Leopold v. Central Intelligence Agency ( 2015 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JASON LEOPOLD,
Plaintiff,
v. Civil Action No. 13-1324 (JEB)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
They say the devil is in the details, and that apparently is where Plaintiff Jason Leopold
hopes to find him. In this Freedom of Information Act suit, he challenges a number of redactions
from the Senate Select Committee on Intelligence’s report regarding the CIA’s former detention
and interrogation program. More particularly, he seeks to uncover the specific amounts that the
Agency spent on certain activities related to the program. The CIA has thus far refused to
disclose these sums, contending that they are protected under FOIA Exemptions 1 and 3. The
government and Leopold have now cross-moved for summary judgment. Because the Court
finds that the Agency’s invocation of both exemptions is sound, it will grant Defendant’s Motion
and deny Plaintiff’s.
I. Background
A. The SSCI Study and Executive Summary
In 2009, the Senate Select Committee on Intelligence began studying the CIA’s highly
controversial detention and interrogation program. See Def. Mot., Exh. 1 (Declaration of Martha
M. Lutz, Chief of the Litigation Support Unit, CIA), ¶ 5. Three years later, in December 2012, it
approved a draft of its “Committee Study of the CIA’s Detention and Interrogation Program” and
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provided it to the Executive Branch for review and comment. See id. After incorporating
feedback from the CIA and the Committee’s Minority Staff, the SSCI sent a revised Executive
Summary of the report to the President in April 2014 for declassification review. See id. The
letter that accompanied the document requested that the President declassify it “quickly and with
minimal redactions.” Def. Mot., Exh. B (Letter from Sen. Feinstein to President Obama, April 7,
2014).
The Director of National Intelligence, the CIA, and other Executive Branch agencies
conducted a declassification review, and on August 1, 2014, the DNI provided the President with
a declassified and redacted version, which was delivered to the Committee the same day. See
Lutz Decl., ¶ 6. The SSCI and the Executive Branch thereafter “engaged in extensive
discussions” about additional information that the Committee wished to see released. Id. The
Committee subsequently provided the Executive Branch with an updated draft of the Executive
Summary for further review. See id. In December 2014, a declassified version was provided to
the SSCI “for its unrestricted disposition,” and the Committee promptly released it to the public.
See id.
This final version of the Executive Summary was 499 pages, only about 7% of which was
redacted. See id., ¶ 8. Most of the redactions were made at the behest of the CIA, although
some were performed at the request of the State Department, the National Security Agency, the
Department of Defense, and the Federal Bureau of Investigation. See id.
B. Plaintiff’s Request
In the midst of this back-and-forth, Plaintiff caught wind that the Department of Justice
might have a copy of the Committee’s Study. He thus sent a FOIA request to DOJ on August
16, 2013, seeking the Executive Summary. See Compl., ¶ 11. When Justice did not respond
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within the timeframe he believed permissible, Plaintiff filed this suit against the Department on
September 2, 2013. See id., ¶ 15. Later, as litigation was underway, he sent a second request for
the Executive Summary to the CIA. See Def.’s Statement of Facts, ¶ 1. After that agency failed
to timely respond, he filed a Second Amended Complaint that substituted the CIA as Defendant.
See ECF No. 24.
