American Civil Liberties Union v. Central Intelligence Agency ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
AMERICAN CIVIL LIBERTIES
UNION, ET AL.,
Plaintiffs,
v. Civ. Action No. 16-1256
(EGS)
CENTRAL INTELLIGENCE AGENCY,
ET AL.,
Defendants.
MEMORANDUM OPINION
This case arises out of Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, requests Plaintiffs the American Civil
Liberties Union and American Civil Liberties Union Foundation
(collectively “ACLU”) made to 19 federal agencies, including the
Central Intelligence Agency (“CIA”). See generally Compl., ECF
No. 1. Plaintiffs stipulated to the dismissal of 16 federal
agencies. See ECF No. 28, ECF No. 51. 1 What remains at issue is
the redaction of the names of current and/or former CIA
employees who had been granted an exemption from the Agency’s
prepublication process.
1 The Air Force remains a Defendant. The ACLU seeks resolution of
readability concerns with several charts produced to Plaintiffs.
Plaintiffs have declined to dismiss the Air Force until these
issues (which are not relevant to the instant motion) are fully
resolved. Def.’s Mot., ECF No. 52-1.
1
Pending before the Court are the CIA’s Motion for Summary
Judgment and the ACLU’s Cross-Motion for Summary Judgment. Upon
careful consideration of the motions, the oppositions and
replies thereto, the applicable law, the entire record, and for
the reasons stated below, Court GRANTS IN PART AND DENIES IN
PART the CIA's Motion for Summary Judgment and GRANTS IN PART
AND DENIES IN PART the ACLU’s Cross-Motion for Partial Summary
Judgment.
I. Factual Background
The following facts are not in dispute. On March 3, 2016,
the ACLU submitted FOIA requests to a number of federal
agencies, including the CIA, seeking information regarding the
agencies’ respective prepublication review process. Plaintiff’s
Counter-Statement of Material Facts (“SOF”), ECF No. 55-4 ¶ 1.
Current or former CIA employees may be granted an exemption from
this process “based on an established record of prepublication
review compliance and [the exemption] is usually limited to a
narrow topic or circumstance.” Pls.’ Cross-Mot. for Partial
Summ. J. and Opp’n to Def. CIA’s Mot. for Summ. J. (“Pls.’
Cross-Mot.”), ECF No. 55-5 at 2. On April 7, 2017, the CIA made
an initial production and released nine documents in full, 20
documents in part, and withheld seven documents in full. CIA’s
Reply to Plaintiffs’ Counter-Statement of Disputed Facts, ECF
No. 58-1 ¶ 3. The ACLU challenges one of the CIA’s withholdings,
2
which is a redaction of the names of several CIA employees.” Id.
¶¶ 5-6. The redactions are based on FOIA exemptions 1, 3, and 6.
Def.’s Mot., ECF No. 54-1 at 6. 2
II. Standard of Review
FOIA cases are typically and appropriately decided on
motions for summary judgment. Gold Anti–Trust Action Comm., Inc.
v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123,
130 (D.D.C 2011) (citations omitted). Summary judgment is
warranted “if the movant shows [by affidavit or other admissible
evidence] that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). A party opposing a summary judgment
motion must show that a genuine factual issue exists by “(A)
citing to particular parts of materials in the record . . . or
(B) showing that the materials cited do not establish the
absence . . . of a genuine dispute[.]” Fed. R. Civ. P. 56(c).
Any factual assertions in the moving party's affidavits will be
accepted as true unless the opposing party submits his own
affidavits or other documentary evidence contradicting the
assertion. See Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir.
1992). However, “the inferences to be drawn from the underlying
2
When citing electronic filings throughout this Opinion, the
Court cites to the ECF page number, not the page number of the
filed document
3
facts . . . must be viewed in the light most favorable to the
party opposing the motion.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986) (internal quotation
marks omitted).
An agency has the burden of demonstrating that “each
document that falls within the class requested either has been
produced, is unidentifiable, or is wholly [or partially] exempt
from the Act's inspection requirements.” Goland v. CIA, 607 F.2d
339, 352 (D.C. Cir. 1978) (internal citation and quotation
omitted). In reviewing a summary judgment motion in the FOIA
context, the court must conduct a de novo review of the record,
see 5 U.S.C. § 552(a)(4)(B), but may rely on agency
declarations. See SafeCard Servs. v. SEC, 926 F.2d 1197, 1200
(D.C. Cir. 1991). Agency affidavits or declarations that are
“relatively detailed and non-conclusory” are accorded “a
presumption of good faith, which cannot be rebutted by purely
speculative claims about the existence and discoverability of
other documents.” Id. (internal citation and quotation omitted).
