agency personnel are now “required to engage in a context

dependent inquiry as to whether a search may be possible, and

3

whether the Agency’s records repositories are likely to contain

responsive materials.” Id. After adopting this new policy, the

CIA identified and released a number of documents that were

responsive to Porup’s FOIA request. The Agency then moved

for summary judgment, arguing, among other things, that it had

completed its response to Porup’s request, and that the

Agency’s implementation of its new policy had mooted

Porup’s pattern or practice claim.

In opposition, Porup argued that the Agency had not

carried its burden on mootness, had not demonstrated the

sufficiency of its searches for responsive documents, and that

its withholdings and redactions were insufficiently justified.

The District Court rejected Porup’s arguments and granted the

Agency’s motion for summary judgment. Porup now appeals

the District Court’s judgment on several grounds. We affirm

the District Court.

The Agency has adopted a new policy that adequately

addresses any pattern or practice it had of violating FOIA in the

manner alleged by Porup, rendering that cause of action moot.

In addition, we find no merit in any of Porup’s specific

challenges to the Agency’s search methodology, withholdings,

or redactions. Finally, although the District Court failed to

make any findings of segregability regarding the information

to be withheld, we exercise our discretion to do so. On the

record before us, we agree with the Agency that Porup has not

“[o]vercome CIA’s [u]nrebutted [a]ttestation” that it disclosed

all reasonably segregable non-exempt material. Appellee’s

Response Br. 46.

I. BACKGROUND

On May 1, 2015, Porup submitted a FOIA request to the

Agency for “any [and] all documents relating to CIA use of

poison for covert assassination.” Compl. ¶ 17, J.A. 14; accord

4

Def.’s Statement of Undisputed Material Facts in Supp. of Mot.

for Summ. J. (hereinafter “Summ J. Statement”), Ex. 1 at 2,

J.A. 23. On May 21, 2015, the Agency responded that it had

declined to process Porup’s request, because an executive order

has made it unlawful for federal employees to engage in

assassination or conspiracy to assassinate. See Exec. Order No.

12,333, 46 Fed. Reg. 59,941, 59,952 (Dec. 4, 1981). Similar

orders date back to the 1970s. See Exec. Order No. 12,036, 43

Fed. Reg. 3674, 3687 (Jan. 24, 1978); Exec. Order No. 11,905,

41 Fed. Reg. 7703, 7733 (Feb. 18, 1976).

Approximately two weeks later, Porup replied to the

Agency, observing that the U.S. Senate Select Committee to

Study Governmental Operations with Respect to Intelligence

Activities, also known as the “Church Committee,” had

published a 1975 interim report concluding that the Agency

played a role in assassination plots. See CHURCH COMMITTEE,

ALLEGED ASSASSINATION PLOTS INVOLVING FOREIGN

LEADERS, S. REP. NO. 94-465, at 4-6 (1975) (describing plots

against Patrice Lumumba and other foreign leaders). Porup

asserted that he was “appealing th[e Agency’s] response

because [its] reply contradict[ed] material that is already in the

public record.” Summ. J. Statement, Ex. 1 at 5, J.A. 26. Porup

also clarified that his request “refer[red] to the CIA from its

inception to [the] present day.” Id. On September 17, 2015, the

Agency stated that it had not extended Porup administrative

appeal rights and declined to process his appeal.

In November 2015, Porup filed a near-duplicate FOIA

request. The Agency’s “final response” to that second request

noted its denial of Porup’s previous request. Summ. J.

Statement, Ex. 1 at 12, J.A. 33. However, the CIA response did

not indicate whether the Agency intended to pursue any other

action. Over the ensuing year, Porup submitted several status

5

update requests for his most recent FOIA request, to which the

Agency did not respond.

In 2017, Porup filed a complaint in the District Court

alleging that the Agency had unlawfully declined to process his

FOIA requests. Porup also alleged that the Agency had “a

pattern or practice” of violating FOIA by “categorically

refusing to process FOIA requests that seek information

regarding conduct in which the CIA states it does not and

cannot engage.” Compl. ¶ 26, J.A. 16.

As indicated above, in the months after Porup submitted

his second FOIA request, the CIA adopted a new policy for

processing requests of the sort submitted by Porup. According

to the CIA, under this new approach, Agency personnel were

instructed not to refuse FOIA requests solely because the

subject of the information sought concerns matters that are

beyond the scope of the Agency’s primary mission. This new

policy is amplified below.

From May 2017 through April 2018, the Agency applied

its new policy and produced documents that were responsive to

Porup’s FOIA request. In total, the Agency located 39

responsive documents in its possession. The Agency produced

seven documents either redacted or in full, withheld ten in full

under a combination of three exemptions to FOIA disclosure,

and discovered that the other 22 documents were set to be

released publicly pursuant to the President John F. Kennedy

Assassination Records Collection Act of 1992, Pub. L. No.

