Morley v. United States Central Intelligence Agency ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JEFFERSON MORLEY, )
)
Plaintiff, )
) Civil Case No. 03-2545 (RJL)
v. )
)
UNITED STATES CENTRAL )
INTELLIGENCE AGENCY, )
)
Defendant. )
rf7--
MEMORANDUM OPINION
(March S"O ,2010) [# 88 and 95]
Plaintiff, Jefferson Morley, brings this action against the Central Intelligence
Agency ("CIA" or "Agency") under the Freedom of Information Act ("FOIA"), 5 U.S.C.
§ 552 et seq. (2000), seeking records pertaining to deceased CIA operations officer,
George Efythron Joannides. On remand from the Court of Appeals, the case is now
before this Court on the parties' renewed Cross-Motions for Summary Judgment. After
careful review of the motions, applicable law, and the entire record herein, the
defendant's motion is GRANTED and plaintiff's motion is DENIED.
BACKGROUND
The facts of Morley's case are set out in detail in prior opinions of this Court and
the Court of Appeals. See Morley v. CIA, 453 F. Supp. 2d 137 (D.D.C. 2006), aff'd in
part, rev'd in part, 508 F.3d 1108 (D.C. Cir. 2007). Accordingly, they will only be
summarized here to the extent they bear on the motions decided in this Opinion.
Plaintiff is a journalist and news editor who has written about the assassination of
President John F. Kennedy. See Morley, 508 F.3d at 1113. On July 4, 2003, he
submitted a FOIA request to the CIA seeking "all records pertaining to CIA operations
officer George Efythron Joannides, (also known as 'Howard,' 'Mr. Howard' or 'Walter
Newby'), including, but not limited to" seventeen specific categories of records. (CompI.
Ex. 1 ("Morley Letter") at 1-3.). Morley's interest in Joannides stems from his belief that
the former CIA officer was "uniquely well-positioned to observe and report" on the
assassination of President John F. Kennedy. (Morley Letter at 3.) Morley believes that
the documents he requested "promise to shed light on the confused investigatory
aftermath of the assassination." (Id.)
The CIA initially responded to Morley's request by telling him that records
relating to the Kennedy assassination had been transferred to the National Archives and
Records Administration ("NARA") and that he should direct his FOIA request there. See
Morley, 508 F.3d at 1113. After further review, the CIA reconsidered its position and,
over the course of several productions, sent Morley three complete documents, two
documents in segregable form, and 113 redacted documents. See id. at 1114. The CIA
justified the redactions under FOIA Exemptions 1, 2, 3, 5, 6, 7(C), and 7(E).1 Id.Additionally, the CIA withheld material in its entirety under Exemptions 1, 2, 3, 5, 6,
7(C), 7(D), and 7(E). See id. It also declined to confirm or deny the existence of certain
records requested by Morley. See id.I FOIA exemptions are identified here by the subpart number they are assigned in the statute.
For instance, FOIA Exemption 1 is based on the exemption found in 5 U.S.c. § 552(b)(l), and so
on. See 5 U.S.C. § 552(b)(l) - (9).
2
Based on the CIA's 2004 document searches and productions, this Court granted
summary judgment in the agency's favor because it had conducted an adequate search,
sufficiently explained any withheld information, and properly invoked the FOIA
exemptions it claimed. See Morley, 453 F. Supp. 2d at 144-57. On review, our Circuit
Court affirmed in part and reversed in part. See Morley, 508 F.3d at 1113. Specifically,
the Court of Appeals remanded the case for the CIA to: (1) search its operational files,
which it had not done previously, id. at 1116-19; (2) search records it transferred to
NARA, id. at 1119-20; (3) supplement its explanation regarding missing monthly reports
Morley believes should have been filed by Joannides, id. at 1120-21; (4) provide
additional details describing the scope of the search it conducted, id. at 1121-22; (5)
explain to this Court's satisfaction why withheld information was not segregable, id. at
1123; (6) substantiate its Glomar response, whereby it refused to confirm or deny the
existence of certain records requested by Morley, id. at 1126; and (7) provide additional
justification for withholding documents under FOIA exemptions 2, 5, and 6, id. at 1124-
28.
