Opinion
No. 02 C 4049
March 30, 2004
OPINION AND ORDER
Before the court is Defendant's Motion for Summary Judgment [docket entry 22-1]. For the following reasons, the motion is granted.
I. BACKGROUND
Plaintiff, Mahmoud Cherif Bassiouni ("Bassiouni"), seeks any records that may be in the possession of Defendant, the Central Intelligence Agency ("CIA"), which might pertain to him. The court takes judicial notice that Bassiouni is currently employed as a professor at the DePaul University College of Law, where he is held out by that institution as an expert on human rights, terrorism, international law and Middle East issues. See DePaul University website available at http://www.law.depaul.edu/faculty_staff/faculty_information.asp?id^7. His biography purports that "[h]e is one of the world's leading authorities on terrorism and international human rights law and the author of two books on terrorism. Bassiouni was also involved with the first U.S. terrorism study in 1978, and he currently serves as a consultant on terrorism for the U, S. Department of State." DePaul University Experts Guide, available at http://sherman.depaul.edu/media/webapp/mrFindlndex2.htm 1.
In August 1983, Bassiouni wrote a letter to the CIA seeking information pertaining to himself pursuant to the Privacy Act. In June 1985, the CIA responded, advising Bassiouni that it possessed responsive material that could not be declassified or released, and additionally, that the CIA would not release information forwarded to it by the Federal Bureau of Investigations or any other governmental agencies.
Fourteen years later, on November 22, 1999, Bassiouni sent a letter to the CIA requesting that it provide him with records pertaining to himself, pursuant to the Freedom of information Act ("FOIA") and the Privacy Act, In response, on June 7, 2000, the CIA denied Bassiouni's request, invoking FOIA exemptions 5 U.S.C. § 552 (b)(1) and (b)(3) and Privacy Act exemptions 5 U.S.C. § 552a (j)(1) and (k)(1), On July 19, 2000, Bassiouni sent an appeal letter to the CIA and requested reconsideration of the initial denial. On November 17, 2000, the CIA responded to Bassiouni's requested reconsideration and again denied the request, based on the same rationale as indicated in the initial response.
On June 6, 2002, Bassiouni filed the present suit, seeking declaratory and injunctive relief, pursuant to FOIA and the Privacy Act. See Pl.'s Compl. ¶ 1 [docket entry 1-1]. Specifically, Bassiouni sought to enjoin the CIA from withholding access to records that pertained to him and to order that such records be produced by the CIA for inspection. See Id. On July 12, 2002, the CIA answered Bassiouni's complaint. See Def.'s Answer [docket entry 7-1], Shortly thereafter, on August 5, 2002, Bassiouni filed a motion to compel production of a Vaughn index, which me court denied. See Bassiouni v. CIA, 248 F. Supp.2d 795 (N.D. Ill. 2003).
Approximately one year after the filing of the Complaint, the CIA began providing Bassiouni with records responsive to his request. On May 22, 2003, the CIA referred fifty-two records to the State Department ("State") for direct response. On June 13, 2003, State released thirty-one records in full; thirteen records in redacted form pursuant to FQIA Exemptions 1, 3 and 6; and withheld seven records in full pursuant to FOIA Exemptions 1 and 3. On July 15, 2003, State released the remaining record in redacted form pursuant to FOIA Exemption 1, On July 15, 2003, the CIA referred two additional records to State for direct response, which State withheld in part pursuant to FQIA Exemptions 1 and 3. The CIA alleges that other records not referred to State, if any, are being withheld pursuant to FOIA Exemptions 1 and 3 and Privacy Act Exemptions (j)(1) and 00(1).
By agreement of the parties, the thirteen records that were released in part on June 13, 2003 are no longer at issue in this litigation. See Def.'s LR 56.1 n. 1. Additionally, Bassiouni has determined not to further pursue access to the ten remaining records withheld in full or in part by State. See Pl.'s Mem. In Resp. to Def.'s Mot. for Summ. J., at 1. Thus, all that remains at issue in this case are any other records not referred to State by the CIA, if any, which arc being withheld pursuant to FOIA Exemptions 1 and 3 and Privacy Act Exemptions (j)(1) and (k)(1).