Plaintiff, of course, now has access to the document he originally sought. As just
mentioned, a minimally redacted version of the Executive Summary was made public in
December 2014. His curiosity, however, has not been satisfied. He continues to challenge
twenty-eight specific redactions from the document, all of which relate to the CIA’s proposed
and actual expenditures on the detention and interrogation program. More specifically, he lists
the redactions he challenges as follows:
• The amount of money provided to Bismullah upon his release
([page] 16)
• The amount of money the CIA provided to an unknown
country (74 & n.383)
• The dollar value of the “wish list” (97)
• The amount of money provided above and beyond the
requested subsidy (97)
• The amount of money offered to “show appreciation” for
support of a program (99, two redactions)
• The amount of payments to Habib, Mohammed, and Awadh
(111 n.643, three redactions)
• The amount of money the CIA set aside for a facility’s
construction (139)
• The amount of money offered to an unknown country for
hosting a CIA detention facility, and the amount actually made
available (139 n.842, two redactions)
• The values of the proposed subsidies (140, two redactions)
• The amount of money given by the CIA (140 n.843, two
redactions)
• The cost of the CIA detention facility (142)
• The amount provided by the CIA to an unknown country (154)
• The amount of compensation to a liaison for medical treatment
(154 n.934)
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• The amount the CIA previously invested in a new facility and
its eventual cost (156)
• The amount of reduction to CIA/CTC’s Rendition and
Detention Program (174 n.1050, 175 n.1054, 288 n.1622, 291
n.1638, 338 n.1904)
Pl.’s Opp. & Cross-Mot. at 2-3. These can be roughly categorized as: (1) the costs of CIA
detention facilities abroad; (2) amounts paid to unknown countries; (3) the size of monetary cuts
to CIA intelligence programs; (4) sums given to previously detained individuals; and (5)
compensation for medical services. The CIA insists on the propriety of these redactions,
claiming that the information is shielded from disclosure by FOIA Exemptions 1 and 3. Both
parties now seek summary judgment.
II. Legal Standard
Summary judgment may be granted if “the movant shows 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); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986); Holcomb v.
Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A fact is “material” if it is capable of affecting the
substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at
895. A dispute is “genuine” if the evidence is such that a reasonable jury could return a verdict
for the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380 (2007); Liberty Lobby, 477
U.S. at 248; Holcomb, 433 F.3d at 895. “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion” by “citing to particular parts of materials in the record” or
“showing that the materials cited do not establish the absence or presence of a genuine dispute,
or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). The moving party bears the burden of demonstrating the absence of a genuine issue of
material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
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FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011). In a FOIA case, a
court may grant summary judgment based solely on an agency’s affidavits or declarations when
they “describe the justifications for nondisclosure with reasonably specific detail, demonstrate
that the information withheld logically falls within the claimed exemption, and are not
controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Such affidavits
or declarations are accorded “a presumption of good faith.” SafeCard Servs., Inc. v. SEC, 926
F.2d 1197, 1200 (D.C. Cir. 1991).
Further, “[b]ecause courts lack the expertise necessary to second-guess such agency
opinions in the typical national security FOIA case, [they] must accord substantial weight to an
agency’s affidavit.” ACLU v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011) (internal
citation and quotation marks omitted). “Ultimately, an agency’s justification for invoking a
FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Judicial Watch, Inc. v. Dep’t
of Defense (Judicial Watch I), 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU, 628 F.3d at
619).
III. Analysis
Congress enacted FOIA in order “to pierce the veil of administrative secrecy and to open
agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976) (citation omitted). “The basic purpose of FOIA is to ensure an informed citizenry, vital to
the functioning of a democratic society, needed to check against corruption and to hold the
governors accountable to the governed.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (citation omitted). The FOIA statute, accordingly, provides that “each agency, upon
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any request for records which (i) reasonably describes such records and (ii) is made in
accordance with published rules . . . shall make the records promptly available to any person,” 5
U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions.
See 5 U.S.C. § 552(b); Rose, 425 U.S. at 361. Consistent with this statutory mandate, federal
courts have jurisdiction to order the production of records that an agency improperly withholds.
See 5 U.S.C. § 552(a)(3); Dep’t of Justice v. Reporters Comm. for Freedom of the Press, 489
U.S. 749, 755 (1989).
“Unlike the review of other agency action that must be upheld if supported by substantial
evidence and not arbitrary or capricious, the FOIA expressly places the burden ‘on the agency to
sustain its action’ and directs the district courts to ‘determine the matter de novo.’” Reporters
Comm., 489 U.S. at 755 (quoting 5 U.S.C. § 552(a)(4)(B)). “At all times courts must bear in
mind that FOIA mandates a ‘strong presumption in favor of disclosure’ . . . .” Nat’l Ass’n of
Home Builders v. Norton, 309 F.3d 26, 32 (D.C. Cir. 2002) (quoting Dep’t of State v. Ray, 502
U.S. 164, 173 (1991)).