In response to the Court of Appeals' decision, the CIA in 2008 conducted
additional searches and produced additional material to Morley. In particular, on April
28, 2008, the CIA released 113 responsive records, and on August 6, 2008, another 293
responsive records. (Def. Mot. [# 88] at 5.) The CIA has since renewed its motion for
summary judgment on the basis that it fully complied with the Court of Appeals' remand.
(Jd.) Morley opposes the motion and filed his own cross-motion for summary judgment.
(Pl.'s Cross-Mot. [# 95].) Both motions are now fully briefed.
3
LEGAL STANDARD
In response to a FOIA request, an agency must conduct a "reasonable" search for
responsive records. Baker & Hostetler LLP v. Dep 't a/Commerce, 473 F.3d 312, 318
(D.C. Cir. 2006). An agency defending against FOIA litigation can prevail on summary
judgment if it shows "beyond material doubt ... that it has conducted a search reasonably
calculated to uncover all relevant documents." Weisberg v. Us. Dep 't 0/ Justice, 705
F.2d 1344,1351 (D.C. Cir. 1983). "The Court applies a 'reasonableness' test to
determine the' adequacy' of a search methodology, consistent with congressional intent
tilting the scale in favor of disclosure." Campbell v. us. Dep 't 0/Justice, 164 F.3d 20,
27 (D.C. Cir. 1998) (citations omitted). Furthermore, the Court "impose[s] a substantial
burden on an agency seeking to avoid disclosure" based on a FOIA exemption. Vaughn
v. Rosen, 484 F.2d 820,828 (D.C. Cir. 1973).
Importantly, the Court may award summary judgment solely on the basis of
information provided by the department or agency in affidavits or declarations. See
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Under the law of
our Circuit, "in the absence of countervailing evidence or apparent inconsistency of
proof, affidavits that explain in reasonable detail the scope and method of the search
conducted by the agency will suffice to demonstrate compliance with the obligations
imposed by the FOIA." Perry v. Block, 684 F.2d 121, 127 (D.C. Cir. 1982). When an
agency's affidavits demonstrate that "no material facts are in dispute," and if the agency
"demonstrates 'that each document that falls within the class requested either has been
produced ... or is wholly exempt from the Act's inspection requirements,''' then it is
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entitled to summary judgment. Students Against Genocide v. Dep't ofState, 257 F.3d
828, 833 (D.C. Cir. 2001) (quoting Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978».
ANALYSIS
1. Adequacy of the CIA's Searches
The Court of Appeals held that the CIA's 2004 searches were inadequate in
several respects. First, the Court of Appeals disagreed with the CIA that "operational
files" were exempt from disclosure in this case under the CIA Act, 50 U.S.C. § 431(a).
See Morley, 508 F.3d at 1116-19. As a result, in 2008, the CIA conducted new searches
of its operational files. On August 6, 2008, the agency produced to Morley 293
documents found in these new searches; 29 of these documents were released in full and
264 were redacted in part. (Declaration of Delores M. Nelson ("Nelson Decl.") ~ 54.)
Additionally, the CIA withheld 293 documents in their entirety under FOrA exemptions
1,2,3,5, and 6. (/d.)
The CIA has now explained with sufficient detail how it crafted its search of the
three locations which comprise the statutory definition of the agency's "operational
files.,,2 (/d. ~ 27-39.) Specifically, the CIA listed its initial search terms, described the
amount of material returned by the initial search, and the criteria by which it determined
whether the records it reviewed were responsive to plaintiffs request. (/d.) Not
2 "Operational files" are defined as files of the Directorate of Operations ("NCS") "which
document the conduct of foreign intelligence or counterintelligence operations or intelligence or
security liaison arrangements or information exchanges with foreign governments or their
intelligence or security services," files of the Directorate for Science and Technology ("DS&T")
"which document the means by which foreign intelligence or counterintelligence is collected
through scientific and technical systems," and files of the Office of Personnel Security ("OS")
"which document investigations conducted to determine the suitability of potential foreign
intelligence or counterintelligence sources." 50 U. S. C. § 431 (b).
