UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, ET AL.,

Plaintiffs, v. Civ. Action No. 16-1256 (EGS) CENTRAL INTELLIGENCE AGENCY, ET AL.,

Defendants.

MEMORANDUM OPINION

This case arises out of Freedom of Information Act

(“FOIA”),

, requests Plaintiffs the American Civil

Liberties Union and American Civil Liberties Union Foundation

(collectively “ACLU”) made to 19 federal agencies, including the

Central Intelligence Agency (“CIA”). See generally Compl., ECF

No. 1. Plaintiffs stipulated to the dismissal of 16 federal

agencies. See ECF No. 28, ECF No. 51. 1 What remains at issue is

the redaction of the names of current and/or former CIA

employees who had been granted an exemption from the Agency’s

prepublication process.

1 The Air Force remains a Defendant. The ACLU seeks resolution of readability concerns with several charts produced to Plaintiffs. Plaintiffs have declined to dismiss the Air Force until these issues (which are not relevant to the instant motion) are fully resolved. Def.’s Mot., ECF No. 52-1.

1 Pending before the Court are the CIA’s Motion for Summary

Judgment and the ACLU’s Cross-Motion for Summary Judgment. Upon

careful consideration of the motions, the oppositions and

replies thereto, the applicable law, the entire record, and for

the reasons stated below, Court GRANTS IN PART AND DENIES IN

PART the CIA's Motion for Summary Judgment and GRANTS IN PART

AND DENIES IN PART the ACLU’s Cross-Motion for Partial Summary

Judgment.

I. Factual Background

The following facts are not in dispute. On March 3, 2016,

the ACLU submitted FOIA requests to a number of federal

agencies, including the CIA, seeking information regarding the

agencies’ respective prepublication review process. Plaintiff’s

Counter-Statement of Material Facts (“SOF”), ECF No. 55-4 ¶ 1.

Current or former CIA employees may be granted an exemption from

this process “based on an established record of prepublication

review compliance and [the exemption] is usually limited to a

narrow topic or circumstance.” Pls.’ Cross-Mot. for Partial

Summ. J. and Opp’n to Def. CIA’s Mot. for Summ. J. (“Pls.’

Cross-Mot.”), ECF No. 55-5 at 2. On April 7, 2017, the CIA made

an initial production and released nine documents in full, 20

documents in part, and withheld seven documents in full. CIA’s

Reply to Plaintiffs’ Counter-Statement of Disputed Facts, ECF

No. 58-1 ¶ 3. The ACLU challenges one of the CIA’s withholdings,

2 which is a redaction of the names of several CIA employees.”

. The redactions are based on FOIA exemptions 1, 3, and 6.

Def.’s Mot., ECF No. 54-1 at 6. 2

II. Standard of Review

FOIA cases are typically and appropriately decided on

motions for summary judgment. Gold Anti–Trust Action Comm., Inc.

v. Bd. of Governors of Fed. Reserve Sys.,

(D.D.C 2011) (citations omitted). Summary judgment is

warranted “if the movant shows [by affidavit or other admissible

evidence] that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). A party opposing a summary judgment

motion must show that a genuine factual issue exists by “(A)

citing to particular parts of materials in the record . . . or

(B) showing that the materials cited do not establish the

absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c).

Any factual assertions in the moving party's affidavits will be

accepted as true unless the opposing party submits his own

affidavits or other documentary evidence contradicting the

assertion. See Neal v. Kelly,

(D.C. Cir.

1992). However, “the inferences to be drawn from the underlying

2 When citing electronic filings throughout this Opinion, the Court cites to the ECF page number, not the page number of the filed document

3 facts . . . must be viewed in the light most favorable to the

party opposing the motion.” Matsushita Elec. Indus. Co. v.

Zenith Radio Corp.,

(1986) (internal quotation

marks omitted).