In the present case, the CIA asserts that the challenged redactions are properly withheld
under Exemptions 1 and 3. These exemptions are “independent” of one another, meaning that
the Court “may uphold [the] agency[’s] action under one exemption without considering the
applicability of the other.” Larson, 565 F.3d at 862-63. Employing a belt-and-suspenders
approach here, the Court examines both, ultimately concluding that either suffices to support the
agency’s withholdings. It will begin its analysis with Exemption 3 and then turn to Exemption 1.
Before embarking, however, the Court addresses Leopold’s argument that the Agency should
have separately explained its reasons for redacting each of the twenty-eight expenditures.
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A. Adequacy of Affidavits
Plaintiff first contends that the CIA’s “categorical approach” to justifying its redactions
was improper. See Pl.’s Opp. & Cross-Mot. at 4. In his view, the Agency should have provided
“a specific rationale for the withholding of each piece of information,” as opposed to lumping
them together. Id. at 4-5.
Although the Court agrees that it would have been helpful – and an easier case – had the
Agency broken the expenditures out further in its affidavits, it believes that the CIA has
nonetheless provided adequate specificity to allow for summary judgment here. In evaluating
the sufficiency of an agency’s affidavits, the principal focus is on the ability of the FOIA
requester and the Court to evaluate the government’s exemption claims. See, e.g., Morley v.
CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007); King v. Dep’t of Justice, 830 F.2d 210, 218 (D.C.
Cir. 1987) (explaining that relevant question is whether materials submitted by agency provide
“full and specific enough” explanation “to afford the FOIA requester a meaningful opportunity
to contest, and the district court an adequate foundation to review, the soundness of the
withholding”). So long as agencies sufficiently describe the contents of the documents or
portions of documents withheld and their connection to specific exemptions, courts have
permitted agencies to explain their reasons for withholding by category. See, e.g., Judicial
Watch, Inc. v. Food & Drug Admin. (Judicial Watch II), 449 F.3d 141, 147 (D.C. Cir. 2006)
(“We have never required repetitive, detailed explanations for each piece of withheld
information – that is, codes and categories may be sufficiently particularized to carry the
agency’s burden of proof.”); Bevis v. Dep’t of State, 801 F.2d 1386, 1389-90 (D.C. Cir. 1986)
(approving agency’s categorical approach where categories adequately “define[d] the nature of
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the information contained in the included documents” and “allow[ed] the court to assess the
FBI’s representations” about their protected status).
Here, although the CIA did not walk through the redactions one by one, its affidavits,
read in conjunction with the released portions of the Executive Summary, provide sufficient
detail for Leopold and the Court to evaluate whether they fall within the scope of Exemptions 1
and 3. The content of the information withheld is clear, as evidenced by Leopold’s own rather
specific articulation of the expenditures he wishes to unveil. As will be shown below, the
agency’s affidavits also “linked the substance of each exemption to the [redactions’] common
elements.” Judicial Watch II, 449 F.3d at 147. Nothing further is required. See Morley, 508
F.3d at 1123 (affirming summary judgment in favor of CIA where its descriptions, “while
categorical and with little variation . . . , convey enough information for . . . the court to identify
the records referenced and understand the basic reasoning behind the claimed exemptions”);
Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (“We consider the government under no
obligation here to justify the withholding of the names of the fax recipients on an individual-by-
individual basis under FOIA Exemption 6 . . . .”).
In sum, the agency’s declarations have provided enough detail to allow Leopold and the
Court to determine whether the information withheld logically and plausibly falls within
Exemptions 1 and 3. The Court now turns to those exemptions.
B. Exemption 3
Exemption 3 permits agencies to withhold information “specifically exempted from
disclosure by statute” if that statute either “(A)(i) requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue; or (A)(ii) establishes particular
criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. §
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552(b)(3). Here, the CIA principally invokes Section 102A(i)(1) of the National Security Act of
1947, 50 U.S.C. § 3024(i)(1), which provides that “[t]he Director of National Intelligence shall
protect intelligence sources and methods from unauthorized disclosure.”
Plaintiff does not dispute that the National Security Act satisfies the second criterion
mentioned above because it “refers to particular types of matters to be withheld” – namely,
“intelligence sources and methods.” See, e.g., ACLU, 628 F.3d at 619 (holding Act qualifies as
exemption statute under Exemption 3). The principal question, then, is whether the CIA’s
redactions “satisfy the criteria of the exemption statute.” Fitzgibbon v. CIA, 911 F.2d 755, 761
(D.C. Cir. 1990)). In other words, do they in fact “protect intelligence sources and methods”?