5
surprisingly, Morley is unhappy with the scope of the CIA's search. But to the extent
Morley takes issue with the CIA's decision not to apply these search terms to any other
agency directorates, (PI. 's Cross-Mot. at 28), his argument must fail because it neglects
the explicit statutory definition of "operational files," which is limited to the three
directorates searched by the CIA. 50 U.S.C. § 431 (b). Because the CIA has described
the search of its "operational files" with more than "relative[] detail[]," in "good faith,"
and in a "nonconclusory" way, summary judgment in its favor is appropriate on this
point. See Morley, 508 F.3d at 1116 (quoting Goland, 607 F.2d at 352).
The Court of Appeals also found the CIA's 2004 searches to be deficient in that
they did not include certain records transferred to NARA. Morley, 508 F.3d at 1119-20.
The CIA has since searched the NARA files and produced 113 of them to Morley.
(Nelson Decl. ~ 41-43.) Of these 113 documents, 88 were produced in full and 25 were
produced with partial redactions; for the redactions, the CIA claims FOIA exemptions 1,
2,3, and 6. (Id. ~ 42.) The CIA included in its search the roughly 1,100 documents
housed in NARA's protected collection - not scheduled for public release until 2017 -
although no responsive records were found in this collection. (Id. ~ 43.) Morley does not
challenge the adequacy of this search; indeed, the NARA collection is a discrete set of
documents which the CIA has reviewed in full. (Id. ~ 40-43.) Accordingly, the CIA is
entitled to summary judgment on the adequacy of its search of the NARA records.
Additionally, the Court of Appeals was not satisfied with the CIA's explanation
concerning the whereabouts of 17 monthly reports which Morlcy believes 10annides filed
between 1962 and 1964. See Morley, 508 F.3d at 1120-21. Regrettably, Morley has read
6
the Court of Appeals' opinion as a broad invitation to once again mount his argument as
to why these reports must have been filed in the first place, why they should now be
considered "missing," and why their absence indicates an inadequate search on the part of
the CIA. (Pl.'s Cross-Mot. at 22-28.) He is mistaken. It was not an accident that the
Court of Appeals began its discussion of the monthly reports by stating, "Morley is less
persuasive in contending that the search was inadequate because there are certain
documents that he suspects the CIA has in its possession but withheld." Morley, 508
F.3d at 1120.
The actual reason the Court of Appeals remanded on this point was that the CIA
failed to explain directly to the Court, or Morley, its search for these reports and its
resulting belief that they never existed. Id. at 1121. Instead, the CIA had merely pointed
to a memorandum it previously wrote to NARA which the agency claimed "may" explain
why the reports did not exist. Id. While the CIA continues to point to the NARA
memorandum here, it now details on the record its new search efforts to uncover the
monthly reports. (Nelson Decl. ~ 44-47.) For instance, in the course of the agency's
review of its operational files, the CIA searched for the monthly reports with three search
terms which the Court finds were "reasonably calculated to uncover all relevant
documents." Nation Magazine v. Customs Serv., 71 F.3d 885, 890 (D.C. Cir. 1995)
(quoting Truitt v. Dep't ofState, 897 F.2d 540, 542 (D.C. Cir. 1990)). Morley's
continued disbelief in the agency's explanation is not enough to create a material issue of
fact on this point. He offers "nothing more than 'mere speculation that as yet uncovered
documents might exist,' which is not enough to 'undermine the determination that the
7
agency conducted an adequate search for the requested records." Morley, 508 F.3d at
1120 (quoting Wilbur v. CIA, 355 F.3d 675,678 (D.C. Cir. 2004».
In addition to remanding the case for additional explanation on the scope of its
search for the specific monthly reports, our Circuit Court remanded for the CIA to
expand its general description of its overall search. See id. at 1122. The Court of
Appeals found that the CIA's prior declaration in support of its first Motion for Summary
Judgment was insufficient because the bulk of it offered only a "general explanation of
how the agency responds to all FOIA requests." Id. The CIA's new declarations remedy
this shortfall. Together, the declaration and supplemental declaration filed by Delores
Nelson, Chief of the Public Information Programs Division at the CIA, explain in
sufficient detail the agency's searches in response to Morley's request.
