National Security Archive v. Central Intelligence Agency , 859 F. Supp. 2d 65 ( 2012 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________
)
NATIONAL SECURITY ARCHIVE, )
)
Plaintiff, )
)
v. ) Civil Action No. 11-724 (GK)
)
CENTRAL INTELLIGENCE AGENCY, )
)
Defendant. )
______________________________)
MEMORANDUM OPINION
Plaintiff, National Security Archive (“NSA”), brings this
action against Defendant, the Central Intelligence Agency (“CIA”),
under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.
Plaintiff seeks material related to the CIA’s internal
investigation of the Bay of Pigs Operation. This matter is before
the Court on Defendant’s Motion for Summary Judgment [Dkt. No. 8]
and Plaintiff’s Cross-Motion for Partial Summary Judgment [Dkt. No.
10]. Upon consideration of the Motions, Oppositions, and Replies,
and the entire record herein, and for the reasons set forth below,
Defendant’s Motion for Summary Judgment is granted and Plaintiff’s
Cross-Motion for Partial Summary Judgment is denied.
I. BACKGROUND1
The NSA “is an independent non-governmental research institute
and library” which “serves as a repository of government records on
a wide range of topics pertaining to the national security,
foreign, intelligence, and economic policies of the United States.”
Compl. ¶ 3 [Dkt. No. 1]. This case concerns the NSA’s efforts to
obtain a four-volume history of the Bay of Pigs Operation, compiled
by former CIA historian Dr. Jack B. Pfeiffer in the late 1970s and
early 1980s. On August 10, 11, and 15, 2005, the NSA sent the CIA
letters seeking access to Volumes I, II, IV, and V of the Official
History of the Bay of Pigs Operation. Lutz Decl. Exs. A, B, C [Dkt.
No. 8-1].
In three separate responses, dated September 7, 2005, the CIA
acknowledged that it had received the NSA’s requests for Volumes I,
II, IV, and V. Lutz Decl. Ex. D. However, according to the NSA, it
received no substantive response from the CIA between September 7,
2005, and the filing of the Complaint, on April 14, 2011. Pl.’ Mot.
for Summ. J. 3. Three months after the Complaint was filed, on July
25, 2011, the CIA released Volumes I, II, and IV to the NSA. The
CIA has offered no explanation as to why it failed to provide any
materials to the NSA in the five years and seven months that
elapsed between acknowledgment of the FOIA requests and the filing
1
Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).
2
of this lawsuit, but was able to release extensive materials three
months after this lawsuit was filed.
Nevertheless, the CIA did release Volumes I, II, and IV with
minimal redactions. The only issue now in dispute is whether the
CIA should also have released Volume V, which it has withheld in
its entirety. Def.’s Mot. for Summ. J. 1; Pl.’s Mot. for Partial
Summ. J. 1. According to the CIA, this volume, which is titled
“CIA’s Internal Investigation of the Bay of Pigs Operations,” is
covered by the deliberative process privilege and therefore exempt
from disclosure under FOIA.2 Def.’s Mot. for Summ. J. 3-4.
On September 26, 2011, the CIA filed its Motion for Summary
Judgment. November 7, 2011, the NSA filed its Opposition and Cross-
Motion for Partial Summary Judgment. On November 29, 2011, the CIA
filed its combined Opposition and Reply [Dkt. No. 12]. On December
21, 2011, the NSA filed its Reply [Dkt. No. 14].
II. STANDARD OF REVIEW
The purpose of FOIA is to “‘to pierce the veil of
administrative secrecy and to open agency action to the light of
public scrutiny.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir.
2
The CIA also maintains that portions of Volume V are exempt
under Exemptions 1 and 3, which apply to information classified in
the interest of national defense or foreign policy and to
information protected from disclosure by statute, respectively.
Def.’s Mot. for Summ. J. 7-10; see 5 U.S.C. § 552(b)(1), (3).
Because, for the reasons given below, the entirety of Volume V is
covered by Exemption 5, there is no need to address the
applicability of Exemption 1 or 3.