The D.C. Circuit has interpreted this provision broadly, holding that material is properly
withheld under the Act if it “relates to intelligence sources and methods,” Larson, 565 F.3d at
865 (emphasis added), or “can reasonably be expected to lead to unauthorized disclosure of
intelligence sources and methods.” Halperin v. CIA, 629 F.2d 144, 147 (D.C. Cir. 1980). Courts
have also recognized that the Act’s protection of sources and methods is a “near-blanket FOIA
exemption,” Whalen v. U.S. Marine Corps, 407 F. Supp. 2d 54, 59 n.5 (D.D.C. 2005), which
includes the “power to withhold superficially innocuous information on the ground that it might
enable an observer to discover the identity of an intelligence source [or method].” CIA v. Sims,
471 U.S. 159, 178 (1985). This is so because in the intelligence context “bits and pieces of data
may aid in piecing together bits of other information even when the individual piece is not of
obvious importance in itself.” Id. (internal quotation marks and citation omitted). The Supreme
Court has also warned that “it is the responsibility of the [intelligence community], not that of
the judiciary, to weigh the variety of complex and subtle factors in determining whether
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disclosure of information may lead to an unacceptable risk of compromising the . . . intelligence-
gathering process.” Id. at 180.
As to the expenditures at issue here, the Agency has adequately demonstrated that their
release could reveal sensitive information about its sources and methods. Martha Lutz, the Chief
of the CIA’s Litigation Support Unit, noted in her first declaration that “[e]ven seemingly
innocuous details such as . . . funding amounts associated with a particular program could reveal
broader intelligence priorities and the source and methods of certain intelligence collection when
juxtaposed with other publicly-available data.” Lutz Decl., ¶ 29. She further explained that
“[d]isclosing intelligence expenditures would show the level of funding devoted to certain
activities, which in turn would reveal the resources available to the Intelligence Community and
the intelligence priorities of the U.S. Government.” Id. Her supplemental affidavit elaborated on
these points, noting that “disclosing the amounts of these various expenditures could provide
insight to adversaries as to the resources available to, and by extension the capabilities of, the
Agency,” and that, “in some cases, the amount of money spent for a given activity could allow
for the identification of the foreign country that provided assistance to the CIA.” Second Lutz
Decl., ¶ 5.
Given the considerable deference that the Court owes to the Agency in this context, it
finds this explanation to be reasonable. It is, for instance, plausible that disclosing most of these
expenditures, including “[t]he amount of money offered to an unknown country for hosting a
CIA detention facility,” “the cost of [a] CIA detention facility” in an unidentified country,” and
“[t]he amount of money offered to ‘show appreciation’ for support of a program,” see Pl.’s Opp.
& Cross-Mot. at 2 (citations omitted), could provide insight into which countries aided the CIA’s
efforts. It is also not difficult to conclude that unveiling the redacted sums, including the size of
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proposed budget cuts and the amounts given to detainees upon their release, could shed light on
the funds that were available for particular activities, which could, in turn, divulge the agency’s
capabilities and priorities. A trained intelligence analyst might, for instance, be able to deduce
the relative importance that the CIA placed on each detainee or the interrogation methods that
were applied from the amounts spent on his medical treatment or given to him as compensation. 1
Such a conclusion finds support in prior decisions holding that the funds available to the
CIA and spent on its activities are protected under Exemption 3. In Halperin, for instance, the
agency asserted that the rates and fees it paid to attorneys were exempt from disclosure because
they “could give leads to information about covert activities that constitute intelligence methods”
by indicating the “size and nature of the operation.” 629 F.2d at 150. The court agreed, noting
that “[w]hen combined with other small leads, the amount of a legal fee could well prove useful
for identifying a covert transaction.” Id. More recently, in Aftergood v. CIA, 355 F. Supp. 2d
557 (D.D.C. 2005), a district court concluded that “intelligence budget information” is protected
because it “relates to intelligence methods, namely the allocation, transfer and funding of
intelligence programs.” Id. at 562 (internal quotation marks omitted); see also Military Audit
Project v. Casey, 656 F.2d 724, 750 (D.C. Cir. 1981) (upholding CIA’s withholding of amounts
spent in connection with particular CIA operation).