102-526, 106 Stat. 3443 (codified at 44 U.S.C. § 2107 note).

These 22 documents were later posted on the National

Archives and Records Administration’s website.

On April 12, 2019, the Agency moved for summary

judgment. Attached to the Agency’s motion were, among other

things, the Declaration from Antoinette B. Shiner and a

6

Vaughn Index describing the responsive documents and

explaining, where necessary, why documents were either

redacted or withheld in full.

The Declaration first noted that Shiner was a “senior CIA

official.” Decl. ¶ 4, J.A. 40. It then described the Agency’s

search for responsive records:

[P]ersonnel with expertise in conducting Agency

records searches consulted with Agency officials

knowledgeable about the subject matter of the

requests in order to ascertain the potential universe of

responsive records and to identify all of the specific

offices and individuals who would likely possess

those documents if they were to exist. Based on those

consultations, CIA personnel determined that [two

offices within the Agency] would be the offices . . .

most likely [to] possess [responsive] records . . . .

For each of the relevant electronic records systems

searched, search personnel used those search terms

most reasonably likely to return responsive records

including: poison, covert, assassination, “Church

Committee,” “Rockefeller Commission,” “family

jewels,” “ZR/RIFLE,” “AMLASH,” and Mongoose.

Some of these terms were identified by subject matter

experts as referring to operations or Congressional

investigations . . . likely to be responsive to the

request. . . .

Searches were conducted in all locations in which it is

reasonably likely that responsive records would reside

and used search terms and methods calculated to

locate those documents. Searches were reasonably

calculated to uncover all records potentially

7

responsive to Plaintiff’s FOIA request, and all files

likely to contain responsive material were searched.

Decl. ¶¶ 10, 15-16, J.A. 42, 44-45.

Regarding the Agency’s pattern and practice in handling

FOIA requests of the sort submitted by Porup, the Declaration

stated:

It is my understanding that the CIA maintains a

practice of declining to process requests for records

that are well beyond the Agency’s statutory and

historical purview, such that it is reasonable to

determine that, based on knowledge of the Agency’s

record systems, the Agency does not maintain records

responsive to the request, and therefore cannot

reasonably conduct a search for the requested

records. . . . I understand that those processing

determinations are made on a case-by-case basis,

particular to the wording and subject matter of the

request as compared against the CIA’s statutory and

historical purview, and the structure of the Agency's

records systems. . . .

[I]n the months following CIA’s issuance of its initial

response in this case, additional internal guidance was

provided to the office responsible for processing such

requests designed to clarify the circumstances under

which it may be reasonable to decline to search for

documents based on the nature and wording of the

request . . . . Specifically, [the group responsible] has

been generally instructed that the Agency should not

decline to process requests solely because they pertain

to activities or issues that are beyond the scope of the

Agency’s primary mission. Rather, processors are

required to engage in a context dependent inquiry as

8

to whether a search may be possible, and whether the

Agency’s records repositories are likely to contain

responsive materials. Had this additional guidance

been available at the time of [Porup’s] initial request,

and [had] the processors . . . engaged in the

appropriate, case specific analysis described above,

the Agency’s initial response [to Porup] would have

been different. Moreover, the guidance provided

mandates that this fact specific analysis will be

applied to requests moving forward, and pursuant to

the guidance described above, Agency personnel

should not decline to process requests solely because

the matters at issue are beyond the scope of the

Agency’s primary mission.

Decl. ¶¶ 17-18, J.A. 45-47.

The Declaration also explained why responsive documents

related to Porup’s FOIA request had been withheld or redacted

under several exemptions to FOIA’s disclosure requirements,

including a statutory provision requiring the Agency to redact

or withhold documents to protect intelligence sources and

methods. Finally, the Declaration stated that “[i]n assessing the

responsive documents, the CIA conducted a page-by-page and

line-by-line review, and released all reasonably segregable,

non-exempt information.” Decl. ¶ 38, J.A. 60. Ms. Shiner

further attested that she had “determined that no additional

information may be released without divulging information

that . . . falls within the scope of one or more FOIA

exemptions.” Id.

Porup opposed the motion for summary judgment on

several grounds. He also filed a Notice of New Evidence,

containing two FOIA response letters from the Agency

authored in December 2017 and August 2018. Both response

9

letters, addressed to individuals other than Porup, declined to

process FOIA requests because they ostensibly concerned

domestic matters and “the mission of the Central Intelligence

Agency is primarily concerned with foreign intelligence – not

domestic – matters.” Pl.’s Notice of New Evid., Ex. F. at 1, J.A.

195; id. at 2, J.A. 196.

