UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, et al. : : Plaintiffs, : Civil Action No.: 17-2176 (RC) : v. : Re Document Nos.: 14, 16 : CENTRAL INTELLIGENCE AGENCY, : : Defendant. : MEMORANDUM OPINION

GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFFS’ CROSS MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

In this case under the Freedom of Information Act (“FOIA”),

, plaintiffs

Buzzfeed and Buzzfeed reporter Jason Leopold (together, “Buzzfeed”) seek to obtain records of

the Central Intelligence Agency (“CIA”) relating to an alleged covert CIA program to arm Syrian

rebels. Buzzfeed also seeks CIA records referencing a tweet by President Donald J. Trump that

allegedly revealed the existence of the program. The CIA has now moved for summary

judgment, arguing that it has properly refused to disclose the existence or absence of records

relating to the alleged covert program (a so-called “Glomar response”), and that it has conducted

an adequate search for, and performed adequate redactions when releasing, agency records

relating to the presidential tweet. Buzzfeed cross-moves for summary judgment solely on the

issue of whether the Glomar response was appropriate, arguing that the President’s tweet has

already made the existence of the program public. Because the Court finds that the President has

not revealed the existence of a CIA-led program to arm Syrian rebels, it grants the CIA’s motion

for summary judgment and denies Buzzfeed’s cross motion. II. BACKGROUND

A. The Washington Post Article and Subsequent Trump Administration Comments

The facts underlying this case can be summarized in a few paragraphs. On July 19, 2017,

the Washington Post published an article describing the Trump administration’s termination, a

month earlier, of an alleged covert CIA program to arm rebels to the government of Bachar Al-

Assad in Syria. Greg Jaffe & Adam Entous, Trump Ends Covert CIA Program to Arm Anti-

Assad Rebels in Syria, a Move Sought by Moscow, Washington Post, July 19, 2017, Pls.’ Cross

Mot. Summ. J. Ex. 1, at 2, ECF No. 16-2; 1 Pls.’ Statement of Material Facts (“SMF”) ¶ 1, ECF

No. 16-3; Def.’s Resp. Pls.’ SMF ¶ 1, ECF No. 18-1.

Two days later on July 21, 2017, General Raymond Thomas, the commander of the

United States Special Operations Command—the U.S. command overseeing special operations

forces of the U.S. Army, Marine Corps, Navy, and Air Force, see 10 U.S.C. § 167—was asked

about the program’s termination at the 2017 Aspen Security Forum. See Excerpts from General

Raymond Thomas’s Statements at the 2017 Aspen Security Forum, July 21, 2017, Pls.’ Cross

Mot. Ex. 2, at 7; Pls.’ SMF ¶ 8; Def.’s Resp. Pls.’ SMF ¶ 8. Catherine Herridge, Fox News’s

chief intelligence correspondent, asked whether “it [was General Thomas’s] assessment that this

was done to create favor with Russia, or that it was not an effective program.” Excerpts from

Gen. Thomas’s Statements 7. General Thomas responded:

Absolutely—absolutely not in my—at least from what I know about that program and the decision to end it. Absolutely not a SOP to the Russians. It was I think based on assessment of the nature of the program, what we're trying to accomplish, the viability of it going forward, and a tough, tough decision. I mean we’re all reading the editorials now of are we leaving people at the altar, you know, people have we manned and equipped, but they’re—it is so much more

1 Because the exhibits in support of Buzzfeed’s cross motion are included in a single attachment to the motion, the Court uses PACER page numbers when referring to each exhibit throughout this opinion.

2 complex than even I can describe, and again that's not necessarily an organization that I’ve been affiliated with, but a sister—a parallel activity that was—that had a tough, you know, some would argue impossible mission based on the approach we took. It might have been scoped too narrowly or not empowered sufficiently. I don’t know enough about it to criticize it in that direction, but it had a tough road to hope.

Id.

On July 24, 2017, the President tweeted from his Twitter account @realDonaldTrump

that “[t]he Amazon Washington Post fabricated the facts on my ending massive, dangerous, and

wasteful payments to Syrian rebels fighting Assad.” @realDonaldTrump, Twitter (July 25,

2017, 07:23 PM), https://twitter.com/realdonaldtrump/status/889672374458646528.

Finally, on July 25, 2017, President Trump was interviewed by the Wall Street Journal

(“WSJ”). Pls.’ SMF ¶ 10; Def.’s Resp. Pl’s SMF ¶ 10. In the course of discussing intelligence

leaks in his administration, President Trump referenced an unnamed Washington Post story

about a weapons program in Syria:

Trump: I’m talking about intelligence leaks. I’m talking like the story about Syria that was in The New York Times the other day. I’m—which by the way, was a decision made by people, not me. But, you know, they wrote it 100—it was in the –

WSJ: The Post, I thought. It was in the Washington Post.

Trump: It was in The Washington Post. That was not something that I was involved in, other than they did come and they suggested. It turns out it’s—a lot of al-Qaida we’re giving these weapons to. You know, they didn’t write the truthful story, which they never do. So all of those things are very important. But, no, I’m very disappointed in the fact that the Justice Department has not gone after the leakers. And they’re the ones that have the great power to go after the leakers, you understand. So—and I’m very disappointed in Jeff Sessions.