In opposition, Leopold’s principal challenge is that “[t]he link between the amount of the
expenditures and the government’s intelligence priorities . . . is too tenuous to support the
claimed exemptions.” Pl.’s Opp. & Cross-Mot. at 7. He notes that, unlike the plaintiff in
1
The CIA has also invoked Section 6 of the CIA Act, 50 U.S.C. § 3507, see Lutz Decl., ¶ 20, which Plaintiff does
not dispute is a qualifying exemption statute. See Halperin, 629 F.2d at 147. Among other things, the provision
exempts from disclosure the “salaries . . . of personnel employed by the Agency.” 50 U.S.C. § 3507. This includes
“any payments made in compensation for services performed by personnel employed by the Agency,” including
“temporarily affiliated personnel.” Halperin, 629 F.2d at 151. The compensation paid to a “liaison for medical
treatment,” see Pl.’s Opp. & Cross-Mot. at 2, would thus seem to be protected by Section 6 of the CIA Act as well.
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Aftergood, he is not requesting “the CIA’s entire intelligence budget, which would clearly reveal
priorities.” Id. He also asserts that, unlike Halperin, the requested information would not
“implicate the size and nature of covert operations.” Id. For instance, he believes that the
amounts paid to former detainees upon their release were “nominal amount[s,] which would
reveal nothing about the CIA’s intelligence priorities.” Id. Likewise, in his view, the value of a
“wish list” for a CIA station could not “indicate in any way the government’s priorities” because
it would “not reveal an expenditure at all, but simply the amount of money desired by the CIA
Station.” Id. (emphasis added).
These arguments, however, are unconvincing. In essence, Leopold asks the Court to
credit his judgments about the effects of disclosure over those of the agency. This is something
it clearly cannot do. See, e.g., Larson, 565 F.3d at 865 (“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.”).
Plaintiff has offered no support for his contention that small expenditures cannot reveal sensitive
information about the CIA’s sources and methods. This Circuit, furthermore, has consistently
cautioned that “[m]inor details of intelligence information may reveal more information than
their apparent insignificance suggests because, much like a piece of jigsaw puzzle, [each detail]
may aid in piecing together other bits of information . . . .” Id. at 864 (some alterations in
original, internal quotation marks and citation omitted). The Court, additionally, sees no
principled reason to find that only actual expenditures, as opposed to proposed expenditures,
could reveal information about the agency’s sources and methods. It would seem entirely
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plausible, for instance, that the proposed expenditures related to a CIA facility could just as
easily reveal sensitive information about its location, purpose, and methods.
Leopold also questions the Agency’s rationale for withholding on the ground that it
revealed similar expenditures in other parts of the Executive Summary. See Pl.’s Opp. & Cross-
Mot. at 8. As an example, he points out that the CIA disclosed that it had “approved more than
$200,000 for the construction of [a] facility, identified in th[e] summary as DETENTION SITE
COBALT.” Id. (internal quotation marks and citation omitted). Because the Agency disclosed
these similar figures “apparently without divulging the Intelligence Community’s resources or
priorities,” he contends that it is simply not plausible that releasing the sums he seeks would
reveal anything about the Intelligence Community’s resources or priorities. Id.The Supreme Court rejected a similar argument, however, in Sims. There, the plaintiffs
contended that “because the Agency ha[d] already revealed the names of many of the institutions
at which . . . research was performed, the Agency [wa]s somehow estopped from withholding the
names of others.” Sims, 471 U.S. at 180. The Court explained that such a suggestion
“overlook[ed] the political realities of intelligence operations” and that “[t]he national interest
sometimes makes it advisable, or even imperative, to disclose information that may lead to the
identity of intelligence sources.” Id. Because it was “the responsibility of the Director of
Central Intelligence, 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 Court did not find that the prior
release of analogous information undermined the Agency’s withholdings. Id.; see also Ctr. for
Nat’l Sec. Studies v. Dep’t of Justice, 331 F.3d 918, 930-32 (D.C. Cir. 2003) (rejecting argument
that government’s “predictive judgment” regarding harms from releasing detainees’ names was
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undermined by prior release of others); Students Against Genocide v. Dep’t of State, 257 F.3d
828, 835 (D.C. Cir. 2001) (“The fact that some ‘information resides in the public domain does
not eliminate the possibility that further disclosures can cause harm to intelligence sources,
methods and operations.’”) (quoting Fitzgibbon, 911 F.2d at 766).
