Ullah v. Central Intelligence Agency ( 2020 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
OBAID ULLAH, et al.,
Plaintiffs,
v. Civil Action No. 18-2785 (JEB)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
This case, like many brought under the Freedom of Information Act, triggers a clash
between personal and public concerns, between a family’s interest in mourning one of its own
and the Government’s interest in protecting sensitive national-security information. In 2002,
Afghan citizen Gul Rahman died in an overseas detention center at the hands of the Central
Intelligence Agency. Almost two decades later, the whereabouts of his corpse remains unknown.
Plaintiffs Obaid Ullah –– the representative of Rahman’s estate –– and the American Civil
Liberties Union now seek this Court’s enforcement of their FOIA request for information about
what happened after his death.
Although the Government has produced a fair number of documents detailing its
treatment of Rahman, it has withheld others, relying heavily on FOIA exemptions that protect
classified information from disclosure. While mindful that “[f]amily members have a personal
stake in honoring and mourning their dead,” Nat’l Archives & Records Admin. v. Favish, 541
U.S. 157, 168 (2004), the Court finds that the Government has carried its burden of
demonstrating the propriety of the relevant exemptions. It will therefore grant Defendant’s
Motion for Summary Judgment.
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I. Background
A. Factual Background
As noted above, this FOIA case arises out of Rahman’s death in 2002. When Rahman,
who was allegedly residing in a Refugee Camp in Peshawar, Pakistan, traveled to Islamabad for
a medical appointment, the CIA took custody of him and transported him to a facility in an
unknown location. See ECF No. 1 (Complaint), ¶ 2. According to Plaintiffs, the CIA then
“forcibly disappeared Mr. Rahman and tortured him to death.” Id., ¶ 1.
The Agency has confirmed that Rahman died in its custody, releasing various reports that
provide detailed information about his detention, treatment, and death. These materials,
comprising hundreds of pages (albeit in redacted form), memorialize that Rahman died of
hypothermia after being short-chained to a concrete floor in near-freezing temperatures. See
Office of CIA Inspector General, Report of Investigation: Death of Detainee (April 27, 2005) at
3; Memorandum from John Brennan, CIA Director, to Sens. Feinstein & Chambliss, CIA
Comments on the Senate Select Committee on Intelligence Report on the Rendition, Detention,
and Interrogation Program 4, 9 (June 27, 2013). As of this date, the CIA has not officially
informed Rahman’s family of his death or returned his body to them. See Compl., ¶ 7.
B. Procedural History
Seeking primarily to discover the location of Rahman’s remains, Plaintiffs filed a FOIA
request on April 18, 2018, for records concerning:
(1) The United States’ (or its agents’) disposition of Mr. Rahman’s body
after his death in CIA custody in November 2002;
(2) Any and all documents referencing the location of Mr. Rahman’s
body; and
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(3) Procedures, protocols, or guidelines to be followed in the event of a
CIA detainee’s death while in United States’ custody, including
family notification, investigation and disposition of the body.
ECF No. 17-3 (Declaration of Antoinette B. Shiner), ¶ 6. After the CIA failed to
immediately respond, Plaintiffs brought this suit in November 2018. See ECF No. 18 (Pl.
Opp.) at 2.
On May 31, 2019, the CIA identified 38 responsive documents, producing 9 of those
documents in part while withholding the remaining 29 in full. See ECF No. 17-2 (Def.
Statement of Facts), ¶ 4. (The CIA later determined that three of the documents withheld in full
were not responsive. Id.) Defendant justified its withholdings by invoking FOIA Exemptions 1
(information classified to protect national security), 3 (information the disclosure of which is
prohibited by another federal law), 5 (privileged communications), 6 (information that invades
another individual’s personal privacy), and 7(C) and (D) (information that was compiled for law-
enforcement purposes and threatens to disclose personal information or the identity of a
confidential source). See 5 U.S.C. § 552(b). The CIA acknowledges that the produced
documents in their current redacted forms do not reveal the disposition or location of Rahman’s
body or any official policy the Agency has adopted with regard to the disposal of bodies.
Frustrated in their pursuit of this specific information, Plaintiffs then informed Defendant of their
intent to challenge the asserted withholdings. See ECF No. 15 (Joint Status Report of June 14,
2019) at 1.