“[T]he Court may award summary judgment solely on the basis of
information provided by the department or agency in declarations
when the declarations describe the documents and the
justifications for nondisclosure with reasonably specific
detail, demonstrate that the information withheld logically
falls within the claimed exemption, and are not controverted by
4
either contrary evidence in the record nor by evidence of agency
bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738
(D.C. Cir. 1981) (internal quotation marks and citation
omitted).
A. FOIA Exemptions
Congress enacted FOIA to “open up the workings of
government to public scrutiny through the disclosure of
government records.” Judicial Watch, Inc. 375 F. Supp. 3d at 97
(quoting Stern v. FBI, 737 F.2d 84, 88 (D.C. Cir. 1984)
(internal quotation marks and alterations omitted)). Although
the legislation is aimed toward “open[ness] . . . of
government,” id.; Congress acknowledged that “legitimate
governmental and private interests could be harmed by release of
certain types of information,” Critical Mass Energy Project v.
Nuclear Regulatory Comm'n, 975 F.2d 871, 872 (D.C. Cir. 1992)
(internal quotation marks and citations omitted). As such,
pursuant to FOIA's nine exemptions, an agency may withhold
requested information. 5 U.S.C. § 552(b)(1)-(9). However,
because FOIA established a strong presumption in favor of
disclosure, requested material must be disclosed unless it falls
squarely within one of the exemptions. See Burka v. U.S. Dep't
of Health and Human Servs., 87 F.3d 508, 515 (D.C. Cir. 1996).
The agency bears the burden of justifying any withholding.
See Bigwood v. U.S. Agency for Int'l Dev., 484 F.Supp.2d 68, 74
5
(D.D.C. 2007). “Ultimately, an agency’s justification for
invoking a FOIA exemption is sufficient if it appears logical or
plausible.” Judicial Watch, Inc. v. U.S. Dep't of Def., 715 F.3d
937, 941 (D.C. Cir. 2013) (internal quotation marks omitted).
B. Considerations in National Security Cases
“It is . . . well-established that the judiciary owes some
measure of deference to the executive in cases implicating
national security, a uniquely executive purview.” Center for
Nat. Sec. Studies v. U.S. Dept. of Justice, 331 F.3d 918, 926-27
(D.C. Cir. 2003). “Courts . . . accord substantial weight to an
agency’s affidavit concerning the details of the classified
status of the disputed record because the Executive departments
responsible for national defense and foreign policy matters have
unique insights into what adverse [e]ffects might occur as a
result of a particular classified record.” Id. at 927 (quotation
marks and citation omitted)
III. Analysis
A. Exemption 1
The CIA invokes Exemption 1 to redact the name of one
covert agency officer. Def.’s Mot., ECF No. 54-1 at 11.
Exemption 1 protects from disclosure records that are “(A)
specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy and (B) are in fact properly
6
classified pursuant to such Executive order.” 5 U.S.C. §
552(b)(1). Executive Order No. 13526 (“the Order”), governs the
classification of national security information, and sets forth
four prerequisites:
(1) an original classification authority
classifies the information; (2) the U.S.
Government owns, produces, or controls the
information; (3) the information is within one
of eight protected categories listed in
Section 1.4 of the Order; and (4) the original
classification authority determines that the
unauthorized disclosure of the information
reasonably could be expected to result in
damage to the national security, and
identifies or describes that damage.
Exec. Order No. 13526, § 1.1(a). Furthermore, the information
must “pertain[] to” one of the categories of information
specified in the Executive Order, including “intelligence
activities (including covert action), intelligence sources or
methods.” Id. § 1.4(c).