For example, with respect to the search strategy used by the agency's NCS
directorate, the Nelson declaration sets out the 14 search terms which the agency used in
varying formulations. (Nelson Decl. ~ 31.) The declaration further explains the amount
of material retrieved by these searches, as well as the criteria by which those who
manually reviewed the material determined whether a document was responsive or not.
(ld. ~ 31-33.) Similar explanations are provided for searches of the other directorates and
NARA records. (ld. `` 35,37-39,41.) Furthermore, Nelson's supplemental declaration
adequately explains the agency's search of "soft" file material, which the Court of
Appeals held was previously lacking. See Morley, 508 F.3d at 1121. As Nelson
explains, "soft files" usually relate to personnel matters and are kept by the office to
which an employee is assigned. (Supplemental Declaration of Delores M. Nelson
8
("Supp. Nelson Decl.") [# 98-2] ~ 8.) "Soft files" are temporary by nature; appropriate
material from a "soft" file is transferred to an employee's official file for longer term
storage and the rest of the file is destroyed when the employee transfers assignment,
resigns, or retires. (Id. ~ 7-8.) Thus, when the CIA searched Joannides's official file, it
would have uncovered any responsive "soft" file material which still exists. (Id. ~ 9.)
Morley's primary objection to the general scope of the CIA's search appears to be
that it neglected to use two search terms which Morley feels are particularly significant.
Specifically, Morley contends that Joannides was involved in two covert operations
identified by the cryptonyms AMBARB and AHMINT, and he argues that the CIA's
search is inadequate to the extent it did not explicitly search for these files. (PI. 's Cross-
Mot. at 21-22.) This objection is unavailing, however, because the CIA has explained
how it searched for all records relating to Joannides. (Supp. Nelson Dec I. ~ 9.)
Accordingly, the presence or absence of these search terms does not impact this Court's
finding that the CIA conducted an adequate search.
2. The FOIA Exemptions
In an effort to comply with the Court of Appeals' remand, the CIA now provides
additional justification for withholding documents from its 2004 search results under
FOIA Exemptions 2, 5, and 6. In addition, the CIA seeks to justify its use ofFOIA
Exemptions 1,2,3, 5, and 6 to withhold new materials uncovered in the agency's 2008
searches. I find that the CIA's Nelson declaration and Vaughn index 3 adequately justify
3The CIA's first Vaughn index, which accompanied the agency's first set of productions and
which was challenged by Morley on appeal, was held to be sufficient. Morley, 508 F.3d at 1122-
9
its use of these Exemptions to withhold information from both sets of search results.
Additionally, after careful review of the Dorn and Nelson Declarations, as well as the
Vaughn indexes submitted by the CIA, I find that the agency properly segregated the
material it withheld from that which could be released. See Morley, 508 F.3d at 1123.
a. Exemption 1
Exemption 1 applies to protect the disclosure 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." 5 U.S.C. § 552(b)(l). When an agency invokes
Exemption 1, courts have been instructed by Congress to give "substantial weight" to
agency determinations concerning national security. Halperin v. CIA, 629 F.2d 144, 147-
148 (D.C. Cir. 1980). "If the agency's affidavits describe the withheld information and
the justification for withholding with reasonable specificity, demonstrating a logical
connection between the information and the claimed exemption, and if the affidavits
evidence neither bad faith on the part of the agency nor a conflict with the rest of the
record, the agency is entitled to summary judgment." Salisbury v. United States, 690
F.2d 966, 970 (D.C. Cir. 1982).
Here, the CIA has invoked Exemption 1 to justify its withholding information
from the 2008 searches classified as either "top secret," "secret," or "confidential" under
23. The CIA has produced another Vaughn index to correspond to its second set of productions
- those undertaken in 2008 in response to the Court of Appeals' decision. Because this Vaughn
index conveys the same kinds of information that the Court of Appeals found sufficient, the
Court finds this index sufficient as well.