On September 20, 2019, the Agency filed a supplemental

memorandum in support of its summary judgment motion,

attaching a supplemental declaration from Shiner (the

“Supplemental Declaration” and, collectively with the

Declaration, the “Shiner Declarations”). The Supplemental

Declaration noted that the Agency's operational files are

generally exempted from publication under FOIA. See 50

U.S.C. § 3141(a). However, there is a narrow exception to such

nondisclosure for any operational files “concerning,” among

other things, “the specific subject matter of an investigation by

the congressional intelligence committees . . . .” Id.

§ 3141(c)(3). Shiner thus explained that the Agency had – after

Porup filed his opposition to its summary judgment motion –

searched its operational files for responsive documents created

on or before December 31, 1980, or roughly five years after the

Church Committee had issued its interim report on alleged

assassination plots. The Supplemental Declaration noted that

those searches sought “to capture potentially responsive

materials that would have existed at the time of the

Committee’s review, as well as any documents created in an

attempt to address the concerns raised by the [interim]

[r]eport.” Def.’s Suppl. Br. in Supp. of Mot. for Summ. J., Ex.

A. (hereinafter “Suppl. Decl.”) ¶ 4, J.A. 220. Shiner also

explained that the searches had used several search terms,

including many of those listed in her original declaration, as

well as “Boolean connectors.” See id. ¶¶ 5-6, J.A. 220-21.

“[A]fter a careful, line-by-line review of each document”

10

returned by the searches, however, the Agency had concluded

that none contained responsive material. Id. ¶ 6, J.A. 221.

On March 16, 2020, the District Court granted the

Agency’s motion for summary judgment and dismissed the

case. First, the District Court held, given the Declaration’s

sworn assertions as to the Agency’s revised internal

“guidance,” that Porup’s pattern and practice claim was moot.

See Porup v. CIA, No. 17-cv-72 (CRC), 2020 WL 1244928, at

*2-*4 (D.D.C. Mar. 16, 2020). Next, the District Court

“conclude[d] that there [wa]s no genuine dispute of material

fact as to whether the [A]gency’s search terms were adequate,”

as the Shiner Declarations “provided a detailed list” of the

search terms. Id. at *5. The court also held that the CIA was

not required “to search its operational files for all information,

including information on events occurring decades later, that

could hypothetically have been deemed central to” the Church

Committee’s investigation into assassination plots. Id. at *6.

Finally, the court rejected Porup’s challenges to the Agency’s

redactions and withholdings, finding that the Declaration’s

justifications “easily satisf[y] the deferential standard that

courts afford agency declarations relating to [the applicable

FOIA exemption] in matters of national security.” Id. at *8

(citations omitted). The District Court did not make a finding

on segregability of the withheld or redacted documents.

Porup timely appealed the District Court’s order.

II. ANALYSIS

A. Standards of Review

A trial court must grant a party’s motion for summary

judgment when “there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

FED. R. CIV. P. 56(a). This court “review[s] de novo a district

11

court’s grant of summary judgment in favor of an agency which

claims to have complied with FOIA.” Nation Magazine, Wash.

Bureau v. U.S. Customs Serv., 71 F.3d 885, 889 (D.C. Cir.

1995) (citation omitted). A grant of summary judgment on

mootness grounds is also reviewed de novo. See City of Hous.

v. HUD, 24 F.3d 1421, 1426 (D.C. Cir. 1994) (citation

omitted).

B. Porup’s Pattern or Practice Claim Is Moot

“A lawsuit becomes moot . . . ‘when the issues presented

are no longer “live” or the parties lack a legally cognizable

interest in the outcome.’” Almaqrami v. Pompeo, 933 F.3d 774,

779 (D.C. Cir. 2019) (quoting Chafin v. Chafin, 568 U.S. 165,

172 (2013)). In this case, it was the Agency’s own action –

communicating the new CIA policy described in the

Declaration – that allegedly rendered the pattern or practice

cause of action moot. Therefore, under the “voluntary

cessation” doctrine, we may not conclude that the Agency’s

purported termination of the disputed practice rendered the

case moot unless the CIA has demonstrated that “(1) there is

no reasonable expectation that the alleged violation will recur,

and (2) interim relief or events have completely or irrevocably

eradicated the effects of the alleged violation.” Zukerman v.

USPS, 961 F.3d 431, 442 (D.C. Cir. 2020) (citations and

internal quotation marks omitted); see Friends of the Earth,

Inc. v. Laidlaw Env’t Servs. (TOC), Inc., 528 U.S. 167, 189

(2000) (“A case might become moot if subsequent events made

it absolutely clear that the allegedly wrongful behavior could

not reasonably be expected to recur.” (citation omitted)). “The

burden of establishing mootness rests on the party that raises

the issue,” Motor & Equip. Mfrs. Ass’n v. Nichols, 142 F.3d

449, 459 (D.C. Cir. 1998) (citation omitted), and it “is . . .

heavy,” County of Los Angeles v. Davis, 440 U.S. 625, 631

12

(1979) (quoting United States v. W. T. Grant Co., 345 U.S. 629,

633 (1953)).