The CIA has provided a declaration which attests to the
first and second prerequisites, Decl. of Antoinette B. Shiner
(“Shiner Decl.”), ECF No. 54-2 ¶ 16; and explains that the
information falls under classification category § 1.4(c) of the
Order because it concerns “intelligence activities (including
covert action), [or] intelligence sources or methods” and that
“its unauthorized disclosure could reasonably be expected to
result in damage to national security.” Id. The Declaration
explains:
7
The redaction made pursuant to Exemption
(b)(1) protects the name of a covert Agency
officer. In order to carry out the mission of
gathering and disseminating intelligence
information, the CIA places many Agency
officers under cover to protect the fact,
nature, and details of the CIA’s interest in
foreign activities and the intelligence
sources and methods employed to assist those
activities. Revealing the identify of a covert
officer puts the officer and his or her family
in jeopardy, exposes the cover provider to
unwarranted risk, and degrades the
effectiveness of current and future
intelligence activities. Compromise of an
officer’s cover can also allow hostile
intelligence services and terrorist
organizations to determine the locations in
which the officer has worked and the people
with whom the officer has met. Disclosing the
identity of a covert officer can thus
jeopardize anyone—even innocent individuals—
with whom the officer had contact.
Shiner Decl., ECF No. 54-2 ¶ 17. Accordingly, the CIA argues
that it properly withheld the name of the covert officer because
the name of the officer “is currently and properly classified
‘because it concerns intelligence activities (including covert
action), intelligence sources or methods.” Def.’s Mot., ECF No.
54-1 at 11 (quoting Exec. Order No. 13526 § 1.4(c)).
The ACLU states that it challenges this reaction “only
insofar as two facts are true, first, the individual is a
former, rather than a current, covert officer, and second, the
formerly covert officer disclosed their affiliation with the CIA
in one or more of their publications.” Pls.’ Cross-Mot., ECF No.
55-1 at 24. But as the CIA points out, the ACLU “cite[s] no
8
authority—because none exists—for the proposition that they may
simply assert wholly hypothetical propositions, ‘take’ them to
be true, and seek summary judgment in their favor based on
nothing more than such wishful, and wholly speculative,
thinking.” Def.’s Reply, ECF No. 58 at 12. The ACLU has no
response to this argument, see Pls.’ Reply, ECF No. 60 at 14-16;
only reiterating that “they will withdraw their Exemption 1
challenge if the CIA confirms in writing that one of these facts
is not true”, id. at 15-16.
The ACLU argues that the CIA has not established that the
name of the covert officer is properly classified because the
CIA “has not provided ‘reasonable specificity of detail’ to
demonstrate that disclosure of the name would cause harm to
national security.” Pls.’ Cross-Mot., ECF No. 55 at 25 (quoting
Larson, 565 F.3d at 865). The ACLU points out “the officer . . .
received an exemption from prepublication review ‘based on an
established record of prepublication review compliance.’” Id.
(quoting Krishnan Decl., Ex. B.). The ACLU believes it likely
“that the officer has published multiple works under their name
about their time in government” and if that is true releasing
the information “would not reveal any more than the public
already knows . . ..” Id.
The Court disagrees with the ACLU that the CIA’s affidavit
is deficient. In its declaration, the CIA explains in detail the
9
harm that the disclosure of the covert officer’s name would
cause to national security. Shiner Decl., ECF No. 54-2 ¶ 17.
Given the national security context and substantial weigh
accorded to agency affidavits, see James Madison Project, 607 F.
Supp. 2d at 21; the CIA properly invoked Exemption 1 due to the
reasonable expectation of damage disclosure will have on
national security. Shiner Decl., ECF No. 54-2 ¶ 17.
The ACLU also argues that even if the CIA’s claim was
valid, it “waived the claim by officially acknowledging the
author’s name” on an “unclassified internal blog.” Pls.’ Cross-
Mot., ECF No. 55-1 at 26. The CIA responds—and the Court agrees—
that the intra-agency dissemination of information does not
amount to making the information “public through an official and
documented disclosure.” Wolf, 473 F.3d at 378 (internal
quotation omitted).
Finally, the ACLU argues that even if the CIA had a valid
Exemption 1 claim, it waived it by “officially acknowledging”
the employee’s name. Pls.’ Cross-Mot., ECF No. 55-1 at 26. The
Court rejects this argument for the reasons explained infra at
Section III.B.2.
For these reasons, the Court GRANTS the CIA’s Motion for
Summary Judgment as to Exemption 1, and DENIES the ACLU’s Motion
for Summary Judgment as to Exemption 1.