10
Executive Order 12958. (Def. Mot. at 13-14.) The Nelson declaration describes in
reasonable detail its reasons for this withholding; specifically, the CIA claims it withheld
the locations of covert CIA installations, the names of CIA employees and clandestine
human intelligence sources, certain intelligence methods, and agency cryptonyms. (Jd. at
14-15.) Morley objects to the CIA's use of this exemption on the grounds that the
withheld material either should not remain classified under Executive Order 12958 or
because it has already been disclosed to the public. (PI.' s Cross-Mot. at 37-40.)
Our Circuit has already noted in this case, however, that "little proof or
explanation is required beyond a plausible assertion that information is properly
classified." Morley, 508 F.3d at 1124. Furthermore, "[p ]rior disclosure of similar
information does not suffice; instead, the specific information sought by the plaintiff must
already be in the public domain by official disclosure." Id. (emphasis in original)
(quoting Wolfv. CIA, 473 F.3d 370,378 (D.C. Cir. 2007». Thus, Morley's arguments
for declassification of this material are no more convincing now than they were to the
Court of Appeals, who already accepted the agency's "plausible assertion" of proper
classification. Nor is his contention that Exemption 1 does not apply because the CIA
has already disclosed the same material. Morley is again "[ u ]nable to point to specific
information that was previously released and is now withheld"; thus, he fails to meet the
specificity requirement of this Circuit. Id.b. Exemption 2
Exemption 2 protects from disclosure records that are "related solely to the
internal personnel rules and practices of an agency." 5 U.S.C. § 552(b )(2). There are
11
two types of information protected under this exemption: information for which
"disclosure may risk circumvention of agency regulation," and information which
"relates to trivial administrative matters of no genuine public interest." Schwaner v.
Dep 't ofAir Force, 898 F .2d 793, 794 (D.C. Cir. 1990) (internal quotations omitted).
The Court of Appeals held that the CIA offered insufficient justification for its use
of this exemption to redact portions of nine documents found in the 2004 searches.
Morley, 508 F.3d at 1125. The CIA, however, has since supplemented its explanation in
the Nelson declaration. It turns out that the information redacted out of the first of the
nine documents references a CIA security practice, which if disclosed to the public, could
lead to its circumvention. (Nelson Decl. ~ 98.) Likewise, the second document contained
sensitive information on the agency's security clearance process, the third, information
on the substance of the CIA's pre-travel security briefings, and the remainder,
information gathered during the Joannides's background check. (Nelson Decl. ~ 99-101.)
Nelson further declares that the disclosure of any of this information could lead, through
a "mosaic" approach, to circumvention of the CIA's regulations on the security clearance
process, pre-travel briefings, and agency background checks. (Id. `` 99-101, 103.)
According to our Circuit, these are the kinds of assertions - previewing the
"particularized harm" that might result from disclosure - which enable this Court to
"perform a searching de novo review." Morley, 508 F.3d at 1125-26 (quoting Church of
Scientology of Cal. , Inc. v. Turner, 662 F.2d at 784, 785-86 (D.C. Cir. 2007)). Thus, with
12
respect to the nine redacted documents produced in 2004, the CIA has now met its burden
and established its justification for invoking the "circumvention" prong of Exemption 2.4
The CIA has also invoked Exemption 2 to justify withholding in part or full
documents found in the 2008 searches. For some of these documents, the CIA claims the
information is similar to what was withheld from the 2004 productions in that its release
would lead to circumvention of agency regulation. (Nelson Decl. ~ 102.) With respect to
these documents, the CIA explains in sufficient detail how disclosure of the withheld
information could lead to circumvention of CIA security procedures, (id. ~ 103).
