James Madison Project v. Office of Director of National Intelligence

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JAMES MADISON PROJECT, et al.,
Plaintiffs,
v. Case No. 1:22-cv-00674 (TNM)
OFFICE OF THE DIRECTOR OF
NATIONAL INTELLIGENCE,
Defendant.
MEMORANDUM OPINION
Congress enacted the Freedom of Information Act in 1966, heeding the old adage that
“[s]unlight is . . . the best of disinfectants.” Louis D. Brandeis, What Publicity Can Do,
HARPER’S WEEKLY, Dec. 20, 1913, at 10. But even Justice Brandeis agreed that rule only
reached information to which the public “is fairly entitled.” Id. at 12. So Congress, taking a
similar tack, limited what information the Government must disclose under FOIA. See 5 U.S.C.
§ 552(b). This case is about those limits: Must the Government give Plaintiffs full, unredacted
access to an intelligence community report about Havana Syndrome? The answer is no. So the
Court will grant the Government’s Motions for Summary Judgment.
I.
The James Madison Project is an organization devoted to “government accountability and
the reduction of secrecy.” Compl. ¶ 3, ECF No. 1. It, along with Brian Karem—the White
House correspondent for Playboy Magazine—sued the Office of the Director of National
Intelligence (ODNI) to obtain copies of a report on Havana Syndrome. See generally id. ODNI
produced a partially redacted copy of the report and pointed to a smorgasbord of agencies
responsible for those redactions: itself, the Defense Intelligence Agency, the Central Intelligence
Agency, the Federal Bureau of Investigation, the Army Research Laboratory, and the Air Force
Research Lab. See generally Decls., ECF Nos. 21-3–21-7, 28-3–28-5.
The report Plaintiffs sought represented “ODNI’s intelligence assessment . . . regarding
the source of [Havana Syndrome].” Compl. ¶ 6. Havana Syndrome (referred to by the
Government as “anomalous health incidents,” or “AHIs”) is an umbrella term for a collection of
symptoms experienced by federal employees over the past several years. Redacted Report at 1,
ECF No. 21-4 Ex. D. Its name derives from its early appearance among employees of the U.S.
embassy in Havana, Cuba, and it manifests primarily as “a sudden sense of pressure or loud,
unpleasant sound” with common symptoms of “pain, nausea, dizziness, and cognitive
impairment.” Id.The Government turned over the report. See generally Redacted Report. But it was
heavily redacted. The Government withheld information under FOIA exemptions 1 (relating to
classified information), 3 (relating to information exempted from disclosure by statute), 5
(relating to information protected by a legal privilege), 6 (relating to private and personally
identifiable information), and 7(A), (C), and (E) (relating to law enforcement investigations and
investigatory practices). The redactions were extensive—sometimes shrouding entire pages of
the report with a black rectangle. E.g., id. at 47–57. So Plaintiffs sued ODNI to obtain an
unredacted copy. Compl. at 6.
The Government moved for summary judgment, Mots. for Summ. J. (MSJ), ECF Nos. 21
& 28, and its motions are now ripe. But in January 2024, the Court ordered the Government to
supplement its motions. Order for Suppl. Mat’ls., ECF No. 32. The Court found that the
Government’s declarations were insufficiently specific about which agencies were responsible
for which withholdings, so the Court could not be confident that all withholdings were supported
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by one or more of the declarations. Id. After the Court’s Order, the Government supplied the
Court with an unredacted copy of the report, correlating each withholding to a particular agency.
The Court can now rule on the Government’s motions.
II.
To obtain summary judgment, the movant (here, the Government) must show that “there
is no genuine dispute as to any material fact” and that it “is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). That standard helps implement summary judgment’s “core
purpose” of “avoid[ing] the expense of trial where a trial would be a ‘useless formality’ because
no factfinder could find for the nonmoving party.” Mass. Coal. for Immigr. Reform v. U.S. Dep’t
of Homeland Sec., --- F. Supp. 3d ---, 2023 WL 6388815, at *5 (D.D.C. Sept. 30, 2023) (quoting
Zweig v. Hearst Corp., 521 F.2d 1129, 1135–36 (9th Cir. 1975)). The “vast majority of FOIA
cases”—really, nearly all of them—“can be resolved on summary judgment.” Brayton v. Off. of
the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011).
“The Freedom of Information Act (FOIA) requires that federal agencies make records
available to the public upon request, unless those records fall within one of nine exemptions.”