An agency has the burden of demonstrating that “each

document that falls within the class requested either has been

produced, is unidentifiable, or is wholly [or partially] exempt

from the Act's inspection requirements.” Goland v. CIA,

(D.C. Cir. 1978) (internal citation and quotation

omitted). In reviewing a summary judgment motion in the FOIA

context, the court must conduct a de novo review of the record,

see

(a)(4)(B), but may rely on agency

declarations. See SafeCard Servs. v. SEC,

(D.C. Cir. 1991). Agency affidavits or declarations that are

“relatively detailed and non-conclusory” are accorded “a

presumption of good faith, which cannot be rebutted by purely

speculative claims about the existence and discoverability of

other documents.”

(internal citation and quotation omitted).

“[T]he Court may award summary judgment solely on the basis of

information provided by the department or agency in declarations

when the declarations describe the documents and the

justifications for nondisclosure with reasonably specific

detail, demonstrate that the information withheld logically

falls within the claimed exemption, and are not controverted by

4 either contrary evidence in the record nor by evidence of agency

bad faith.” Military Audit Project v. Casey,

(D.C. Cir. 1981) (internal quotation marks and citation

omitted).

A. FOIA Exemptions

Congress enacted FOIA to “open up the workings of

government to public scrutiny through the disclosure of

government records.” Judicial Watch, Inc. 375 F. Supp. 3d at 97

(quoting Stern v. FBI,

(D.C. Cir. 1984)

(internal quotation marks and alterations omitted)). Although

the legislation is aimed toward “open[ness] . . . of

government,” id.; Congress acknowledged that “legitimate

governmental and private interests could be harmed by release of

certain types of information,” Critical Mass Energy Project v.

Nuclear Regulatory Comm'n,

(D.C. Cir. 1992)

(internal quotation marks and citations omitted). As such,

pursuant to FOIA's nine exemptions, an agency may withhold

requested information.

(b)(1)-(9). However,

because FOIA established a strong presumption in favor of

disclosure, requested material must be disclosed unless it falls

squarely within one of the exemptions. See Burka v. U.S. Dep't

of Health and Human Servs.,

(D.C. Cir. 1996).

The agency bears the burden of justifying any withholding.

See Bigwood v. U.S. Agency for Int'l Dev.,

, 74

5 (D.D.C. 2007). “Ultimately, an agency’s justification for

invoking a FOIA exemption is sufficient if it appears logical or

plausible.” Judicial Watch, Inc. v. U.S. Dep't of Def.,

(D.C. Cir. 2013) (internal quotation marks omitted).

B. Considerations in National Security Cases

“It is . . . well-established that the judiciary owes some

measure of deference to the executive in cases implicating

national security, a uniquely executive purview.” Center for

Nat. Sec. Studies v. U.S. Dept. of Justice,

(D.C. Cir. 2003). “Courts . . . accord substantial weight to an

agency’s affidavit concerning the details of the classified

status of the disputed record because the Executive departments

responsible for national defense and foreign policy matters have

unique insights into what adverse [e]ffects might occur as a

result of a particular classified record.”

(quotation

marks and citation omitted)

III. Analysis

A. Exemption 1

The CIA invokes Exemption 1 to redact the name of one

covert agency officer. Def.’s Mot., ECF No. 54-1 at 11.

Exemption 1 protects from disclosure 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

6 classified pursuant to such Executive order.”

(b)(1). Executive Order No. 13526 (“the Order”), governs the

classification of national security information, and sets forth

four prerequisites:

(1) an original classification authority classifies the information; (2) the U.S. Government owns, produces, or controls the information; (3) the information is within one of eight protected categories listed in Section 1.4 of the Order; and (4) 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 identifies or describes that damage.

Exec. Order No. 13526, § 1.1(a). Furthermore, the information

must “pertain[] to” one of the categories of information

specified in the Executive Order, including “intelligence

activities (including covert action), intelligence sources or

methods.” Id. § 1.4(c).