The CIA countered with a Motion for Summary Judgment, contending that the agency
had fulfilled its search obligations under FOIA and that any withholdings were justified by the
above-mentioned exemptions. Plaintiffs opposed that Motion, challenging the CIA’s
withholdings and its assertion that none of the redacted information was segregable. The Court
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refrained from immediately deciding the Motion, instead ordering the Government to produce
the contested documents for in camera review. It has since reviewed the redactions along with
Defendant’s various justifications. Armed with the parties’ submissions and aided by its own
independent analysis of the documents, the Court is ready to rule.
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). A genuine issue of material fact is one that would change the outcome of the litigation.
See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that
might affect the outcome of the suit under the governing law will properly preclude the entry of
summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to
construe that evidence in the light most favorable to the non-moving party. See Sample v.
Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).
“FOIA cases typically and appropriately are decided on motions for summary judgment.”
Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Brayton v. Office
of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) (same). In these cases, the agency
bears the ultimate burden of proof to demonstrate the adequacy of its search and that it properly
withheld any records. See Defs. of Wildlife, 623 F. Supp. 2d at 88, 91; see also Morley v. CIA,
508 F.3d 1108, 1114 (D.C. Cir. 2007) (same). The Court may grant summary judgment based
solely on information provided in an agency’s affidavits or declarations when they “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 either contrary evidence in the record nor by evidence of agency bad faith.”
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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, 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
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)
(internal quotation marks omitted). The Act promotes these aims by providing that “each
agency, upon 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). Nine categories of information are exempt from FOIA’s
broad disclosure mandate, see 5 U.S.C. § 552(b), but the agency bears the burden of justifying
any withholdings. See Defs. of Wildlife, 623 F. Supp. 2d at 88. “While those exemptions must
be narrowly construed, they still must be given meaningful reach and application.” DiBacco v.
U.S. Dep’t of Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (internal quotation marks and citations
omitted). The Act thereby establishes a “workable balance between the right of the public to
know and the need of the Government to keep information in confidence to the extent necessary
without permitting indiscriminate secrecy.” John Doe Agency v. John Doe Corp., 493 U.S. 146,
152 (1989) (quotation marks omitted).
In assessing whether the Government has carried its burden of establishing that a given
exemption applies, the Court is guided by a veritable avalanche of FOIA-related precedent. It is
well established that “[t]o show that unproduced documents are exempt from FOIA, an agency
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may file ‘affidavits describing the material withheld and the manner in which it falls within the
exemption claimed.’” Bin Ali Jaber v. U.S. Dep’t of Def., 293 F. Supp. 3d 218, 224 (D.D.C.
2018) (quoting King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987)). Ultimately, “when an agency
seeks to withhold information, it must provide a relatively detailed justification, specifically
identifying the reasons why a particular exemption is relevant.” Morley, 508 F.3d at 1122
(quoting King, 830 F.2d at 219). Agencies often fulfill this obligation by filing “a so-called
‘Vaughn Index,’” which catalogs each withholding and provides the relevant justification. See
Defs. of Wildlife, 623 F. Supp. 2d at 88. “[A]n agency’s justification for invoking a FOIA
exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. U.S. Dep’t of State, 565
F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)).
As an initial matter, the Court pauses to note the narrow range of the existing dispute
between the parties. Plaintiffs do not contest the adequacy of the CIA’s search itself or its
withholdings under FOIA Exemptions 6, 7(C), and 7(D). See Pl. Opp. at 3 n.1. While they
ostensibly challenge the Agency’s withholdings under Exemptions 1, 3, and 5, the CIA has not
justified any withholdings exclusively under Exemption 5. Instead, all documents and portions
of documents for which the Agency has claimed Exemption 5 are also covered by Exemptions 1
or 3 (and generally both).
This overlap among the claimed exemptions makes the Court’s role substantially less
complicated. Because “the Government may withhold documents or portions thereof as long as
[one] privilege applies,” Cause of Action Inst. v. DOJ, 330 F. Supp. 3d 336, 351–52 (D.D.C.
2018), the Court “need not address the other exemptions invoked” for any particular withholding
justified by a single exemption. See Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C.
Cir. 2003). The Court therefore will consider only whether the CIA has properly justified its
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claimed withholdings under Exemptions 1 and 3, as well as whether it has satisfied its burden of
demonstrating that no additional information is segregable and thus can be released.
