National Security Archive v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
NATIONAL SECURITY ARCHIVE,
Plaintiff,
v. Civil Action No. 21-2857 (JEB)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
In 1989, as he retired as Director of the Defense Intelligence Agency, Lieutenant General
Leonard Perroots wrote a Memo documenting an unaddressed “analytical problem” for the U.S.
Intelligence Community. Now, over three decades later, Plaintiff National Security Archive
(NSA) would like a copy of that Memo, and it has deployed the Freedom of Information Act in
its suit to obtain it. The CIA produced the document (a cover letter and accompanying Memo) in
response to NSA’s FOIA request, but it redacted the full text of the Memo, citing national-
security and intelligence concerns. It now moves for summary judgment. NSA rejoins that
notwithstanding the validity of the CIA’s interests in secrecy, the Agency may not continue to
withhold the Perroots Memo because (according to NSA) the Memo’s text was already made
public with CIA permission in a Department of State publication. Any interests in secrecy are
thus moot. The Court disagrees and will accordingly grant summary judgment to the CIA.
I. Background
On August 2, 2021, NSA, a non-governmental organization that promotes research about
U.S. national-security decisionmaking processes, submitted a FOIA request to the CIA for a
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single document: the so-called “January 9, 1989 ‘End of Tour Report (Addendum) General
Perroots.’” ECF No. 21-2 (Def. Statement of Undisputed Material Facts), ¶ 1 (citing ECF 21-3
(Decl. of Lauren Holm), ¶ 6). After being met with silence from the CIA, Plaintiff filed this suit
against the Agency in October of that year. See ECF No. 1 (Compl.), ¶ 33. The CIA located the
document in December 2021, see Holm Decl., ¶ 8, and sent a letter in April 2022 telling Plaintiff
that the Agency could release the document in segregable form with redactions as appropriate
under FOIA Exemptions 1 and 3. See SUMF, ¶ 5 (citing Holm Decl., ¶ 9).
The CIA accordingly released the cover letter to the Memorandum with minor redactions
but redacted the substance of the Memo in full. See SUMF, ¶ 5 (citing ECF No. 21-4 (Redacted
Perroots Memo and Cover Letter)). The Agency concluded that the redacted information needed
to be withheld because it could “reveal specific intelligence activities, sources, and methods that
are either still actively in use or which remain viable for use today.” Holm Decl., ¶ 12; see also
id., ¶ 19 (“The Agency protects intelligence methods that may be unclassified, but nevertheless if
disclosed, would reveal sensitive intelligence sources and methods.”). Based on its “line-by-line
review of the record at issue,” the CIA also determined that it had segregated “all non-exempt,
reasonably segregable material.” Id., ¶¶ 21–22.
Plaintiff objects to the scope of the redactions — but not because the CIA’s national-
security concerns are illegitimate. Rather, NSA maintains that the CIA may no longer plausibly
assert an interest in keeping the document under wraps because the Agency already disclosed,
albeit in a different form and with some redactions, the same document it is now seeking to
conceal. According to NSA, the Department of State previously published, with CIA sign-off,
the transcribed text of the Perroots Memo with very minor redactions in Volume IV of the DOS
Series “Foreign Relations of the United States” (FRUS). See ECF No. 13 (Joint Status Report,
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April 29, 2022), ¶¶ 6–7; ECF 1-2 (FOIA Request) at 28–31 (FRUS Perroots Transcript). The
FRUS series “presents the official documentary historical record of major U.S. foreign policy
decisions and significant diplomatic activity.” Dep’t of State, Off. of the Historian, “Historical
Documents.” Plaintiff’s position is thus that “any reasons for withholding parts of the [Perroots
Memo] that are public have been mooted by [its] release” in the FRUS. See Apr. JSR, ¶ 12. The
CIA, of course, disagrees.
Following several procedural developments not relevant here, Defendant now moves for
summary judgment.
II. Legal Standard
Summary judgment must 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 can affect 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.” Liberty Lobby, 477 U.S. at 248; see also Scott v. Harris, 550 U.S.
372, 380 (2007); 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).
FOIA cases typically and appropriately are decided on motions for summary judgment.
See Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). In a
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FOIA case, a court may grant summary judgment based solely on information provided in 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,
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)). “FOIA expressly
places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine
the matter de novo.’” Dep’t of Justice v. Reporters Comm. for Freedom of Press, 489 U.S. 749,
755 (1989) (quoting 5 U.S.C. § 552(a)(4)(B)).
III. Analysis
Congress enacted FOIA “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 statute promotes these aims by providing that “each agency, upon any
[compliant] request for records[,] . . . shall make the records promptly available to any person.”
5 U.S.C. § 552(a)(3)(A). The Government need not, however, turn over requested information
that falls into one of nine statutorily created exemptions from FOIA’s broad directive. Id.§ 552(b)(1)–(9). The CIA here invokes Exemptions 1 and 3, which respectively exempt
materials “authorized . . . by an Executive order to be kept secret in the interest of national
defense or foreign policy” and materials “specifically exempted from disclosure by statute.” Id.
§ 552(b)(1), (3).
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This Court has spilled much ink in prior Opinions over the scope of those exemptions.
Unlike in many FOIA cases, however, the exemptions play but a supporting role here. Plaintiff
concedes that “in an alternate universe” — that is, one where the text of the Perroots Memo has
not purportedly been released into the public domain — the exemptions that the CIA “claims
protect the disputed document could arguably have been properly applied.” ECF No. 25
(Plaintiff Opposition to MSJ) at 1. But, NSA contends, we are not in such a universe. On our
planet, “CIA has signed off on the declassification and release of the disputed document” in a
DOS publication and has thus “waived the right to claim any exemption over at least the
published portions of the document.” Id.
The focus of this dispute is therefore the effect of the FRUS publication on the CIA’s
ability to invoke any FOIA exemptions. Plaintiff puts forth two reasons why the CIA may not
rely on those exemptions here: first, under Circuit precedent, the disclosure of information that
an agency has “officially acknowledged” may be compelled over objection, see Opp. at 6–10;
second, and relatedly, even in the absence of any official acknowledgment, the CIA must explain
with far more specificity than it has why the already-public portions of the Perroots Memo
should continue to be withheld. Id. at 10–12.
The Court will take each theory in turn.
A. Official Acknowledgment
The official-acknowledgment doctrine provides that “when an agency has officially
acknowledged otherwise exempt information through prior disclosure, the agency has waived its
right to claim an exemption with respect to that information.” ACLU v. CIA, 710 F.3d 422, 426
(D.C. Cir. 2013). “To establish official acknowledgment, a plaintiff must identify information in
the public domain that (1) matches the information requested, (2) is as specific, and (3) has been
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made public through an official and documented disclosure . . . [by] the Agency from which the
information is being sought.” Knight First Amend. Inst. v. CIA, 11 F.4th 810, 815–16 (D.C. Cir.
2021) (internal quotations omitted).
According to NSA, the so-called transcript of the Perroots Memo in Volume IV of the
FRUS satisfies all three criteria. Plaintiff asserts that information in the DOS publication both
matches, and is as specific as, the requested information. See Opp. at 7. It submits, moreover,
that the CIA must have formally “signed off on the declassification of the text of the Perroots
Memo” for it to appear in the FRUS. Id. at 8. This is so because DOS is required by statute to
submit any records selected for inclusion in the FRUS series “to the respective originating
agency for declassification review in accordance with that agency’s procedures for such review.”
22 U.S.C. § 4353(b)(1); Opp. at 8. That agency here was the CIA, id. at 8, which has a
“Historical Programs Staff specifically tasked with coordinating [FRUS] Series reviews.” Opp.
at 3. Plaintiff also points out that “the preface to Volume IV thanks CIA staff for ‘arranging full
access to CIA records.’” Id. (citing FOIA Request at 15–18 (Preface to FRUS Vol. IV) at 17).
In sum, all signs suggest that “the text of the Perroots Memo could not have made it into []
Volume IV without . . . CIA’s cooperation and involvement.” Id. And that, Plaintiff submits,
must mean that the CIA officially acknowledged the portion of the Perroots Memo that was
published in the FRUS. Id. at 9.