On August 8, 2003, the CIA filed a Motion for Summary Judgment, which is fully briefed and before the court. The CIA argues that there is no genuine issue of material fact as to whether it has satisfied its obligations under FOIA and the Privacy Act, and it is entitled to judgment as a matter of law, Bassiouni argues that the CIA is not entitled to summary judgment, because: (1) the CIA has waived its right to withhold any records based on the CIA's 1985 acknowledgment that it possessed responsive material with regard to him; (2) the affidavit proffered in support of the CIA's Motion for Summary Judgment is insufficient; and (3) genuine issues of material fact exist as to whether the CIA possesses records regarding his First Amendment activities.
II. STANDARD OF DECISION
A. Summary JudgmentSummary judgment is appropriate if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The moving party has the initial burden to prove that no genuine issue of material fact exists. See Matsushita Elec. Indust. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Once the moving party shows that there is no genuine issue of material fact, the burden shifts to the non-moving party to designate specific facts showing that there is a genuine issue for trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). The court views the record evidence and all reasonable inferences drawn therefrom in the light most favorable to the non-moving party. See Fed.R.Civ.P. 56(c).
The non-moving party cannot rest on the pleadings alone, but must identify specific facts that raise more than a mere scintilla of evidence to show a genuine triable issue of material fact. See Murphy v. ITT Technical Services. Inc., 176 F.3d 934, 936 (7th Cir. 1999); see also Fed, R, Civ. P. 56(e). "Conclusory allegations alone cannot defeat a motion for summary judgment." See Thomas v. Christ Hosp. and Medical Ctr., 328 F.3d 890, 893-94 (7th Cir. 2003) (citing Lujan v. Nat'l Wildlife Federation, 497 U.S. 871, 888-89 (1990)).
Summary judgment is the procedural vehicle by which most FOIA and Privacy Act claims are resolved. See, e.g., Misciavige v. IRS, 2 F.3d 366, 369 (11th Cir. 1993). "In a suit brought to compel production of records, an agency is entitled to summary judgment if no material facts are in dispute and if it demonstrates 'that each document that falls within the class requested either has been produced . . . or is wholly exempt from FOIA's inspection requirements'" Wheeler v. CIA, 271 F. Supp.2d 132, 136 (D.D.C. 2003) (quoting Students Against Genocide v. Dep't of State, 257 F.3d 828, 833 (D.C. Cir. 2001)).
B. Freedom of Information Act and the Privacy Act
In general, the FOTA envisions a policy favoring disclosure of federal agency records. See, e.g., CIA v. Sims, 471 U.S. 166-67 (1985). In general, the primary goal of the Privacy Act "is to allow individuals on whom information is being compiled and retrieved the opportunity to review the information and request that the agency correct any inaccuracies." Henke v. Dep't of Commerce, 83 F.3d 1453, 1456 (D.C. Cir. 1996), However, the FOIA and the Privacy Act both envision that certain federal agency records should not be subject to public disclosure, and provide statutory exemptions from disclosure. See 5 U.S.C. § 552(b) (FOIA); 5 U.S.C. § 552a(j) and (k) (Privacy Act).
At summary judgment, the agency bears the burden of non-disclosure by justifying the exemption claimed, and the court determines de novo whether the exemption claimed is appropriate. See 5 U.S.C. § 522(a)(4)(B) (FOIA); 5 U.S.C. § 522a(g)(2)(A) (Privacy Act). An agency may meet its burden by submitting a reasonably detailed affidavit explaining why the requested information falls within the exemption claimed. See Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996). Summary judgment is warranted if the agency's affidavit: (1) describes the justifications for non-disclosure with reasonably specific detail; (2) demonstrates that the information withheld logically falls within the claimed exemptions; and (3) shows that the justifications are not controverted by evidence in the record or by evidence of bad faith on the part of the agency. See Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992). However, in making the determination whether the exemption claimed is appropriate, the court is to accord substantial weight to the agency's affidavits in support of the exemption claimed. See Hunt, 981 F.2d at 1119 (citing Miller v. Casey, 730 F.2d 773, 776, 778 (D.C. Cir. 1984)), The court is to accord substantial weight to the agency's affidavits because the "'Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic.] might occur as a result of public disclosures of a particular classified record.'" Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (quoting S. Rep. No. 93-1200, 93rd Cong, 2nd Sess. 12 (1974) reprinted in 1974 U.S.C.C.A.N. 6267, 6290).