A. Exemption 1
FOIA Exemption 1 protects classified information. To be precise, it shields from
disclosure matters that are “specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign policy and . . . are in fact
properly classified pursuant to such Executive order.” 5 U.S.C. § 552(b)(1). The Government
argues that the redacted information sought by Plaintiffs was properly classified under Executive
Order 13,526, which “prescribes a uniform system for classifying, safeguarding, and
declassifying national security information.” Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec.
29, 2009). The Order provides that “information may be originally classified” if four conditions
are met:
(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 Stated Government;
(3) the information falls within one or more of the categories of
information listed in section 1.4 of this 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 the original
classification authority is able to identify or describe the damage.
Id. § 1.1(a). Section 1.4, in turn, identifies eight categories of information that may potentially
be subject to classification; among them are “intelligence activities (including covert action) [or]
intelligence sources or methods,” and “foreign relations or foreign activities of the United States,
including confidential sources.” Id. § 1.4(c)–(d).
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Generally, an agency invoking Exemption 1 must make both a procedural and substantive
showing — namely, that it both “complies with classification procedures established by the
relevant executive order and withholds only such material as conforms to the order’s substantive
criteria for classification.” Mobley v. DOJ, 870 F. Supp. 2d 61, 66 (D.D.C. 2012) (quoting King,
830 F.2d at 214. In this case, however, Plaintiffs challenge only the CIA’s substantive showing.
In particular, they principally question whether the release of the withheld information “could be
expected to cause exceptionally grave damage to national security.” ECF No. 18-1 (Pl.
Statement of Genuine Issues), ¶ 13.
To support its invocation of Exemption 1, the CIA relies on the declaration of Antoinette
Shiner, the Information Review Officer for its Litigation Information Review Office. In this
role, Shiner is “responsible for the classification review of CIA documents and information that
may be the subject of . . . public requests for information under [FOIA].” Shiner Decl., ¶ 3. Of
relevance here, she is “authorized to assess the current, proper classification of CIA information,
up to and including TOP SECRET information, based on the classification criteria of Executive
Order 13526 and applicable regulations.” Id., ¶ 2. Shiner asserts that the disputed withholdings
are correctly classified under E.O. 13526 because they consist of “details about foreign liaison
services; locations of covert CIA installations and former detention centers located abroad; and
descriptions of specific intelligence methods and activities.” Id., ¶ 16.
In as much detail as she deems possible, Shiner explains why the disclosure of the
information sought by Plaintiffs would harm national-security interests. With regard to the
withheld “Foreign Liaison and Government Information,” she notes that this includes “the
content of . . . communications with foreign government officials” as well as “the existence of
the U.S. Government’s relationships with particular intelligence services and foreign government
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officials,” the disclosure of which could “damage the relations with the entities mentioned[,] . . .
harming intelligence sharing.” Id., ¶ 17. Second, as to “Field Installations,” she points out that
the “[o]fficial acknowledgment that the CIA has or had a facility in a particular location abroad
could cause the government of the country in which the installation is or was located to take
countermeasures . . . to eliminate the CIA’s presence within its borders or curtail cooperation
with the CIA,” “could result in terrorists and foreign intelligence services targeting that
installation,” or “could harm relationships with foreign countries that housed those installations.”
Id., ¶ 18. Finally, as to “Intelligence Methods and Activities,” she avers that “the documents also
contain details that would disclose other intelligence methods and activities of the CIA.” Id.,
¶ 19. These activities are “highly sensitive,” and their disclosure “could impair the effectiveness
of CIA’s intelligence collection.” Id.
Plaintiffs characterize the Shiner Declaration as disingenuous and vague. They argue that
the affidavit offers only “abstract and conclusory statements” connecting the information sought
with classified information. See Pl. Opp. at 15. Plaintiffs also claim that innocent details such as
the “dates” of Rahman’s detention cannot possibly be legitimately classified as national-security
information. Id. at 14. They posit, moreover, “[I]t is no secret that CIA operated on bases
throughout Afghanistan or that its personnel interrogated prisoners in Afghanistan in 2002 and
2003.” Id. at 15.