10
B. Exemption 3
The CIA also invokes Exemption 3 to protect from disclosure
all of the names in the contested withholding. Def.’s Mot., ECF
No. 54-1 at 13. Exemption 3 allows an agency to withhold or
redact records that are “specifically exempted from disclosure
by statute ... provided that such statute (A) requires that the
matters be withheld from the public in such a manner as to leave
no discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552(b)(3). “To invoke
Exemption 3, the government ‘need only show . . . that the
material falls within’ a statute meeting the exemption’s
conditions.” DiBacco v. Dep’t of the Army, 926 F.3d 827, 835
(D.C. Cir. 2019) (quoting Larson v. Dep’t of State, 565 F.3d
857, 865 (D.C. Cir. 20009). “‘If an agency’s statements
supporting exemption contain reasonable specificity of detail as
to demonstrate that the withheld information logically falls
within the claimed exemption and evidence in the record does not
suggest otherwise, . . . the court should not conduct a more
detailed inquiry to test the agency’s judgment and expertise or
to evaluate whether the court agrees with the agency’s
opinions.’” Id. (quoting Larson, 565 at 865).
The CIA invokes Exemption 3 to justify the redaction under
the CIA Act of 1949 (“CIA Act”). Def.’s Mot., ECF No. 54-1 at
11
12. It is well established that the CIA Act is an Exemption 3
statute. Fitzgibbon v. CIA, 911 F.2d 755, 761 (D.C. Cir. 1990).
Section 6 of the CIA Act provides that “the Agency shall be
exempted from . . . any other law which require[s] the
publication or disclosure of the organization, functions, names,
official titles, salaries, or numbers of personnel employed by
the Agency[.]” 50 U.S.C. § 3507. The CIA states that it invoked
the CIA Act to protect the “names of personnel currently or
formerly employed by the CIA, the disclosure of which the CIA
Act expressly prohibits.” Def.’s Mot., ECF No. 54-1 at 13
(quoting Shiner Decl., ECF No. 54-2 ¶ 20) (“The redaction at
issue contains the names of personnel currently or formerly
employed by the CIA, the disclosure of which the CIA Act
expressly forbids.”).
The ACLU argues that the CIA has failed to carry its burden
to sustain a withholding under Exemption 3 because: (1) Section
6 of the CIA Act “protects only information that the CIA treats
as confidential, not the names of authors it has repeatedly
authorized to publish about their CIA service under their own
names”; and (2) the CIA waived reliance on the CIA Act through
“official acknowledgment.” Pls.’ Cross-Mot.”, ECF No. 55 at 11-
12.
12
1. The Names of the CIA Employees are Protected by
Section 6 of the CIA Act
The ACLU argues that the names of the CIA employees do not
fall within the scope of the CIA Act because “[b]ased on the
record evidence . . . the only reasonable inference is that the
CIA does not treat the authors’ names and Agency affiliation as
confidential,” asserting that Section 6 of the CIA Act does not
protect information that the CIA does not treat as confidential.
Pls.’ Cross-Mot., ECF No. 55-1 at 12. The ACLU’s support for
this assertion is thin, see id. (citing Phillippi v. CIA, 1009,
1015 n.14 (D.C. Cir. 1976) (“the authority [Section 6] confers
is specifically directed at statutes that would otherwise
require the Agency to divulge information about its internal
structure”)); and it provides no precedent for its assertion
that “the CIA must demonstrate that it treats the information as
confidential.” see id.“‘Exemption 3 differs from other FOIA exemptions in that .
. . the sole issue for decision is the existence of a relevant
statute and the inclusion of withheld material within the
statute’s coverage.’” Morley v. CIA, 508 F.3d 1108, 1126 (D.C.
Cir. 2007) (quoting Ass’n of Retired Rail Road Workers v. U.S.
Rail Road Retirement Board, 830 F. 2d 331, 336 (D.C. Cir.
1987)). Here, the relevant statute is Section 6 of the CIA Act
which provides that “the Agency shall be exempted from . . . any
13
other law which require[s] the publication or disclosure of the
organization, functions, names, official titles, salaries, or
numbers of personnel employed by the Agency[.]” 50 U.S.C. §
3507. And the withheld material is the names of current and/or
former CIA employees. In view of the “sole issue” before the
Court, the names of the CIA employees are protected by Section 6
of the CIA Act.
2. The ACLU Has Not Met Its Burden To Establish that
Names of the CIA Employees Have Been Officially
Acknowledged
“[W]hen information has been ‘officially acknowledged,’ its
disclosure may be compelled even over an agency’s other valid
exemption claim.” Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.