3
2007) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361
(1976)). FOIA “requires agencies to comply with requests to make
their records available to the public, unless the requested records
fall within one or more of nine categories of exempt material.”
Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)
(citing 5 U.S.C. § 552(a), (b)). An agency that withholds
information pursuant to a FOIA exemption bears the burden of
justifying its decision, Petroleum Info. Corp. v. Dep’t of the
Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. §
552(a)(4)(B)), and must submit an index of all materials withheld.
Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). In
determining whether an agency has properly withheld requested
documents under a FOIA exemption, the district court conducts a de
novo review of the agency’s decision. 5 U.S.C. § 552(a)(4)(B).
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); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d
83, 87 (D.D.C. 2009). Summary judgment will be granted when the
pleadings, depositions, answers to interrogatories, and admissions
on file, together with any affidavits or declarations, show that
there is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. See Fed.
R. Civ. P. 56(c).
4
In a FOIA case, the court may award summary judgment solely on
the basis of information provided in affidavits or declarations
when they (1) “describe the documents and the justifications for
nondisclosure with reasonably specific detail;” (2) “demonstrate
that the information withheld logically falls within the claimed
exemption;” and (3) “are not controverted by 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). Such affidavits or declarations are accorded “a presumption
of good faith, which cannot be rebutted by ‘purely speculative
claims about the existence and discoverability of other
documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d
1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.
CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).
III. ANALYSIS
As noted above, the sole issue in this case is whether Volume
V was properly withheld under FOIA Exemption 5. Exemption 5 permits
an agency to withhold “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).
Exemption 5 “is interpreted to encompass, inter alia, three
evidentiary privileges: the deliberative process privilege, the
attorney-client privilege, and the attorney work product
privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002).
5
The relevant privilege here, the deliberative process
privilege, “‘covers documents reflecting advisory opinions,
recommendations and deliberations comprising part of a process by
which governmental decisions and policies are formulated.’” Dep't
of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,
8-9 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150
(1975)); see also Public Citizen, Inc. v. Office of Mgmt. & Budget,
598 F.3d 865, 874-75 (D.C. Cir. 2010). Because “advice and
information would not flow freely within an agency if such
consultative information were open to public scrutiny,” Exemption
5 “allows agency staffers to provide decisionmakers with candid
advice without fear of public scrutiny” and “helps to prevent
premature disclosure of proposed policies and protects against
public confusion through the disclosure of documents suggesting
reasons for policy decisions that were ultimately not taken.”
Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252,
258-59 (D.D.C. 2004).
To invoke the deliberative process privilege, an agency must
show that the requested material meets two requirements: it must be
“both ‘predecisional’ and ‘deliberative.’” Public Citizen, 598 F.3d
at 874 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617
F.2d 854, 866 (D.C. Cir. 1980)); see also In re Sealed Case, 121
F.3d 729, 737 (D.C. Cir. 1997). Material is “predecisional if ‘it
was generated before the adoption of an agency policy.’” Judicial
6
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir.
2006) (quoting Coastal States, 617 F.2d at 866). Accordingly, a
“court must first be able to pinpoint an agency decision or policy
to which these documents contributed.” Morley, 508 F.3d at 1127.
Material is deliberative if “it reflects the give-and-take of
the consultative process.” Judicial Watch, 449 F.3d at 151(internal quotation omitted). Deliberative materials “‘reflect[ ]
advisory opinions, recommendations, and deliberations comprising
part of a process by which governmental decisions and policies are
formulated, [or] the personal opinions of the writer prior to the
agency's adoptions of a policy.’” Public Citizen, 598 F.3d at 875(quoting Taxation With Representation Fund v. IRS, 646 F.2d 666,
677 (D.C. Cir. 1981) (alterations in Public Citizen)). Hence, the
privilege covers information that “reflect[s] the personal opinions
of the writer rather than the policy of the agency.” Morley, 508
F.3d at 1127 (internal quotation omitted). But when the information
at issue is “[f]actual material that does not reveal the
deliberative process,” it is not protected. Id. (quoting Paisley v.