III. ANALYSIS
In this case, the CIA slates that Us decision to withhold records, if any, not referred to State, is based on FOIA Exemptions 1 and 3 and Privacy Act Exemptions (j)(1) and (k)(1),
A. FOIA and Privacy Act Exemptions From Disclosure
1. FOIA Exemption 1 and Privacy Act Exemption (k)(1)
FOIA Exemption 1 provides that the FOIA does not apply to matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 522(b)(1); see also Executive Order No, 12,958, 60 Fed. Reg. J 9, 825 (Apr. 17, 1995). Section 1.5(c) of Executive Order No. 12,958 allows classification of information concerning "intelligence activities (including special activities), intelligence sources or methods. . . ." Executive Order No. 12,958, § 1.5(c). Section 1, 5(d) of Executive Order No. 12,958 covers information concerning "foreign relations or the foreign activities of the United States, including confidential sources . . ." Executive Order No. 12,958, § 1.4(d). Pursuant to § 1.2(a)(4) of Executive Order No. 12,958, information in section 1.5(c) and (d) may be classified when "the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security and the original classification authority is able to identify and describe the damage," Executive Order No. 12, 958, § 1.2(a)(4); see also Executive Order No. 12,958, § 1.4(c) (delegating classification authority).
Under Exemption (k)(1) of the Privacy Act, the Director of the C1A also has the power to exempt records pertaining to classified information.See 5 U.S.C. § 552a(k)(1). Under the authority of Exemption (k)(1), the Director of the CIA has exempted from disclosure "those portions and only those portions of all systems of records maintained by the CIA that would consist of, pertain to, or otherwise reveal information that is: (a) Classified pursuant to Executive Order 12,958 (or successor or prior Order) and thus subject to the provisions of 5 U.S.C. § 552(b)(1) and 5 U.S.C. § 552a(k)(1). . . ." 32 C.F.R. § 1901.63.
Thus, the inquiry to be made under FO1A Exemption 1 and Privacy Act Exemption (k)(1) is identical. Classified information that has been properly classified as secret is exempt from disclosure pursuant to FOIA Exemption 1 and Privacy Act Exemption (k)(1).
2. FOIA Exemption 3 and Privacy Act Exemption (j)(1)
FOIA Exemption 3 provides that the FOIA does not apply to matters that are "specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld," 5 U.S.C. § 522(b)(3). A two-part inquiry determines whether Exemption 3 applies to a given case, See Sims, 471 U.S. at 167. First, the court must determine whether the claimed statutory exemption is a withholding statute within the scope of Exemption 3, See Id. Second, the court must determine whether the requested information falls within the scope of the statute. See id.
The CIA's Exemption 3 withholdings are based on § 103(c)(7) of the National Security Act, codified at 50 U.S.C. § 403-3(c)(7), which requires the Director of Central Intelligence to "protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 403-3(c)(7). As for the first part of the inquiry, § 103(c)(7) of the National Security Act is a withholding statute within the scope of Exemption 3.See Assassination Archives Research Ctr v. CIA, 334 F.3d 55, 58 (D.C, Cir. 2003) (citing Sims, 471 U.S. at 178-79). As for the second part of the inquiry, the CIA has provided the declaration of William McNair, as discussed infra, which explains that the information being withheld concerns intelligence sources and methods and falls within the scope of § I03(c)(7) of the National Security Act, See Def.'s Mot, for Summ. J.; McNair Decl. ¶ 25.
Under Exemption (j)(1) of the Privacy Act, the Director of the C1A can lawfully exempt records pertaining to intelligence sources and methods from the access provisions of the Privacy Act. See 5 U.S.C. § 552a(j)(1). Under the authority of Exemption (j)(1), the Director of the CIA has exempted from disclosure "those portions of all systems of records maintained by the CIA that: (1) Consist of, pertain to, or would otherwise reveal intelligence source or methods. . . ." 32 C.F.R. § 1901.62.
Thus, the inquiry to be made under FOIA Exemption 3 and Privacy Act Exemption (j)(1) is identical, Information that would reveal intelligence source and methods is exempt from disclosure pursuant to FOIA Exemption 3 and Privacy Act Exemption (j)(1).
B. CIA's Response to Bassiouni's FOIA and Privacy Act Request
William H. McNair, Information Review Officer for the Directorate of Operations of the Central Intelligence Agency, has submitted a detailed affidavit in support of the CIA's Motion for Summary Judgment (hereinafter "McNair Declaration."), See Def.'s Mot. for Summ. J.; McNair Decl. The McNair Declaration states that he holds authority, pursuant to Executive Order 12,958, to conduct classifications reviews, as well as to make classification and declassification decisions. The McNair Declaration explains the CIA's justification in response to Bassiouni's FIOA and Privacy Act request,
The McNair Declaration states:
This case is one in which the CIA would normally use a Glomar response — neither confirming nor denying it holds documents on plaintiff. However, since the CIA personnel handling plaintiffs 1983 Privacy Act request acknowledged the Agency held material on plaintiff at that time, CIA cannot use the Glomar response in 2003. The only practical alternative at this point, to protect classified and otherwise exempt information, is to use the 'no number, no list' response, as explained below.
