Accuracy in Media v. Central Intelligence Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 11, 2024 Decided April 25, 2025
No. 22-5235
ACCURACY IN M EDIA,
APPELLANT
v.
C ENTRAL INTELLIGENCE AGENCY ,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:04-cv-00814)
John H. Clarke argued the cause and filed the briefs for
appellant.
Graham White, Attorney, U.S. Department of Justice,
argued the cause for appellee. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney
General at the time the brief was filed, and Mark B. Stern,
Attorney. Thomas Duffey and R. Craig Lawrence, Assistant
U.S. Attorneys, entered appearances.
Before: HENDERSON, M ILLETT, and C HILDS , Circuit
Judges.

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Opinion for the Court filed by Circuit Judge M ILLETT.
M ILLETT, Circuit Judge: Accuracy in Media filed a
Freedom of Information Act request with the Central
Intelligence Agency that seeks governmental records showing
whether American service members imprisoned or missing in
action from the Vietnam War are still alive in Laos or Vietnam.
At issue in this appeal is whether the CIA adequately searched
its operational files for relevant information about those service
members. Because the CIA’s truncated search terms could not
reasonably have been expected to capture relevant records, we
reverse and remand this case to the district court for further
proceedings consistent with this opinion.
I
A
The Freedom of Information Act, 5 U.S.C. § 552,
commonly known as FOIA, is “a means for citizens to know
what their Government is up to.” National Archives & Records
Admin. v. Favish, 541 U.S. 157, 171 (2004) (internal quotation
marks and citation omitted). Congress enacted FOIA to allow
members of the public to “pierce the veil of administrative
secrecy and to open agency action to the light of public
scrutiny[.]” Department of Air Force v. Rose, 425 U.S. 352,
361 (1976) (citation omitted).
Initially, FOIA applied to the CIA in the same way as other
federal agencies. But in 1984, Congress enacted the CIA
Information Act, 50 U.S.C. § 3141. That Act authorized “[t]he
Director of the [CIA], with the coordination of the Director of
National Intelligence, [to] exempt operational files of the [CIA]
from the provisions of [FOIA] which require publication or

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disclosure, or search or review[.]” Id. § 3141(a). Operational
files are:
(1) files of the National Clandestine Service which
document the conduct of foreign intelligence or
counterintelligence operations or intelligence or security
liaison arrangements or information exchanges with
foreign governments or their intelligence or security
services;
(2) files of the Directorate for Science and Technology
which document the means by which foreign intelligence
or counterintelligence is collected through scientific and
technical systems; and
(3) files of the Office of Personnel Security which
document investigations conducted to determine the
suitability of potential foreign intelligence or
counterintelligence sources[.]
Id. § 3141(b).
Through the CIA Information Act, Congress sought to
reduce the “expenditure of time and money on fruitless search
and review of sensitive operational records [which]
contribute[d] nothing to the FOIA goal of releasing non-
exempt information to the public[.]” Judicial Watch, Inc. v.
CIA, 310 F. Supp. 3d 34, 38 (D.D.C. 2018) (quoting H.R. Rep.
No. 726, 98th Cong., 2d Sess., pt. 1, at 5 (1984)). As a result,
the Act exempts most CIA operational files from FOIA’s
requirements.
The CIA Information Act, though, “carve[s] out three
areas in which requestors, notwithstanding the statutory bar,

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might nonetheless receive materials.” Sullivan v. CIA, 992
F.2d 1249, 1251–1252 (1st Cir. 1993). Those are:
(1) [information concerning] United States citizens or
aliens lawfully admitted for permanent residence who
have requested information on themselves pursuant to
[FOIA or the Privacy Act of 1974];
(2) any special activity the existence of which is not
exempt from disclosure under [FOIA]; or
(3) the specific subject matter of an investigation
by [certain legislative or executive agency bodies] for any
impropriety, or violation of law, Executive order, or
Presidential directive, in the conduct of an intelligence
activity.
50 U.S.C. § 3141(c).
Records “concerning” any of those three topics are subject
to FOIA’s ordinary search and disclosure obligations.
50 U.S.C. § 3141(c). In addition, the statute allows a FOIA
requester to seek records on the ground that, among other
things, the records sought, while perhaps once operational, are
no longer properly categorized as such. Id. § 3141(f)(4)(A). If
the court finds that the CIA improperly withheld requested
records under the CIA Information Act, the court “shall order
the [CIA] to search and review the appropriate exempted
operational file or files for the requested records and make such
records, or portions thereof, available” under FOIA’s terms.
Id. § 3141(f)(6).