If anything, the release of seemingly analogous figures under the circumstances of this
case would seem to evidence the Agency’s good faith in deciding that the redacted expenditures
must remain hidden. As discussed previously, the SSCI and the Executive Branch engaged in an
extensive back-and-forth regarding classified information that the Committee wished to see
released. The Agency explained in its supplemental affidavit that it ultimately declassified
certain information pursuant to Section 3.1(d) of Executive Order 13,526. See Second Lutz
Decl., ¶ 2 (citing Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec. 29, 2009)). That provision
“recognizes that ‘[i]n some exceptional cases . . . the need to protect . . . information [that
continues to meet the classification requirements] may be outweighed by the public interest in
disclosure of the information, and in these cases the information should be declassified.’” Id.(alterations in original) (quoting E.O. 13,526, § 3.1(d)). The government, accordingly, “made
the decision to declassify much of the Executive Summary and to retain the classification only
for certain discrete pieces of national security information.” Id., ¶ 3. Far from casting doubt on
the Agency’s judgments about which sums could lead to the unauthorized disclosure of its
sources and methods, the release of other expenditures suggests that the CIA has only withheld
those that would unjustifiably compromise our national security. See Students Against
Genocide, 257 F.3d at 835 (“[P]articularly because the government did release numerous
photographs, we see no reason to question its good faith in withholding the remaining
photographs on national security grounds.”).
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To the extent, moreover, that this may be read as some type of waiver argument, an
agency only waives its right to assert an otherwise valid exemption defense when it has officially
acknowledged the precise information at issue. See ACLU, 628 F.3d at 620-21. That is, “the
information requested must match the information previously disclosed,” Wolf v. CIA, 473 F.3d
370, 378 (D.C. Cir. 2007) (quoting Fitzgibbon, 911 F.2d at 765), and a “[p]rior disclosure of
similar information does not suffice.” Id. (citing Public Citizen v. Dep’t of State, 11 F.3d 198,
201, 203 (D.C. Cir. 1993)) (emphasis added). The fact that the Agency divulged certain costs
but not others thus does not vitiate its exemption claim here.
Leopold last suggests that the historical nature of the figures and the fact that Congress
now requires the disclosure of aggregate budget data undermines the Agency’s assertions that
these numbers could result in the unauthorized disclosure of its sources and methods. More
specifically, he contends that “even if it could be somehow gleaned from the withheld
information how much funding was available to the Intelligence Community five or ten years
ago when the Detention and Interrogation Program was operating, it would say little about
present funding levels.” Pl.’s Opp. & Cross-Mot. at 8. Yet the Agency explained in its affidavit
that “the fact that these figures are historic does not mitigate these harms because information
about current funding levels, intelligence priorities, and Agency resources can be extrapolated
from the redacted amounts.” Second Lutz Decl., ¶ 5; see also, e.g., Aftergood, 355 F. Supp. 2d
at 559 (historical budget information from 1947 to 1970 was protected under Exemption 3).
Leopold has not presented any contrary evidence to call this conclusion into question. The Court
also fails to see the relevance of the fact that the Intelligence Community now releases its yearly
aggregate budget figure. As the government points out in its Reply, there are obvious
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differences between releasing an aggregate figure and more specific expenditures, which could
provide better insight into funding levels for specific activities.
In sum, although certain intelligence expenditures at issue here may be reasonably close
calls, the Court believes that all are properly withheld under Section 102A(i)(1) of the National
Security Act and Exemption 3. Such a conclusion is alone sufficient to grant summary judgment
in favor of Defendant. The Court will nevertheless address the parties’ arguments regarding
Exemption 1.