Furthermore, the CIA explains how information withheld in the remainder of the
Exemption 2 documents is too "trivial" to possess any public interest. The Court is
convinced that the information withheld here, like internal employee rating criteria,
details of administrative house- and file-keeping, and other personal employee data, falls
under the "trivial" prong of Exemption 2. (Nelson Decl. ~ 104-05.) Accordingly,
summary judgment is proper as well for the Exemption 2 documents withheld from the
2008 productions.
c. Exemption 3
Like Exemption 1, this Exemption relates to matters of national security. It covers
records that are "specifically exempted from disclosure by statute ... if that statue--
(A)(i) requires that the matters be withheld from the public in such a manner as to leave
no discretion on the issue, or (ii) establishes particular criteria for withholding or refers to
4In any event, Morley does not oppose the CIA's use of the "circumvention" prong of
exemption 2. Instead, he mistakenly focuses on what he believes to be the agency's improper
use of the "trivial" prong of exemption 2. (Pl.'s Cross-Mot. at 39-40.)
13
particular types of matters to be withheld." 5 U.S.C. § 552(b)(3)(A). Because the Court
of Appeals affirmed the CIA's use of Exemption 3 for the 2004 searches, Morley, 508
F.3d at 1125-26, the only issue here is whether the CIA has properly invoked the
exemption again for the 2008 searches. It has.
Not surprisingly, agencies are owed special deference when they invoke
Exemption 3,just as they are with Exemption 1. See Halperin, 629 F.2d at 147-148.
Indeed, as our Circuit has held, "Exemption 3 differs from other FOIA exemptions in that
its applicability depends less on the detailed factual contents of specific documents; the
sole issue for decision is the existence of a relevant statute and the inclusion of withheld
material within the statute's coverage." Ass 'n of Retired R.R. Workers v. us. R.R. Ret.
Bd., 830 F.2d 331,336 (D.C. Cir. 1987). Here, the CIA relies on two relevant statutes to
justify its decision: the National Security Act of 1947, and the Central Intelligence
Agency Act of 1949. (Nelson Decl.,-r 106.) Given the "special deference" owed to the
CIA's affidavit concerning the inclusion of the withheld material within these statutes'
coverage, (Nelson Decl. ,-r 106-11), the agency is entitled to summary judgment on its use
of Exemption 3. See Morley, 508 F.3d at 1126.
d. Exemption 5
Exemption 5 protects from disclosure "inter-agency or intra-agency
memorandums or letters which would not be available by law to a party other than an
agency in litigation with the agency." 5 U.S.C. § 552(b)(5). This Exemption applies to
information that would otherwise be subject to an evidentiary privilege claim, and thus
protected from disclosure, in the context of civil discovery. Rockwell Int 'I Corp. v. Us.
14
Dep 't ofJustice, 235 F.3d 598, 601 (D.C. Cir. 2001). One such privilege is the
deliberative process privilege, which protects the "decision making processes of
government agencies." NLRB v. Sears Roebuck & Co., 421 U.S. 132, 150-51 (1975).
The Court of Appeals found the CIA's first invocation of Exemption 5 to withhold two
documents from the 2004 productions to be "conclusory" and thus insufficient. Morley,
508 F.3d at 1127. Thus, "on remand the CIA must supply at least 'the minimal
information necessary to make a [privilege] determination. '" Id. (quoting Coastal States
Gas Corp. v. Dep 't of Energy, 617 F.2d 854,862 (D.C. Cir. 1980). In addition, because
the CIA withheld information from the 2008 searches under this Exemption, it must
justify its new withholding as well. It has done both.
The CIA's supplemental explanation of why it invoked Exemption 5 to withhold
two 2004 documents provides the information found lacking by the Court of Appeals.
For instance, the Court of Appeals found it impossible to determine whether the withheld
information was "deliberative," and thus protected, because the agency had not offered
enough of an explanation to demonstrate that the material "reflect[ ed] the personal
opinions of the writer rather than the policy of the agency." Id. (quoting Coastal States
Gas, 617 F.2d at 866.) But now, the CIA explains that material withheld from the first
2004 document contained handwritten notes "regarding Joannides' familial background
and his suitability for a security clearance." (Nelson Decl. ~ 116.) Material withheld
from the second document, which also related to Joannides's background check, included
"recommendations concerning the waiver of certain reinvestigation methods and
practices." (ld.) Clearly, the CIA's description of this information is sufficient to
15
demonstrate that what was withheld indeed concerned "pre-decisional" deliberations
which preceded the ultimate agency action granting loannides his security clearance.
