UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

WP COMPANY LLC, : : Plaintiff, : Civil Action No.: 22-01138 (RC) : v. : Re Document Nos.: 19, 20 : CENTRAL INTELLIGENCE AGENCY, : : Defendant. :

MEMORANDUM OPINION

GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT; GRANTING IN PART AND DENYING IN PART PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

This case arises out of a Freedom of Information Act (“FOIA”) dispute between Plaintiff

WP Company LLC (the “Washington Post” or the “Post”) and Defendant the Central

Intelligence Agency (the “CIA”). The Washington Post seeks 56 documents known as “CIA

Histories,” records that examine a range of subjects related to U.S. foreign relations and

intelligence operations from the 1940s through the 1970s. See Compl. at ¶ 21, ECF No. 1. The

CIA has released some of the CIA Histories “in full or part [but] withheld other records, as well

as information within certain records, pursuant to [FOIA] Exemptions 1, 3, and/or 6.” Mem.

P&A Supp. Mot. Summ. J. (“MSJ”) at 3, ECF No. 19-1. The Washington Post believes that the

CIA should have released additional records and sued the CIA to compel disclosure.

Before the Court are the CIA’s Motion for Summary Judgment, see generally MSJ, and

the Washington Post’s combined Cross-Motion for Summary Judgment and Opposition to the

CIA’s motion, see generally Mem. P&A Supp. Mot. Summ. J. and Opp’n MSJ (“Cross-MSJ”),

ECF No. 20-1. The CIA filed a combined reply in support of its motion and opposition to the Washington Post’s cross-motion (“Def.’s Reply”), ECF No. 22, and the Post filed a reply to the

CIA’s opposition (“Pl.’s Reply”), ECF No. 24. For the following reasons, the Court grants in

part and denies in part the CIA’s motion for summary judgment and grants in part and denies in

part the Washington Post’s cross-motion for summary judgment.

II. FACTUAL BACKGROUND

The Washington Post submitted a FOIA request for 56 “CIA Histories.” Compl. at ¶ 2.

The CIA Histories include (1) documents specifically requested by the 1975 Senate Select

Committee to Study Governmental Operations with Respect to Intelligence Activities, 1 (2)

documents relevant to the Committee’s mandate but not specifically produced to the committee,

and (3) additional documents later identified by the CIA pursuant to the President John F.

Kennedy Assassination Records Collection Act of 1992. See id. at ¶ 21; Cross-MSJ at 5–6. The

Post contends that these documents “address topics of clear historical interest and events of more

than a half a century ago.” Cross-MSJ at 1. The CIA acknowledged receipt of the Washington

Post’s FOIA request but did not initially produce any of the requested records. See Compl. at

¶¶ 22–23. Accordingly, the Post brought this suit seeking declaratory and injunctive relief to

compel the CIA to release the records. See id. at ¶¶ 34–35; Cross-MSJ at 6. After the Post filed

suit, the CIA eventually explained that it was conducting a related search for records as part of a

periodic release of documents through the National Archives and Records Administration that it

believed “may substantially overlap with any search for records responsive to the Post’s request”

1 The Senate Select Committee was established to “investigate federal intelligence operations and determine ‘the extent, if any, to which illegal, improper, or unethical activities were engaged in by any agency of the Federal Government.’” Senate Select Committee to Study Governmental Operations with Respect to Intelligence Activities, Notable Senate Investigations, U.S. SENATE HIST. OFF., https://www.senate.gov/about/resources/pdf/church-committee-full- citations.pdf (last visited Mar. 5, 2024)(quoting S. Res. 21, 94th Cong. § 1(a)(1975)).

2 and that “[a]fter [the] CIA has finished processing and releasing records from that search, it

w[ould] then conduct a search for records responsive to the Post’s request that the earlier search

did not turn up.” Joint Status Report of June 15, 2022 at 1–2, ECF No. 10. The CIA eventually

located 34 out of the 56 documents requested by the Washington Post. See Joint Status Report of

May 5, 2023 at 2, ECF No. 17. 2 The CIA produced some of those 34 records in full or in part

but withheld others citing FOIA Exemptions 1, 3, and 6. See MSJ at 1–3; Cross-MSJ at 1. The

parties disagree about whether the CIA conducted an adequate search for records and whether

the CIA’s FOIA withholdings were justified for the records it did locate. Accordingly, the

parties filed cross-motions for summary judgment which are now ripe. See generally MSJ;

Cross-MSJ.

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). Hence, FOIA “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. 2018)

(citing Milner v. U.S. Dep’t of Navy,

, 565 (2011)). “[E]ven if some materials from

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

2 The Court observes that there is some inconsistency regarding the number of documents the CIA located. Compare Joint Status Report of Sept. 15, 2022 at 1, ECF No. 11 (34 documents), and Joint Status Report of May 5, 2023 at 2, ECF No. 17 (34 documents), with Blaine Decl. at ¶ 9, ECF No. 19-3 (32 documents).