Excerpts from President Donald Trump’s Interview with the Wall Street Journal, July 25,

2017, Pls.’ Cross Mot. Ex. 3, at 9.

3 B. Procedural History

On September 12, 2017, Buzzfeed submitted a six-part FOIA request to the CIA. Compl.

¶ 10, ECF No. 1. Five of the six subparts in the request were directed at records related to an

alleged program of CIA payments to Syrian rebels fighting the Assad government. Id. Part one

sought the “studies, memos, assessments, and intelligence products, mentioning or referring to

CIA payments to Syrian rebels fighting Assad.” Id. Part two sought “[a]ny and all emails

mentioning or referring to” such payments. Id. Part three sought “[a]ny and all correspondence

to or from a member of Congress or a Congressional Committee mentioning or referring to” such

payments. Id. Part five sought “any and all records mentioning or referring to the ending of the

CIA’s payments.” Id. And finally, part six sought “records authorizing the CIA to make

payments to Syrian rebels,” including any “‘FINDING’ authorized by President Barack Obama.”

Id. Part four of the request, on the other hand, sought records related to the July 24, 2017 tweet,

with Buzzfeed requesting “[a]ny and all records that mentions or refers to the July 24, 2017

[tweet] by President Donald Trump.” Id.

Although the CIA acknowledged receipt of Buzzfeed’s request on September 14, 2017,

id. ¶ 12, it failed to respond to the request, id. ¶ 13. On October 19, 2017, Buzzfeed filed suit.

See generally id. On December 18, 2017, the parties filed a stipulation regarding the scope of

the FOIA request, with Buzzfeed agreeing to restrict its request to exclude any documents

obtained or created by the CIA in connection with the litigation of a FOIA case involving a

substantially similar FOIA request, New York Times Co. v. CIA, 17-cv-6354 (ALC) (S.D.N.Y.).

Stipulation 1, ECF No. 10. And on February 1, 2018, the parties represented that the CIA had

issued a Glomar response with respect to the entire request pursuant to FOIA Exemptions 1 and

3, but that it would be conducting a search for records responsive to part 4 of the request that

4 referenced the presidential tweet but did not implicate the alleged covert CIA program. Joint

Status Report 1–2 (Feb. 1, 2018), ECF No. 12. The parties further represented that they had

agreed to restrict the search to e-mail records in five CIA offices: the Office of the Director,

Office of the Deputy Director, Office of the Chief Operating Officer, Office of General Counsel,

and Office of Public Affairs. Id. at 2. The limited search uncovered two responsive e-mails,

which the CIA redacted and produced to Buzzfeed on April 17, 2018. Def.’s SMF ¶¶ 11–13,

ECF No. 14-1; Pls.’ Resp. Def.’s SMF ¶ 11–13, ECF No. 15-3.

The CIA moved for summary judgment on May 4, 2018, arguing both that its Glomar

response to the request was valid and that the limited search for responsive, non-exempt records

it conducted in response to part 4 of the request was adequate. Def.’s Mem. Supp. Summ. J. 1–2,

ECF No. 14. On June 4, 2018, Buzzfeed filed both an opposition to the motion and its own cross

motion for summary judgment. Pls.’ Mem. Opp’n, ECF No. 15; Pls.’ Mem. Supp. Cross Mot.

Summ. J., ECF No. 16. On July 11, 2018, the CIA filed its opposition to the cross motion and

reply. Def.’s Mem. Opp’n, ECF No. 18; Def’s Reply, ECF No. 19. And Buzzfeed filed its reply

on August 6, 2018. Pls.’ Reply, ECF No. 20. The cross motions are now ripe for review.

III. LEGAL STANDARD

The Freedom of Information Act “sets forth a policy of broad disclosure of Government

documents in order ‘to ensure an informed citizenry, vital to the functioning of a democratic

society.’” FBI v. Abramson,

(1982) (quoting NLRB v. Robbins Tire & Rubber

Co.,

(1978)). “[D]isclosure, not secrecy, is the dominant objective of the

Act.” Dep’t of Air Force v. Rose,

(1976). FOIA accordingly “mandates

release of properly requested federal agency records, unless the materials fall squarely within one

of nine statutory exemptions.” Hunton & Williams LLP v. EPA,

(D.D.C.

5 2018) (citing Milner v. Dep’t of Navy,

, 565 (2011)). And “even if some materials

from the requested record are exempt from disclosure, any reasonably segregable information

from those documents must be disclosed after redaction of the exempt information,” unless the

non-exempt portions are “inextricably intertwined with exempt portions.” Id. (internal quotation

marks omitted) (quoting Johnson v. EOUSA,

, 776 (D.C. Cir. 2002)).

“FOIA cases typically and appropriately are decided on motions for summary

judgment.” Defs. of Wildlife v. U.S. Border Patrol,

(D.D.C.