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B
This appeal is the latest stage in a long-running effort by
Accuracy in Media (“AIM”) and others to obtain information
on American prisoners of war and those missing in action from
the Vietnam War era.
In February 2003, AIM, Roger Hall, and Studies Solutions
Group (collectively, “original requesters” or “plaintiffs”) sent
multiple FOIA requests to the CIA. Two requests are relevant
here:
[1] Records relating to 44 individuals who allegedly are
Vietnam era POW/MIAs, and whose next-of-kin have
provided privacy waivers to Roger Hall * * * and records
relating to those persons * * * whose primary next-of-kin
(PNOK) have authorized [through general waivers] the
release of information concerning them.
[2] All records on or pertaining to any search conducted
regarding any other requests for records pertaining to
Vietnam War POW/MIAs, including any search for such
records conducted in response to any request by any
congressional committee or executive branch agency.
J.A. 1206.
After receiving no response to the requests, the original
requesters filed suit in May 2004 under 5 U.S.C. § 552. Over
the ensuing years, a series of court orders and rounds of
summary judgment briefing have substantially narrowed the

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scope of this dispute.1 In the course of the litigation, the CIA
released thousands of records “tending to shed light on the fates
of prisoners of war and those [persons] otherwise reported as
missing in action during the Vietnam conflict.” Hall v. CIA,
268 F. Supp. 3d 148, 159 (D.D.C. 2017).
By 2017, the litigation came to focus on the adequacy of
the CIA’s search with respect to the two categories of
documents identified above. Hall, 268 F. Supp. 3d at 153, 160–
163. In 2019, the court invoked 50 U.S.C. § 3141(f)(4) and
ordered the CIA to review its operational files after plaintiffs
filed “a sworn written submission based on personal
knowledge or otherwise admissible evidence” suggesting
“improper exemption of operational files.” Hall v. CIA, No.
04-cv-814, 2019 WL 13160061, at *2 (D.D.C. Aug. 2, 2019)
(quoting 50 U.S.C. § 3141(f)(4)(A)–(B)). Plaintiffs’
submission included an affidavit from former Congressman
Bob Smith swearing “without any equivocation that [the CIA
is] still holding documents that should be declassified” and that
“could and should be released as they pose no national security
risk.” Id. at *2 (quotation marks omitted). In light of plaintiffs’
submission, the district court ordered the CIA to search its
operational files for the “disclosure of, among other things,
1,400 live sighting reports that were reportedly displayed at
Congressional briefings attended by CIA employees, as well as
records of imagery and reconnaissance and rescue operations.”
Order, Hall v. CIA, No. 04-cv-814 (D.D.C. March 31, 2020),
ECF No. 345.
1 See, e.g., Hall v. CIA, No. 04-cv-814, 2019 WL 13160061
(D.D.C. Aug. 2, 2019); Hall v. CIA, 268 F. Supp. 3d 148 (D.D.C.
2017); Hall v. CIA, 115 F. Supp. 3d 24 (D.D.C. 2015); Hall v. CIA,
881 F. Supp. 2d 38 (D.D.C. 2012); Hall v. CIA, 668 F. Supp. 2d 172
(D.D.C. 2009).