3 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) (citation omitted).

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) (citation omitted). “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 Rsch. Grp. v. FDA,

,

904–05 (D.C. Cir. 1999) (alterations in original)).

To carry its burden with respect to the adequacy of its search, “an agency must show that

it made a good faith effort to conduct a search for the requested records, using methods which

can be reasonably expected to produce the information requested, which it can do by submitting

a reasonably detailed affidavit, setting forth the search terms and the type of search performed,

and averring that all files likely to contain responsive materials (if such records exist) were

searched.” Shapiro v. U.S. Dep’t of Just.,

, 612–13 (D.C. Cir. 2022), cert. denied

sub nom. Shapiro v. Dep’t of Just.,

(2022) (cleaned up). “In a FOIA case, a

4 district court is not tasked with uncovering whether there might exist any other documents

possibly responsive to the request, but instead, asks only whether the search for the requested

documents was adequate.” Id. at 613 (cleaned up).

Additionally, to carry its burden with respect to claimed Exemptions, 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. Dep’t of Air Force,

(D.C. Cir. 1977)). 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 Resp. & Ethics in Wash. v. U.S. Dep’t of Just.,

(D.D.C. 2013) (quoting King v. U.S. Dep’t of Just.,

(D.C. Cir. 1987)), but it

“may rely on declarations that are reasonably detailed and non-conclusory,” Pinson v. U.S. Dep’t

of Just.,

(D.D.C. 2017). 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 v. CIA,

, 374–75 (D.C.

Cir. 2007)). That said, courts “consistently defer[] to executive affidavits predicting harm to

national security, and have found it unwise to undertake searching judicial review.” Ctr. for

Nat’l Sec. Stud. v. U.S. Dep’t of Just.,

(D.C. Cir. 2003).

5 IV. ANALYSIS

The CIA moves for summary judgment as to the adequacy of its search and the validity

of its withholdings under FOIA Exemptions 1, 3, and 6. By contrast, the Washington Post

moves for summary judgment arguing that the CIA’s search was inadequate, and that the CIA

has not justified its withholdings. The Court addresses each argument in turn.

A. Adequate Search

The parties first disagreement involves the adequacy of the CIA’s search for records

responsive to the Washington Post’s FOIA request. See MSJ at 3–5; Cross-MSJ at 1–2, 18–21;

Def.’s Reply at 1–4. “[A]n adequate search entails a showing that the agency made a good faith

effort to conduct a search for the requested records, using methods which can be reasonably

expected to produce the information requested.” Montgomery v. IRS,

(D.C.

Cir. 2022) (cleaned up). 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)). Courts generally “give considerable deference to agency

affidavits supporting their searches.”

Here, the CIA represents that it searched for records responsive to the Post’s FOIA

request in “three different records systems.” Blaine Decl. at ¶ 10. Those record systems include

“(1) indices of all archived hardcopy Agency records; (2) electronic versions of all Agency

records that have been reviewed and/or compiled for potential public release; and (3) multiple

repositories of intelligence reporting from various sources.”

Additionally, the CIA explained

that “[w]here hard-copy files were identified as possibly containing relevant records, CIA

6 information management professionals hand-searched those records in their entirety without the

use of terms or other filtering mechanisms.”

The Post argues that the CIA has not shown that it performed an adequate search because,

the Post says, the CIA previously stated that it only conducted a search that “overlapped” with

the search requested by the Washington Post. See Cross-MSJ at 18–20. The Post infers that the

CIA did not search for other records that did not overlap. See id. at 20. This is so because the

CIA previously indicated that it was conducting a related search that it believed “may

substantially overlap with any search for records responsive to the Post’s request” and that

“[a]fter [the] CIA has finished processing and releasing records from that search, it w[ould] then

conduct a search for records responsive to the Post’s request that the earlier search did not turn

up.” Joint Status Report of June 15, 2022 at 1–2. The Washington Post argues that those

statements imply that the CIA never conducted a supplemental search because the CIA did not

say that it conducted a supplemental search in its declaration and because the CIA failed to locate

several records that the Washington Post expected the agency to have within its possession. See

Cross-MSJ at 18–20.

The Court agrees with the Post. The CIA has had the opportunity to specify that it

conducted a supplemental search either in its initial declaration or in a supplemental declaration

after the Washington Post’s briefing, but instead only provided an argument pointing to a

conclusory and vague declaration that it performed an adequate search. See Nat’l Sec. Couns. v.