Morley, 508 F.2d at 1127. Moreover, these kinds of deliberations are precisely the type
covered by the deliberative process privilege. To be sure, CIA employees must be free to
engage in candid and personal deliberations regarding the ultimate grant or denial of a
potential agent's security clearance. See Coastal States Gas, 617 F.2d at 866.
Morley's objection that this information is not protected because its disclosure
would not be "likely in the future to stifle honest and frank communications within the
agency" is simply incorrect. (Pl.'s Cross-Mot. 42-43.) First, Morley betrays his
misunderstanding of the privilege when he contends that no parties would be embarrassed
here because the documents are thirty years old and one of the document's recipients has
yet to be disclosed. Simply put, the privilege is not intended merely to prevent
embarrassment to those who took part in a given deliberation; rather, as Coastal States
Gas makes clear, it is also intended to prevent chilling future government employees
from engaging in frank discussions during the deliberative process. See 617 F .2d at 866.
Second, Morley is simply too speculative when he argues that the appearance of the term
"OK" on one of the documents renders it final rather than pre-decisional. All the Court
of Appeals required in this case was for the CIA to supply the minimal information
required to make a privilege determination, Morley, 508 F.3d at 1127, and for the reasons
given, the agency has more than complied.
For similar reasons, the CIA is entitled to summary judgment on the material it
withheld under Exemption 5 from the 2008 productions. It appears the CIA invoked this
16
Exemption to withhold five documents in their entirety from the 2008 productions,
(Nelson Decl. ~ 118), although as the Vaughn index indicates, these documents were
withheld under other Exemptions as well. In any event, between the Nelson Declaration
and the Vaughn index, there is more than enough detail for the Court to determine that
what was withheld pertained to pre-decisional consideration of Joannides's suitability for
employment. Because discussion of an employee's suitability is no doubt part of the
"give-and-take of the consultative process," it is "deliberative" and thus subject to the
privilege. Coastal States Gas, 617 F.2d at 866.
e. Exemption 6
This Exemption protects "personnel and medical files and similar files the
disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
5 U.S.C. § 552(b)(6). As our Court of Appeals noted, "[t]his exemption creates a 'heavy
burden'; indeed, 'under Exemption 6, the presumption in favor of disclosure is as strong
as can be found anywhere in the Act." Morley, 508 F.3d at 1127 (quoting Wash. Post Co.
v. Us. Dep 't of Health & Human Servs., 690 F.2d 252,261 (D.C. Cir. 1982)). Based on
this "heavy burden," the Court of Appeals found the CIA's explanation of its reasons for
invoking Exemption 6 to be lacking. Specifically, it found the Dorn declaration to be too
conclusory when it asserted, without more, that the withheld material was biographical.
Id. at 1127-28. On remand, the CIA was instructed to explain how disclosure of this
biographical information would "constitute a 'clearly unwarranted' invasion of personal
privacy," by further explaining the nature of the privacy interests in this data and the
consequences that may ensue from its disclosure. Morley, 508 F.3d at 1128 (internal
17
quotations omitted). Additionally, since the CIA invoked this Exemption for certain
documents in the 2008 productions, it must justify those withholdings.
It is now clear that the CIA is justified in its use of Exemption 6 to withhold
personal biographical information from both the 2004 and 2008 productions. Indeed,
much of what the CIA withheld was personal data like social security numbers, dates and
locations of birth, tax information, addresses, and phone numbers. (Nelson Decl. ~ 122-
37.) As the CIA explains in reasonable detail, it withheld this kind of information for
Joannides's immediate family members, emergency contacts, colleagues, and intelligence
sources, because the consequences to flow from its release could be damaging. For
instance, heightened media contact and scrutiny would no doubt be a "clearly
unwarranted" invasion of Joannides's children's personal privacy. (Nelson Decl. ~ 138.)
