UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) THE JAMES MADISON PROJECT, et al., ) ) Plaintiffs, ) ) v. ) ) No. 18-cv-03112 (KBJ) CENTRAL INTELLIGENCE AGENCY, ) ) Defendant. ) )

MEMORANDUM OPINION AND ORDER

The James Madison Project and Jefferson Morley (“Plaintiffs”) have filed a

complaint against the Central Intelligence Agency (“CIA”) under the Freedom of

Information Act (“FOIA”) seeking records regarding “any association or contractual

agreements with (a) President Bush, (b) Zapata Petroleum Corporation or (c) Zapata

Offshore Corporation . . . from 1953 to March 1, 1971.” (1st Am. Compl., ECF No. 9,

¶¶ 3–5, 11.) Before this Court at present is the CIA’s motion for summary judgment

(see Def.’s Mot. for Summ. J., ECF No. 18), which maintains that the CIA “conducted a

reasonable search of agency records” and “disclosed all non-exempt responsive

records” consistent with its obligations under the FOIA (Def.’s Mem. in Supp. of Mot.

for Summ. J., ECF No. 18-1, at 7). 1 The CIA additionally argues that it properly

withheld responsive records or portions thereof under FOIA Exemptions 1, 3, 6, and

7(C), and that it appropriately invoked the Glomar response to “refuse[] to confirm or

deny maintaining records that would show a classified association[.]” (Id. at 14, 17.)

1 Page number citations to the documents that the parties have filed refer to the numbers automatically assigned by the Court’s electronic case filing system. Plaintiffs concede that the CIA adequately searched its records and properly

invoked Exemption 3 and the Glomar response. (See Pls.’ Mem. in Opp’n to Def.’s

Mot. for Summ. J. (“Pls.’ Opp’n”), ECF No. 19, at 5.) Plaintiffs insist, however, that

the CIA has improperly withheld information under Exemptions 1, 6, and 7(C), and that

it has failed to establish its compliance with the FOIA’s segregability requirements.

(See id. at 8–15.) Upon considering the parties’ submissions, this Court is satisfied that

Exemption 1 has been properly invoked. However, due to the conclusory statements in

the CIA’s declarations, the Court is not in a position to evaluate whether the agency has

properly invoked Exemptions 6 and 7(C), or whether the agency has disclosed all

reasonably segregable materials. Accordingly, the CIA’s motion for summary judgment

is GRANTED IN PART and DENIED IN PART.

I.

FOIA Exemption 1 permits the withholding of records 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). In the instant case, the CIA

relies on Executive Order 13526, which includes among its list of classifiable materials

government records that “pertain[] to . . . intelligence activities (including covert

action), [or] intelligence sources or methods[.]” Exec. Order No. 13526, § 1.4(c),

(Dec. 29, 2009); see also

§ 1.1(a)(2). Executive Order 13526 allows

such information to be classified by a government official with “original classification

authority” if the official “determines that the unauthorized disclosure of the information

reasonably could be expected to result in damage to the national security,” and “is able

2 to identify or describe the damage.” Id. § 1.1(a)(1), (4). Moreover, when classified

documents reach a certain age, Executive Order 13526 provides for automatic

declassification, except in certain circumstances. For example, if a record is twenty-

five years old, it may remain classified if its release would “reveal the identity” of

sources or “impair the effectiveness of an intelligence method currently in use[.]” Id.

§ 3.3(b)(1). Likewise, Executive Order 13526 exempts fifty-year-old records from

automatic declassification if they disclose a source’s identity or contain “additional

specific information” that the Director of the CIA has identified, subject to the approval

of the Interagency Security Classification Appeals Panel. See id. § 3.3(h), (j).

To withhold information under FOIA Exemption 1, an agency must establish that

the requirements of the relevant Executive Order have been met, see ACLU v. U.S.

Dep’t of Def.,

(D.C. Cir. 2011), and it may satisfy this burden

by submitting detailed affidavits or declarations that “set forth reasons for invoking

Exemption 1 that are both plausible and logical,” see Unrow Human Rights Impact

Litig. Clinic v. United States,

(D.D.C. 2015). Such affidavits

and declarations are entitled to substantial deference given the “uniquely executive”

nature of the national security determinations at stake. See

(internal

quotation marks and citation omitted).