U.S. Fish & Wildlife Serv. v. Sierra Club, Inc., 592 U.S. 261, 263 (2021). To invoke one of
those exemptions in court, as the Government seeks to do here, the Government must “prov[e]
the applicability of [the] claimed exemptions.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619
(D.C. Cir. 2011). But that burden is low: “Ultimately, an agency’s justification for invoking a
FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. Dep’t of State, 565
F.3d 857, 862 (D.C. Cir. 2009) (citation omitted). Once the Government has cleared that hurdle,
the burden shifts to the plaintiff. If a plaintiff wishes to rebut the Government’s claimed
exemption and survive summary judgment, he must “come forward with specific facts
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demonstrating that there is a genuine issue with respect to whether the agency has improperly
withheld extant agency records.” Span v. U.S. Dep’t of Just., 696 F. Supp. 2d 113, 119 (D.D.C.
2010) (cleaned up).
Plaintiffs have abandoned their claims relating to exemptions 5, 6, 7(A), and 7(C). Opp’n
at 1, ECF No. 25. So the Court is left only with exemption 1 (the classified information
exemption), exemption 3 (the statutory carveout exemption), and exemption 7(E) (the law
enforcement techniques and procedures exemption). And there are some special rules for these
exemptions. Because courts “lack the expertise necessary to second-guess such agency opinions
in the typical national security FOIA case,” Krikorian v. Dep’t of State, 984 F.2d 461, 464 (D.C.
Cir. 1993) (cleaned up), the Court must “accord substantial weight to an agency’s affidavit
concerning the details of the classified status of the disputed record,” Wolf v. CIA, 473 F.3d 370,
374 (D.C. Cir. 2007). Indeed, agency affidavits alone are enough to require summary judgment
when they “describe the justifications for nondisclosure with reasonably specific detail” and “are
not controverted by either contrary evidence in the record nor by evidence of agency bad faith.”
Id. (citation omitted).
Finally, because each exemption by itself justifies withholding, Plaintiffs’ challenge to a
given withholding fails if any one of the exemptions is valid. Larson, 565 F.3d at 862–63.
Applying those principles to this case, the Court will grant the Government’s motions for
summary judgment.
III.
Plaintiffs challenge three of the Government’s asserted FOIA exemptions: 1, 3, and 7(E).
That is, the classified information, statutory carveout, and law enforcement investigations
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exemptions. See 5 U.S.C. § 552(b)(1), (b)(3), (b)(7)(E). The Court marches through each in
turn. All are justified.
A.
Exemption 1 shields information that has been “specifically authorized under criteria
established by an Executive order to be kept secret in the interest of national defense or foreign
policy,” provided that it is “in fact properly classified pursuant to such Executive order.”
5 U.S.C. § 552(b)(1). The Government’s lift on this exemption is light. It need only describe the
justification for nondisclosure “with reasonably specific detail,” such that the Court can be
confident that the documents were properly classified. Wolf, 473 F.3d at 374. Unless Plaintiffs
can show that “the affidavits are deficient” because they are unspecific, conclusory, vague, or
sweeping, “the court need inquire no further into their veracity.” Hayden v. NSA, 608 F.2d 1381,
1387 (D.C. Cir. 1979). None of those deficiencies are present here.
To start, Plaintiffs challenge the sufficiency of only one affidavit: that of Gregory Koch,
ODNI’s affiant. See Opp’n at 7–13; Koch Decl., ECF No. 21-3. Because they have not
challenged the sufficiency of the other affidavits, any such challenges have been forfeited. But
the Koch Declaration is enough to warrant summary judgment for the Government.
Koch attests, under penalty of perjury, that he is an “original classification authority” for
ODNI, which is to say that he “make[s] original classification and declassification decisions for
intelligence information up to and including the TOP SECRET level.” Koch Decl. ¶ 3. He then
attests that he personally reviewed all the redacted information and confirmed it is properly
classified, consistent with the requirements of Executive Order 13526. Id. ¶ 30. Indeed, he
specifically articulates the bases under Executive Order 13526 justifying the classification—for
example, that some information pertains to “intelligence activities” or “intelligence sources and
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methods.” Id. ¶ 31. And he attests that the disclosure of such information is reasonably likely to
harm national security—he even explains how. Id. ¶ 32. That is all that is needed.
Plaintiffs disagree. They want Koch to “elaborate or provide . . . further clarity” on these
claims. Opp’n at 9. They do not clearly explain why such “further clarity” is needed. But,
charitably construed, they appear to be raising a claim that the Koch Declaration is “conclusory”
under Hayden. Not so.
