Motion for Leave to Amend Complaint in FOIA Lawsuit for Disclosure of 1947-48 Intelligence Budgets

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
         
___________________________________
STEVEN AFTERGOOD                   )
                                   )
     Plaintiff,     		   )
                                   )	Case No. 01-2524 (RMU)
v.                                 )
                                   )
CENTRAL INTELLIGENCE AGENCY        )
                                   )
     Defendant.                    )
___________________________________)
PLAINTIFF'S MOTION FOR LEAVE
TO FILE AN AMENDED SUPPLEMENTAL COMPLAINT
Plaintiff pro se Steven Aftergood hereby moves the Court, pursuant to Rule 15(a) and (d) of the Federal Rules of Civil Procedure, for leave to file an amended supplemental complaint following Defendant Central Intelligence Agency's unexpectedly limited June 27 administrative response to the Freedom of Information Act Request for historical U.S. intelligence budget information that is the subject of this proceeding. The amended supplemental complaint would expand the scope of the complaint to encompass the historical intelligence budget records from 1947 to 1970 that were specified in the initial FOIA Request. Defendant's June 27, 2003 administrative response did not address the full scope of the initial FOIA Request and only narrowly responded to a small portion of the records requested.
A proposed amended supplemental complaint accompanies this motion, which also includes two attachments.