2009) (citing Bigwood v. U.S. Agency for Int’l Dev.,

(D.D.C. 2007)). An

agency is entitled to summary judgment if no material facts are genuinely in dispute and the

agency demonstrates “that its search for responsive records was adequate, that any exemptions

claimed actually apply, and that any reasonably segregable non-exempt parts of records have

been disclosed after redaction of exempt information.” Competitive Enter. Inst. v. EPA,

(D.D.C. 2017). “This burden does not shift even when the requester files a

cross-motion for summary judgment because ‘the Government ultimately has the onus of

proving that the documents are exempt from disclosure,’ while the ‘burden upon the requester is

merely to establish the absence of material factual issues before a summary disposition of the

case could permissibly occur.’” Hardy v. ATF,

(D.D.C. 2017) (brackets

omitted) (quoting Pub. Citizen Health Research Grp. v. FDA,

, 904–05 (D.C. Cir.

1999)).

To carry its burden, the agency must provide “a relatively detailed justification,

specifically identifying the reasons why a particular exemption is relevant and correlating those

claims with the particular part of the withheld document to which they apply.” Elec. Privacy

Info. Ctr. v. DEA,

(D.D.C. 2016) (quoting Mead Data Cent., Inc. v. U.S.

6 Dep’t of Air Force,

(D.C. Cir. 1977)). And to justify a Glomar response,

“[t]he agency must demonstrate that acknowledging the mere existence of responsive records

would disclose exempt information.” Elec. Privacy Info. Ctr. v. NSA,

(D.C.

Cir. 2012) (citing Wolf v. CIA,

(D.C. Cir. 2007)). The agency “cannot justify

its withholdings on the basis of summary statements that merely reiterate legal standards or offer

‘far-ranging category definitions for information,’” Citizens for Responsibility & Ethics in Wash.

v. U.S. Dep’t of Justice,

(D.D.C. 2013) (quoting King v. U.S. Dep't of

Justice,

(D.C. Cir. 1987)), but it “may rely on declarations that are reasonably

detailed and non-conclusory,” Pinson v. U.S. Dep’t of Justice,

(D.D.C.

2018). While reviewing courts should “respect the expertise of an agency,” Hayden v. NSA /

Cent. Sec. Serv.,

(D.C. Cir. 1979), courts review an agency’s decision to

withhold records de novo and will only endorse that decision if the agency’s justification for

invoking a FOIA exemption “appears ‘logical’ or ‘plausible,’” Pinson,

(quoting Wolf, 473 F.3d at 374–75).

“Even if a nonmovant does not respond to a motion for summary judgment, the court

cannot grant the motion as conceded.” Hunton & Williams,

(citing

Winston & Strawn, LLP v. McLean,

(D.C. Cir. 2016)). This is because

“[u]nder the Federal Rules of Civil Procedure, a motion for summary judgment cannot be

‘conceded’ for want of opposition. ‘The burden is always on the movant to demonstrate why

summary judgment is warranted. The nonmoving party's failure to oppose summary judgment

does not shift that burden.’” Winston & Strawn,

(quoting Grimes v. District of

Columbia,

(D.C. Cir. 2015) (Griffith, J., concurring)). A court reviewing an

unopposed motion for summary judgment must accordingly “always determine for itself whether

7 the record and any undisputed material facts justify granting summary judgment.”

(quoting

Grimes,

(Griffith, J., concurring)).

IV. ANALYSIS

The CIA moves for summary judgment as to both the validity of its Glomar response

pursuant to FOIA Exemptions 1 and 3 and the adequacy of its limited search for records in

response to part 4 of Buzzfeed’s request. In its opposition and cross motion, Buzzfeed argues

that the CIA’s Glomar response is improper because President Trump officially acknowledged

the existence of a covert CIA program of payments to Syrian rebels in his July 24, 2017 tweet.

Buzzfeed does not otherwise challenge the CIA’s invocation of FOIA Exemptions 1 and 3, the

adequacy of the agency’s search, or the redaction of information on the two released e-mails.

The Court first reviews whether the July 24, 2017 tweet officially acknowledged the existence of

the alleged CIA program, and concludes that it did not. The Court next reviews the CIA’s

invocation of FOIA Exemption 1 and 3, and finally the agency’s limited search for records.

Because it finds that the agency properly invoked both exemptions and conducted an adequate

search for records, the Court grants the CIA’s motion for summary judgment and denies

Buzzfeed’s cross motion.

A. The July 24, 2017 Tweet Did Not Officially Acknowledge the Alleged CIA Program

The only contested issue in this case is the legal significance the Court should impart to

President Trump’s July 24, 2017 tweet. According to Buzzfeed, the tweet constituted an official

acknowledgment of a CIA program of payments to anti-Assad Syrian rebels mentioned in the

Washington Post’s July 19, 2017 article, and the CIA can no longer refuse to acknowledge the

existence or absence of records concerning the program. The CIA contends that the tweet is too

vague and ambiguous to constitute the official acknowledgment of a covert payment program, let

8 alone a program ran by the CIA. 2 The Court first reviews the relevant legal standard for official

disclosure, before going over the parties’ arguments. Without pronouncing itself as to whether

the tweet acknowledged the existence of any government program, the Court agrees that it did

not officially reveal the existence of a CIA program, and thus that there has been no official

acknowledgment of the information the CIA seeks to protect through its Glomar response.