McNair Decl. ¶ 9.
Bassiouni raises three arguments in response to the CIA's Motion for Summary Judgment. First, whether the CIA has waived the right to assert a "no number, no list" response to Bassiouni's FOIA and Privacy Act request. Second, whether the McNair Declaration is sufficient to justify the CIA's response to Bassiouni's FOIA and Privacy Act request. Third, whether summary judgment may be granted in light of Bassiouni's allegation that the CIA possesses information concerning his First Amendment activities.
1. Waiver of the Right to Assert a "No Number, No List" Response
Bassiouni argues that the CIA has waived its right to withhold any records based on the CIA's 1985 acknowledgment that it possessed responsive material with regard to him. Furthermore, Bassiouni contends that the CIA's assertion of a "no number, no list" response is not supported by relevant authority, either case law or statutory via the CIA's implementing regulations. Bassiouni argues that the CIA's implementing regulations, 32 C.F.R. § 1900.21(c) (FOIA) and 32 C.F.R, § 1901.21(c) (Privacy Act) only provide for a Glomar Response, and not a "no number, no list" response. In essence, Bassiouni contends that the CIA's "no number, no list" response is simply a Glomar response, which the CIA conceded that they could not use.
Due to the CIA's 1985 acknowledgment that it possessed responsive records concerning Bassiouni, it states that a complete Glomar Response was precluded. See McNair Decl. ¶ 9. Since a complete Glomar Response was precluded, the CIA referred fifty-four records to State for direct response, while declining to confirm or deny the existence of any other records by means of what the CIA refers to as a "no number, no list" response, in order to protect classified and otherwise exempt information. According to the CIA, any further inventory of other records not referred to State by the CIA, if any, would jeopardize its interests in protecting the existence or nature of intelligence activities, and are being withheld pursuant to FOIA Exemptions 1 and 3 and Privacy Act Exemptions (j)(1) and (k)(1).
With regard to Bassiouni's waiver argument, an agency may waive its claim that information is exempt from disclosure if the plaintiff in a FOIA case carries his burden of pointing to an official disclosure of specific information in the public domain that appears to duplicate that being withheld. See Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983). A plaintiff must satisfy three criteria in order to establish that an agency has waived its claim that information is exempt from disclosure: (1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must have been made public through an official and public disclosure.See Fit/gibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (citingAfshar, 702 F.2d at 1130).
The court rejects the argument that the CIA has waived its right to claim FOIA or Privacy Act Exemptions in response to Bassiouni's FOIA and Privacy Act request. While the CIA acknowledged that it possessed responsive material concerning Bassiouni in 1985, Bassiouni fails to point to specific information in the public domain that appears to duplicate that allegedly being withheld in 2003, Bassiouni simply argues the general concept of waiver without citing to case law dealing with waiver in the context of a FOIA or Privacy Act case. Furthermore, in this case, Bassiouni is relying on the CIA's 1985 acknowledgment to indicate waiver in 2003, some fourteen years later. However in Afshar, the court noted that prior disclosures should not operate as waiver as to information pertaining to a later period in time.See Afshar, 702 F.2d at 1133, In the realm of intelligence, a lot can occur in a short period of time and certainly more can occur in a decade. In short, Bassiouni has not carried his burden of proving that the CIA has waived its right to claim FOIA or Privacy Act Exemptions in response to Bassiouni's FOIA and Privacy Act request. See Afshar, 702 F.2d at 1130.
The court also rejects the argument that a "no number, no list" response is not supported by relevant authority. A Glomar Response is of no consequence absent the CIA's ability to rely on a specific FOIA Exemption to justify such a response. See Minier, 88 F.3d at 800; See also Hunt, 981 F.2d at 1118 (stating that the CIA's right to assert a Glomar Response depends on whether the declarations proffered in support of such a response support exemption under applicable FOIA Exemptions). Likewise, a "no number, no list" response is of no consequence absent the CIA's ability to rely on a specific FOIA Exemption to justify such a response. The court is not inclined to become fixated with labels or parse semantics.