CIA, No. CV 12-284 (BAH),

, at *16 (D.D.C. Nov. 14, 2016) (rejecting

adequacy of CIA’s FOIA search where the CIA failed to provide a supplemental declaration

clarifying search discrepancy despite the opportunity to do so). The CIA’s statement in its

responsive brief that it did conduct a supplemental search, see Def.’s Reply at 1–2, is not

7 persuasive because “[s]tatements made by counsel in briefs are not admissible evidence upon

which summary judgment may be granted,” Comptel v. FCC,

(D.D.C.

2013). The Court is thus left unpersuaded that the CIA conducted a supplemental search for

records that did not turn up in its initial overlapping search on behalf of the National Archives.

Furthermore, while it is true that the CIA’s declaration states that the CIA “conducted

thorough and diligent searches” in three different record systems that were likely to turn up

documents of “the age and type” requested by the Post, Blaine Decl. at ¶ 10, the CIA does not

explain how it searched the electronic records systems. First, the CIA has not indicated what

search terms it used—if any—when searching the electronic versions of agency records or

intelligence repositories; while the CIA states that it did not use search terms when searching

hard copy records, it says nothing with respect to its search of digital records. See

Nor does

the CIA explain which employees searched for the records; the CIA merely states that the

employees who performed the search were qualified to search those records and have searched

the records in the past. See

The Court is aware that the CIA has agency historians, see, e.g.,

Nat’l Sec. Archive v. CIA.,

(D.C. Cir. 2014) (referencing a CIA historian), yet

the CIA does not mention whether it consulted with its historians to determine the whereabouts

of these important historical records, see generally Blaine Decl. at ¶ 6.

Ultimately, the CIA simply states that it “searched relevant systems of records that

contain records subject to the FOIA and that were reasonably calculated to uncover records

responsive to Plaintiff’s request, and located 32 responsive documents.” Id. at ¶ 9. This

conclusory statement could apply to almost any search in response to a request for records and is

insufficient to demonstrate that the CIA’s search was adequate. See Shapiro, 40 F.4th at 612–13

(explaining that “a reasonably detailed affidavit,” includes a description of the “search terms and

8 the type of search performed”); Natl’l Sec. Couns.,

at *16 (concluding that

CIA’s search was inadequate where CIA’s “declarant averred simply that personnel responsible

for conducting searches within the relevant agency components reviewed their own records to

attempt to identify documents responsive to [the FOIA] request” because the CIA “provided

little information regarding what parameters were used to accomplish the search” (cleaned up)).

Although “the reasonableness of a FOIA search does not turn on whether it actually

uncovered every document extant, and the failure of an agency to turn up a specific document

does not alone render a search inadequate,” In re Clinton,

(D.C. Cir. 2020)

(internal quotation marks and citation omitted), the CIA’s failure to locate a large percentage of

the historically significant records that the Post seeks raises serious concerns that the CIA did not

perform an adequate search, Huntington v. U.S. Dep’t of Com.,

(D.D.C.

2017) (explaining that courts “have sometimes found that the government's failure to hand over

specific documents indicates that a search was inadequate” (referencing Campbell v. U.S. Dep’t

of Just.,

(D.C. Cir. 1998) and Wolf v. CIA,

(D.D.C. 2004))).

Because the CIA has not demonstrated that it conducted a supplemental search for records as it

initially stated it would and because the CIA has not explained the manner in which it searched

the record systems it did search, the Court concludes that the CIA failed to conduct an adequate

search. The CIA must conduct a supplemental search for the missing histories. Accordingly, the

CIA’s motion is denied, and the Post’s motion is granted, in this respect.

B. Exemption 1

Of the records that the CIA located, the CIA argues that its withholding of 17 records in

full and 12 records in part was justified by Exemption 1 because the withheld records “contain

classified information related to: classified relationships; intelligence methods; and intelligence

9 activities and targets.” MSJ at 9; Blaine Decl. at ¶ 19. Under FOIA Exemption 1, an agency

may 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). Here, the CIA argues that the information it withheld is properly classified pursuant

to Executive Order 13526. Executive Order 13526 states that information is properly classified

if

(1) an original classification authority is classifying the information; (2) the information is owned by, produced by or for, or is under the control of the United States Government; (3) the information falls within one or more of the categories of information 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, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.

Exec. Order No. 13,526,

(Dec. 29, 2009).

There is no question that the CIA’s declarant is an original classification authority who

classified the information, and that the information is owned by the United States Government.

See Blaine Decl. at ¶¶ 3, 9; MSJ at 9; see generally Cross-MSJ at 9–12. Furthermore, the CIA’s

declarant averred that the information falls within section 1.4 because it concerns (1)

“intelligence activities (including covert action),” (2) “intelligence sources or methods,” and/or

(3) “foreign relations or foreign activities of the United States.” Blaine Decl. at ¶ 17.