Likewise, Joannides's colleagues and sources might expect heightened media scrutiny,
or, worse, some form of retribution for their past work. (Id. ~ 140.) This explanation
suffices to invoke Exemption 6; thus, the agency is entitled to summary judgment for
these documents.
3. The CIA's Glomar Response
Finally, the Court of Appeals found the CIA's prior explanation for its Glomar
response to be unsubstantiated. Morley, 508 F.3d at 1126. A Glomar response relies on
Exemptions 1 and 3 to protect the mere fact of a document's existence. Larson v. Dep't
a/State, 565 F.3d 857, 861 (D.C. Cir. 2009). Thus, an agency typically invokes a
Glomar response to refuse to confirm or deny the existence of records when divulging
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such information would itself constitute information protected by Exemptions 1 and 3.
Id. (citing Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C. Cir. 1976)).
When the CIA responded to Morley's FOIA request in 2004, it stated, "[w]ith
respect to that portion of your request seeking records regarding Mr. Joannides['s]
participation in any covert project, operation, or assignment, unless of course previously
acknowledged, the CIA can neither confirm nor deny the existence or nonexistence of
records responsive to your request." (Nelson DecI. ~ 58.) It then explained with respect
to intelligence sources withheld under Exemption 3 that "[a]n official acknowledgment of
[clandestine activity] could jeopardize the source's career, family, or even his life."
Morley, 508 F.3d 1126 (alteration in original). Our Court of Appeals, however, found
this explanation to be merely an "allusion to the need for a Glomar response" and
therefore not "linked to the Glomar response." Id. Thus, the Court of Appeals remanded
for the agency to explain "in reasonably specific detail the danger to intelligence sources
and methods if the existence of responsive records were disclosed." Id. (quoting Wolfv.
CIA, 473 F.3d 370, 373 (D.C. Cir. 2007)).
The CIA has since offered a sufficiently detailed explanation. As the Nelson
Declaration notes, "[i]ntelligence activities lie at the core of the CIA's functions."
(Nelson Decl. ~ 65.) It is rather apparent that "if the CIA admits it possesses records
regarding the CIA's participation in a covert action, this disclosure could reasonably be
expected to result in damage to the United States' foreign relations with those countries
in which the covert actions occurred." (/d. ~ 66.) Denial of the existence of records with
respect to Joannides's covert operations could have similarly deleterious effects. (/d. ~
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67.) Thus, the CIA continues to assert a Glomar response with respect to all records
relating to Joannides's covert operations, except for those relating to two covert projects
which the CIA has already publicly acknowledged: one, referred to by the cryptonym
JMWA VE, and the second, service as a CIA representative to the House of
Representatives Select Committee on Assassinations from 1978 to 1979. (Nelson Decl. ~
59.)
Morley, nonetheless, objects to the scope of the CIA's Glomar response because
he believes the agency has already declassified records which document Joannides's
involvement in the covert AMBARB and AHMINT operations. (PI. 's Cross-Mot. at 21.)
Based on this belief, he contends that the CIA cannot continue to confirm or deny their
existence. (Id. at 21-22.) I disagree. The CIA denies it ever officially declassified or
acknowledged Joannides's participation in these operations. (Def. Opp'n to PI.'s Cross-
Mot. [# 98] at 6.) And notwithstanding Morley's allegations to the contrary, he fails to
point to relevant portions of any document officially recognizing Joannides's
participation in these operations. Given the deference owed to the CIA on matters of
national security, Halperin, 629 F.2d at 147-148, the Court accepts the CIA's statement
that Joannides has only been confirmed to be a member of two covert operations, neither
of them AMBARB or AHMINT. Thus the CIA's Glomar response is sufficiently
detailed and appropriate in scope.
CONCLUSION
For all these reasons, the Court concludes that the CIA has complied with the
terms of the Court of Appeals' remand. Furthermore, with respect to the CIA's 2008
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productions, the agency has conducted adequate searches and justified any withholdings
under applicable FOIA exemptions. Thus, summary judgment is entered in the CIA's
favor. An appropriate Order will issue with this Memorandum.
United States District Judge
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