Pursuant to § 3.7(a) of Executive Order No, 12,958, in response to a FOIA or Privacy Act request, a federal agency may "refuse to confirm or deny the existence or nonexistence of requested information whenever the fact of its existence or nonexistence is itself classified under this order." Executive Order No, 12,958, § 3.7(a). The CIA's regulations implement this portion of Executive Order 12,958, stating: "[t]he Agency shall decline to confirm or deny the existence or nonexistence of any responsive records whenever the fact of their existence or nonexistence is itself classified under Executive Order 12,958. . . ." 32 C.F.R. § 1900.21(c) (FQIA); 32 C.F.R, § 1901.21(c) (Privacy Act). Neither Executive Order No. 12,958 nor the CIA's implementing regulations make reference to a Glomar Response or a "no number, no list" response. Thus, the fact that the exact wording of either response is not found in those authorities is of no consequence. The CIA's ability to refuse to confirm or deny the existence of responsive records, by use of a Glomar Response or a "no number, no list" response, is based on the statutory exemptions that exempt certain federal agency records from public disclosure. See 5 U.S.C. § S52(b) (FOIA); 5 U.S.C. § 552a(j) and (k) (Privacy Act). So long as the affidavits in support of the statutory exemption claimed justify the CIA's non-disclosure, it has complied with the relevant authority.
In this case, the McNair Declaration states that "[t]he only practical alternative at this point, to protect classified and otherwise exempt information, is to use the 'no number, no list' response. . . ." See McNair Decl. ¶ 9. Furthermore, the McNair Declaration states that the CTA utilizes "Glomar Responses," "Split Glomar Responses," and "no number, no list" responses in response to FOIA requests. See Id. ¶¶ 8-9. The court must accord substantial deference to the agency's interpretation of its own regulations, according the well-known Chevron standard. See Barnhart v. Wilson, 535 U.S. 212, 213 (2003); Chevron. U.S.A., Inc. v. Natural Resources Defense Council. Inc., 467 U.S. 837, 843(1984).
The court finds that the CIA has not waived the right to assert a "no number, no list" response to Bassiouni's FOIA and Privacy Act request, and that such a response was appropriate. 2. Sufficiency of the McNair Declaration
Thus, having found that the CIA's "no number, no list" response to Bassiouni's FOIA and Privacy Act request was appropriate, the court must determine whether the affidavit in support of the statutory exemptions claimed justify the agency's response in this case.
According to the McNair Declaration;
Assuming C1A still holds responsive documents, providing a portion of the withheld responsive documents, or even a list or number of such responsive documents, would expose sensitive and classified methods and would reveal the extent of the US collection efforts, analysis and reporting directed at particular targets. It could further reveal the relative priority that the C1A attached to a particular intelligence subject and indicate where the Agency had allocated its limited resources. This could reveal US policy interests and expose strengths and gaps in the Agency's intelligence gathering ability. It would reveal information that could damage US foreign relations.
McNair Decl. ¶ 15.
In support of the use of the "no number, no list" response, the McNair Declaration describes the justifications for non-disclosure pursuant to FOIA Exemptions 1 and 3 and Privacy Exemptions (j)(1) and (k)(1) with reasonably specific detail and demonstrates that the information withheld logically falls within those claimed exemptions. The McNair Declaration provides a well-reasoned, specific and plausible basis for concluding that those statutory exemptions preclude further identification of records responsive to Bassiouni's request due to the detrimental effects of disclosure on intelligence methods, interests, sources and capabilities, as well as detrimental effects on United States foreign relations. See Minier, 88 F.3d at 800; Hunt, 981 F.2d at 1119. As such, the McNair Declaration is entitled to substantial weight from the court, as the "'Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse affects [sic.] might occur as a result of public disclosures of a particular classified record,'" Casey, 656 F.2d at 738 (quoting S, Rep. No. 93-1200, 93rd Cong., 2nd Sess, 12 (1974) reprinted in 1974 U.S.C.C.A.N. 6267, 6290), The court is also mindful of the United States Supreme Court's admonition in Sims, where the Court stated;
The decisions of the Director, who must of course be familiar with 'the whole picture,' as judges are not, are worthy of great deference given the magnitude of the national security interests and potential risks at stake. It is conceivable that the mere explanation of why information, must be withheld can convey valuable information to a foreign intelligence agency.Sims, 471 U.S. at 179.
In enacting the FOIA and the Privacy Act, and the statutory exemptions thereto, Congress recognized that "it is the responsibility of the Director of Central Intelligence, not that of the judiciary, to weigh the variety of complex and subtle factors in determining whether disclosure of information may lead to an unacceptable risk of compromising the Agency's intelligence-gathering process." Id. at 180. Under our system of checks and balances, Congress also has oversight authority of the CIA's activities, whereas the courts; and FOIA and Privacy Act requestors do not.