The parties agree that the mootness inquiry in this case

turns on whether the CIA has met its burden of demonstrating

that there is no reasonable expectation that the alleged violation

will recur. See Br. for Pl.-Appellant 19-20; Appellee’s

Response Br. 15. In Porup’s view, the Agency failed for two

reasons. First, Porup contends that the contents of the

Declaration are insufficiently decisive to moot his claim.

Second, Porup asserts that, under the so-called Best Evidence

Rule, the District Court should not have considered the

Declaration in holding that his pattern or practice claim was

moot. We are not persuaded by Porup’s arguments.

1. The Declaration Is a Decisive Statement of the

Agency’s New Policy

Porup is correct that the Declaration describes the CIA’s

new policy in terms that, at first glance, appear to vacillate

between words of requirement and words that convey some

degree of discretion. Compare Decl. ¶ 18, J.A. 47

(“[P]rocessors are required to engage in a context dependent

inquiry . . . .” (emphasis added)), and id. (“[T]he guidance

provided mandates that this fact specific analysis will be

applied to requests moving forward . . . .” (emphases added)),

with id. (noting that processors have been “generally instructed

that the Agency should not decline to process requests solely

because they pertain to activities . . . beyond the scope of the

Agency’s primary mission” (emphases added)), and id.

(“Agency personnel should not decline to process requests

solely because the matters at issue are beyond the scope of the

Agency’s primary mission.” (emphasis added)). Viewed in

toto, however, we agree with the District Court that the

13

phrasing used in the Declaration is sufficient to meet the

Agency’s burden.

The use of the words “required” and “mandates” in the

Declaration provide strong assurance that the Agency’s

contested practice has been effectively vitiated. Going forward,

Agency personnel must follow the new guidance put in place

by CIA officials responsible for managing FOIA requests. And

Porup does not contend that Ms. Shiner – the “Information

Review Officer . . . for the Litigation Information Review

Office,” Decl. ¶ 2, J.A. 39, and a “senior CIA official,” Decl.

¶ 4, J.A. 40 – lacks either the competence or authority within

this sphere to effectively bind the Agency through her

averments.

Moreover, government counsel represented to the court at

oral argument that Agency personnel are required to adhere to

the mandatory terms of the guidance:

JUDGE: [I]s it your understanding . . . that the policy

is mandatory and . . . it would have to be mandatory

going forward?

COUNSEL FOR THE AGENCY: Yes, Your Honor,

I understand that this policy was communicated to

processors as CIA’s understanding of its obligations

under FOIA and, as such, is mandatory on the agency

by operation of statute and mandatory on CIA’s

employees by operation of the employer-employee

relationship.

Oral Arg. Tr. 15:9-20. We may consider such representations

when evaluating whether a claim is moot. See Deakins v.

Monaghan, 484 U.S. 193, 199 n.3 (1988) (explaining that

“[r]epresentations of counsel in response to inquiries at oral

argument . . . persuaded” the Court that one “question

14

presented” was moot); Bd. of Sch. Comm’rs of Indianapolis v.

Jacobs, 420 U.S. 128, 129 (1975) (per curiam) (finding case

moot based on information provided by counsel at oral

argument); Am. Bankers Ass’n v. Nat’l Credit Union Admin.,

934 F.3d 649, 661 (D.C. Cir. 2019) (deciding mootness

question “[b]ased on the government’s submission and

representations at oral argument” (emphasis added)).

The Declaration from the Information Review Officer of

the CIA and Agency counsel’s firm representations provide us

with sufficient assurance that the Agency’s new policy has

displaced the practices contested by Porup. The Agency has

assured the court that it will no longer decline FOIA requests

based solely on its perception that requested records implicate

activities outside the Agency’s primary and legislatively

authorized mission. The Agency’s voluntary cessation of the

challenged practices thus renders the dispute moot.

The two FOIA response letters submitted by Porup as

“new evidence” do not change our view of this matter. Some

“isolated mistakes by agency officials” do not, in and of

themselves, demonstrate the continued existence of an illicit

pattern or practice for mootness purposes. See Payne Enters.,

Inc. v. United States, 837 F.2d 486, 491 (D.C. Cir. 1988). And

Porup has offered nothing to show that the CIA has been

following a practice that is at odds with the Declaration offered

by Ms. Shiner. Accordingly, the December 2017 and August

2018 FOIA response letters, though perhaps fallacious in their

reasoning, do not undermine our conclusion that Porup’s

pattern or practice claim is moot.