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A year later, after its search was complete, the CIA
reported that it had searched its operational files and had
located no responsive records. J.A. 155. The agency submitted
a declaration explaining that it had used search terms “such as”:
POWs, prisoners of war, MIA, missing in action, Vietnam, task
force, House Special POW, image, “and different combinations
and variations of those search terms.” J.A. 76 (Blaine Decl.
¶ III.12); see also J.A. 55 (Supp. Blaine Decl. ¶ III.2).
In July 2022, the court granted the CIA’s motion for
summary judgment. Hall v. CIA, No. 04-cv-814, 2022 WL
2528102, at *1 (D.D.C. July 7, 2022). In response to AIM’s
argument that the CIA failed to produce documents that AIM
believes the CIA possesses, the district court reasoned that, just
because a document may have existed at one time, does not
mean it still exists, and “plaintiffs’ evidence does not establish,
or even significantly suggest, that the files referenced are in the
CIA’s current operational files.” Id. at *5. The court also ruled
that the CIA’s search terms were sufficient as they “appear[ed]
to be reasonably likely to have yielded the files sought by
plaintiffs if they were indeed present in the CIA’s operational
files.” Id.
AIM is the only plaintiff that appealed that summary
judgment ruling.
II
The district court had jurisdiction under 28 U.S.C. § 1331
and 5 U.S.C. § 552(a)(4)(B). We have jurisdiction over the
district court’s final judgment under 28 U.S.C. § 1291.
We review de novo the adequacy of the CIA’s search.
Protect Democracy Project, Inc. v. National Security Agency,
10 F.4th 879, 884 (D.C. Cir. 2021).

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III
In this case, the CIA does not challenge the district court
order invoking 50 U.S.C. § 3141(f) and requiring it to search
its operational records. So we assume without deciding that the
order to search operational files was appropriate. Nor does
AIM challenge the scope of that search as defined by the
district court to cover 1,400 live-sighting reports and imagery
of rescue operations. Order, Hall v. CIA, No. 04-cv-814, ECF
No. 345. According to AIM, those sightings occurred in both
Laos and Vietnam. AIM Opening Br. 18–19, 36–37; see, e.g.,
J.A. 229–230, 443–446.
To prevail on summary judgment, the burden was on the
CIA to show “beyond material doubt that its search was
reasonably calculated to uncover all relevant documents.”
American Oversight v. United States Dep’t of Health & Human
Servs., 101 F.4th 909, 923 (D.C. Cir. 2024) (quoting Valencia-
Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C.
Cir. 1999)) (quotation marks omitted). The adequacy of the
CIA’s search “turns on ‘a standard of reasonableness and
depends * * * upon the facts of each case.’” Id. (quoting
Weisberg v. United States Dep’t of Justice, 745 F.2d 1476,
1485 (D.C. Cir. 1984). In determining the adequacy of the
CIA’s search, this court may rely on 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 (if such records exist) were searched.”
Ancient Coin Collectors Guild v. United States Dep’t of State,
641 F.3d 504, 514 (D.C. Cir. 2011) (quoting Valencia-Lucena,
180 F.3d at 326) (quotation marks omitted).
In conducting its search, the CIA’s declaration said that it
used search terms “such as”:

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“POWs,” “prisoners of war,” “MIA,” “missing in action,”
“Vietnam,” “task force,” “House Special POW,”
“image[.]”
J.A. 76 (Blaine Decl. ¶ III.12). The declaration added that the
CIA used those terms, as well as “different combinations and
variations of those search terms[,]” and searched for “records
through the date of the search.” Id.; see also J.A. 55 (Supp.
Blaine Decl. ¶ III.2).
On their face, the CIA’s search terms are inadequate to
have uncovered the relevant documents.
First, the search terms have notable omissions. While the
CIA looked for records with the word “Vietnam,” it
inexplicably omitted the country of “Laos,” even though the
live-sighting reports and imagery records on which AIM relied
referenced prisoners of war located in Laos. AIM Opening Br.
14–16, 18–22; J.A. 1369 (Barry Toll Aff.); J.A. 1151–1152
(Lynn O’Shea Aff.); J.A. 1390 (John LeBoutillier Aff.).
In addition, the CIA does not explain why it left out terms
like “live sighting” even though that word is a key feature of
the search’s prescribed scope. Confusingly, the search used
“image,” but not ‘imagery,” “reconnaissance,” or “rescue,”
even though the request seeks information about all three. Why
the search was confined to “image” and not “sighting” is
similarly unexplained and indiscernible. Likewise, the CIA
cannot explain why it uses “House Special POW” but not
Senate or Senate Select POW, even though AIM’s evidence,
including an affidavit from former Senator Bob Smith,
references live-sighting reports discovered by investigators on
the Senate Select Committee on POW/MIA Affairs in the early
1990s. J.A. 961, 963 (Bob Smith Aff.).