Cir. 1990). “An agency’s official acknowledgement of information
by prior disclosure, however, cannot be based on mere public
speculation, no matter how widespread.” Wolf v. C.I.A., 473 F.3d
370, 378 (D.C. Cir. 2007) (citing Afshar v. Dep’t of State, 702
F.2d 1125, 1130 (D.C. Cir. 1983)). “Instead, an official
acknowledgement must meet three criteria:
First, the information requested must be as
specific as the information previously
released. Second, the information requested
must match the information previously
disclosed … Third, … the information requested
must have already been made public through an
official and documented disclosure.
14
Wolf, 473 F.3d at 378 (quoting Fitzgibbon, 911 F.2d at 765).
Accordingly, “the fact that information exists in some form in
the public domain does not necessarily mean that official
disclosure will not cause harm cognizable under a FOIA
exemption.” Id. (citing Fitzgibbon, 911 F.2d at 766).
Consequently, “a plaintiff asserting a claim of prior disclosure
must bear the initial burden of pointing to specific information
in the public domain that appears to duplicate that being
withheld.” Afshar, 702 F.2d at 1130.
The ACLU argues that it has met its burden because: (1) the
employees who received an exemption have “an established record
of prepublication review compliance” and therefore have
published on more than one occasion; (2) since the CIA’s
Prepublication Review of Certain Material Prepared for Public
Dissemination regulation generally requires that current and
former employees request prepublication review for works that
are based on their time in government service, any published
works disclosed the author’s names and their association with
the CIA; (3) the CIA authorized the disclosure by clearing the
works for publication; (4) per the CIA process, it sent
clearance letters memorializing the authorization; and (5) the
regulation requires that the authors publish a disclaimer
explaining that the material was reviewed by the CIA and cleared
for publication. Pls.’ Cross-Mot., ECF No. 55-1 at 17-18. The
15
ACLU also contends that the existence of the published works
helps them satisfy their initial burden. Pls.’ Cross-Mot., ECF
No. 55-1 at 18.
The CIA responds that the ACLU has not met its burden
because it “do[es] not even purport to identify any specific
[CIA] statement or disclosure that satisfies the [three
criteria] . . . [i]nstead … offer[ing] only a series of wholly
speculative suppositions.” Def.’s Reply, ECF No. 58 at 11.
In reply, the ACLU contends that its initial showing does not
amount to speculation because its claims are grounded in the
record. Pls.’ Reply, ECF No. 60 at 9.
The Court concludes that the ACLU has not met its burden
because it has failed to point to “an official and documented
disclosure” of the names of the CIA employees. See Wolf v.
C.I.A., 473 F.3d 370, 378 (D.C. Cir. 2007); see also Competitive
Enterprise Institute v. National Security Agency, 78 F. Supp. 3d
45, 58 (D.D.C. 2015) (noting that there must be an official and
actual acknowledgement by someone in a position to know …”). The
CIA employee’s publication of a book disclosing the employee’s
affiliation with the CIA does not satisfy the requirement that
the disclosure be “official and documented.” Wolf, 473. F.3d at
378.
The ACLU’s reliance on Niagara Mohawk Power Corp. v. U.S.
Dep’t of Energy, 169 F.3d 16 (D.C. Cir. 1999) is misplaced. It
16
cites Niagara to argue that it has met its initial burden
because it cited to the CIA regulation. Id. at 18. In Niagara,
the court concluded that plaintiff had met its initial burden
because it cited to a regulation requiring the filing of a
public form. Niagara Mohawk Power Corp., 169 F.3d at 19-20.
However, it takes more than citing the CIA regulation to satisfy
the ACLU’s burden. See Fitzgibbon, 911 F.2d at 765 (“First, the
information requested must be as specific as the information
previously released. Second, the information requested must
match the information previously disclosed … Third, … the
information requested must have already been made public through
an official and documented disclosure.”).
Furthermore, the ACLU’s reliance on Afshar is unpersuasive.
In Afshar, the court rejected the argument “that the CIA’s
screening and approval of the books brought them into the
official realm and made the disclosures therein tantamount to
official acknowledgements.” Afshar, 702 F. 2d at 1133-34.
According to the ACLU, that holding is distinguishable from the
situation here because “[t]he court did not . . . address
whether the fact of the CIA’s approval would constitute an
official acknowledgment of the authors’ names and association
with the CIA”; rather “the disclosures the court was addressing
involved the contents of the books.” Pls.’ Cross-Mot., ECF No.
55-1 at 19. However, the CIA employee’s publication of a book
17
disclosing the employee’s affiliation with the CIA does not
satisfy the requirement that the disclosure be “official and
documented.” Wolf, 473. F.3d at 378.