1. What Constitutes “Official Disclosure” in the Glomar Context

Under the “official acknowledgment” line of FOIA cases, “when an agency has officially

acknowledged otherwise exempt information through prior disclosure, the agency has waived its

right to claim an exemption with respect to that information.” Am. Civil Liberties Union v. CIA

(“ACLU”),

(D.C. Cir. 2013). “A plaintiff mounting an official

acknowledgment argument ‘must bear the initial burden of pointing to specific information in the

public domain that appears to duplicate that being withheld.’”

at 427 (quoting Wolf,

). And because the specific information at issue in a Glomar case “is not the contents of a

particular record, but rather ‘the existence vel non’ of any records responsive to the FOIA

request,” a plaintiff can “overcome a Glomar response by showing that the agency has already

disclosed the fact of the existence (or nonexistence) of responsive records.”

at 427 (quoting

Wolf,

). When the plaintiff has pointed to the required specific information,

courts must evaluate “whether it is ‘logical or plausible’ for the [agency] to contend that it would

2 The CIA does not argue that the July 19, 2017 tweet was not an official statement, and instead “assum[es] arguendo” that it was. Def.’s Mem. Supp. 11. The Court notes that the government took the position that presidential tweets were official statements in James Madison Project v. Department of Justice,

(D.D.C. 2018) (“So, Defendants say, ‘a [tweet] by any other name would smell as sweet’ as any other official statement, at least for purposes of the official acknowledgment doctrine.” (alteration in original) (quoting William Shakespeare, Romeo and Juliet, act 2, sc. 2)). Because Buzzfeed’s official acknowledgment argument fails independently of whether the tweet was an official statement, the Court assumes that it was and does not address the issue in its discussion below.

9 reveal something not already officially acknowledged” by disclosing the existence or absence of

documents. Id. at 429 (internal citation omitted) (quoting Wolf,

).

On first glance, the CIA and Buzzfeed appear to offer conflicting standards for what

constitutes “specific information” meeting the plaintiff’s burden. The CIA argues that “[t]he

D.C. Circuit has narrowly construed the official acknowledgment principle . . . and the plaintiff

must satisfy three stringent criteria.” Def.’s Mem. Supp. 10 (citing Associated Press v. FBI,

(D.D.C. 2017)). Under the three-part test established in Fitzgibbon v. CIA,

(D.C. Cir. 1990), “[f]irst, the information requested must be as specific as the

information previously released.” Wolf,

(quoting Fitzgibbon,

).

Next, “the information requested must match the information previously disclosed.”

(quoting

Fitzgibbon,

). And finally, “the information requested must already have been

made public through an official and documented disclosure.”

(quoting Fitzgibbon,

). By contrast, Buzzfeed focuses on the broad language in ACLU and contends that the

Court “must use its common sense” in reviewing information supporting a claim of official

disclosure. Pls.’ Mem. Supp. 1. According to Buzzfeed, the D.C. Circuit in ACLU admonished

district courts to look at official statements “from the perspective of a ‘reasonable person’ and to

determine whether the fiction of deniability is ‘plausible,’” with the result that “a statement need

not be completely free of any ambiguity whatsoever” to trigger the official acknowledgment

doctrine. Pls.’ Mem. Supp. 1 (quoting ACLU,

).

As the parties recognize however, the reasoning of the Fitzgibbon line of cases and of

ACLU is not necessarily at odds. ACLU’s admonition that an agency’s Glomar response must be

“logical or plausible,”

(quoting Wolf,

), and focus on reviewing

the fiction of deniability from the perspective of a reasonable person did not displace

10 Fitzgibbon’s three-part test, which the circuit has used in official acknowledgment cases since

ACLU, e.g. Mobley v. CIA,

, 583–84 (D.C. Cir. 2015). Rather, having determined

that the information sought had already been officially acknowledged, the circuit in ACLU

found, applying the “logical or plausible” standard under which all agency invocations of FOIA

exemptions are reviewed, that the CIA had not met its burden to issue a Glomar response. 710

F.3d at 429–30.

As a court in this circuit recently held in a FOIA case involving a similar issue, what the

ACLU court did provide guidance on was the “type of proof . . . required to establish that the

existence of a document has been officially acknowledged.” James Madison Project v. Dep’t of

Justice,

(D.D.C. 2018). In addition to cases such as Wolf “where the

existence of responsive records is plain on the face of the official statement,” ACLU made clear

that records are also officially acknowledged when “the substance of an official statement and

the context in which it is made permits the inescapable inference that the requested records in

fact exist.”

In essence, while leaving intact the requirement that the information sought be as

specific as, and match, the information disclosed, ACLU recognized that courts can infer such a

disclosure when the statement does not explicitly disclose the information but leaves no doubt as

to its existence. Courts must nonetheless keep in mind that the D.C. Circuit has consistently

applied the Fitzgibbon test “strictly.” Moore v. CIA,

(D.C. Cir. 2011).