C. Exemption 1
Exemption 1 permits agencies to withhold information that is “specifically authorized
under criteria established by an Executive order to be kept secret in the interest of national
defense or foreign policy” and is “in fact properly classified pursuant to such Executive order.”
5 U.S.C. § 552(b)(1). In this case, the CIA asserts that the redacted information is properly
classified under Executive Order 13,526. See Lutz Decl., ¶ 9. That order permits the
government to classify information if four criteria are satisfied: “(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 th[e] 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 . . . is able to identify or
describe the damage.” E.O. 13,526, § 1.1(a). In evaluating whether these elements are met, the
Court is cognizant that it must “accord substantial weight to an agency’s affidavit concerning the
. . . classified status of the disputed [information].” See Larson, 565 F.3d at 864 (internal
quotation marks and citation omitted).
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The first two requirements are easily addressed. Lutz declares – and Plaintiff does not
dispute – that she has been delegated original Top Secret classification authority, and that the
information is within the United States’ control. See Lutz Decl., ¶¶ 11, 12. The parties instead
spar over the third and arguably the fourth prongs. The Court will thus focus its discussion on
these latter two.
1. Claimed Categories of Information
As noted above, the third requirement is that the information fall within one or more of
the categories specified in Section 1.4 of the order. That section, in turn, provides that
information may be classified if it “pertains to” one of eight enumerated categories. See E.O.
13,526, § 1.4. The CIA invokes two of them here: “(c) intelligence activities (including covert
action), intelligence sources or methods, or cryptology”; and “(d) foreign relations or foreign
activities of the United States, including confidential sources.” Id. § 1.4(c), (d).
Given the lengthy analysis above, see Part III.B, supra, it is clear that the information
falls within § 1.4(c) because it “pertains to” intelligence activities, sources, and methods. See
Larson, 565 F.3d at 865. Plaintiff, in fact, concedes that the “question under Exemption 1 is the
same” as the question under Exemption 3 in this case. See Pl.’s Cross-Mot. & Opp. at 3.
While satisfying that category alone would be sufficient, Lutz has also shown that these
sums also relate to foreign activities and relations. She explained that all of them concern
“payments provided to foreign governments and foreign nationals, the amount of money
expended to construct facilities abroad, and amounts reflecting the resources devoted to the
former detention and interrogation program which took place overseas.” Second Lutz Decl., ¶ 4.
It is difficult to gainsay that the United States’ giving money to foreign countries or to foreign
nationals pertains to foreign relations and activities, or that spending sums to build facilities on
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foreign soil falls under the same umbrella. See, e.g., Judicial Watch I, 715 F.3d at 941 (finding
images related to Osama bin Laden’s death “pertained” to foreign activities because they
“document[ed] events involving American military personnel thousands of miles outside of
American territory”).
Leopold argues in his Opposition that the CIA merely “parroted” the language from the
Executive Order in claiming that the expenditures relate to foreign relations and activities. See
Pl.’s Reply at 3. The Agency is, however, permitted to use the language of the order in
explaining its reasoning. See Judicial Watch II, 449 F.3d at 147 (“[W]e do not fault the FDA for
using the language of the statute as part of its explanation for withholding documents. As long
as it links the statutory language to the withheld documents, the agency may even ‘parrot[]’ the
language of the statute.”) (alteration in original) (quoting Landmark Legal Found. v. IRS, 267
F.3d 1132, 1138 (D.C. Cir. 2001)). The Court is unsure what more Plaintiff would expect. This
Circuit has noted that “‘pertains’ is ‘not a very demanding verb.’” Judicial Watch I, 715 F.3d at
941 (citation omitted). It seems rather clear that the expenditures at issue in this case – which
relate to the United States’ interrogation and detention activities in foreign countries to extract
information from foreign nationals – pertain to its foreign activities and relations. Despite
having access to the unredacted portions of the Executive Summary, moreover, which indicate
the nature of the redacted expenditures, Plaintiff has not pointed to any particular expenditures
that he believes do not properly fall within this category.
The redacted information thus satisfies the third element for classification.