The Court disagrees, finding that the Government has satisfied its burden of showing that
the withheld information is properly classified under E.O. 13526’s substantive criteria. As a
threshold matter, this Circuit’s FOIA caselaw cautions strongly against second-guessing the
Government’s discretionary decisions in matters of national security. Instead, courts “accord
substantial weight to an agency’s affidavit concerning the details of the classified status of the
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disputed record because the Executive departments responsible for national defense and foreign
policy matters have unique insights into what adverse effects might occur as a result of a
particular classified record.” Larson, 565 F.3d at 864 (quoting Ctr. for Nat’l Sec. Studies, 331
F.3d at 927). For this reason, courts have consistently rejected attacks on the Government’s
invocation of Exemption 1 when faced with substantially similar affidavits and contested records
as those at issue here. See, e.g., DiBacco v. U.S. Dep’t of Army, 234 F. Supp. 3d 255, 270
(D.D.C. 2017), aff’d., 926 F.3d 827 (D.C. Cir. 2019) (reaching similar conclusion based on
similar justification provided by Government); Am. Civil Liberties Union v. U.S. Dep’t of Def.,
628 F.3d 612, 624–25 (D.C. Cir. 2011) (same).
This is not to suggest that Exemption 1 embodies an anti-disclosure talisman that the
Government can wield whenever it so desires. Instead, the Court bases its conclusion on a
variety of specific factors beyond the sensitive nature of the records at issue: the explanation
provided by Shiner, the context supplied by the unredacted records, and the Court’s own in
camera review of the Government’s withholdings. All told, the CIA’s “logical” assessment is
not “called into question by contradictory evidence in the record or by evidence of agency bad
faith.” Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).
First, contrary to Plaintiffs’ contention, Shiner’s declaration is not excessively abstract or
vague given the context. She instead offers a “logical connection” between disclosure of the
redacted information and potential consequent harm to national security. See Rosenberg v. U.S.
Dep’t of Def., 342 F. Supp. 3d 62, 86 (D.D.C. 2018). She identifies both the type of information
withheld (such as facility locations and cooperating foreign partners) and the reasons why the
information remains classified (such as to protect ongoing CIA operations and foreign partners).
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While Plaintiffs refuse to believe that the redacted information is actually “secret,” or
even significant, Shiner attests to the contrary. As to the issue of dates specifically, for example,
she notes that the CIA “routinely protects . . . seemingly innocuous details” such as “dates
associated with a particular program,” id., ¶ 20, and “undisclosed details about the practice of
intelligence gathering and Agency tradecraft, which continue to have application to other types
of CIA operations and activities.” Id., ¶ 21. While a FOIA plaintiff may compel disclosure of
information if the government has already “officially acknowledged” that information, “[p]rior
disclosure of similar information does not suffice; instead, the specific information sought by the
plaintiff must already be in the public domain by official disclosure.” Am. Civil Liberties Union,
628 F.3d at 621 (quoting Wolf, 473 F.3d at 378). “The insistence on exactitude recognizes ‘the
Government’s vital interest in information relating to national security and foreign affairs.’”
Wolf, 473 F.3d at 378 (quoting Public Citizen v. U.S. Dep’t of State, 11 F.3d 198, 202 (D.C. Cir.
1993)). Plaintiffs’ argument that the withheld information has already been disclosed because it
is known that the CIA operated generally throughout Afghanistan in 2002 therefore misses the
point entirely. Indeed, the year 2002 is not even redacted from the produced documents. See,
e.g., IG Report at 2 (“The cable from [redacted] on [redacted] November 2002 reporting that
Rahman had admitted his identity stated, ‘Rahman spent the days since his last session . . . in
cold conditions with minimal food and sleep.’”). Instead, specific dates and locations appear to
be redacted –– a conclusion confirmed by this Court’s in camera review.
Additionally, even if Plaintiffs are correct that some of the redacted information has
already entered into the public domain, this Court has previously embraced “the intuitive
proposition that official disclosure of information already in the public realm can nevertheless
affect national security.” Cable News Network, Inc. v. FBI, 384 F. Supp. 3d 19, 37 (D.D.C.
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2019); see also Edmonds v. FBI, 272 F. Supp. 2d 35, 49 (D.D.C. 2003) (“[I]n the area of national
security, it is accepted that an agency can determine that disclosure of information already in the
public realm ‘reasonably could be expected to cause damage to the national security.’”) (quoting
Washington Post v. U.S. Dep’t of Def., 766 F. Supp. 1, 10 (D.D.C. 1991)). The “mere fact” that
some similar information about CIA operations may be in the public domain does not “eliminate
the possibility that further disclosures cause harm.” Cable News Network, 384 F. Supp. at 37
(quoting Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990)).