Specifically, the CIA explains that the records “contain information that would reveal specific

intelligence targets, the locations of CIA activities—historically and presently, and the targets of

specific CIA operations.” Id. at ¶ 20. The records “contain specific types of intelligence

methods, as well as policies and procedures for implementing and utilizing those intelligence

methods, and a historical accounting of the application of those methods.” Id. at ¶ 21. And the

10 records “discuss, and in some cases extensively detail, the process and policies for working with

foreign services, foreign individuals, and clandestine assets who aid the CIA in its intelligence

operations.” Id. at ¶ 22. The Washington Post does not appear to dispute that the withheld

information concerns these topics, see generally Cross-MSJ at 9–12, and the Court is satisfied on

this record that the records contain information that is covered by section 1.4.

The rub starts with whether disclosure of the records reasonably could be expected to

result in damage to the national security. See Exec. Order No. 13,526, 75 Fed. Reg. at 707. The

CIA says that releasing the records would damage national security because disclosure “could

significantly impair the CIA’s ability to carry out its core mission of gathering and analyzing

foreign intelligence and counter intelligence and conducting intelligence operations, thereby

damaging the national security.” See Blaine Decl. at ¶¶ 19, 20–22; MSJ at 12. For example, the

CIA contends that disclosure “would reveal specific intelligence targets, the locations of CIA

activities historically and presently, and the targets of specific CIA operations.” Blaine Decl. at

¶ 20. Even old information, the CIA says, could provide “insight to our adversaries of what the

CIA has done in the past as related to what it is capable of or planning to undertake in the

future.” Id. Moreover, the CIA says, the records would reveal the identities of “foreign partners

who do business with the Agency” and the CIA’s “process and policies for working with foreign

services, foreign individuals, and clandestine assets who aid the CIA in its intelligence

operations.” Id. at ¶ 22.

The Washington Post raises three counterarguments. First, the Post disagrees with the

CIA’s assessment that disclosure would create a risk of harm to the national security given the

records’ age and nature. See Cross-MSJ at 10–11. Second, the Post contends that the CIA

violated Executive Order 13526 by classifying the records “indefinitely.” See id. at 10. And

11 third, the Post argues that the CIA violated Executive Order 13526 by failing to assess whether

the public interest outweighed the need to redact the documents. See id.

While it is true that the records the CIA has withheld are old, “this Court is not in a

position to second-guess an agency’s classification decisions absent a contradiction on the record

or evidence of bad faith.” Moore v. CIA, No. 1:20-CV-1027-RCL,

, at *6

(D.D.C. July 28, 2022) (rejecting plaintiff’s argument that CIA “records [we]re too old to justify

continued classification”). 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.” ACLU v. U.S. Dep’t of Def.,

(D.C. Cir. 2011) (quoting Ctr. for Nat’l

Sec. Stud.,

). While some of the CIA’s intelligence sources, methods, and

international relationships have surely become outdated since these records were created, it is

possible that the sources, methods, and relationships that the CIA has withheld from disclosure

remain part of the CIA’s arsenal to protect the national security. See Shapiro v. U.S. Dep’t of

Just.,

(D.C. Cir. 2018) (“[I]nvoking a FOIA exemption is sufficient if it

appears ‘logical’ or ‘plausible.’” (quoting Larson v. U.S. Dep’t of State,

(D.C.

Cir. 2009)); Schaerr v. U.S. Dep’t of Just.,

(D.C. Cir. 2023) (same).

Moreover, the fact that the withheld information appears innocuous to the Washington

Post does not necessarily undermine the CIA’s explanation in this case because the Court must

“accord[s] substantial weight to an agency’s affidavit concerning the details of the classified

status of the disputed record.” ACLU,

(quoting Wolf,

); CIA v.

Sims,

(1985) (“[I]t is the responsibility of the Director of [the CIA], not that of

the judiciary, to weigh the variety of complex and subtle factors in determining whether

disclosure of information may lead to an unacceptable risk of compromising the [CIA’s]

12 intelligence-gathering process.”). As the CIA explains, even seemingly innocuous records, when

viewed in context, may reveal information that can compromise the national security. See MSJ

at 8.

Nevertheless, the Post has identified several examples of redacted information that appear

in context to be completely innocuous—and which the CIA does not specifically address. For

instance, the Post points out that the CIA has redacted the number of clerical employees who

worked for the CIA’s Eastern European branch in the 1950s, the number of CIA personnel who

had native fluency in Hungarian in the 1950s, the dollar amount that the National Security

Council authorized in 1957 to support the forces of Maludin Simbolon in Indonesia, and the

number of stenographers that the Missile Collection Committee had working for it in the 1950s.

See Cross-MSJ at 11.