The CIA has provided a declaration which attests to the

first and second prerequisites, Decl. of Antoinette B. Shiner

(“Shiner Decl.”), ECF No. 54-2 ¶ 16; and explains that the

information falls under classification category § 1.4(c) of the

Order because it concerns “intelligence activities (including

covert action), [or] intelligence sources or methods” and that

“its unauthorized disclosure could reasonably be expected to

result in damage to national security.” Id. The Declaration

explains:

7 The redaction made pursuant to Exemption (b)(1) protects the name of a covert Agency officer. In order to carry out the mission of gathering and disseminating intelligence information, the CIA places many Agency officers under cover to protect the fact, nature, and details of the CIA’s interest in foreign activities and the intelligence sources and methods employed to assist those activities. Revealing the identify of a covert officer puts the officer and his or her family in jeopardy, exposes the cover provider to unwarranted risk, and degrades the effectiveness of current and future intelligence activities. Compromise of an officer’s cover can also allow hostile intelligence services and terrorist organizations to determine the locations in which the officer has worked and the people with whom the officer has met. Disclosing the identity of a covert officer can thus jeopardize anyone—even innocent individuals— with whom the officer had contact.

Shiner Decl., ECF No. 54-2 ¶ 17. Accordingly, the CIA argues

that it properly withheld the name of the covert officer because

the name of the officer “is currently and properly classified

‘because it concerns intelligence activities (including covert

action), intelligence sources or methods.” Def.’s Mot., ECF No.

54-1 at 11 (quoting Exec. Order No. 13526 § 1.4(c)).

The ACLU states that it challenges this reaction “only

insofar as two facts are true, first, the individual is a

former, rather than a current, covert officer, and second, the

formerly covert officer disclosed their affiliation with the CIA

in one or more of their publications.” Pls.’ Cross-Mot., ECF No.

55-1 at 24. But as the CIA points out, the ACLU “cite[s] no

8 authority—because none exists—for the proposition that they may

simply assert wholly hypothetical propositions, ‘take’ them to

be true, and seek summary judgment in their favor based on

nothing more than such wishful, and wholly speculative,

thinking.” Def.’s Reply, ECF No. 58 at 12. The ACLU has no

response to this argument, see Pls.’ Reply, ECF No. 60 at 14-16;

only reiterating that “they will withdraw their Exemption 1

challenge if the CIA confirms in writing that one of these facts

is not true”, id. at 15-16.

The ACLU argues that the CIA has not established that the

name of the covert officer is properly classified because the

CIA “has not provided ‘reasonable specificity of detail’ to

demonstrate that disclosure of the name would cause harm to

national security.” Pls.’ Cross-Mot., ECF No. 55 at 25 (quoting

Larson, 565 F.3d at 865). The ACLU points out “the officer . . .

received an exemption from prepublication review ‘based on an

established record of prepublication review compliance.’” Id.

(quoting Krishnan Decl., Ex. B.). The ACLU believes it likely

“that the officer has published multiple works under their name

about their time in government” and if that is true releasing

the information “would not reveal any more than the public

already knows . . ..” Id.

The Court disagrees with the ACLU that the CIA’s affidavit

is deficient. In its declaration, the CIA explains in detail the

9 harm that the disclosure of the covert officer’s name would

cause to national security. Shiner Decl., ECF No. 54-2 ¶ 17.

Given the national security context and substantial weigh

accorded to agency affidavits, see James Madison Project, 607 F.

Supp. 2d at 21; the CIA properly invoked Exemption 1 due to the

reasonable expectation of damage disclosure will have on

national security. Shiner Decl., ECF No. 54-2 ¶ 17.

The ACLU also argues that even if the CIA’s claim was

valid, it “waived the claim by officially acknowledging the

author’s name” on an “unclassified internal blog.” Pls.’ Cross-

Mot., ECF No. 55-1 at 26. The CIA responds—and the Court agrees—

that the intra-agency dissemination of information does not

amount to making the information “public through an official and

documented disclosure.” Wolf, 473 F.3d at 378 (internal

quotation omitted).

Finally, the ACLU argues that even if the CIA had a valid

Exemption 1 claim, it waived it by “officially acknowledging”

the employee’s name. Pls.’ Cross-Mot., ECF No. 55-1 at 26. The

Court rejects this argument for the reasons explained infra at

Section III.B.2.

For these reasons, the Court GRANTS the CIA’s Motion for

Summary Judgment as to Exemption 1, and DENIES the ACLU’s Motion

for Summary Judgment as to Exemption 1.