At this juncture, it bears mention that the CIA is hardly stonewalling regarding its role in
Rahman’s death. It has produced no small amount of information –– both prior to and during
this litigation –– regarding his demise. The Inspector General Report, for example, contains 64
pages of material divulging numerous details surrounding his captivity and death. See, e.g., IG
Report at 2 (“Rahman was subjected to sleep deprivation sessions of up to 48 hours, at least one
cold shower, and a ‘hard takedown’ termed ‘rough treatment’ as reported in pre-death cables
addressing the progress of the interrogation.”); see also id. at 3 (describing events on a redacted
day in November 2002 and providing details about how Rahman threatened his guarads was
subsequently shackled and forced to sit on a cold concrete floor, and was discovered dead the
next day from “hypothermia”). Another of the disclosed documents offers a timeline of
Rahman’s detention and includes the significant events that occurred during each month. See
ECF No. 18-5 (Chronology of Significant Events). Plaintiffs are therefore not in the dark
regarding the circumstances surrounding Rahman’s death, even as they understandably continue
to seek more information on that subject.
Finally, the propriety of the CIA’s invocation of Exemption 1 has been confirmed by the
Court’s in camera review of the contested withholdings. It ordered this review both because of
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the potential public interest in the sought information and the relatively low number of
documents in dispute. See Physicians for Human Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d
149, 167 (D.D.C. 2009) (outlining factors that weigh in favor of in camera review). Its
inspection has confirmed the accuracy of Shiner’s declaration, and the Court is now satisfied that
the Government has carried its burden of demonstrating that Exemption 1 applies. The review
bolstered the conclusion that “the information withheld by the government ‘is specific and
particular . . . and would reveal far more about the CIA’s interrogation process [and its
cooperation with foreign partners] than the previously released records.’” Am. Civil Liberties
Union, 628 F.3d at 621 (quoting Am. Civil Liberties Union v. Dep’t of Def., 664 F. Supp. 2d 72,
77 (D.D.C. 2009)).
Ultimately, the reason Plaintiffs continue to press onward is precisely why they cannot
prevail. They have access to the broad strokes of a grisly portrait of Rahman’s death but seek the
fine contours: more specific information as to the location of his remains and the process
surrounding their disposal. Yet disclosing those details would officially acknowledge the
specifics of an undisclosed CIA operation, the geographic position of a CIA facility, and the
identities of any involved foreign partners. This Court simply cannot force the CIA to
“disclos[e] to our adversaries the specific persons and areas in which CIA is interested,” its
foreign partners, and its “methods and resources.” Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d
262, 270 (D.D.C. 2011). Defendant has therefore carried its burden of establishing that
Exemption 1 protects the relevant withholdings.
B. Exemption 3
Those fatigued by the Court’s coverage of Exemption 1 will be comforted to learn that it
can make swift work of the CIA’s invocation of Exemption 3. The latter exemption covers
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records “specifically exempted from disclosure by statute” provided that such statute either “(i)
requires that the matters be withheld from the public in such a manner as to leave no discretion
on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of
matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). In this case, the CIA asserts Exemption 3 in
connection with documents it claims are protected by two statutes: the National Security Act of
1947, which requires the Director of National Intelligence to “protect intelligence sources and
methods from unauthorized disclosure,” 50 U.S.C. § 3024(i)(1), and the CIA Act, which
provides that the Agency is exempted from provisions of “any other law” that require 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. Both statutes “may be used
to withhold information under Exemption 3,” DiBacco v. U.S. Dep’t of Army, 926 F.3d 827, 834
(D.C. Cir. 2019), and Plaintiffs challenge only those withholdings for which the CIA relied on
the NSA. See Pl. Opp. at 17.
Much of the above discussion regarding the deference granted to an agency in the
national-security context remains relevant here, but Exemption 3, in fact, provides a lower hurdle
for Defendant to surmount than does Exemption 1. “Exemption 3 differs from other
FOIA exemptions in that its applicability depends less on the detailed factual contents of specific
documents; the sole issue for decision is the existence of a relevant statute and the inclusion of
withheld material within the statute’s coverage.” DiBacco, 795 F.3d at 197 (quoting
Morley, 508 F.3d at 1126). “Although the invocation of other FOIA exemptions depends on ‘the
detailed factual contents of specified documents,’ Exemption 3’s applicability is thus more
categorical.” Cable News Network, 384 F. Supp. 3d at 30 (quoting Morley, 508 F.3d at 1126).