2. Application to This Case

Here, Buzzfeed argues that the information sought to be protected by the CIA’s Glomar

response—the existence or absence of a covert CIA program of payments to Syrian rebels—has

already been officially acknowledged. Buzzfeed does not argue that President Trump’s July 24,

2017 tweet makes clear, on its face, the existence of the covert CIA program (and of records

11 associated to such a program). Rather, Buzzfeed argues that the tweet, both alone and in

conjunction with General Thomas’s statements at the Aspen Security Conference and the

President’s interview with the Wall Street Journal on July 25, 2017, leads to the inescapable

inference that such a program existed and was run by CIA before the President ended it. See

Pls.’ Mem. Supp. 2–7. The Court disagrees.

First, the Court finds that the tweet alone is not sufficiently precise to constitute an

official acknowledgment of a CIA program of payments to Syrian rebels. In the tweet, the

President stated: “[t]he Amazon Washington Post fabricated the facts on my ending massive,

dangerous, and wasteful payments to Syrian rebels fighting Assad.” @realDonaldTrump,

Twitter (July 24, 2017, 07:23 PM). Buzzfeed contends that “[a]ny reasonable person would

understand the . . . tweet as disclosing that the CIA had made payments to Syrian rebels.” Pls.’

Mem. Supp. 2. While the tweet states that the Washington Post “fabricated the facts,” Buzzfeed

points out that “it would not make any sense to describe non-existent payments as being

‘massive, dangerous, and wasteful.’” Id. at 3. Buzzfeed also notes that it would be illogical for

the President to accuse the Post of “fabricat[ing] the facts on my ending massive . . . payments” if

there were no payments to end in the first place. Pls.’ Mem. Supp. 3.

However, Buzzfeed does not explain how the tweet reveals the existence of a CIA

program of payments to Syrian rebels—nor can it. The CIA argues that the tweet “does not link

to or otherwise identify any particular article in the Washington Post,” that it “does not specify in

what respect the Washington Post’s reporting is inaccurate,” leaving it is unclear what program,

if any, exists, and in any event that the tweet provides no indication of “the CIA’s involvement in

any such program.” Def.’s Mem. Supp. 11. Without taking a position as to what program, if

12 any, the tweet may have officially acknowledged, 3 the Court agrees on the last point. Even

assuming, arguendo, that a program of covert payments to Syrian rebels existed, the President’s

tweet did not mention the CIA or create any inference that such a program would be linked to or

run by the CIA. The President might have acknowledged the existence of “massive, dangerous,

and wasteful” payments to Syrian rebels, but he did not mention from which branch of

government such payments would have originated.

Even taking into account the context behind the tweet and assuming it referred to the

Washington Post article, the President’s characterization of the facts in the article as “fabricated”

negates any inference that can be drawn from it as to the source of the payments. Because the

article asserted that the program was a CIA program, Buzzfeed assumes that the President

acknowledged as much, and that his reference to fabricated facts in the article necessarily

concerned the details of the program rather than its origin. See Pls.’ Mem. Supp. 6. The Court

cannot make such an assumption. At most, the tweet revealed that multiple payments were made

by the government 4 to Syrian rebels, that the President ended those payments, and that the

Washington Post incorrectly reported on the payments. Nor is the CIA required to point to

“[an]other agency which would have authority to make payments to rebel groups in foreign

3 The Court is not entirely convinced by the CIA’s arguments on the issue. The agency does not meaningfully attempt to refute the commonsense conclusion that the President’s tweet was in response to the July 19, 2017 article. Similarly, the CIA contends that because the tweet does not specify which facts were fabricated, it could be interpreted to mean that the article fabricated “the existence of a covert program” altogether. Def.’s Mem. Supp. 11. But as Buzzfeed points out, it is difficult to “explain how a tweet about ‘my ending . . . payments’ would make any sense if there were no U.S. government payments to end.” Pls.’ Reply 5. 4 Given the coalition of governments that is operating in the region, one could also plausibly assume that the President may have influence over payments made by other governments.

13 countries.” 5 Pls.’ Reply 7. Buzzfeed has the “initial burden of pointing to specific information

in the public domain that appears to duplicate that being withheld,” Wolf,

(quoting Afshar v. Dep’t of State,

(D.C. Cir. 1983), and it has not met that

burden.

Buzzfeed’s reliance on ACLU for the proposition that the Court must assume the CIA is

behind any covert payment program is also misplaced. In ACLU, the plaintiff sought the

production of “records pertaining to the use of unmanned aerial vehicles (‘UAVs’) . . . by the

CIA and the Armed Forces for the purposes of killing targeted individuals.” ACLU,

(emphasis added). In issuing its Glomar response, the agency indicated that disclosing the

existence of documents would “reveal . . . whether or not the CIA is involved in drone strikes or

at least has an intelligence interest in drone strikes.”

. But an official statement by

President Obama had already revealed the use of drone strikes.

. As a result, the D.C.

