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Stalcup v. Central Intelligence Agency

United States Court of Appeals, First Circuit

October 6, 2014

THOMAS STALCUP, Plaintiff, Appellant,

As Amended October 13, 2014.

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Richard K. Latimer for appellant.

Patrick G. Nemeroff, Attorney, Department of Justice, with whom Stuart F. Delery, Assistant Attorney General, Carmen M. Ortiz, United States Attorney, Michael Sady, Assistant United States Attorney and Leonard Schaitman, Attorney, were on brief, for appellee.

Before Howard, Lipez and Barron, Circuit Judges.


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HOWARD, Circuit Judge.

Though clouded by an airline disaster and claims of a government cover-up, this case ultimately turns on a relatively straightforward question: must the government release certain information? Plaintiff-Appellant Thomas Stalcup brought this Freedom of Information Act (" FOIA" ) suit against the Central Intelligence Agency (" CIA" ), seeking two documents from an investigation into the crash of TWA Flight 800. Stalcup also sought the names of the eyewitnesses interviewed during the investigation. The district court rejected Stalcup's requests, concluding that FOIA permitted the agency to

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withhold the sought-after material. Because we agree with each of the district court's conclusions, we affirm its decision to grant summary judgment for the CIA.


On July 17, 1996, TWA Flight 800 exploded in mid-air and crashed eight miles south of Long Island, New York. Pursuant to its obligations under 49 C.F.R. § 800.3(a), the National Transportation Safety Board (" NTSB" ) launched an investigation into the tragedy. The Board quickly arrived at three possible explanations for the crash: a bomb, a missile, or a mechanical failure.

Given the possibility of criminal or terrorist activity, the FBI joined the probe. A central component of the Bureau's task was to interview eyewitnesses. Many of the 244 individuals who were interviewed described a streak of light rising up to the plane just before the explosion. Given the consistency of that narrative, the FBI asked the CIA to analyze the accounts and explore the likelihood of a missile strike.

The CIA reviewed the eyewitness reports along with raw flight and radar data. It concluded that the eyewitnesses had not seen a missile soaring towards the plane but, instead, had observed the burning aircraft in various stages of dismantling. On March 28, 1997, the CIA passed this analysis along to the FBI, which ultimately reached the same conclusion. In November 1997, the CIA publicized these results in a video entitled: " TWA Flight 800: What Did the Eyewitnesses See?"

As new data emerged, the CIA continued its work. For instance, in 1998 it produced a 17-page draft report analyzing new radar tracking data (" Analysis of Radar Tracking" ). At that time, it also created an 18-page draft report assessing the plane's flight path (" Dynamic Flight Simulation" ). Both documents contained recommendations to the agency about how the newly acquired data should impact the analysis. In 1999, the CIA relayed this new evaluation to a NTSB-sponsored group studying the eyewitness accounts.

On August 23, 2000, the investigation, which had been the largest and most expensive in the NTSB's history, reached its terminus. The Board adopted the CIA's assessment of the eyewitness accounts and concluded that a mechanical explosion in the center wing fuel tank had caused the crash. The NTSB distributed a final report detailing these findings.

A decade later, theorizing that the CIA was covering up that the true cause of the crash was a missile strike, Stalcup sent the CIA a letter requesting " copies of all data, images, video, documents and/or other information related to or a product of the CIA's involvement in the TWA Flight 800 investigation." He also asked for the " 'Technical Analysis Briefing: TWA Flight 800'. . .; . . . all eyewitness documents, reports, videos, images, and/or audio provided to the CIA . . . [and] any and all correspondence . . . regarding the CIA's . . . analysis of the eyewitness evidence." The CIA first disclosed twenty-five documents that it had previously released in response to a similar FOIA request. Unsatisfied with the CIA's response, Stalcup brought this FOIA action. 5 U.S.C. § 552. The complaint, filed in the District of Massachusetts, asked the court to order the CIA to disclose additional material. As the litigation progressed, the CIA provided Stalcup with forty-nine documents, a DVD, eighty-nine partially-redacted documents, and fourteen documents created by other agencies. The agency also filed a Vaughn index with the court detailing its redactions and withholdings.

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Nonetheless, Stalcup demanded more. He requested unredacted versions of the 1998 Analysis of Radar Tracking document (only the technical data, graphs, and certain headings were initially provided); the 1998 Dynamic Flight Simulation analysis (only the headings had been released); and the names of the eyewitnesses interviewed by the FBI.

In due course, the CIA moved for summary judgment, which the district court granted. The court concluded that the agency had properly withheld the requested documents under the deliberative process exemption of the law, 5 U.S.C. § 552(b)(5)(hereinafter " exemption 5" ), and had appropriately redacted the eyewitness names pursuant to the law enforcement exemption of the act, 5 U.S.C. § 552(b)(7)(C)(hereinafter " exemption 7(C)" ). The court also rejected Stalcup's contentions that disclosure of the information was required in light of alleged government misconduct. ...

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