For these reasons, the Court GRANTS the CIA’s Motion for
Summary Judgment as to Exemption 3, and DENIES the ACLU’s Motion
for Summary Judgment as to Exemption 3.
C. Exemption 6
Exemption 6 permits withholding of information when two
requirements have been met. See U.S. Dep’t of State v. Wash.
Post Co., 456 U.S. 595, 598 (1982). The first is that “the
information must be contained in personnel, medical or ‘similar’
files.” Id. The statutory formulation “similar files” is
understood broadly to include any “[g]overnment records on an
individual which can be identified as applying to that
individual.” Id. at 602 (citation and internal quotation marks
omitted). Thus, Exemption 6 permits exemption of “not just
files, but also bits of personal information, such as names and
addresses, the release of which would create[ ] a palpable
threat to privacy.” Judicial Watch, Inc. v. FDA, 449 F.3d 141,
152 (D.C. Cir. 2006) (citation and internal quotation marks
omitted).
The second requirement is that “the information must be of
such a nature that its disclosure would constitute a clearly
unwarranted invasion of personal privacy.” See Wash. Post Co.,
18
456 U.S. at 598. This requirement requires a court to “weigh the
privacy interest in non-disclosure against the public interest
in the release of the records in order to determine whether, on
balance, the disclosure would work a clearly unwarranted
invasion of privacy.” Lepelletier v. FDIC, 164 F.3d 37, 46 (D.C.
Cir. 1999) (citation and internal quotation marks omitted). The
only relevant public interest in this balancing analysis in a
FOIA case is “the extent to which disclosure of the information
sought would she[d] light on an agency’s performance of its
statutory duties or otherwise let citizens know what their
government is up to.” Id. (citation and internal quotation marks
omitted).
The CIA contends that it properly withheld the names of the
CIA personnel because they “have a substantial privacy interest
in not having their identities and/or contact information
disclosed, because such disclosure “could subject them to
harassment or unwanted contact by the media.” Def.’s Mot., ECF
No. 54-1 at 14 (quoting Shiner Decl., ECF No. 54-2 ¶ 23).
Additionally, the CIA argues that disclosing the identity of the
CIA personnel “would shed no light on CIA operations or
activities.” Id. (citing Shiner Decl., ECF No. 54-2 ¶ 24).
The ACLU argues that the CIA has failed to meet the
Exemption 6 requirements. First, the names are not “‘personnel,
medical, or similar file[s],’ because they do not contain
19
detailed personal information about agency employees.” Pls.’
Cross-Mot., ECF No. 55-1 at 20. Second, “disclosure of the names
would not involve a clearly unwarranted privacy invasion because
the privacy interest in them is de minimis, and because this
interest is clearly outweighed by the public’s interest in
further understanding the CIA’s prepublication review regime,
including, for example, whether it favors agency supporters and
discriminates against agency critics.” Pls.’ Cross-Mot., ECF No.
55-1 at 20.
The Court is persuaded that the list of the names of the
CIA employees are “similar files.” “The Supreme Court has
interpreted the phrase, ‘similar files’ to include all
information that applies to a particular individual.”
Leppelletier v. FDIC, 164 F.3d 37, 46 (D.C. Cir. 1999). It has
also recognized that “the protection of Exemption 6 is not
determined merely by the nature of the file in which the
requested information is contained.” U.S. Dep’t of State v.
Wash. Post Co., 456 U.S. 595, 601 (1982) (citation omitted). The
Court of Appeals for the District of Columbia Circuit (“D.C.
Circuit”) has understood Exemption 6 “to exempt not just files,
but also bits of personal information such as names and
addresses … .” Judicial Watch, Inc. v. FDA, 449 F.3d 141, 152
(D.C. Cir. 2006). For these reasons, the names of the CIA
employees qualify as “similar files.” See Judicial Watch, Inc.,
20
25 F. Supp. 3d at 141 (“there is little doubt that the names at
the end of the Memorandum satisfy Exemption 6’s “similar file”
categorization”).
“The Court must now determine whether there is a
substantial privacy interest that would be compromised if the
[CIA employees’] names are disclosed.” Judicial Watch, Inc. v.