The Koch Declaration is as specific as it needs to be. It identifies particular bases for the
classification of the information at issue. Koch Decl. ¶ 31. And it specifies why that information
would likely harm national security if divulged. Id. ¶ 32. True enough, Koch does not say what
the classified material is or provide a factual synopsis. But he does not need to. Morley v. CIA,
508 F.3d 1108, 1124 (D.C. Cir. 2007) (“[L]ittle proof or explanation is required beyond a
plausible assertion that information is properly classified.”). In fact, requiring what Plaintiffs ask
for would defeat the whole point of exemption 1: Forcing Koch to detail the contents of the
withholdings and why they were classified would render their classification futile. Perhaps
recognizing the difficulty of claiming otherwise, Plaintiffs pivot.
They next argue that the affidavit is insufficient because of a purported mismatch. They
say that, because Koch attests there is classified information in places they find odd, his affidavit
is untrustworthy. Opp’n at 9–10. For example, they ask why classified information would
appear in a panelist’s biography. Id. But the panelist biographies were not withheld under
exemption 1—they were withheld under exemption 3 and exemption 6, which Plaintiffs do not
challenge. See Redacted Report at C1–C13. And, in any event, the panelists include members of
the intelligence community. It is unsurprising that their biographies would reference classified
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material or their previous classified work. So the oddity Plaintiffs point to is only skin-deep. 1
The other purported oddities also have reasonable explanations: It stands to reason that
recommendations for the national security community would feature extensive amounts of
classified information. Contra Opp’n at 10.
Ultimately, Plaintiffs challenge only one affidavit when it comes to exemption 1—
Koch’s. And that challenge fails. Because their only argument on this exemption is a non-
starter, the Court will grant summary judgment to the Government on its exemption 1
withholdings. 2 In the end, the Government has put forward multiple facially sufficient affidavits
to justify its withholdings, while Plaintiffs have offered nothing to controvert those affidavits or
suggest bad faith. Wolf, 473 F.3d at 374. Where, as here, the Government offers uncontroverted
evidence in support of its withholdings, “something, even a modest [showing], outweighs
nothing every time.” Nat’l Ass’n of Ret. Fed. Emps. v. Horner, 879 F.2d 873, 879 (D.C. Cir.
1989). 3
1
Separately, the names of members of the intelligence community are properly withheld under
exemption 3, infra Part III.B, and providing their biographies would likely give away their
identities, circumventing the exemption 3 withholding.
2
The Government has now filed with the Court an unredacted copy of the report, ex parte and
under seal. In the alternative to the reasons given above, the Court has independently reviewed
that report and concludes that the affidavits’ representations about the propriety of all three
exemptions’ withholdings appear justified.
3
Although the Court concludes that the original declarations, standing alone, are enough to
support the exemptions, the Government has provided supplemental declarations in support of its
withholdings. Those declarations are “extra icing on a cake already frosted.” Yates v. United
States, 574 U.S. 528, 557 (2015) (Kagan, J., dissenting). If the Government’s showing was not
enough before, it certainly is now.
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B.
Exemption 3 carves out materials that are “specifically exempted from disclosure by
statute,” provided the statute meets certain criteria. 5 U.S.C. § 552(b)(3). The Government has
identified the National Security Act and the Central Intelligence Agency Act as two statutes that
justify its exemption 3 withholdings. Mot. for Summ. J. (First Mot.) at 17–22, ECF No. 21.
Plaintiffs agree that these statutes, “in and of themselves, qualify as withholding statutes.”
Opp’n at 11. So the only question for the Court is whether the withheld material falls within the
statutes’ coverage. Morley, 508 F.3d at 1126.
Both the Supreme Court and the D.C. Circuit have admonished district courts not to be
chary in their reading of exemption 3. Although it is not a categorical exemption from disclosure
for intelligence agencies, Phillippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976), neither
should courts be insensitive to the significant national security harms associated with improper
disclosure, CIA v. Sims, 471 U.S. 159, 174–76 (1985). Thus, while a blanket statement that
disclosure of information would “jeopardize the agency’s national security functions” is too
vague to pass muster, Church of Scientology of Calif., Inc. v. Turner, 662 F.2d 784, 785 (D.C.
Cir. 1980) (cleaned up), unspecific statements about expected resultant harms—like that
disclosure would “reveal cooperation with and perhaps the identity of a foreign intelligence
service or a covert intelligence source”—are enough, id. at 786.