It is instructive to contrast the facts of this case with those

found by the court in Payne Enterprises. In Payne, the court

rejected an affidavit offered by the government to support its

claim that the contested practice in that case had been

15

voluntarily terminated by the agency. The disputed affidavit

did not purport to speak for the affiant’s superiors in the

agency, nor did it pledge future compliance by agency officials

who were authorized to offer such an assurance. 837 F.2d at

492. The situation in this case is quite different. The

Declaration offered by the Agency is from a “senior CIA

official”; and the scope of authority of the CIA official is

unchallenged.

Porup’s arguments regarding the CIA’s new policy focus

on the meaning of the terms of the Declaration, not the

authority of the source. It is also noteworthy that unlike Payne

Enterprises, in which the government provided only “weak

assurance” as to the likelihood of recurrence of the agency

policies at issue in that case, see 837 F.2d at 492, we have no

such concerns here regarding the legitimacy of the CIA’s

voluntary cessation of its challenged practices.

In sum, the Agency has clearly met its burden in showing

that its new policy has completely eradicated the effects of the

CIA practices that are the subject of Porup’s complaint, and

there is no reasonable expectation that the CIA’s past practices

will recur.

2. Admission of the Shiner Declaration Is Not

Precluded by the “Best Evidence” Rule

Porup contends that the Declaration offered by the Agency

should not be considered because it does not satisfy the

requirements of the Best Evidence rule. He is mistaken.

The essence of Porup’s argument is that the CIA’s “failure

to submit evidence of the alleged guidance beyond a

declarant’s cherry-picked and qualified summary is not

sufficient to overcome Porup’s evidence that there is a genuine

issue of material fact regarding the scope and efficacy of the

16

alleged policy shift.” Br. for Pl.-Appellant 19. Porup points to

both Federal Rule of Evidence 1002 and Federal Rule of Civil

Procedure 56(c)(2) to support his position. Rule 1002 states

that “[a]n original writing, recording, or photograph is required

in order to prove its content unless these rules or a federal

statute provides otherwise.” Rule 56(c)(2) states that, in a

summary judgment action, “[a] party may object that the

material cited to support or dispute a fact cannot be presented

in a form that would be admissible in evidence.” See Jeffries v.

Barr, 965 F.3d 843, 850 n.1 (D.C. Cir. 2020) (citing the “best

evidence rule” in holding that the court could not consider a

statement in litigant’s declaration opposing summary judgment

describing contents of separate written document); Gleklen v.

Democratic Cong. Campaign Comm., Inc., 199 F.3d 1365,

1369 (D.C. Cir. 2000) (holding that, in a summary judgment

action, “while a [party] is not required to produce evidence in

a form that would be admissible at trial, the evidence still must

be capable of being converted into admissible evidence”). The

problem with Porup’s argument is that it is based on the

incorrect assumption that the Shiner Declaration emanates

from a separate written guidance that the Agency was required

to introduce into evidence.

The CIA offered the Declaration to explain how the

Agency had changed its policy to moot Porup’s pattern or

practice claim. The Declaration explains, in conclusive terms,

that Information Management Services personnel at the CIA

were “instructed that [they] should not decline to process

requests solely because they pertain to activities or issues that

are beyond the scope of the Agency’s primary mission.” Decl.

¶ 18, J.A. 47. Porup suggests that the instructions given to CIA

personnel must have come in the form of a “new policy

document.” Br. for Pl.-Appellant 20 (emphasis added). But

there is absolutely nothing in the record to support this

suggestion. Indeed, the Declaration’s explanation of the CIA’s

17

new policy does not reference any other document. And if

Porup thought that there was such a “document,” he could have

pressed for discovery to review it. See FED. R. CIV. P. 56(d)(2).

Porup has not advanced any claim with this court that he was

improperly denied discovery by the District Court.

Given the record in this case, it is clear that the Declaration

is the best evidence of the CIA’s new policy. The Declaration’s

explanation of the new policy is a self-standing statement; and

it is the only written explication of the new policy to which the

Agency has subscribed. It is undisputed that the CIA followed

the commands of the Declaration when it released a number of

documents that were responsive to Porup’s FOIA request. And

the Agency has made it clear that is bound by the strictures of

the Declaration going forward. So even if there was a guidance

document that was a precursor to the Declaration, this would

not undercut the Declaration’s evidentiary significance in

confirming that the Agency had adopted a new policy that

effectively moots Porup’s pattern and practice cause of action.

Given the circumstances surrounding the adoption of the

CIA’s new policy, it is hardly surprising that the District Court

found that “Porup misconceives the scope of the best evidence

rule.” Porup, 2020 WL 1244928, at *4. The District Court

usefully explained that:

“[A]n event may be proved by nondocumentary

evidence, even though a written record of it was

made.” FED. R. EVID. 1002 advisory committee’s note

to 1972 proposed rules (emphasis added). It is only

where “the event is sought to be proved by the written

record, the rule applies.” Id. (emphasis added). “For

example,” the advisory committee explained,

“payment may be proved without producing the

written receipt which was given.” Id.