The Court is hard pressed to understand how redaction of these seemingly innocuous

pieces of information serves to protect the national security. Although the Court “accord[s]

substantial weight to [the CIA’s] affidavit concerning the details of the classified status of the

disputed record,” ACLU,

(quoting Wolf,

), the CIA’s declarations

must at least “afford the FOIA requester a meaningful opportunity to contest, and the district

court an adequate foundation to review, the soundness of the withholding,” King,

. The CIA’s mosaic argument—that every small piece of information can be used to harm

national security—has no limit and could theoretically apply to all information no matter how

innocuous. See Shapiro v. U.S. Dep’t of Just.,

(D.D.C. 2017)

(explaining that mosaic theory has limits and can’t be used to hide innocuous information). The

Court concludes, therefore, that the CIA’s declaration has not sufficiently explained how release

of this information could harm the national security. Be that as it may, the Court understands

13 that a more detailed explanation of how disclosure would affect the national security comes with

its own risks. See Perioperative Servs. & Logistics, LLC v. Dep’t of Vets. Affs.,

(D.C. Cir. 2023) (stating that the government may be hesitant to explain its withholding

because the explanation may itself reveal sensitive information). Accordingly, the Court denies

the CIA’s motion without prejudice and orders the CIA to provide a declaration ex parte in

camera (and classified if necessary) that explains how the apparently innocuous information that

the Washington Post has identified could cause the harms that the CIA asserts.

The Court continues briefly to address the Washington Post’s additional arguments.

Contrary to the Posts assertion, see Cross-MSJ at 10, the CIA has not improperly classified these

records “indefinitely.” It is true that the records have been classified for many years, but the CIA

has continued their classification using the proper classification procedures authorized by

Executive Order 13526. See, e.g., James Madison Proj. v. CIA, No. 18-cv-3112-KBJ,

, at *2 (D.D.C. Sept. 23, 2020) (concluding that the CIA properly exempted records

from automatic declassification at 50-year mark). Specifically—while Executive Order 13526

contains a declassification provision that usually mandates automatic declassification after 50

years—the Executive Order permits agency heads to “exempt . . . specific information from

declassification at 50 years.” Exec. Order No. 13,526, 75 Fed. Reg. at 717. Here, the CIA “has

exempted the type of information at issue . . . from automatic declassification at 50 years”

through its 2018 Declassification Guide. Blaine Decl. at ¶¶ 15-16; see also Assassination

Archives & Rsch Ctr., Inc. v. CIA, No. 18-5280,

, at *1 (D.C. Cir. Feb. 15,

2019) (holding that CIA properly exempted records from declassification after 50 years in the

interests of national defense). Accordingly, these records are exempted from the Executive

Order’s declassification provision. And contrary to the Post’s assertion, see Pl.’s Reply at 6, an

14 agency’s failure “to establish a declassification timeline . . . does not prevent the agency from

relying on FOIA Exemption 1,” Mobley v. CIA,

(D.D.C. 2013). The CIA

has demonstrated that it considered declassification and ultimately concluded that classification

continued to be necessary for the information that it has withheld.

Nor does the CIA’s failure to explicitly address the public interest undermine its

withholdings here. As courts in this District have explained, the decision to declassify a

document pursuant to the public interest “is discretionary” and reserved for “exceptional” cases.

Canning v. U.S. Dep’t of State,

(D.D.C. 2015) (rejecting requirement

that agency need explicitly state that public interest does not merit disclosure). If the CIA

determines that classification is appropriate under Executive Order 13526, that is sufficient. The

Court understands the CIA’s position to indicate that it considered whether the case was an

exceptional circumstance and whether the public interest merited disclosure and decided to the

contrary. Accordingly, the Court denies both the CIA and the Post’s motions without prejudice.

C. Exemption 3

The CIA next contends that it properly withheld or redacted certain records under

Exemption 3. Blaine Decl. at ¶ 25; MSJ at 14–17. 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” or “establishes particular criteria for withholding or refers to

particular types of matters to be withheld.”

(b)(3)(A). “Under 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,

(citing

Fitzgibbon v. CIA,

, 761–62 (D.C. Cir. 1990)).

15 1. The National Security Act

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

disclosure of the information the CIA seeks to withhold because the Act protects from disclosure

“intelligence sources and methods.” See MSJ at 16 (quoting

(i)(1)); Blaine

Decl. at ¶ 26–29. The D.C. Circuit has recognized that the National Security Act is an

exemption statute for purposes of Exemption 3. See DiBacco v. U.S. Dep’t of Army,

(D.C. Cir. 2019); see also ACLU,

; Larson,

. And 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,”

(quoting Halperin v. CIA,

(D.C. Cir. 1980)); see also Sims,

(explaining that “Congress entrusted [the CIA] with sweeping power to protect its ‘intelligence

sources and methods’” when it passed the National Security Act);

(“[I]t is the

responsibility of the Director of [the CIA], not that of the judiciary, to weigh the variety of

complex and subtle factors in determining whether disclosure of information may lead to an

unacceptable risk of compromising the Agency's intelligence-gathering process.”).