10 B. Exemption 3

The CIA also invokes Exemption 3 to protect from disclosure

all of the names in the contested withholding. Def.’s Mot., ECF

No. 54-1 at 13. Exemption 3 allows an agency to withhold or

redact records that are “specifically exempted from disclosure

by statute ... 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.”

(b)(3). “To invoke

Exemption 3, the government ‘need only show . . . that the

material falls within’ a statute meeting the exemption’s

conditions.” DiBacco v. Dep’t of the Army,

(D.C. Cir. 2019) (quoting Larson v. Dep’t of State,

(D.C. Cir. 20009). “‘If an agency’s statements

supporting exemption contain reasonable specificity of detail as

to demonstrate that the withheld information logically falls

within the claimed exemption and evidence in the record does not

suggest otherwise, . . . the court should not conduct a more

detailed inquiry to test the agency’s judgment and expertise or

to evaluate whether the court agrees with the agency’s

opinions.’”

(quoting Larson, 565 at 865).

The CIA invokes Exemption 3 to justify the redaction under

the CIA Act of 1949 (“CIA Act”). Def.’s Mot., ECF No. 54-1 at

11 12. It is well established that the CIA Act is an Exemption 3

statute. Fitzgibbon v. CIA,

(D.C. Cir. 1990).

Section 6 of the CIA Act provides that “the Agency shall be

exempted from . . . any other law which require[s] the

publication or disclosure of the organization, functions, names,

official titles, salaries, or numbers of personnel employed by

the Agency[.]”

. The CIA states that it invoked

the CIA Act to protect the “names of personnel currently or

formerly employed by the CIA, the disclosure of which the CIA

Act expressly prohibits.” Def.’s Mot., ECF No. 54-1 at 13

(quoting Shiner Decl., ECF No. 54-2 ¶ 20) (“The redaction at

issue contains the names of personnel currently or formerly

employed by the CIA, the disclosure of which the CIA Act

expressly forbids.”).

The ACLU argues that the CIA has failed to carry its burden

to sustain a withholding under Exemption 3 because: (1) Section

6 of the CIA Act “protects only information that the CIA treats

as confidential, not the names of authors it has repeatedly

authorized to publish about their CIA service under their own

names”; and (2) the CIA waived reliance on the CIA Act through

“official acknowledgment.” Pls.’ Cross-Mot.”, ECF No. 55 at 11-

12.

12 1. The Names of the CIA Employees are Protected by Section 6 of the CIA Act

The ACLU argues that the names of the CIA employees do not

fall within the scope of the CIA Act because “[b]ased on the

record evidence . . . the only reasonable inference is that the

CIA does not treat the authors’ names and Agency affiliation as

confidential,” asserting that Section 6 of the CIA Act does not

protect information that the CIA does not treat as confidential.

Pls.’ Cross-Mot., ECF No. 55-1 at 12. The ACLU’s support for

this assertion is thin, see

(citing Phillippi v. CIA, 1009,

1015 n.14 (D.C. Cir. 1976) (“the authority [Section 6] confers

is specifically directed at statutes that would otherwise

require the Agency to divulge information about its internal

structure”)); and it provides no precedent for its assertion

that “the CIA must demonstrate that it treats the information as

confidential.” see

“‘Exemption 3 differs from other FOIA exemptions in that .

. . the sole issue for decision is the existence of a relevant

statute and the inclusion of withheld material within the

statute’s coverage.’” Morley v. CIA,

(D.C.

Cir. 2007) (quoting Ass’n of Retired Rail Road Workers v. U.S.

Rail Road Retirement Board,

(D.C. Cir.

1987)). Here, the relevant statute is Section 6 of the CIA Act

which provides that “the Agency shall be exempted from . . . any

13 other law which require[s] the publication or disclosure of the

organization, functions, names, official titles, salaries, or

numbers of personnel employed by the Agency[.]”

. And the withheld material is the names of current and/or

former CIA employees. In view of the “sole issue” before the

Court, the names of the CIA employees are protected by Section 6

of the CIA Act.

2. The ACLU Has Not Met Its Burden To Establish that Names of the CIA Employees Have Been Officially Acknowledged

“[W]hen information has been ‘officially acknowledged,’ its

disclosure may be compelled even over an agency’s other valid

exemption claim.” Fitzgibbon v. CIA,

(D.C.