18

So too here. The existence of an agency policy may

be proved by a declaration from an agency official,

even if a written record of the policy exists. . . .

In any case, it is well established that summary

judgment evidence need not be “in a form that would

be admissible at trial,” so long as it is “capable of

being converted into admissible evidence.” . . .

The declaration of Ms. Shiner, a veteran Information

Review Officer in the Litigation Information Review

Office of the CIA, attesting to the implementation of

the new mandatory policy for processing of FOIA

requests clears this standard. . . . Porup points to

nothing in the record that would call Ms. Shiner’s

attestation into question.

Porup, 2020 WL 1244928, at *4 (citations omitted).

Porup has identified nothing within or outside the record

that would cause us to doubt that the CIA’s new policy is

accurately reflected in the Declaration. Based on that

document, Porup’s pattern or practice cause of action is moot.

It does not matter whether there may have been a precursor to

the Declaration. The Declaration is the definitive statement of

the Agency’s new policy. And the facts asserted in the

Declaration could have been reduced to admissible evidence,

i.e., Ms. Shiner could have testified to the same facts if the

parties’ dispute had gone beyond summary judgment.

Accordingly, the District Court was permitted to consider the

Declaration when evaluating the Agency’s motion for

summary judgment. We therefore affirm the judgment of the

District Court that Porup’s pattern or practice claim is moot.

19

C. Porup’s Challenges to the Government’s Searches,

Withholdings, and Redactions

“FOIA calls for broad disclosure of Government records,”

but Congress has “provided that agency records may be

withheld from disclosure under . . . nine exemptions defined

in 5 U.S.C. § 552(b).” CIA v. Sims, 471 U.S. 159, 166-67

(1985) (footnote omitted). One such exemption covers records

that have been “specifically exempted from disclosure by

[another] statute” (“Exemption 3”). 5 U.S.C. § 552(b)(3).

The Supreme Court has previously held that the National

Security Act of 1947 (the “National Security Act”), “which

calls for the Director of Central Intelligence to protect

intelligence sources and methods, . . . qualifies as a

withholding statute under Exemption 3.” Sims, 471 U.S. at 167

(internal quotation marks omitted); see 50 U.S.C. § 3024(i)(1).

In addition, under the Central Intelligence Agency Information

Act of 1984 (“CIA Information Act”), the Agency may exempt

its operational files from publication or disclosure under FOIA.

See 50 U.S.C. § 3141(a). However, there are three exceptions

to this provision of the CIA Information Act, the last of which

covers

operational files . . . concerning . . . the specific

subject matter of an investigation by the

congressional intelligence committees, the

Intelligence Oversight Board, the Department of

Justice, the Office of General Counsel of the Central

Intelligence Agency, the Office of Inspector General

of the Central Intelligence Agency, or the Office of

the Director of National Intelligence for any

impropriety, or violation of law, Executive order, or

Presidential directive, in the conduct of an

intelligence activity.

20

Id. § 3141(c)(3) (emphases added).

1. CIA Information Act Exception

Porup asserts – relying on this court’s decision in Morley

v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) – that the Agency must

search its operational files for responsive documents postdating

December 31, 1980, or approximately five years after the

Church Committee released its “Interim Report on Alleged

Assassination Plots” and four years after the Committee ceased

operations. The holding of Morley, however, is not as broad as

Porup argues.

In Morley, the FOIA plaintiff sought documents pertaining

to “the CIA case officer for the anti-Castro organization known

as the Directorio Revolucionario Estudantil (“DRE”) in

1963.” Id. at 1113. “[T]he DRE had contact with Lee Harvey

Oswald in the months before President Kennedy’s

assassination,” id., and “the scope of the Church Committee

investigation specifically encompassed operations of the CIA

and other federal agencies in investigating the assassination,”

id. at 1117 (citation omitted). See also id. (“Significantly, the

Church Committee found that the CIA inquiry was deficient on

the specific question of the significance of Oswald’s contacts

with pro- and anti-Castro groups for the many months before

the assassination.” (emphasis added) (alteration, citation, and

internal quotation marks omitted)). In interpreting the scope of

the § 3141(c)(3) exception, the court stated “that a FOIA

request concern[s] ‘the specific subject matter of an

investigation’ . . . where the investigating committee would

have deemed the records at issue to be central to its inquiry.”

Id. at 1118 (emphasis added).