The CIA represents that the records it has withheld “contain classified information related

to intelligence activities and targets, intelligence sources and methods of collection.” Blaine

Decl. at ¶ 15. For instance, the CIA’s Vaughn index explains that many of the withheld records

involve “historical accounting” or “historical analysis” that could reveal “intelligence sources

and methods, including classified relationships and information pertaining to foreign relations or

foreign activities of the United States.” See Vaughn Index, Ex. B, ECF No. 19-3. The CIA also

16 represents that the redacted material includes “certain techniques used to protect methods used to

secure agency facilities, protect or support Agency officers, and control dissemination of

information” the disclosure of which “would reveal intelligence methods pertaining to

dissemination controls and protection of information.” Blaine Decl. at ¶ 15. The Washington

Post disagrees with the CIA’s application of the National Security Act because it contends that

release could not “possibly be expected to lead to the disclosure of an intelligence source or

method” given the records’ age and the nature of the redacted information. See Cross-MSJ at 13;

Pl.’s Reply at 9. Specifically, the Post argues that certain information that the CIA has redacted,

such as an alternative name for the “Hungarian Refugee Exploitation Program” in the 1950s or

the number of teletype pages of information sent to a temporary New York CIA office related to

then President-elect Richard Nixon in the late 1960s, is too benign to possibly compromise

intelligence sources or methods. See Cross-MSJ at 13.

Although the records at issue are old, it is possible that the intelligence methods and

institutional relationships disclosed therein have not gone stale and that release of these records

would harm intelligence sources and methods as contemplated by the statute. See, e.g.,

Assassination Archives & Rsch. Ctr., Inc. v. CIA,

(D.D.C. 2018)

(applying National Security Act and Exemption 3 to documents that were over 50 years old

because withholding would “protect intelligence sources and methods from unauthorized

disclosure” (citation omitted)); Maynard v. CIA,

, 555 & n.6 (1st Cir. 1993)

(applying National Security Act and Exemption 3 to redacted paragraph containing information

that was 30 years old and explaining that “[c]ourts have generally rejected the contention that the

mere age of intelligence information rules out Exemption 3”). And although it may be difficult

to credit, access to such seemingly innocuous information could theoretically facilitate

17 deductions that may reveal intelligence sources or methods. See Sims,

(“intelligence work . . . often involves seemingly innocuous sources”);

(explaining that when

exercising its authority under the National Security Act, the CIA “has power to withhold

superficially innocuous information on the ground that it might enable an observer to discover

the identity of an intelligence source.”); see also Int’l Couns. Bureau v. CIA,

, 271 & n.5 (D.D.C. 2011) (agreeing with the “CIA that even the release of seemingly

insignificant or benign information could have significant adverse effects when combined with

other data.” (internal quotation marks and citation omitted)); Fitzgibbon,

(“This

Court has established that in considering the potential harm arising from disclosure of a source or

method, ‘[w]e must take into account . . . that each individual piece of intelligence information,

much like a piece of jigsaw puzzle, may aid in piecing together other bits of information even

when the individual piece is not of obvious importance itself.’” (internal quotation marks and

citation omitted) (alteration in original)).

The CIA, however, has not explained how release of the seemingly innocuous

information identified by the Post could harm the national security. See King,

(explaining that agency affidavit must permit “district court an adequate foundation to review,

the soundness of the withholding”). Without additional detail explaining how release of this

information could harm national security, the Court is hard pressed to determine whether the

CIA’s assertion of harm should be credited. Accordingly, the Court concludes that the CIA has

failed its burden to show that the redactions protect against harms to national security. The

Court denies the CIA’s motion in this respect without prejudice and orders the CIA to explain

how these withholdings would protect the national security in its ex parte in camera declaration.

The Court also denies the Post’s cross-motion.

18 2. The CIA Act

The CIA also argues that some of the information it has redacted is protected by the CIA

Act and that the CIA Act is an exemption statute under FOIA Exemption 3. See Blaine Decl. at

¶ 27. The CIA Act exempts the CIA from “the provisions of any . . . law[s] which require the

publication or disclosure of the organization or functions of the Agency, or of the names, official

titles, salaries, or numbers of personnel employed by the Agency.”

. This

Circuit has recognized that the CIA Act is an exemption statute under FOIA Exemption 3. See

DiBacco,

; see also Assassination Archives,

, at *1 (concluding

that redactions of “personally identifying information were properly withheld pursuant to FOIA

Exemption 3, by way of the CIA Act” in case where records were over 50 years old). The CIA

represents that it “withheld identifying information such as names, titles, identification numbers,

functions, and organizational information related to the Agency and its employees.” Blaine

Decl. at ¶ 27; see also Vaughn Index. 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.”