While NSA recognizes that courts “do not deem official a disclosure made by someone
other than the agency from which the information is being sought,” Knight First Amend. Inst., 11
F.4th at 816 (internal quotations omitted), it also points out that “a disclosure by one component
of an executive department may bind another component within the same department.” Id. at
817 (internal quotations omitted). Plaintiff here maintains that the decision of the “CIA’s
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dedicated FRUS Series declassification staff” to permit publication of the Memo in the FRUS
was a decision on behalf of the entire agency. See Opp. at 9.
The CIA has a rebuttal. In response to NSA’s arguments, the Agency submitted
supplemental, classified, ex parte, in camera declarations, including one from Vanna Blaine, an
officer in the Litigation Information Review Office, and one from Donald J. Blersch, the Senior
Coordinator of the Diplomatic Security Service for Security Infrastructure in the Bureau of
Diplomatic Security from the State Department. Blaine’s declaration, for instance, “elaborat[es]
the CIA’s role in the classification review process” for Volume IV of the FRUS. See ECF No.
27 (Defendant Reply) at 2–3. “The declaration also explains why the CIA cannot further address
this issue on the public record.” Id. at 3.
The Court has reviewed the Government’s classified, ex parte declarations, along with a
copy of the requested Memo. Having done so, it concludes that the transcript contained in
Volume IV was not made public through an “official and documented disclosure” by the CIA.
The Government’s declarations confirm that the CIA — and this includes the agency and its
“components” — was not properly involved in the document’s disclosure. Plaintiff’s failure to
show that the third precondition of the official-acknowledgment doctrine was satisfied is enough
to render the doctrine inapplicable here. The Court therefore need not address whether the first
two requirements of sameness and specificity are satisfied.
The Court is acutely aware of the frustration its admittedly cryptic analysis may
engender. But FOIA requires it to remain parsimonious in its explanation, lest it “pry[] loose
from the government even the smallest bit of information that is properly classified or would
disclose intelligence sources or methods.” Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.
Cir. 1983). The Court assures NSA, however, that the CIA has sufficiently shown its lack of
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involvement in the FRUS publication and supported that position with declarations that must be
accorded “a presumption of good faith.” SafeCard, 926 F.2d at 1200.
B. Public Domain
Plaintiff next contends that notwithstanding who disclosed the material that ended up in
the FRUS, the CIA must still explain why it continues to withhold information that is already
public. See Opp. at 11. Defendant, for its part, submits that not just any public disclosure
suffices to waive a FOIA exemption or weaken its applicability; rather, as the official-
acknowledgment doctrine provides, only those public disclosures that are “officially” made
public affect an agency’s ability to invoke an exemption. See Reply at 3. In other words,
Defendant’s position is that there is no “public disclosure” exception that exists separate from the
“official acknowledgment” exception.
This Court need not resolve whether public disclosure of a document via unofficial
channels could ever suffice to waive an agency’s ability to invoke a FOIA exemption. All NSA
requests in this case is a “‘specific explanation for continued withholding of information’ that
has been made public, even when the public information was released unofficially.” Opp. at 11
(quoting Washington Post v. Dep’t of Def., 766 F. Supp. 1, 10 (D.D.C. 1991)) (emphasis added).
The CIA has provided that to the Court here.
Once again, the Court begs Plaintiff’s indulgence, as it must be vague. It assures NSA,
based on its review in camera of the documents, that the Agency has diligently explained in
those declarations why it must continue to withhold the contents of the Perroots Memo despite
the FRUS publication, and it has done so with specific reasons and support. The Court’s
confidence is buttressed by the fact that it must give “substantial weight” to the CIA’s
declarations “concerning the details of the classified status of the disputed record because the
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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. Studs. v. Dep’t of Just., 331 F.3d 918, 927
(D.C. Cir. 2003)). The CIA has sufficiently explained why classification of the information is
still warranted to protect “intelligence activities” or “intelligence sources or methods.” MSJ at 6.
* * *
Having dispensed with Plaintiff’s general objections to withholding here, the Court is left
with the CIA’s reliance on Exemptions 1 and 3. As Plaintiff does not contest the applicability of
those exemptions on their merits, summary judgment for Defendant is appropriate.
IV. Conclusion
For the foregoing reasons, the Court will grant Defendant’s Motion for Summary
Judgment. A separate Order so stating shall issue this day.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: October 4, 2022
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