Porup argues that any operational files relating to covert

assassination attempts, even if generated well after the Church

Committee had ceased to operate, would satisfy the Morley

21

standard. However, Morley presented an easily distinguishable

factual scenario, as it concerned documents “surrounding a

particular event” that had been thoroughly investigated by the

Church Committee, i.e., President Kennedy’s assassination and

the CIA’s conduct leading up to it. See id. at 1117-18. Thus,

the Morley court’s holding concerned already-existing records

that the Church Committee would have deemed central to its

inquiry had it known about them at the time of its investigation.

By contrast, Porup invokes a much broader claim that an

investigating committee would deem records central to its

inquiry even if they did not yet exist. It does not appear that the

Morley court intended for its holding on this issue to be so

general and all-encompassing as Porup asserts, given the

court’s ensuing discussion of the material facts on the issue.

See id. at 1118 (“The Church Committee posed a targeted

inquiry investigating the performance of the intelligence

agencies surrounding a particular event. The role of individual

CIA officers during this event was key to such an inquiry,

information that the committee would have sought out rather

than merely happened upon. . . . [T]he focus of the committee’s

investigation was the relationship between organizations like

the DRE and the Kennedy assassination. The evidence

proffered by [the plaintiff] indicates that [the CIA case officer]

was in a position of central importance to such an investigation

and was thus covered by its ‘specific subject matter.’”

(emphasis added) (citation omitted)).

Furthermore, Porup’s proposed approach would render the

word “specific” in the statutory text largely nugatory, a result

to be avoided. See Del. Dep’t of Nat. Res. & Env’t Control v.

EPA, 895 F.3d 90, 99 (D.C. Cir. 2018) (“[W]e strive to

construe [a] statute[] ‘so that effect is given to all its provisions,

so that no part will be inoperative or superfluous, void or

insignificant.’” (quoting Corley v. United States, 556 U.S. 303,

22

314 (2009))). And Porup cites no authority or support for his

position other than a single sentence in Morley. We therefore

reject his reading of the statute and agree with the District Court

that the Agency sufficiently searched its operational files in

response to Porup’s request.

2. Other Grounds Raised by Porup in Challenging

the Agency’s Searches

Porup next contends that summary judgment was

premature because the Agency “fail[ed] to state that it

[searched for] the names of . . . unrevealed programs.” Br. for

Pl.-Appellant 22; see id. at 21-22. Similarly, Porup asserts that

the Shiner Declarations did not demonstrate that the Agency

considered whether investigative bodies referenced in 50

U.S.C. § 3141(c)(3), in addition to the Church Committee,

conducted nonpublic investigations into covert assassination

plots. See id. at 10-13. And he argues that the Shiner

Declarations did not sufficiently describe how the Agency

conducted its searches, particularly regarding the use of

Boolean connectors. See id. at 13-14. However, Porup has not

demonstrated a genuine dispute of material fact on these issues.

23

“[A]n agency responding to a FOIA request is simply

required to conduct a search reasonably calculated to uncover

all relevant documents.” In re: Clinton, 973 F.3d 106, 116

(D.C. Cir. 2020) (alteration, citation, and internal quotation

marks omitted). “[I]n response to a challenge to the adequacy

of its search for requested records[,] [an] agency may meet its

burden by providing ‘a reasonably detailed affidavit, setting

forth the search terms and the type of search performed, and

averring that all files likely to contain responsive materials . . .

were searched.’” Iturralde v. Comptroller of Currency, 315

F.3d 311, 313-14 (D.C. Cir. 2003) (fourth alteration in original)

(quoting Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321,

326 (D.C. Cir. 1999)). “Agency affidavits are accorded a

presumption of good faith, which cannot be rebutted by ‘purely

speculative claims about the existence and discoverability of

other documents.’” SafeCard Servs., Inc. v. SEC, 926 F.2d

1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch,

Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981) (per curiam)).

The Shiner Declarations listed several of the search terms

that were used by the Agency. In addition, the declarations

explained that subject matter experts worked to determine these

and other search terms, as well as the locations to be searched.

The Supplemental Declaration explained that the searches

“used Boolean connectors to create logical search queries.”

Suppl. Decl. ¶ 6, J.A. 221. And the Declaration averred that the

Agency’s searches were “reasonably calculated” to identify all

responsive records, and that “all files likely to contain

responsive material were searched.” Decl. ¶ 16, J.A. 45. Those

sworn assertions were sufficient to carry the Agency’s burden

as to its search terms and methodology.

24

Porup also suggests that the Agency may not have run

searches for covert assassination programs that have not yet

been publicly disclosed and may have neglected to consider

nonpublic investigations by bodies other than the Church

Committee, because “[t]he records being requested in this case

have the potential to be extremely sensitive and potentially

embarrassing to the agency.” Br. for Pl.-Appellant 22.