Cir. 1990). “An agency’s official acknowledgement of information

by prior disclosure, however, cannot be based on mere public

speculation, no matter how widespread.” Wolf v. C.I.A.,

(D.C. Cir. 2007) (citing Afshar v. Dep’t of State,

(D.C. Cir. 1983)). “Instead, an official

acknowledgement must meet three criteria:

First, the information requested must be as specific as the information previously released. Second, the information requested must match the information previously disclosed … Third, … the information requested must have already been made public through an official and documented disclosure.

14 Wolf,

(quoting Fitzgibbon,

).

Accordingly, “the fact that information exists in some form in

the public domain does not necessarily mean that official

disclosure will not cause harm cognizable under a FOIA

exemption.”

(citing Fitzgibbon,

).

Consequently, “a plaintiff asserting a claim of prior disclosure

must bear the initial burden of pointing to specific information

in the public domain that appears to duplicate that being

withheld.” Afshar,

.

The ACLU argues that it has met its burden because: (1) the

employees who received an exemption have “an established record

of prepublication review compliance” and therefore have

published on more than one occasion; (2) since the CIA’s

Prepublication Review of Certain Material Prepared for Public

Dissemination regulation generally requires that current and

former employees request prepublication review for works that

are based on their time in government service, any published

works disclosed the author’s names and their association with

the CIA; (3) the CIA authorized the disclosure by clearing the

works for publication; (4) per the CIA process, it sent

clearance letters memorializing the authorization; and (5) the

regulation requires that the authors publish a disclaimer

explaining that the material was reviewed by the CIA and cleared

for publication. Pls.’ Cross-Mot., ECF No. 55-1 at 17-18. The

15 ACLU also contends that the existence of the published works

helps them satisfy their initial burden. Pls.’ Cross-Mot., ECF

No. 55-1 at 18.

The CIA responds that the ACLU has not met its burden

because it “do[es] not even purport to identify any specific

[CIA] statement or disclosure that satisfies the [three

criteria] . . . [i]nstead … offer[ing] only a series of wholly

speculative suppositions.” Def.’s Reply, ECF No. 58 at 11.

In reply, the ACLU contends that its initial showing does not

amount to speculation because its claims are grounded in the

record. Pls.’ Reply, ECF No. 60 at 9.

The Court concludes that the ACLU has not met its burden

because it has failed to point to “an official and documented

disclosure” of the names of the CIA employees. See Wolf v.

C.I.A.,

(D.C. Cir. 2007); see also Competitive

Enterprise Institute v. National Security Agency,

(D.D.C. 2015) (noting that there must be an official and

actual acknowledgement by someone in a position to know …”). The

CIA employee’s publication of a book disclosing the employee’s

affiliation with the CIA does not satisfy the requirement that

the disclosure be “official and documented.” Wolf, 473. F.3d at

378.

The ACLU’s reliance on Niagara Mohawk Power Corp. v. U.S.

Dep’t of Energy,

(D.C. Cir. 1999) is misplaced. It

16 cites Niagara to argue that it has met its initial burden

because it cited to the CIA regulation.

. In Niagara,

the court concluded that plaintiff had met its initial burden

because it cited to a regulation requiring the filing of a

public form. Niagara Mohawk Power Corp.,

.

However, it takes more than citing the CIA regulation to satisfy

the ACLU’s burden. See Fitzgibbon,

(“First, the

information requested must be as specific as the information

previously released. Second, the information requested must

match the information previously disclosed … Third, … the

information requested must have already been made public through

an official and documented disclosure.”).

Furthermore, the ACLU’s reliance on Afshar is unpersuasive.

In Afshar, the court rejected the argument “that the CIA’s

screening and approval of the books brought them into the

official realm and made the disclosures therein tantamount to

official acknowledgements.” Afshar,

.

According to the ACLU, that holding is distinguishable from the

situation here because “[t]he court did not . . . address

whether the fact of the CIA’s approval would constitute an

official acknowledgment of the authors’ names and association

with the CIA”; rather “the disclosures the court was addressing

involved the contents of the books.” Pls.’ Cross-Mot., ECF No.