. 3 Accordingly, the Court concludes that the CIA’s withholdings under Exemption 3 and

pursuant to the CIA Act are justified.

D. Exemption 6

Lastly, the CIA argues that its partial withholding of fifteen records under Exemption 6 is

justified. See MSJ at 17 n.1; Blaine Decl. at ¶ 31. The Court concludes that these partial

withholdings are justified.

3 The Court also observes that the Post does not challenge the CIA’s redactions of “identifying information . . . related to the Agency and its employees.” Cross-MSJ at 9 n.3.

19 Exemption 6 shields from disclosure “files the disclosure of which would constitute a

clearly unwarranted invasion of personal privacy.”

(b)(6). The Exemption

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 Just.,

(D.D.C. 2004) (quoting U.S. Dep’t of State v. Ray,

(1991)). Here, the

CIA asserts that “release of the redacted names and other identifying information is reasonably

likely to subject those individuals, or those associated with them, including surviving relatives, to

increased harassment or threats, or unwanted contact by the media and other interested parties,

based on their association with the CIA.” Blaine Decl. at ¶ 31. By contrast, the Post asserts that

only a de minimis privacy interest is at stake and that, therefore, disclosure is warranted. See

Cross-MSJ at 15. Privacy interests are minimal, the Post says, because the information relates to

individuals who are already known to be associated with the CIA. See id. at 16.

The balance weighs more heavily on the side of privacy interests than the interest in

public disclosure. Individuals, and family members of deceased individuals, who were

associated with the CIA have a privacy interest in preventing the disclosure of those individuals’

association with the CIA, see Mobley,

(close relatives of deceased

individuals retain privacy interest after decedent’s death), and there is some public interest in

keeping scrutiny away from CIA personnel, see Assassination Archives,

(“[T]he fact that Congress has seen fit to make the personal information of CIA staff members

statutorily inaccessible also demonstrates the public’s interest in CIA personnel avoiding

personal scrutiny for their public service.” (citing

)). Although “the privacy

interest in nondisclosure of identifying information may be diminished where the individual is

deceased,” Schoenman v. FBI,

(D.D.C. 2008) (quoting Schrecker v.

20 U.S. Dep’t of Just.,

(D.C. Cir. 2003)), and “the weight [of privacy] interest[s]

fade[] considerably as decades pass,” Hall v. CIA,

(D.D.C. 2017), “the

D.C. Circuit has repeatedly held that the close relatives of a deceased person retain a certain

amount of privacy interests after the decedent has passed away,” Mobley,

(collecting cases).

Here, the relatives of deceased individuals may have only a modest privacy interest in the

withholding of information, but the Washington Post has not put forth a countervailing public

interest in the release of the information, see generally Cross-MSJ at 15–16; Pl.’s Reply at 10–

11, and “even a modest privacy interest, outweighs nothing every time,” Mobley,

(quoting Nat’l Ass’n of Retired Fed. Emps. v. Horner,

(D.C. Cir.

1989)). Nor does the Court perceive that release of the information would serve “FOIA’s central

purpose—to ensure that the Government’s activities be opened to the sharp eye of public

scrutiny,” Fed. Lab. Rels. Auth. v. U.S. Dep’t of Treasury, Fin. Mgmt. Serv.,

(D.C. Cir. 1989), because “information about private citizens . . . reveals little or nothing

about an agency’s own conduct,” U.S. Dep’t of Just. v. Reps. Comm. for Freedom of Press,

(1989); Insider Inc. v. GSA,

(D.C. Cir. 2024) (explaining that

public interest in disclosure “cannot sound in activities exclusively concerning . . . former

government actors”). Moreover, to the extent that the redacted information pertains to details

other than whether a deceased individual was associated with the CIA, that information may

constitute a greater than modest invasion of privacy. 4 This is so because if the individual

4 The Washington Post specifically identifies three redactions under Exemption 6 that it believes are inappropriate: (1) employee signatures; (2) an alleged photograph; and (3) an individual’s professional affiliations. Courts in this District have concluded that there is a “substantial privacy interest . . . in the protection of . . . hand-written signatures.” James v. U.S. Dep’t of Just., Civil Action No. 19-00513,

, at *4 (D.D.C. Mar. 9, 2020)

21 associated with the CIA is still alive, or if the redacted information does more than reveal that

individual’s association with the CIA, that information may cause the individual to be further

harassed or may reveal personal details about the individual that would cause surviving relatives

embarrassment or harassment.