CIA, 712 F.2d 686, 698 (D.C. Cir. 1983)).
In order to withhold a document under the deliberative process
privilege, the agency must make the additional showing that
disclosure would cause injury to the decisionmaking process. Army
Times Publ’g Co. v. Dep’t of the Air Force, 998 F.2d 1067, 1071
(D.C. Cir. 1993); Judicial Watch, 297 F. Supp. 2d at 259.
7
Therefore, “the agency must ‘show, by specific and detailed proof
that disclosure would defeat, rather than further, the purposes of
FOIA.’” Hall v. U.S. Dep’t of Justice, 552 F. Supp. 2d 23, 29
(D.D.C. 2008) (quoting Mead Data Cent. Inc. v. U.S. Dep’t of Air
Force, 566 F.2d 242, 258 (D.C. Cir. 1977)).
The CIA offers the Declarations of Martha Lutz, an Information
Review Officer, and Dr. David S. Robarge, the Chief Historian for
the CIA, to support its view that Volume V is predecisional and
deliberative. Lutz explains that Dr. Pfeiffer was tasked during the
1970s and 1980s with preparing a classified history of the Bay of
Pigs Operation. Lutz Decl. ¶¶ 16-17. Two chapters from Dr.
Pfeiffer’s 1981 draft fourth volume, which addressed the Inspector
General’s report for the Bay of Pigs Operation and the Directorate
of Plans’ response to that report, became the first draft of Volume
V, which covers the Internal Investigation of the Bay of Pigs
Operation. Id. ¶ 18. Despite multiple drafts, Dr. Pfeiffer’s
supervisor, then Chief Historian Dr. J. Kenneth McDonald, found
serious deficiencies with Dr. Pfeiffer’s proposed Volume V, and
therefore it never moved beyond the first stage of the CIA’s review
process. Id. ¶¶ 19-20.
This is not the first time the CIA has denied a FOIA request
for Volume V. In 1989, Judge John H. Pratt considered a request by
Dr. Pfeiffer, who had by then retired, for access to Volume V.
8
Pfeiffer v. CIA, 721 F. Supp. 337, 338 (D.D.C. 1989). Judge Pratt
found that Volume V was a predecisional draft, stating:
We are unpersuaded that the Internal
Investigation Report that plaintiff seeks to
have disclosed is a “final” agency history, nor
are we convinced that plaintiff had authority
to unclassify the material. The subjective
views of a staff member that the
decision-making process is complete and “final”
when he submits his recommendation to a
superior is of no consequence.
Id. at 340. Therefore, Judge Pratt held that Volume V was properly
withheld under Exemption 5. Id. at 341.
This Court finds no reason to depart from Judge Pratt’s sound
conclusion. Volume V was undoubtedly “generated before the adoption
of an agency policy,” and is therefore predecisional. Judicial
Watch, 449 F.3d at 151. Volume V represents only the first step in
a multi-step process of creating an official CIA history. Robarge
Decl. ¶¶ 4-8 [Dkt. No. 12-1]; see Morley, 508 F.3d at 1127 (a
“court must first be able to pinpoint an agency decision or policy
to which these documents contributed.”). As the current Chief
Historian for the CIA, Dr. Robarge, explains, Volume V did not even
pass through the first stage of a multilayer review process.
Robarge Decl. ¶¶ 13-14.
In addition, Volume V represents a proposal by a subordinate
member of the history staff--a proposal which was rejected by the
Chief Historian due to significant deficiencies. Morley, 508 F.3d
at 1127 (“‘a document from a subordinate to a superior official is
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more likely to be predecisional.’” (quoting Coastal States Gas
Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980))).
Volume V was therefore generated prior to and in preparation for
completion of the CIA’s official history, i.e. its final policy,
but was rejected for inclusion in the final publication and
remained a draft.