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Second, the identified search terms are an unexplained
mismatch for the scope of the FOIA request. The CIA did not
explain how phrases like “task force” or “House Special POW”
would capture records about the “1,400 live sighting reports
that were reportedly displayed at Congressional briefings
attended by CIA employees, as well as records of imagery and
reconnaissance and rescue operations[.]” Order, Hall v. CIA,
No. 04-cv-814, ECF No. 345. There is little to no overlap
between many of the terms and the search’s prescribed scope.
Third, in using “POWs,” “prisoners of war,” “MIA,” or
“missing in action,” the CIA did not explain whether only
singular or plural forms of those terms were employed and
whether the use of one excludes the other, given the CIA’s
particular search tools and methods. Oral Arg. Tr. 19:2–19:12
(the government unable to explain “whether it[s] [search] gets
singular or plural” forms of each term).
We afford agencies reasonable discretion in crafting their
search terms. But discretionary judgments still must be
“reasonably calculated to uncover all relevant documents[,]”
and agencies may not “omit from [a] search obvious alternative
terms without a detailed justification.” American Oversight,
101 F.4th at 923 (quoting Valencia-Lucena, 180 F.3d at 325).
The CIA’s supplemental declaration claimed that it
omitted “more precise or narrowed terms because utilizing
more specific search terms would not have necessarily been
effective in identifying documents potentially responsive to
plaintiffs’ request, and may have inadvertently excluded
otherwise responsive documents that failed to contain the more
specific search terms.” J.A. 55 (Supp. Blaine Decl. ¶ III.2).

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The CIA’s worry about further narrowing the search is no
answer to the problem of it not being broad enough to begin
with. More to the point, nothing in the CIA’s affidavit explains
how the use of one term excludes using another, or why terms
cannot be used in separate searches to turn up different sets of
documents. A search for records using both “Vietnam” and
“Laos” would likely produce more documents than one only
for “Vietnam,” and would seem to be the reasonable way to
find records about alleged sightings in Laos. At a minimum,
the CIA failed to adequately explain why fewer search terms
would yield more results when, in this case, logic suggests the
opposite is true.
The CIA argued that the terms provided in the declaration
were only a sample of the terms used. See J.A. 76 (Blaine Decl.
¶ III.12); J.A. 55 (Supp. Blaine Decl. ¶ III.2) (“The search
terms * * * were a selection of those used.”). But the CIA has
never disclosed the full list of terms used. This court can only
discern reasonableness based on the record provided by the
government, which bears the burden of proof. American
Oversight, 101 F.4th at 923. We cannot just assume a broader
search occurred in an informational vacuum. The only list
provided, and on which the district court relied in granting
summary judgment, suffers from material and obvious
omissions; the CIA has not provided any additional
information; and so the search is inadequate.
At bottom, the CIA’s description of its search terms raises
more questions than answers, especially when the agency is
unable to explain why key terms were omitted and how the
listed terms were used, including whether single terms
excluded their plurals. As a result, the CIA has failed to show
“beyond material doubt that its search was ‘reasonably
calculated to uncover all relevant documents.’” American
Oversight, 101 F.4th at 923 (quoting Valencia-Lucena, 180

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F.3d at 325); cf. Porup v. CIA, 997 F.3d 1224, 1237 (D.C. Cir.
2021) (holding that the “sworn assertions were sufficient to
carry the [a]gency’s burden as to its search terms and
methodology” where there was no basis for concluding that—
even if the example search terms were the only ones used—
sections of responsive records might have been overlooked).
Because the CIA must either engage in a new search or submit
a supplemental affidavit that identifies adequate search terms
and how they were used, we need not address AIM’s additional
arguments.2
IV
For the foregoing reasons, we reverse the district court’s
grant of summary judgment to the CIA and remand the case for
further proceedings consistent with this opinion.
So ordered.
2 Specifically, we do not decide whether (1) the CIA adequately
described its search, (2) positive indications of overlooked records
rendered the search inadequate, or (3) the CIA’s motives should have
been considered by the district court.

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