55-1 at 19. However, the CIA employee’s publication of a book

17 disclosing the employee’s affiliation with the CIA does not

satisfy the requirement that the disclosure be “official and

documented.” Wolf, 473. F.3d at 378.

For these reasons, the Court GRANTS the CIA’s Motion for

Summary Judgment as to Exemption 3, and DENIES the ACLU’s Motion

for Summary Judgment as to Exemption 3.

C. Exemption 6 Exemption 6 permits withholding of information when two

requirements have been met. See U.S. Dep’t of State v. Wash.

Post Co.,

(1982). The first is that “the

information must be contained in personnel, medical or ‘similar’

files.”

The statutory formulation “similar files” is

understood broadly to include any “[g]overnment records on an

individual which can be identified as applying to that

individual.”

(citation and internal quotation marks

omitted). Thus, Exemption 6 permits exemption of “not just

files, but also bits of personal information, such as names and

addresses, the release of which would create[ ] a palpable

threat to privacy.” Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2006) (citation and internal quotation marks

omitted).

The second requirement is that “the information must be of

such a nature that its disclosure would constitute a clearly

unwarranted invasion of personal privacy.” See Wash. Post Co.,

18

. This requirement requires a court to “weigh the

privacy interest in non-disclosure against the public interest

in the release of the records in order to determine whether, on

balance, the disclosure would work a clearly unwarranted

invasion of privacy.” Lepelletier v. FDIC,

(D.C.

Cir. 1999) (citation and internal quotation marks omitted). The

only relevant public interest in this balancing analysis in a

FOIA case is “the extent to which disclosure of the information

sought would she[d] light on an agency’s performance of its

statutory duties or otherwise let citizens know what their

government is up to.”

(citation and internal quotation marks

omitted).

The CIA contends that it properly withheld the names of the

CIA personnel because they “have a substantial privacy interest

in not having their identities and/or contact information

disclosed, because such disclosure “could subject them to

harassment or unwanted contact by the media.” Def.’s Mot., ECF

No. 54-1 at 14 (quoting Shiner Decl., ECF No. 54-2 ¶ 23).

Additionally, the CIA argues that disclosing the identity of the

CIA personnel “would shed no light on CIA operations or

activities.”

(citing Shiner Decl., ECF No. 54-2 ¶ 24).

The ACLU argues that the CIA has failed to meet the

Exemption 6 requirements. First, the names are not “‘personnel,

medical, or similar file[s],’ because they do not contain

19 detailed personal information about agency employees.” Pls.’

Cross-Mot., ECF No. 55-1 at 20. Second, “disclosure of the names

would not involve a clearly unwarranted privacy invasion because

the privacy interest in them is de minimis, and because this

interest is clearly outweighed by the public’s interest in

further understanding the CIA’s prepublication review regime,

including, for example, whether it favors agency supporters and

discriminates against agency critics.” Pls.’ Cross-Mot., ECF No.

55-1 at 20.

The Court is persuaded that the list of the names of the

CIA employees are “similar files.” “The Supreme Court has

interpreted the phrase, ‘similar files’ to include all

information that applies to a particular individual.”

Leppelletier v. FDIC,

(D.C. Cir. 1999). It has

also recognized that “the protection of Exemption 6 is not

determined merely by the nature of the file in which the

requested information is contained.” U.S. Dep’t of State v.

Wash. Post Co.,

(1982) (citation omitted). The

Court of Appeals for the District of Columbia Circuit (“D.C.

Circuit”) has understood Exemption 6 “to exempt not just files,

but also bits of personal information such as names and

addresses … .” Judicial Watch, Inc. v. FDA,

(D.C. Cir. 2006). For these reasons, the names of the CIA

employees qualify as “similar files.” See Judicial Watch, Inc.,

20 25 F. Supp. 3d at 141 (“there is little doubt that the names at

the end of the Memorandum satisfy Exemption 6’s “similar file”

categorization”).

“The Court must now determine whether there is a

substantial privacy interest that would be compromised if the

[CIA employees’] names are disclosed.” Judicial Watch, Inc. v.