Background
Since May 1995 plaintiff has sought disclosure under the Freedom of Information Act of "historical U.S. intelligence budget data from 1947 through 1970." This information was denied by Defendant CIA in 1995 and again upon administrative appeal in 2000, citing FOIA exemptions (b)(1) and (b)(3). By the time plaintiff sought judicial review in late 2001, the statute of limitations on the initial 1995 Request had expired. Defendant sought, and was granted, dismissal of the complaint. At the same time, Plaintiff sought, and was granted, leave to file a supplemental complaint based on an identical initial FOIA Request that was filed on February 22, 2002, attached hereto as Attachment 1 with Defendant's March 27 letter of receipt. Plaintiff exhausted his administrative remedies on that initial Request after filing an administrative appeal on September 13, 2002. The supplemental complaint was filed on October 17, 2002.
Like the original complaint, the supplemental complaint sought disclosure only of the aggregate figures for fiscal year 1947 and 1948, even though the initial FOIA Request and administrative appeal had asked more broadly for "historical U.S. intelligence budget data from 1947 through 1970," including "all releasable budget data, but particularly aggregate annual budget totals." However, the initial Request and administrative appeal were not withdrawn or modified.
I framed the complaint and supplemental complaint in this limited way because I believed that doing so would simplify the proceeding, making it easier for me to argue in favor of disclosure and for the defendant to comply with the narrowly circumscribed complaint. My hope was that successful resolution of the circumscribed dispute over the 1947 and 1948 figures would establish a clear precedent for subsequent disclosure outside of litigation of the additional historical budget information sought in the Request. Unfortunately, this approach did not yield a productive outcome, as described below.
The present motion therefore seeks leave to amend the supplemental complaint to seek disclosure of "historical U.S. intelligence budget data from 1947 through 1970," including aggregate annual budget totals as well as subsidiary agency totals, as originally contemplated in the initial FOIA Request and administrative appeal.
An Unexpected New Fact
To my surprise, Defendant reported in a new administrative response that it is "unable to locate" documents indicating the requested totals for either 1947 or 1948. See Defendant's Response to Plaintiff's FOIA Request, 27 June 2003, attached hereto as Attachment 2.
This was an unexpected development, because Defendant had for years denied release of the information on national security grounds.
Moreover, Defendant had represented to this Court that it was in fact in possession of the information. Thus, Defendant "Admit[ted]" that it "…has possession of the information requested by plaintiff under the Freedom of Information Act." See Defendant's Answer to Plaintiff's Supplemental Complaint, December 10, 2002, ¶ 17.
In its latest Response, Defendant also said it has located other budget information, including 1947 subsidiary budget figures for the Departments of State, War and Navy, but declined to release such subsidiary information because it was not specifically identified in the supplemental complaint, which only mentions aggregate figures.¹ Defendant's Response to Plaintiff's FOIA Request, June 27, 2003, at page 1. That other budget information, however, is subject to the plaintiff's initial FOIA Request -- which has not been withdrawn or modified² -- and the Agency provided no basis for its administrative refusal to provide the records.
At any rate, amending the supplemental complaint to encompass the years 1947 through 1970, and to include aggregate as well as subsidiary agency budget figures, as per plaintiff's initial FOIA Request, would increase the likelihood of a productive response to the Request, as argued below. The proposed amendment would not exceed the boundaries of the underlying Request, for which administrative remedies have already been exhausted.
Points and Authorities
Plaintiff requests leave to file an amended supplemental complaint under Rule 15(a) and (d) of the Federal Rules of Civil Procedure, which authorizes a court to grant leave "freely … when justice so requires" and to permit a party "to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented."
In this case, the "event" that has transpired is the Defendant's June 27 administrative response disclosing that some of the records whose release has been denied on national security grounds for the past eight years do not exist, contrary to previous indications, and that other information requested by the plaintiff will not be disclosed (or formally denied) because it is not explicitly named in the complaint even though it is subject to the FOIA Request.
I respectfully suggest that granting leave to amend the complaint in this case would serve the interests of justice, including the faithful implementation of the Freedom of Information Act. It is nearly certain that aggregate budget data do exist for some of the years in the 1947-1970 period. It is positively certain that subsidiary data do exist even for 1947 since defendant has identified them but declined to release them, albeit without claiming an authorized exemption. It is likewise certain that subsidiary figures for later years up to 1970 do exist.
Further, as this Court has previously explained:³
Supplemental pleadings may introduce new causes of action not alleged in the original complaint so long as their introduction does not create surprise or prejudice the rights of the adverse party. Montgomery Envtl. Coalition v. Fri, 366 F. Supp. 261, 265-66 (D.D.C. 1973). Moreover, "leave to file a supplemental pleading should be freely permitted when the supplemental facts connect it to the original pleading." Quaratino v. Tiffany & Co., 71 F.3d 58, 66 (2d Cir. 1995). Finally, the purpose of pleading "is to facilitate a proper decision on the merits" and avoid the dismissal of potentially meritorious claims due to procedural missteps. Conley v. Gibson, 355 U.S. 41, 48 (1957).
I believe that each of these criteria is met in the present case. In particular, there can be no surprise to the defendant since the requested information has been sought since 1995, and the present initial FOIA Request has been in defendant's possession since February 2002.
Conclusion
Based on the foregoing, Plaintiff respectfully requests leave to file an amended supplemental complaint in this proceeding that would set forth the new fact of the defendant's June 27, 2003 response and that would expand the scope of the information requested in the complaint to encompass historical U.S. intelligence budget data from 1947 through 1970, including aggregate annual budget totals as well as subsidiary agency totals, as contemplated in the initial FOIA Request that is the basis for the proceeding.
A proposed order is attached, as well as a proposed amended supplemental complaint.
Respectfully submitted,
STEVEN AFTERGOOD
Plaintiff pro se
Dated: July 2, 2003

[NOTES]
1. Defendant did release a 1947 "grand total" figure, but states that it cannot "vouch with certainty" that it represents the 1947 aggregate budget figure. Defendant's Response, at page 1.
2. Defendant appears to construe the limited scope of the complaint as a modification of the initial FOIA Request and administrative appeal which relieved Defendant of its obligations under the FOIA to administratively process the Request. That is not correct, and was never my intention.
3. Memorandum Order, Steven Aftergood v. Central Intelligence Agency, 01-2524 (RMU), Granting the Defendant's Motion to Dismiss; Granting the Plaintiff's Motion for Leave to File a Supplemental Complaint, September 6, 2002 at pp. 4-5.