Volume V also “reflects the give-and-take of the consultative
process” and is therefore deliberative. Judicial Watch, 449 F.3d at
151 (internal quotation omitted). As both Declarants observe,
Volume V represents an intermediate step in the CIA’s intensive
review process. Robarge Decl. ¶ 13; Lutz Decl. ¶ 19; see Public
Citizen, 598 F.3d at 875 (the privilege covers documents that
“reflect[ ] advisory opinions, recommendations, and deliberations
comprising part of a process by which governmental decisions and
policies are formulated.” (internal quotation omitted)). Further,
in the view of Dr. Pfeiffer’s superiors, Volume V contained
significant problems, including “offer[ing] a polemic of
recriminations against CIA officers who later criticized the
operation,” and was therefore unfit for publication. Robarge Decl.
¶ 13; Lutz Decl. ¶ 20. Hence, Volume V “reflect[s] the personal
opinions of the writer rather than the policy of the agency.”
Morley, 508 F.3d at 1127 (internal quotation omitted).
Finally, the CIA has made a strong and specific showing that
disclosure of Volume V would harm the deliberative process. Army
10
Times Publ’g Co., 998 F.2d at 1071; Judicial Watch, 297 F. Supp. 2d
at 259. Dr. Robarge has convincingly demonstrated that releasing a
draft history may cause staff historians not “to reach--or even
propose--judgments that may be critical of the Agency’s performance
or otherwise unpopular within the Agency.” Robarge Decl. ¶ 10.
Disclosure of a draft history would risk public release of
inaccurate historical information. Id. ¶ 11. The CIA has also
explained why release of Volume V, in particular, would cause harm.
Specifically, while Dr. Pfeiffer’s approach may have had its
deficiencies, it clearly contained controversial opinions and
therefore “[d]isclosure of Volume V would have a chilling effect on
CIA’s current historians who would henceforth be inhibited from
trying out innovative, unorthodox or unpopular interpretations in
a draft manuscript.” Id. ¶¶ 13, 17.
The NSA argues that the passage of time should serve as basis
for disclosure. Pl.’s Mot. for Partial Summ. J. 7-9. The NSA does
not, however, cite any case supporting the notion that a document
becomes less predecisional or deliberative over time. More
importantly, the CIA has shown why, in this case, the passage of
time has not affected the rationale for invoking Exemption 5: the
CIA does not want to discourage disagreement, of which there was
clearly much in this instance, among its historians. Robarge Decl.
¶ 10.
11
Given the fact that, as an agency, the CIA operates in secrecy
and faces relatively little public scrutiny of its operations for
that reason, and given the importance of the activities and
operations it undertakes, it is particularly important that in-
house historians--who do have the facts--feel free to present their
views, theories, and critiques of the Agency’s actions. See Morley,
508 F.3d at 1127 (“To test whether disclosure of a document is
likely to adversely affect the purposes of the privilege, courts
ask themselves whether the document is so candid or personal in
nature that public disclosure is likely in the future to stifle
honest and frank communication within the agency.” (internal
quotation omitted)); James Madison Project v. CIA, 607 F. Supp. 2d
109, 128 (D.D.C. 2009) (“The critical factor in determining whether
the material is deliberative in nature ‘is whether disclosure of
the information would discourage candid discussion within the
agency.’” (quoting Access Reports v. Dep’t of Justice, 926 F.2d
1192, 1194 (D.C. Cir. 1991))).
In short, the CIA has satisfied its burden of demonstrating
that Volume V is predecisional and deliberative, and that its
release would harm the deliberative process. Public Citizen, 598
F.3d at 874; Army Times Publ’g Co., 998 F.2d at 1071. Therefore,
Volume V is covered by the deliberative process privilege and
properly withheld under Exemption 5. Klamath Water Users Protective
Ass'n, 532 U.S. at 8-9; Morley, 508 F.3d at 1126-27.
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IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for
Summary Judgment is granted and Plaintiff’s Motion for Partial
Summary Judgment is denied. An Order shall accompany this
Memorandum Opinion.
/s/
May 10, 2012 Gladys Kessler
United States District Judge
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