2. Potential Harm
That leaves the fourth requirement that the CIA establish a certain level of potential harm
from disclosure. See E.O. 13,526, § 1.1(a)(4). While asserting that he does not concede the
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point, Leopold does not specifically challenge the Agency’s showing on this front. Even
assuming he has adequately preserved the issue, which the Court doubts, it is clear that he would
not prevail.
As a backdrop, an agency may classify information at one of three specified classification
levels. See § 1.2. For each of these levels, E.O. 13,526 establishes a corresponding amount of
damage to national security that the agency must describe in order to withhold the information.
See §§ 1.4; 1.2. Because the redactions at issue here were classified as “Top Secret,” see Lutz
Decl., ¶ 14, the CIA must show that disclosure of the redacted information “reasonably could be
expected to cause exceptionally grave damage to the national security.” E.O. 13,526, § 1.2(1).
The Court must, of course, give substantial weight to the Agency’s judgments about potential
harms from disclosure “[b]ecause courts ‘lack the expertise necessary to second-guess such
agency opinions in the typical national security FOIA case.’” ACLU, 628 F.3d at 619 (quoting
Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C. Cir. 1993). The CIA’s burden is thus “a
light one,” and its arguments “need only be both ‘plausible’ and ‘logical.’” Id. at 624.
In its affidavits, the Agency has identified several ways in which the disclosure of the
redacted information could cause exceptionally grave harm. As already discussed, the
information could “reveal broader intelligence priorities and the source and methods of certain
intelligence collection.” Lutz Decl., ¶ 29. For instance, it could “allow for the identification of
the foreign countr[ies] that provided assistance to the CIA – details that remain classified in the
released Executive Summary.” Second Lutz Decl., ¶ 5. According to the Agency, disclosing the
existence of such relationships can inhibit its efforts by, among other things, “suggest[ing] to
other foreign liaison services and foreign government officials that the U.S. Government is
unable or unwilling to observe an express agreement of absolute secrecy,” thereby “caus[ing]
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foreign liaison services to curtail cooperation on counterterrorism operations or other activities
affecting U.S. national security.” Lutz Decl., ¶ 27. Releasing certain of the redacted figures
could also “lead to the comparison of different payments by foreign partners,” which could
“damage the relationships between the U.S. Government and foreign governments,” “negatively
impact the CIA’s ability to work collaboratively with these countries on other areas of concern,”
and “impair the Agency’s ability to collect intelligence in the future.” Second Lutz Decl., ¶ 5.
As further cause for concern, the CIA has stated that the “[r]elease of the specific amounts would
. . . adversely impact current and future operations as countries and individuals would be able to
use these monetary figures as a starting point for negotiations on other matters.” Id.
The Court finds these predictions of harm both logical and plausible, and it sees no
reason to second guess them. Because the CIA has thus complied with the procedural and
substantive requirements for classifying the information under Executive Order 13,526, it may
also properly withhold it under Exemption 1.
D. Segregability
Finally, the Court must consider whether there are any reasonably segregable portions of
the requested information that should be released. See 5 U.S.C. § 552(b); see also Trans-Pacific
Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (courts have
sua sponte obligation to consider segregability). It is clear that there are none here. The agency
has stated that it conducted a “page-by-page and line-by-line review . . . and concluded that all
reasonably segregable non-exempt information has been released.” Lutz Decl., ¶ 42. Given the
discrete nature of the information Leopold seeks, it is rather obvious that the Agency could not
disclose anything further without revealing what is protected.
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* * *
In sum, the CIA’s affidavits, which are accorded substantial weight, describe the
justifications for nondisclosure with reasonably specific detail and demonstrate that the
information withheld logically and plausibly falls within Exemptions 1 and 3. While “evidence
of agency bad faith” could preclude summary judgment, Larson, 565 F.3d at 862, there is no
such evidence presented here. On the contrary, the 499-page Executive Summary that was
publicly released contains minimal redactions. See Lutz Decl., ¶ 8. The Agency also released
information that would ordinarily be classified because it determined that it was in the public
interest to do so. In light of the deference that it is owed in matters of national security and the
extensive declassification process undertaken here, the Court is satisfied that the CIA has met its
burden to show that the twenty-eight expenditures are properly withheld.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment and deny Plaintiff’s. A contemporaneous Order will so state.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: May 14, 2015
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