However, he offers no evidence that such concerns caused the

Agency to decline to search for, or otherwise suppress

disclosure of, responsive records. This “pure[] speculati[on]”

is not sufficient to create a genuine dispute of material fact on

these issues. See SafeCard Servs., 926 F.2d at 1200 (citation

omitted).

3. Challenges to the Agency’s Withholdings and

Redactions

Porup argues that the District Court misconceived the

documents for which he challenged withholdings and

redactions made by the Agency pursuant to Exemption 3 and

the National Security Act. As the Agency conceded during oral

argument, this may well be true. However, Porup has not

explained why the number of documents at issue undermines a

finding that the broadly applicable information contained in the

Shiner Declarations carried the Agency’s burden on this point.

The Agency explained in the Declaration why it had redacted

and withheld documents pursuant to Exemption 3 and the

National Security Act, focusing on the harm that might result

from disclosure. See Decl. ¶ 33, J.A. 57-58 (asserting “that

disclosure of [such] information would expose CIA officers

and highlight capabilities and limitations of intelligence

activities of the Agency, which could render them ineffective,”

and might “reveal sensitive security requirements, potentially

putting Agency officers at risk”). Exercising de novo review,

we find that the Agency’s representations are sufficient to carry

25

its burden, regardless of whether they cover more documents

than the District Court realized. See Wolf v. CIA, 473 F.3d 370,

377 (D.C. Cir. 2007) (noting that courts must “give[] . . .

great[] deference to CIA assertions of harm to intelligence

sources and methods under the National Security Act” (citation

omitted)).

Moreover, Porup has explicitly declined to raise his

“substantive arguments about specific withholdings” before

this court “in the interest of judicial economy.” Br. for Pl.-

Appellant 17 n.8. While he still maintains in a footnote that

summary judgment was incorrect as to all of the Agency’s

Exemption 3 withholdings pursuant to the National Security

Act, see id., his conclusory arguments are “insufficiently

developed to constitute a serious challenge to the district

court’s” findings. See Massachusetts v. Microsoft Corp., 373

F.3d 1199, 1241 (D.C. Cir. 2004); see also CTS Corp. v. EPA,

759 F.3d 52, 64 (D.C. Cir. 2014) (“A footnote is no place to

make a substantive legal argument on appeal; hiding an

argument there and then articulating it in only a conclusory

fashion results in forfeiture.”). Thus, we decline to address

them.

D. Segregability

Finally, Porup asserts that the case must be remanded for

the District Court to make a segregability finding. “FOIA

provides that ‘[a]ny reasonably segregable portion of a record

shall be provided to any person requesting such record after

deletion of the portions which are exempt.’” Machado Amadis

v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020)

(alteration in original) (quoting 5 U.S.C. § 552(b)). We have

held that a trial court must make a segregability finding if a

federal agency has redacted or withheld documents pursuant to

FOIA exemptions. See, e.g., Sussman v. U.S. Marshals Serv.,

26

494 F.3d 1106, 1116 (D.C. Cir. 2007); Trans-Pac. Policing

Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C.

Cir. 1999). And in at least one case, a panel of the court stated

that “[i]f the district court approves withholding without such

a finding, remand is required even if the requester did not raise

the issue of segregability before the [district] court.” Sussman,

494 F.3d at 1116 (citations omitted).

However, other panels of this court have made

segregability findings in the first instance, instead of

“remanding . . . solely for th[e] purpose” of such findings.

Juarez v. DOJ, 518 F.3d 54, 60 (D.C. Cir. 2008) (emphasis

added); see Machado Amadis, 971 F.3d at 371. Because “our

review of summary judgment is de novo[,] . . . we have the

same record before us as did the district court [and] we are just

as capable of evaluating the [CIA]’s [declarations] regarding

segregability as is the court below.” Juarez, 518 F.3d at 60.

Thus, rather than remanding solely for the District Court to

pass upon segregability, we will exercise our discretion to

make such a determination in the first instance.

Based on the Shiner Declarations, the Agency has carried

its burden in demonstrating that it released all segregable

portions of the responsive documents. Ms. Shiner attested that

the Agency had “conducted a page-by-page and line-by-line

review, and released all reasonably segregable, non-exempt

information” within responsive records. Decl. ¶ 38, J.A. 60.

Moreover, Ms. Shiner “determined that no additional

information may be released without divulging information

that . . . falls within the scope of one or more FOIA

exemptions.” Id. Those sworn statements sufficiently establish

that “no portions of the withheld documents may be segregated

and released.” Juarez, 518 F.3d at 61; see also Machado

Amadis, 971 F.3d at 371-72 (noting that government agency’s

“line-by-line review” of documents in responding to FOIA

27

request was sufficient as to segregability responsibilities).

Accordingly, we find that the Agency has met its segregability

obligations.

III. CONCLUSION

For the foregoing reasons, we affirm the judgment of the

District Court.