Applying these principles to the case at hand, the Court is persuaded that the CIA

has properly invoked Exemption 1. To establish the applicability of this exemption, the

CIA has submitted the declaration of Antoinette B. Shiner, the Information Review

Officer at the CIA’s Litigation Information Review Office. (See Decl. of Antoinette B.

Shiner (“Shiner Decl.”), ECF No. 18-3, ¶ 1.) In her declaration, Shiner asserts that

3 “[a]s an original classification authority” within the meaning of Executive Order 13526,

she determined that some of the responsive records uncovered in the agency’s search

contained the “names of covert personnel, locations of covert facilitates, subjects of

intelligence interest, and information that would tend to reveal specific intelligence

sources, methods and or activities.” (Id. ¶ 15.) The declaration also describes the

importance of protecting such information in order to “prevent foreign adversaries,

terrorist organizations, and others from learning about the ways in which the CIA

operates, that would allow them to use countermeasures to undermine U.S. intelligence

capabilities and render collection efforts ineffective.” (See id.) Shiner additionally

explains that “disclosing the identity of a covert employee could jeopardize the safety

of the employee, his or her family, his or her sources, and other persons with whom he

or she has had contact.” (See id. ¶ 16). In the Court’s view, these statements—which

have been provided under oath—satisfy Executive Order 13526’s basic requirements,

insofar as Shiner plausibly and logically avers that: (1) the withheld records are

government documents concerning “intelligence activities (including covert action)” or

“intelligence sources or methods”; and (2) the declarant is an original classification

authority who is (3) “able to identify or describe the damage” to national security that

would result from the information’s disclosure. See Exec. Order No. 13526 § 1.1(a).

Plaintiffs nevertheless contend that the CIA has failed to carry its burden

because the agency did not justify the continued classification of documents that are

more than twenty-five or fifty years old. (See Pls.’ Opp’n at 9–11.) However, in the

supplemental declaration that the CIA submitted in response to Plaintiffs’ opposition,

Shiner clarifies that Executive Order 13526’s automatic declassification requirements

4 do not apply to the records at issue. (See Suppl. Decl. of Antoinette B. Shiner (“Shiner

Suppl. Decl.”), ECF No. 20-1, ¶ 3.) Specifically, because the twenty-five-year-old

records discuss sources and methods that are “still in active use,” they are exempt from

automatic declassification under section 3.3(b) of the Executive Order. (See id.) And

with respect to the records that are over fifty years old, which also discuss methods still

in use, the supplemental declaration notes that the Director of the CIA has exempted

“sensitive information that could reveal an intelligence method in active use[,]” and that

the Interagency Security Classification Appeals Panel has approved this exemption,

consistent with sections 3.3(h) and (j) of the Executive Order. (See id.)

Therefore, based on Shiner’s statements and “the substantial deference owed to

government [declarations] in [the national security] context,” the Court concludes that

the CIA has sufficiently justified its withholding of records under Exemption 1. See

Unrow,

; see also Lynn v. Nat’l Archives & Records Admin., No.

18-cv-587,

, at *3–5 (D.D.C. Feb. 7, 2019) (finding under similar

circumstances that the CIA properly withheld documents under Exemption 1, including

records that were over fifty years old).

II.

The Court cannot make any determination with respect to the CIA’s motion for

summary judgment concerning its invocation of FOIA Exemptions 6 and 7(C). Under

the FOIA, an agency may invoke Exemption 6 to withhold “personnel and medical files

and similar files” if their disclosure “would constitute a clearly unwarranted invasion of

personal privacy[.]”

(b)(6). Similarly, Exemption 7(C) permits agencies

to withhold “records or information compiled for law enforcement purposes, but only to

5 the extent that the production of such law enforcement records or information . . . could

reasonably be expected to constitute an unwarranted invasion of personal privacy[.]”

§ 552(b)(7)(C). To properly invoke either exemption, the agency must demonstrate

that “there is a privacy interest at stake,” and that “the public’s interest in the

information” does not “outweigh[] this privacy interest.” See Gosen v. U.S. Citizen &

Immigr. Servs.,

(D.D.C. 2014). In making this showing, an

agency must do more than assert that the disclosure of personal information would

subject affected individuals to “undue invasions of privacy, harassment and

humiliation.” See Neuman v. United States,

(D.D.C. 2014)

(internal quotation marks omitted). Instead, the agency must present facts that support

its assertions and explain “who would engage in such harassment and why th[at]

outcome is likely.” See Judicial Watch, Inc. v. Dep’t of the Navy,

(D.D.C. 2014).