Circuit found the Glomar response “neither logical nor plausible” because it would “strain[]

credulity to suggest that an agency charged with gathering intelligence affecting the national

security does not have an ‘intelligence interest’ in drone strikes, even if that agency does not

operate the drones itself.”

. By contrast here, Buzzfeed strictly asked for documents

relating to “CIA payments.” Compl. ¶ 10. Buzzfeed’s request does not implicate any

intelligence interest the CIA may have in any program run by other government components, so

the Court cannot infer that documents responsive to Buzzfeed’s request exist.

Perhaps recognizing the issue, Buzzfeed also argues in its motion that additional

statements made contemporaneously with the tweet support the notion that the CIA, and no other

5 In any event, as Buzzfeed recognizes, “[an]other agency that could plausibly be making [such] payments . . . is the Department of Defense.” Pls.’ Mem. Supp. 6.

14 agency, was in charge of the alleged covert program. Buzzfeed notes that “the only other agency

that could plausibly be making payments to Syrian rebels fighting Assad is the Department of

Defense.” Pls.’ Mem. Supp. 6. And it points to General Thomas’s statements at the Aspen

Security Forum as a public denial that the program was run by the Department of Defense by “an

authorized Department of Defense official.”

at 6–7. Even setting aside the D.C. Circuit’s

admonition that courts should “not deem ‘official’ a disclosure made by someone other than the

agency from which the information is being sought,” Frugone v. CIA,

(D.C.

Cir. 1999), the Court cannot read that much into General Thomas’s statements. First, Buzzfeed

provides no support for its assertion that “the only other agency that could plausibly be making

payments . . . is the Department of Defense.” Id. at 6. Buzzfeed simply concludes as much, and

assumes that the Court will do so as well. 6 And second, the Court agrees with the New York

Times court that General Thomas’s statements “lack sufficient specificity to have any bearing on

the CIA’s Glomar response.” New York Times v. CIA,

(S.D.N.Y.

2018), appeal docketed, No. 18-2112 (2d Cir.). General Thomas did not name the CIA or

otherwise “clarify which agencies were involved with the alleged covert program.”

While

referencing the decision to terminate the program, he stated: “again that’s not necessarily an

organization that I’ve been affiliated with, but a sister—a parallel activity that was—that had a

tough, you know, some would argue impossible mission.” Excerpts from Gen. Thomas’s

Statements 7. Given the ambiguity in that statement, it is unclear to the Court whether General

6 The Court notes that multiple articles published on the issue have suggested that the State Department was also involved in providing support to Syrian rebels. E.g., Melanie Eversley, Report: U.S.-funded Weapons Reaching Syrian Rebels, USA Today (Sept. 12, 2013), https://www.usatoday.com/story/news/world/2013/09/11/cia-state-department-weapons-gear- syrian-rebels/2802491/; Mark Landler & Michael R. Gordon, U.S. Offers Training and Other Aid to Syrian Rebels, New York Times (Feb. 27, 2013), https://www.nytimes.com/2013/02/28/world/ middleeast/us-expands-aid-to-syrian-rebels.html.

15 Thomas referred to a sister organization to the Department of Defense, or to a sister department

to JSOC within the Department of Defense that ran the “parallel activity.” 7

Ultimately,

General Thomas’s statements are too ambiguous for the Court to infer that the CIA, rather than

another federal agency, ran the alleged covert payment program. The Court therefore finds that

the information sought to be withheld by the CIA’s Glomar response has not already been

publicly acknowledged.

B. The CIA’s Glomar Response Pursuant to FOIA Exemptions 1 and 3 Was Appropriate

The Court next reviews whether the CIA’s Glomar response pursuant to FOIA

Exemptions 1 and 3 was appropriate. While Buzzfeed does not challenge the validity of the

claimed exemptions, Pls.’ Mem. Supp. 1 n.1., “the court cannot grant the motion as conceded”

and must determine for itself whether the exemptions apply. Hunton & Williams,

(citing Winston & Strawn,

). The Court reviews each claimed exemption

in turn, and finds that the CIA’s Glomar response was appropriate under both.

1. Exemption 1

First, the CIA argues that its Glomar response was proper under Exemption 1 because

revealing whether or not the agency operates a covert program of payments to Syrian rebels

would disclose classified material, the disclosure of which could reasonably be expected to cause

damage to the national security. Def.’s Mem. Supp. 13–15. The Court agrees.

7 According to the Department of Defense’s website, General Thomas previously served as the Associate Director for Military Affairs at the CIA. See General Raymond A. Thomas III, Department of Defense, https://dod.defense.gov/About/Biographies/ Biography- View/Article/709270/general-raymond-a-thomas-iii/; see also Thomas Gibbons-Neff, JSOC Commander Tapped to Lead Special Operations Command, Washington Post (Feb. 29, 2016), https://www.washingtonpost.com/news/checkpoint/wp/2016/02/29/former-jsoc-commander- tapped-to-lead-special-operations-command/?utm_term=.235ba0496d67 (noting General Thomas’s appointment at the CIA in 2013). Arguably, the CIA could be considered an organization General Thomas has been affiliated with in the past.