The CIA has also sufficiently demonstrated that release of the information would harm

interests that Exemption 6 protects because it has explained that “[t]he release of the redacted

names and other identifying information is reasonably likely to subject those individuals, or

those associated with them, including surviving relatives, to increased harassment or threats, or

unwanted contact by the media and other interested parties, based on their association with the

CIA.” Blaine Decl. at ¶ 31. This Court has previously upheld the CIA’s withholding of personal

(collecting cases); see also Howard v. United States,

, 205 (D.D.C. 2020) (“redaction of the signatures is hardly controversial”). The District Court in James agreed with the Government that revealing individuals’ signatures “could expose . . . individuals to ‘an unwarranted invasion of their personal privacy, leading to efforts to use their signatures and initials for identity theft, other fraudulent purposes, or subject these individuals to harassment or harm.’” James,

, at *3; Brannum v. Dominguez,

(D.D.C. 2005) (The “court agrees with defendant that release of this information would . . . create opportunity for misappropriation of the signatures . . . .” (cleaned up)). Moreover, there is no indication that revealing the signatures “would contribute significantly to public understanding of the operations or activities of the government.” James,

, at *3; Brannum,

(“The public interest involved in the disclosure of this information would most likely not shed any light on the [agency’s] performance.”). Accordingly, the signatures are properly withheld under Exemption 6. With respect to the alleged photograph, the CIA contends that the redaction contains “personally identifiable information, such as names, signatures, and other identifying information, in which the individuals maintain a cognizable privacy interest.” Blaine Decl. at ¶ 31. Consistent with the reasons explained above, the photograph is also exempt from disclosure. Lastly, as courts in this District have concluded, individuals have a privacy interest in nondisclosure of their professional affiliations because those affiliations may subject them to harassment. See Rojas-Vega v. U.S. Immigr. & Customs Enf’t,

(D.D.C. 2018); see also Rosenberg v. U.S. Dep’t of Immigr. & Customs Enf’t,

(D.D.C. 2014) (protecting “professional titles/job identifiers”). The individuals associated with the CIA—as well as those individuals’ relatives—have a privacy interest in their professional affiliations. The professional affiliations are exempt.

22 identifying information where release would risk subjecting individuals to harassment or

unwanted contact from third parties. See Leopold v. CIA,

(D.D.C. 2019).

Accordingly, the Court concludes that the CIA may properly withhold this information under

FOIA Exemption 6.

E. Segregability

The Court must also ensure that the CIA has taken the “reasonable steps necessary to

segregate and release nonexempt information.”

(a)(8)(A)(ii)(I); Porup v. CIA,

(D.C. Cir. 2021) (explaining that “trial court must make a segregability

finding if a federal agency has redacted or withheld documents pursuant to FOIA exemptions”).

That said, FOIA “does not call for parsing [a record] line-by-line or segregating material

dispersed throughout the document. Instead, the emphasis is on segregation of non-exempt

material found in logically divisible sections.” Nat’l Ass’n of Crim. Def. Lawyers v. U.S. Dep’t

of Just. Exec. Off. for U.S. Att’ys,

(D.C. Cir. 2016) (cleaned up). Here, the

CIA represents that it “conducted a document-by-document and line-by-line review” and

“released all reasonably segregable non-exempt information.” Blaine Decl. at ¶ 33. The D.C.

Circuit has previously endorsed an agency’s segregation of information where the agency

attested that it had “conducted a page-by-page and line-by-line review, and released all

reasonably segregable, non-exempt information within responsive records.” Porup,

(cleaned up); see also Machado Amadis v. Dep’t of State,

, 371 (D.C. Cir.

2020) (concluding that an agency “appropriately segregated exempt and non-exempt portions” of

responsive records where it “conducted a line-by-line review, determined that some non-exempt,

factual information within [the records] could be segregated for release, and redacted only”

exempt information (cleaned up)). Therefore, the Court concludes that the CIA’s “sworn

23 statements sufficiently establish that ‘no portions of the [fully] withheld documents may be

segregated and released.’” Porup,

(citation omitted). Accordingly, “[the

Court] find[s] that the Agency has met its segregability obligations.”

V. CONCLUSION

The Court concludes that the CIA failed to conduct an adequate search for responsive

records and that the CIA has not satisfied its burden justifying its withholdings pursuant to

Exemption 1 and its withholdings pursuant to Exemption 3 under the National Security Act. The

CIA has satisfied its burden with respect to Exemption 3 under the CIA Act and Exemption 6.

For the foregoing reasons, Defendant’s motion for summary judgment (ECF No. 19) is

GRANTED IN PART and DENIED IN PART WITHOUT PREJUDICE and Plaintiffs’ cross

motion for summary judgment (ECF No. 20) is GRANTED IN PART and DENIED IN PART

WITHOUT PREJUDICE. The CIA is further instructed to submit an ex parte in camera

declaration (classified if necessary) explaining its withholdings pursuant to Exemptions 1 and 3

before filing any renewed motion for summary judgment. An order consistent with this

Memorandum Opinion is separately and contemporaneously issued.

Dated: March 7, 2024 RUDOLPH CONTRERAS United States District Judge

24