The CIA’s submissions in this case do not come close to meeting that standard.

To start, the declarations on which the CIA relies contain wholly conclusory and

speculative assertions. (See Shiner Decl. ¶ 23 (asserting that “the individuals named in

the records . . . maintain a strong privacy interest in this information because its release

could subject them to harassment, embarrassment or unwanted contact”); Decl. of

David M. Hardy, ECF No. 18-5, ¶ 10 (stating that the disclosure of “third parties’

names and identifying information could reasonably be expected to draw negative and

unwanted attention to these individuals and could subject these individuals to possible

harassment”).) What is more, the declarations also acknowledge that the CIA cannot

determine whether the individuals mentioned in the records are alive or deceased, and

6 that “the records do not provide sufficient additional identifying information such that

the Agency c[an] ascertain with any degree of certainty an individual’s status.” (Shiner

Suppl. Decl. ¶ 6.) Yet, notwithstanding the records’ manifest dearth of detailed

identifying information, the CIA maintains that “the release of this information would

constitute a clearly unwarranted invasion of these individuals’ personal privacy”

because “knowledgeable people” could determine the individuals’ identity based on

“information that is not publicly accessible or available to the Agency.” (Id. ¶ 7; see

also 2d Decl. of David M. Hardy, ECF No. 20-2, ¶ 6.) These allegations are the exact

type of speculative assertions that this Court has repeatedly rejected. See, e.g.,

Neuman,

; Judicial Watch,

.

Due to this deficiency, the Court is unable to determine whether disclosure of the

requested records would constitute an “unwarranted invasion of personal privacy[,]” see

(b)(6), (7)(C), and therefore the CIA has not yet carried its burden of

establishing that Exemptions 6 and 7(C) apply.

III.

Finally, based on the current record, the Court also cannot determine whether the

CIA has released all reasonably segregable materials to Plaintiffs. For one thing, it is

not at all clear that the CIA has properly withheld records under Exemptions 6 and 7(C)

for the reasons just discussed. But perhaps even more importantly, the agency has not

provided the Court with any means to assess the extent of its disclosures and redactions.

The CIA’s brief in support of its motion for summary judgment refers to a Vaughn

Index that was allegedly compiled for this case in passing (see Def.’s Mem. at 7, 14),

but the agency has not attached any such index to its motion or memoranda. And

7 without additional details about the content of each record and the degree to which

Exemptions 1, 6, and 7(C) purportedly apply to the information contained therein, see

Neuman,

, this Court cannot meaningfully evaluate the CIA’s

assertion that it has conducted a “line-by-line” review of the records and has disclosed

all segregable non-exempt information (see Def.’s Reply, ECF No. 20, at 9), see, e.g.,

Leopold v. CIA,

(D.D.C. 2015).

IV.

For the reasons outlined above, the Court finds that the CIA has properly applied

Exemption 1 to the responsive records at issue. The CIA has not, however, provided

enough information for the Court to determine whether the agency has properly invoked

Exemptions 6 and 7(C), or whether it has released all reasonably segregable materials.

Accordingly, it is hereby

ORDERED that the CIA’s Motion for Summary Judgment, ECF No. 18, is

GRANTED IN PART and DENIED IN PART, as follows. In light of Plaintiffs’

concessions (see Pls.’ Opp’n at 5), the motion is granted with respect to the adequacy of

the CIA’s search, its use of the Glomar response, and its application of Exemption 3,

and it is further granted with respect to Exemption 1 for the reasons explained herein.

The CIA’s motion is otherwise denied without prejudice. It is

FURTHER ORDERED that, on or before October 7, 2020, the parties shall file

a joint proposed schedule that proposes due dates for the following filings: (1) a

supplemental declaration by the CIA that details the privacy interests that the relevant

records implicate and explains why disclosure would compromise such interests; (2) a

Vaughn Index that specifies the responsive records uncovered in the CIA’s search and

8 identifies which FOIA exemptions apply to which redactions; and (3) the CIA’s revised

motion for summary judgment, if the agency wishes to refile one.

DATE: September 23, 2020 Ketanji Brown Jackson KETANJI BROWN JACKSON United States District Judge

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