16 Under FOIA Exemption 1, an agency can withhold from disclosure documents 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.”

(b)(1). And to justify its Glomar response, “[t]he

agency must demonstrate that acknowledging the mere existence of responsive records would

disclose exempt information.” Elec. Privacy Info. Ctr.,

(citing Wolf,

). The D.C. Circuit has “consistently deferred to executive affidavits predicting harm to

national security, and ha[s] found it unwise to undertake searching judicial review.” Am. Civil

Liberties Union v. U.S. Dep’t of Defense,

(D.C. Cir. 2011) (quoting Ctr. for

Nat’l Sec. Studies v. U.S. Dep’t of Justice,

(D.C. Cir. 2003)).

Here, the CIA argues that the information sought to be withheld is properly classified by

Executive Order 13526, which allows the classification of national security information

concerning “intelligence activities (including covert action),” Executive Order 13526 § 1.4(c),

, 709 (Dec. 29, 2009), if “unauthorized disclosure of the information reasonably

could be expected to result in damage to the national security,”

§ 1.1(a)(4), 75 Fed. Reg. at

707. In a declaration in support of the agency’s motion, Antoinette B. Shiner, an information

review officer at the CIA, represents that the alleged covert program of payments to Syrian

rebels is a classified fact relating to a “covert action.” Declaration of Antoinette B. Shiner ¶¶

19–20, 22, ECF No. 14-2; see Def.’s Mem. Supp. 13–14. Shiner indicates that disclosure of that

fact could reasonably be expected to harm national security by “reveal[ing] whether or not the

United States Government exercised extraordinary legal authorities to covertly influence the

political, economic, and/or military conditions in Syria,” as well as “reveal[ing] the [CIA’s]

capabilities, intelligence and regional interests, accesses, funding, and relationships, or lack

17 thereof.” Shiner Decl. ¶ 22. This disclosure would, inter alia, allow adversaries to “gain a more

accurate picture of the CIA’s activities, which would impair the effectiveness of [the] CIA’s

intelligence operations.” Id.

Without taking a position as to whether disclosure would reveal the existence of a U.S.

covert action program, 8 the Court readily finds that it would reveal information about the CIA

that “would impair the effectiveness of [the] CIA’s intelligence operations.” Id. “Because ‘[t]he

assessment of harm to intelligence sources, methods and operations is entrusted to the Director

of Central Intelligence, not to the courts,’” the government’s burden here “is a light one.” Am.

Civil Liberties Union,

(alteration in original) (quoting Fitzgibbon,

). And the Shiner declaration logically and plausibly suggests that disclosure here would

harm the effectiveness of the CIA’s intelligence efforts—and by extension the national security

of the United States. The Court need go no further. Accordingly, the Court finds that the

agency’s Glomar response was properly supported by FOIA Exemption 1.

2. Exemption 3

The CIA contends that its Glomar response was also proper under FOIA Exemption 3

because the information sought to be withheld is barred from disclosure pursuant to the National

Security Act of 1947, 50 U.S.C. §§ 3001–3234. The Court finds this argument meritorious as

well.

Under Exemption 3, an agency can withhold from disclosure matters that are

“specifically exempted from disclosure by statute,” provided that the statute either “requires that

the matters be withheld from the public in such a manner as to leave no discretion on the issue”

8 As discussed above in Part IV.A., the Court does not address what covert program, if any, President Trump’s July 24, 2017 tweet may have revealed.

18 or “establishes particular criteria for withholding or refers to particular types of matters to be

withheld.”

(b)(3)(A). Accordingly, “[u]nder that exemption, the CIA need only

show that the statute claimed is one of exemption as contemplated by Exemption 3 and that the

withheld material falls within the statute.” Larson v. Dep’t of State,

(D.C. Cir.

2009) (citing Fitzgibbon, 911 F.2d at 761–62).

Here, the CIA argues that the National Security Act is an exemption statute that bars

disclosure of the information sought to be withheld because it protects from disclosure

“intelligence sources and methods.” Def.’s Mem. Supp. 16 (quoting

(i)(1));

Shiner Decl. ¶ 24. The Court agrees. First, multiple courts in this circuit have recognized that

the National Security Act is an exemption statute for the purposes of Exemption 3. E.g., Am.

Civil Liberties Union,

; Larson,

. And second, the D.C. Circuit

has treated § 3024(i)(1) of the National Security Act broadly, “holding that material is properly

withheld under the Act if it ‘relates to intelligence sources and methods,’” Leopold v. CIA,

(D.D.C. 2015) (quoting Larson,

), or if it “can reasonably be

expected to lead to unauthorized disclosure of intelligence sources and methods,”

(citing

Halperin v. CIA,

(D.C. Cir. 1980)). In essence, “the Act’s protection of

sources and methods is a ‘near-blanket FOIA exemption.’”