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Unlike EO 13526 (relied on by Defendant in asserting Exemption 1), the NSA does not
require the CIA to identify or describe the actual damage to national security that could be
expected to result from the unauthorized disclosure of information covered by the statutes. See
50 U.S.C. § 3024(i)(1); Shiner Decl., ¶ 26. Courts, moreover, have interpreted the NSA’s
protection of “sources and methods” very broadly, holding that material is properly withheld if it
“relates to intelligence sources and methods,” Larson, 565 F.3d at 865 (emphasis added) (citation
omitted), or “can reasonably be expected to lead to unauthorized disclosure of” such material.
See Halperin, 629 F.2d at 147; see also CIA v. Sims, 471 U.S. 159, 168–69 (1985) (“The plain
meaning of [the Act] . . . indicates that Congress vested in the [CIA] very broad authority to
protect all sources of intelligence information from disclosure.”); Elec. Privacy Info. Ctr. v.
Office of Dir. of Nat’l Intelligence, 281 F. Supp. 3d 203, 213 (D.D.C. 2017) (describing NSA’s
protection of sources and methods as “near-blanket FOIA exemption”).
In any event, most of the Government’s withholdings for which it claims Exemption 3
overlap with its invocations of Exemption 1, and the Court therefore need not regurgitate the
analysis supplied above. See Larson, 565 F.3d at 862 (“FOIA Exemptions 1 and 3 are
independent; agencies may invoke the exemptions independently and courts may uphold agency
action under one exemption without considering the applicability of the other.”). As to the rare
redactions that the CIA justifies under only Exemption 3 (and only then via the NSA), the
Court’s in camera review has confirmed that Defendant has carried its minimal burden of
showing that they are exempt from disclosure. This material, it bears mentioning, does not
encompass any substantive information. Instead, it consists of labels, names of files, classified
markings, and categories of restrictions on the handling of the material. Put differently, it is the
sort of “internal organizational information” that Courts have found to fall within Exemption 3’s
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protective umbrella, see James Madison Project v. CIA., 607 F. Supp. 2d 109, 126 (D.D.C.
2009), and would, moreover, likely be of no consequence to Plaintiffs even if disclosed.
C. Segregability
The Court last looks at segregability. FOIA requires that “[a]ny reasonably segregable
portion of a record . . . be provided to any person requesting such record after deletion of the
portions which are exempt.” 5 U.S.C. § 552(b). The “focus of the FOIA” is thus on
“information, not documents, and an agency cannot justify withholding an entire document
simply by showing that it contains some exempt material.” Mead Data Central, Inc. v. U.S.
Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). It naturally follows that “non-exempt
portions of a document must be disclosed unless they are inextricably intertwined with exempt
portions.” Id.
The parties dedicate scant resources to debating the segregabiltiy issue. Defendant’s
declarant simply asserts that “the CIA conducted a document-by-document and line-by-line
review and released all reasonably segregable, non-exempt information.” Shiner Decl., ¶ 42.
Plaintiffs devote most of their segregability-related arguments to the CIA’s invocation of the
now-irrelevant Exemption 5. Turning their focus to Exemptions 1 and 3, they merely posit that
the CIA has made “unsubstantiated” claims that no additional information may be released. See
Pl. Opp. at 21.
The Court concludes that there are no segregability issues in this case. The Government
has released a fair bit of information about Rahman’s captivity and death, and the Court’s own
line-by-line in camera review suffices to persuade it that the non-exempt portions of the withheld
and redacted documents “are inextricably intertwined with exempt portions” and need not be
further segregated. See Mead Data, 566 F.2d at 260. An agency is not obligated to segregate
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non-exempt material if “the excision of exempt information would impose significant costs on
the agency and produce an edited document with little informational value.” Neufeld v. IRS, 646
F.2d 661, 666 (D.C. Cir. 1981). Even if the Court were to order the agency to disclose additional
phrases, or even documents, it would take Plaintiffs no closer to their actual goal of discovering
the whereabouts of Rahman’s remains. See also Mead Data, 566 F.2d at 261 n.55 (“[A] court
may decline to order an agency to commit significant time and resources to the separation of
disjointed words, phrases, or even sentences which taken separately or together have minimal or
no information content.”). Unfortunately, there is no smoking gun in the CIA’s withholdings
that is generic enough to be harmless to national security and specific enough to satisfy
Plaintiffs’ desires.
IV. Conclusion
For these reasons, the Court will grant Defendant’s Motion for Summary Judgment. A
separate Order so stating will issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 16, 2020
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