Dep’t of the Navy,

(D.D.C. 2014). A

“substantial privacy interest is anything greater than a de

minimis privacy interest.” Judicial Watch, Inc., v. U.S. Dep’t

of State,

(D.D.C. 2012). “[W]hether

[disclosure of a list of names] is a significant or de minimis

threat depends upon the characteristics revealed by virtue of

being on the particular list, and the consequences likely to

ensue.” NARFE, 879 F.2d at 877.

Recent decisions in this jurisdiction appear generally sympathetic to the argument that “[t]he privacy interest of civilian federal employees includes the right to control information related to themselves and to avoid disclosures that could conceivably subject them to annoyance or harassment in either their official or private lives[.]” Elec. Privacy Info. Ctr. v. Dep't of Homeland Sec.,

(D.D.C. 2005) (“EPIC ”) (internal quotation marks and citations omitted); see also Judicial Watch, Inc. v. Dep't of State,

(“There is a substantial interest in bits of personal information where there is a justified and articulable risk of media harassment” as a result of the release of such information.) But it is also clear that the potential adverse consequences must be “real rather than

21 speculative[,]” EPIC,

, and a bare assertion that a document's “disclosure would constitute a clearly unwarranted invasion of [an individual's] personal privacy” is not sufficient to establish that a substantial privacy interest in preventing disclosure exists. Morley v. CIA,

, 1127–28 (D.C. Cir. 2007). Rather, the agency must demonstrate that “disclosure would constitute a ‘clearly unwarranted’ invasion of personal privacy.” Id.; see also

(“To the extent the [defendant] suggests that the privacy interest in biographical information is self evident, it is mistaken.”). Moreover, it is the agency that bears this initial burden. Judicial Watch, Inc. v. Dep't of State,

.

Judicial Watch, Inc.,

.

The Court concludes that the CIA has failed to meet its

burden to justify withholding the names pursuant to Exemption 6.

First, the CIA contends that it properly withheld the names of

the CIA personnel because they “have a substantial privacy

interest in not having their identities and/or contact

information disclosed, because such disclosure “could subject

them to harassment or unwanted contact by the media.” Def.’s

Mot., ECF No. 54-1 at 14 (quoting Shiner Decl., ECF No. 54-2 ¶

23). This conclusory statement falls short of establishing a

substantial privacy interest. The CIA has not explained why

disclosing the list of CIA employees’ names could subject them

to harassment nor who would harass them. This situation is

entirely distinguishable from, for example, cases associated

22 with substantial press coverage. See e.g., Judicial Watch v.

Dep’t of State,

(D.D.C. 2012)

(withholding of employee names justified because of “a justified

and articulable risk of media harassment”), Elec. Privacy Info.

Ctr. V. U.S. Dep’t of Homeland Sec., 384 F. Supp. 2d. 100, 118

(D.D.C. 2005) (withholding of employee names upheld where media

scrutiny and harassment were likely). Where the affidavit

supporting an exemption is conclusory, courts will provide the

agency the opportunity to submit a supplemental motion with

revised declarations or affidavits to explain in more detail the

privacy interest the published authors have in their names.

Judicial Watch,

. Because the Court has

concluded supra that the names are properly withheld pursuant to

Exemption 1 and Exemption 3, and accordingly will not be

disclosed, the Court need not provide the CIA with the

opportunity here.

Second, the CIA’s assertion that disclosing the identity of

the personnel “would shed no light on CIA operations or

activities,” Def.’s Mot., ECF No. 54-1 at 14 (citing Shiner

Decl., ECF No. 54-2 ¶ 24); is unpersuasive because, as the ACLU

points out, disclosure of the CIA personnel, each of whom had

been granted an exemption from the Agency’s prepublication

process would shed light on “how the CIA’s prepublication review

processes operate, including whether the CIA’s processes have

23 been politicized and discriminate on the basis of viewpoint,”

Pls.’ Cross-Mot., ECF No. 55-1 at 24. Weighing these two

interests, the public interest outweighs the privacy interest of

the published authors. Accordingly, the CIA did not properly

invoke Exemption 6 to withhold the names of the CIA employees

because disclosure of the names is a de minimis threat

outweighed by the public interest in learning how the CIA’s

prepublication review processes work.