(quoting Whalen v. U.S. Marine

Corps,

, 59 n.5 (D.D.C. 2005)). The CIA represents that “[t]he fact of

whether or not the CIA is, or has, exercised covert action authorities constitutes a protected

‘intelligence source or method.’” Shiner Decl. ¶ 24. The Court finds that rationale plausible,

and thus holds that the agency’s Glomar response was also adequately supported by FOIA

Exemption 3.

19 C. The CIA’s Limited Search Was Adequate

Finally, the Court reviews whether the limited search the CIA conducted for items

responsive to part 4 of Buzzfeed’s request was adequate and whether the redactions to

documents released to Buzzfeed as a result of that search are logical and plausible. As with the

CIA’s invocation of Exemptions 1 and 3 above, Buzzfeed does not challenge the adequacy of the

CIA’s search and release of redacted documents but the Court nonetheless “determine[s] for

itself whether the record and any undisputed material facts justify granting summary judgment.”

Winston & Strawn,

(quoting Grimes,

(Griffith, J., concurring)).

The Court concludes that they do.

1. The CIA Conducted an Adequate Search for Documents Responsive to Part 4 of the Request

First, the Court finds that the CIA’s limited search for documents responsive to part 4 of

Buzzfeed’s request but not involving the information sought to be protected by the agency’s

Glomar response was adequate. “An ‘agency fulfills its obligations under FOIA if it can

demonstrate beyond material doubt that its search was ‘reasonably calculated to uncover all

relevant documents.’” Defs. of Wildlife,

(quoting Valencia-Lucena v. U.S.

Coast Guard,

(D.C. Cir. 1999)). An agency seeking summary judgment “on

the basis that it conducted an adequate search . . . must provide a ‘reasonably detailed’ affidavit

describing the scope of that search.” Pinson,

(quoting Iturralde v.

Comptroller of the Currency,

, 313–14 (D.C. Cir. 2003)). And courts generally

“give considerable deference to agency affidavits supporting their searches.”

Here, the CIA

represents that, pursuant to its agreement with Buzzfeed, it ran its search for records “from 24

July 2017, the date of the tweet, forward and searched the e-mail accounts of every employee

serving in the five offices [the parties identified] during this period.” Shiner Decl. ¶ 10. The

20 CIA used the search terms “Trump,” “Twitter,” “Tweet,” “Syria,” and “President” in different

combinations, and also ran a search for the full text of the July 24, 2017 tweet. Id. ¶ 11. The

agency then conducted a “page-by-page, line-by-line review” of the two records found before

disclosing them. Id. ¶ 12. The Court finds that the Shiner declaration provides the required

reasonably detailed description of the search conducted, and demonstrates that the search was

reasonably calculated to uncover the documents sought.

2. The CIA Appropriately Redacted Information Pursuant to Exemptions 3 and 6

Next, the Court reviews the agency’s invocation of FOIA Exemptions 3 and 6 to

withhold the “Agency username and the email addresses and telephone numbers of an Agency

employee and two journalists.” Shiner Decl. ¶ 13. The Court finds that the redactions are

appropriate and grants summary judgment to the agency.

The CIA justifies its withholding of an agency username and of the e-mail address and

telephone number for an agency employee under Exemption 3, arguing that the CIA Act of 1949,

, allows the agency to protect from disclosure “information that would reveal

the CIA’s organization, functions, and the names of CIA employees.” Shiner Decl. ¶ 13. As

discussed above in Part IV.B., to prevail in its invocation of Exemption 3 the agency “need only

show that the statute claimed is one of exemption as contemplated by Exemption 3 and that the

withheld material falls within the statute.” Larson,

(citing Fitzgibbon, 911 F.2d

at 761–62). Courts in this circuit have recognized that the CIA Act is an exempting statute, see,

e.g. Inst. for Policy Studies v. CIA,

(D.D.C. 2012), and the Court finds

plausible the agency’s assertion that revealing the agency information sought to be withheld

would constitute a “disclosure of the organization, functions, [or] names . . . of personnel

employed by the Agency,”

.

21 As to the reporters’ e-mail addresses and phone numbers, the CIA argues that the

redactions were made pursuant to FOIA Exemption 6, which shields from disclosure “files the

disclosure of which would constitute a clearly unwarranted invasion of personal privacy.”

(b)(6). Exemption 6 requires courts to “balance the individual’s right of privacy

against the basic policy of opening agency action to the light of public scrutiny.” Billington v.

U.S. Dep’t of Justice,

(D.D.C. 2009) (quoting U.S. Dep’t of State v. Ray,

(1991)). Here, the CIA asserts that “revealing this information could subject

these individuals to harassment or unwanted contact from third parties,” and that there is “no

countervailing, cognizable public interest in its release.” Shiner Decl. ¶ 14. Buzzfeed does not

identify any countervailing public interest that would outweigh the reporters’ privacy interests,

and the Court finds the justification for the Exemption 6 redactions plausible.

V. CONCLUSION

For the foregoing reasons, Defendant’s motion for summary judgment (ECF No. 14) is

GRANTED. Plaintiffs’ cross motion for summary judgment (ECF No. 16) is DENIED. An

order consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: March 29, 2019 RUDOLPH CONTRERAS United States District Judge

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