Dep’t of the Navy, 25 F. Supp. 3d 131, 141 (D.D.C. 2014). A
“substantial privacy interest is anything greater than a de
minimis privacy interest.” Judicial Watch, Inc., v. U.S. Dep’t
of State, 875 F. Supp. 2d 37, 46 (D.D.C. 2012). “[W]hether
[disclosure of a list of names] is a significant or de minimis
threat depends upon the characteristics revealed by virtue of
being on the particular list, and the consequences likely to
ensue.” NARFE, 879 F.2d at 877.
Recent decisions in this jurisdiction appear
generally sympathetic to the argument that
“[t]he privacy interest of civilian federal
employees includes the right to control
information related to themselves and to avoid
disclosures that could conceivably subject
them to annoyance or harassment in either
their official or private lives[.]” Elec.
Privacy Info. Ctr. v. Dep't of Homeland Sec.,
384 F. Supp. 2d 100, 116 (D.D.C. 2005) (“EPIC
”) (internal quotation marks and citations
omitted); see also Judicial Watch, Inc. v.
Dep't of State, 875 F. Supp. 2d at 47 (“There
is a substantial interest in bits of personal
information where there is a justified and
articulable risk of media harassment” as a
result of the release of such information.)
But it is also clear that the potential
adverse consequences must be “real rather than
21
speculative[,]” EPIC, 384 F. Supp. 2d at 116,
and a bare assertion that a document's
“disclosure would constitute a clearly
unwarranted invasion of [an individual's]
personal privacy” is not sufficient to
establish that a substantial privacy interest
in preventing disclosure exists. Morley v.
CIA, 508 F.3d 1108, 1127–28 (D.C. Cir.2007).
Rather, the agency must demonstrate that
“disclosure would constitute a ‘clearly
unwarranted’ invasion of personal privacy.”
Id.; see also id. at 1128 (“To the extent the
[defendant] suggests that the privacy interest
in biographical information is self evident,
it is mistaken.”). Moreover, it is the agency
that bears this initial burden. Judicial
Watch, Inc. v. Dep't of State, 875 F. Supp. 2d
at 45.
Judicial Watch, Inc., 25 F. Supp. 3d at 142.
The Court concludes that the CIA has failed to meet its
burden to justify withholding the names pursuant to Exemption 6.
First, the CIA contends that it properly withheld the names of
the CIA personnel because they “have a substantial privacy
interest in not having their identities and/or contact
information disclosed, because such disclosure “could subject
them to harassment or unwanted contact by the media.” Def.’s
Mot., ECF No. 54-1 at 14 (quoting Shiner Decl., ECF No. 54-2 ¶
23). This conclusory statement falls short of establishing a
substantial privacy interest. The CIA has not explained why
disclosing the list of CIA employees’ names could subject them
to harassment nor who would harass them. This situation is
entirely distinguishable from, for example, cases associated
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with substantial press coverage. See e.g., Judicial Watch v.
Dep’t of State, 875 F. Supp. 2d 37, 47 (D.D.C. 2012)
(withholding of employee names justified because of “a justified
and articulable risk of media harassment”), Elec. Privacy Info.
Ctr. V. U.S. Dep’t of Homeland Sec., 384 F. Supp. 2d. 100, 118
(D.D.C. 2005) (withholding of employee names upheld where media
scrutiny and harassment were likely). Where the affidavit
supporting an exemption is conclusory, courts will provide the
agency the opportunity to submit a supplemental motion with
revised declarations or affidavits to explain in more detail the
privacy interest the published authors have in their names.
Judicial Watch, 25 F. Supp. 3d at 143-144. Because the Court has
concluded supra that the names are properly withheld pursuant to
Exemption 1 and Exemption 3, and accordingly will not be
disclosed, the Court need not provide the CIA with the
opportunity here.
Second, the CIA’s assertion that disclosing the identity of
the personnel “would shed no light on CIA operations or
activities,” Def.’s Mot., ECF No. 54-1 at 14 (citing Shiner
Decl., ECF No. 54-2 ¶ 24); is unpersuasive because, as the ACLU
points out, disclosure of the CIA personnel, each of whom had
been granted an exemption from the Agency’s prepublication
process would shed light on “how the CIA’s prepublication review
processes operate, including whether the CIA’s processes have
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been politicized and discriminate on the basis of viewpoint,”
Pls.’ Cross-Mot., ECF No. 55-1 at 24. Weighing these two
interests, the public interest outweighs the privacy interest of
the published authors. Accordingly, the CIA did not properly
invoke Exemption 6 to withhold the names of the CIA employees
because disclosure of the names is a de minimis threat
outweighed by the public interest in learning how the CIA’s
prepublication review processes work.