The court finds that the McNair Declaration is sufficient to justify the CIA's response to Bassiouni's request on the basis that records not referred to State, if any, are exempt from disclosure pursuant to FOIA Exemptions 1 and 3 and Privacy Act Exemptions (j)(1) and (k)(1).
3. Bassiouni's allegation that the CIA possesses information concerning his First Amendment activities
Lastly, Bassiouni argues that summary judgment may not be granted in light of his allegation that the CIA possesses information concerning his First Amendment activities. In his memorandum in opposition to the CIA's Motion for Summary Judgment, Bassiouni states: "the [CIA] has collected and is maintaining records that describe his First Amendment activities." Pl.'s Mem. in Resp. to Def.'s Mot. for Summ. J., at 8 (citing Pl.'s Aff. ¶¶ 8-11, 31, 38). Bassiouni contends that this assertion, alone, creates a genuine issue of material facts precluding summary judgment, because the Privacy Act provides that no agency shall maintain no record describing how any individual exercises rights guaranteed by the First Amendment. See 5 U.S.C. § 552a(e)(7).
In response, the CIA argues that this argument has been raised for the first lime in Bassiouni's memorandum in opposition to summary judgment was not raised in his Complaint, and thus, a belated effort to raise such a claim must be rejected. The CIA further argues that, assuming arguendo, that Bassiouni were granted leave to file an amended complaint (which he has not done), such a claim would have to be dismissed to give full effect to the CIA's legitimate exemptions from disclosure. See Def.'s Reply Mem. in Supp. of Def.'s Mot, for Summ. J., at 10-11 (citingNolan v. Dep't of Justice, 973 F.2d 843 (10th Cir. 1992); Wentz v. Dep't of Justice, 772 F.2d 335 (7th Cir. 1985)).
A plaintiff cannot create a genuine issue of material fact, thereby precluding summary judgment, by raising facts for the first time in response to defendant's motion for summary judgment which were not raised in the complaint. See Bass v. Hendrix, 931 F. Supp. 523, 538 (S.D. Tex. 1996) (stating that a plaintiff cannot defeat a defendant's entitlement to summary judgment by raising an argument for the first time in response to the motion for summary judgment); Kansas Mun. Gas Agency v. Vesta Energy Co., 840 F. Supp. 814, 821-22 (D. Kan. 1993) ("A party cannot wait until a summary judgment motion is filed against a theory advanced by it and, realizing the lack of merit in its position, suddenly shift to a wholly new and different one, particularly where, as here, that theory is the plaintiffs very own contention as to how it was allegedly damaged."); see also Schroeder v. Copley Newspaper, 879 F.2d 266, 270 n. 2 (7th Cir. 1989) (stating that arguments raised for the first time in a reply brief are waived). Likewise, a plaintiff cannot amend his or her complaint through allegations made for the first time in response to defendant's motion for summary judgment, See Shanahan v. City of Chicago, 82 F.3d 776, 781 (7th Cir. 1996) (stating that a "plaintiff may not amend his complaint through arguments in his brief in opposition to a motion for summary judgment").
Bassiouni's Complaint sought declaratory and injunctive relief, pursuant to FOIA and the Privacy Act. See Pl.'s Compl. ¶ 1 [docket entry 1-1]. Specifically, Bassiouni alleged the CIA was improperly withholding records that pertained to him. See Id. ¶¶ 1, 11. Complaint did not allege the CIA was improperly maintaining records that pertained to Bassiouni's First Amendment Activities.
The present Motion for Summary Judgment tests the allegations of the Complaint as framed, which is devoid of any allegation that the CIA was improperly maintaining records that pertained to Bassiouni's First Amendment Activities, As such, the attempt to create a genuine issue of material fact precluding summary judgment by raising facts in briefs to the summary judgment motion not raised by the complaint must be rejected. Additionally, Bassiouni has not sought leave to file an amended complaint to add such a claim, and that issue is not before the court.
The court finds that summary judgment may be granted in light of Bassiouni's allegation that the CIA possesses information concerning his First Amendment activities, because that allegation was not raised in his Complaint nor has he sought leave to add such a claim.
III. CONCLUSION
For the forgoing reasons, the Defendant's Motion for Summary Judgment is granted.IT IS SO ORDERED.