For these reasons, the Court DENIES the CIA’s Motion for

Summary Judgment as to Exemption 6, and GRANTS the ACLU’s Motion

for Summary Judgment as to Exemption 6.

D. Neither a Supplemental Declaration Nor In Camera Review Are Warranted The ACLU asks the Court to require the CIA to submit a

supplemental declaration and to conduct an in camera review.

Pls.’ Cross-Mot., ECF No. 55-1 at 26. The ACLU does not argue

that there has been bad faith on the part of the CIA, but

contends that “the CIA’s declaration is insufficiently detailed

to permit meaningful review of [its] exemption claims,” see id.

at 27; because the CIA has not responded to the ACLU’s questions

regarding whether: (1) “the authors have published worked in

their own names”; (2) “the works mention their Agency

affiliation and/or include the Agency’s required disclaimer”;

and (3) the covert Agency Officer is currently covert, Pl.’s

24 Reply, ECF No. 60 at 16. The Court disagrees. The affidavits

supporting the withholdings pursuant to Exemptions 1 and 3 are

reasonably detailed, explain why the names of the current and

former employees “logically fall[] within the claimed exemption,

and are not controverted by either contrary evidence in the

record nor by evidence of agency bad faith.” Military Audit

Project,

(D.C. Cir. 1981) (citation omitted).

Accordingly, the Court finds that it can rely on the

declarations to conduct its de novo determination.

The ACLU also asks the Court to conduct an in camera review

of the document containing the withheld author’s names. Pls.’

Cross-Mot., ECF No. 55-1 at 27. FOIA gives district courts the

discretion to examine the contents of requested agency

records in camera “to determine whether such records or any part

thereof shall be withheld.” See

(a)(4)(B). It is

within the Court's “broad discretion” to decline to conduct in

camera review where the Court determines that in

camera inspection is unnecessary “to make a responsible de novo

determination on the claims of exemption.” Carter v. U.S. Dep't

of Commerce,

(D.C. Cir. 1987). Because the

Court has found that it can rely on the declarations to conduct

its de novo determination, in camera review is unwarranted.

Additionally, it is unclear what the in camera review of a list

of names would accomplish.

25 E. Segregability

Under FOIA, “even if [the] agency establishes an exemption,

it must nonetheless disclose all reasonably segregable,

nonexempt portions of the requested record(s).” Roth v. U.S.

Dept. of Justice,

(D.C. Cir. 2001)

(internal quotation marks and citation omitted). “[I]t has long

been the rule in this Circuit that non-exempt portions of a

document must be disclosed unless they are inextricably

intertwined with exempt portions.” Wilderness Soc'y v. U.S.

Dep't of Interior,

(D.D.C. 2004) (quoting

Mead Data Cent., Inc. v. U.S. Dep't of Air Force,

(D.C. Cir. 1977)). Thus, an agency must provide “a detailed

justification and not just conclusory statements to demonstrate

that all reasonably segregable information has been released.”

Valfells v. CIA,

(D.D.C. 2010)

(internal quotation marks and citation omitted). However,

“[a]gencies are entitled to a presumption that they complied

with the obligation to disclose reasonably segregable material,”

which must be overcome by some “quantum of evidence” from the

requester. Sussman v. U.S. Marshals Serv.,

(D.C. Cir. 2007).

The CIA’s declaration states that a line-by-line review was

conducted and all reasonable segregable non-exempt information

has been released. Shiner Decl., ECF No. 54-2 ¶ 25. The ACLU

26 does not contend that the CIA has failed to comply with its

segregation requirements. The only withheld information are the

names of current and/or former CIA officials. Accordingly, the

Court concludes that the CIA has satisfied its segregability

obligations under FOIA.

IV. Conclusion For the reasons set forth above, the CIA’s Motion for

Summary Judgment is GRANTED IN PART AND DENIED IN PART and the

ACLU’s Cross-Motion for Summary Judgment is GRANTED IN PART AND

DENIED IN PART. An appropriate order accompanies this Memorandum

Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge November 24, 2021

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