For these reasons, the Court DENIES the CIA’s Motion for
Summary Judgment as to Exemption 6, and GRANTS the ACLU’s Motion
for Summary Judgment as to Exemption 6.
D. Neither a Supplemental Declaration Nor In Camera Review
Are Warranted
The ACLU asks the Court to require the CIA to submit a
supplemental declaration and to conduct an in camera review.
Pls.’ Cross-Mot., ECF No. 55-1 at 26. The ACLU does not argue
that there has been bad faith on the part of the CIA, but
contends that “the CIA’s declaration is insufficiently detailed
to permit meaningful review of [its] exemption claims,” see id.
at 27; because the CIA has not responded to the ACLU’s questions
regarding whether: (1) “the authors have published worked in
their own names”; (2) “the works mention their Agency
affiliation and/or include the Agency’s required disclaimer”;
and (3) the covert Agency Officer is currently covert, Pl.’s
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Reply, ECF No. 60 at 16. The Court disagrees. The affidavits
supporting the withholdings pursuant to Exemptions 1 and 3 are
reasonably detailed, explain why the names of the current and
former employees “logically fall[] within the claimed exemption,
and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.” Military Audit
Project, 656 F.2d at 738 (D.C. Cir. 1981) (citation omitted).
Accordingly, the Court finds that it can rely on the
declarations to conduct its de novo determination.
The ACLU also asks the Court to conduct an in camera review
of the document containing the withheld author’s names. Pls.’
Cross-Mot., ECF No. 55-1 at 27. FOIA gives district courts the
discretion to examine the contents of requested agency
records in camera “to determine whether such records or any part
thereof shall be withheld.” See 5 U.S.C. § 552(a)(4)(B). It is
within the Court's “broad discretion” to decline to conduct in
camera review where the Court determines that in
camera inspection is unnecessary “to make a responsible de novo
determination on the claims of exemption.” Carter v. U.S. Dep't
of Commerce, 830 F.2d 388, 392 (D.C. Cir. 1987). Because the
Court has found that it can rely on the declarations to conduct
its de novo determination, in camera review is unwarranted.
Additionally, it is unclear what the in camera review of a list
of names would accomplish.
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E. Segregability
Under FOIA, “even if [the] agency establishes an exemption,
it must nonetheless disclose all reasonably segregable,
nonexempt portions of the requested record(s).” Roth v. U.S.
Dept. of Justice, 642 F. 3d 1161, 1167 (D.C. Cir. 2001)
(internal quotation marks and citation omitted). “[I]t has long
been the rule in this Circuit that non-exempt portions of a
document must be disclosed unless they are inextricably
intertwined with exempt portions.” Wilderness Soc'y v. U.S.
Dep't of Interior, 344 F. Supp. 2d 1, 18 (D.D.C. 2004) (quoting
Mead Data Cent., Inc. v. U.S. Dep't of Air Force, 566 F. 2d 242,
260 (D.C. Cir. 1977)). Thus, an agency must provide “a detailed
justification and not just conclusory statements to demonstrate
that all reasonably segregable information has been released.”
Valfells v. CIA, 717 F. Supp. 2d 110, 120 (D.D.C. 2010)
(internal quotation marks and citation omitted). However,
“[a]gencies are entitled to a presumption that they complied
with the obligation to disclose reasonably segregable material,”
which must be overcome by some “quantum of evidence” from the
requester. Sussman v. U.S. Marshals Serv., 494 F. 3d 1106, 1117
(D.C. Cir. 2007).
The CIA’s declaration states that a line-by-line review was
conducted and all reasonable segregable non-exempt information
has been released. Shiner Decl., ECF No. 54-2 ¶ 25. The ACLU
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does not contend that the CIA has failed to comply with its
segregation requirements. The only withheld information are the
names of current and/or former CIA officials. Accordingly, the
Court concludes that the CIA has satisfied its segregability
obligations under FOIA.
IV. Conclusion
For the reasons set forth above, the CIA’s Motion for
Summary Judgment is GRANTED IN PART AND DENIED IN PART and the
ACLU’s Cross-Motion for Summary Judgment is GRANTED IN PART AND
DENIED IN PART. An appropriate order accompanies this Memorandum
Opinion.
SO ORDERED.
Signed: Emmet G. Sullivan
United States District Judge
November 24, 2021
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