The Government’s declarations met this burden. The Defense Intelligence Agency’s
declaration, for instance, explained that revealing the withheld information would “reveal
intelligence sources and methods” in a way that “would allow adversaries to employ
countermeasures, thus reducing the effectiveness of the sources and methods as intelligence
collection tools.” Cross-Davison Decl. ¶ 23, ECF No. 21-5. Similarly, the CIA declaration
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made clear that revealing the withheld information would “expose the identities of CIA
personnel, which could subject them to harassment or unwanted contact.” Williams Decl. ¶ 28,
ECF No. 21-6. These explanations are representative of those offered by each agency here. 4
In response, Plaintiffs argue that the Government’s assertions of harm are “self-serving
and conclusory.” Opp’n at 11. Not so. The Circuit drew a clear line in Church of Scientology to
separate impermissibly conclusory assertions from sufficiently detailed ones. Church of
Scientology, 662 F.2d at 785–86. These declarations—though circumspect—fall on the latter
side of that line.
Plaintiffs’ remaining objections largely revolve around the length of the sections to be
withheld. Opp’n at 12. But that is not the test. The Government could withhold the entire
document if it could show that it all fell within some exemption’s remit. 5 And despite Plaintiffs’
contentions, the Government’s paragraph-long withholdings bear no resemblance to those
discussed in Phillippi. Id. at 11. The Government does not suggest that all information related
to CIA activities is protected from disclosure. See Phillippi, 546 F.2d at 1015 n.14. So
Plaintiffs’ invocation of the Phillippi footnote is simply off base.
Last, Plaintiffs again suggest that it would be odd to find protected information in certain
portions of the report. Why, they ask again, would the biographies of panelists be exempted
from disclosure? Opp’n at 12. Again, the answer is simple: The National Security Act bars
disclosure of the “names, official titles, salaries, or number of personnel employed” by certain
intelligence community agencies. 50 U.S.C. § 3507. And the panelist biographies may well
4
The Government’s explanations of expected harm here go well beyond what was required by
statute. See 5 U.S.C. § 552(a)(8)(B).
5
Of course, the length of the Government’s withholdings might separately bear on the
segregability analysis, discussed further below. Infra Part III.D.
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contain sufficient information to identify the panelists, even without their names. But, once
more, the length or location of the withheld information is not material to whether it is exempted
from disclosure, so long as the claimed exemption is supported by a competent agency
declaration, as those here were. Under these circumstances, the Government’s exemptions
“appear[] logical or plausible,” and therefore pass muster. ACLU, 628 F.3d at 619 (internal
quotation marks omitted).
Exemptions 1 and 3 both require that a “reasonable balance . . . be struck between the
competing congressionally-sanctioned policies of public access to government information, on
the one hand, and maintenance of a functioning intelligence-gathering system, on the other.”
Church of Scientology, 662 F.2d at 787. The Government’s representations here strike that
balance. They are detailed enough for the Court to conclude that the withheld information falls
within one or more of the FOIA exemptions, without divulging overly detailed information to the
public. Although Plaintiffs may want more, more is not required.
C.
Exemption 7(E) protects from disclosure “records or information compiled for law
enforcement purposes” that could “disclose techniques and procedures for law enforcement
investigations or prosecutions,” among other things. 5 U.S.C. § 552(b)(7)(E). The FBI invoked
this exemption to cover various withholdings that would reveal methods for “collection and
analysis of information and sensitive investigative techniques used to conduct national security
investigations.” First Mot. at 34. And the Government explained the harms that would result
from such disclosure. Seidel Decl. ¶ 32, ECF No. 21-7.
Plaintiffs concede that exemption 7(E) “sets a low bar” for the Government. Opp’n at 13.
Yet they argue the Government has failed to meet that bar because it has invoked exemption 7(E)
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for the entirety of Appendix J. Id. Again though, the Government has explained the sensitive
law enforcement information contained within Appendix J and the harm that would result from
its disclosure. Seidel Decl. ¶¶ 32–33. So the mere fact that the exempt information covers a
long passage in the report is immaterial.
And it cannot be true, as Plaintiffs suggest, that the FBI must disclose to them the
withheld material to protect that material from disclosure. Opp’n at 13. Plaintiffs identify, as
justification sufficient to support invoking exemption 7(E), an FBI declaration in a prior case that
provided “details about procedures used during forensic examination.” Id. (citing Blackwell v.
FBI, 646 F.3d 37, 42 (D.C. Cir. 2011)). But that level of detail, while sufficient, is unnecessary.
Indeed, under Plaintiffs’ theory, exemption 7(E) is curiously self-defeating. It would require
divulging the exact information the Government seeks to withhold in order to justify the
withholding. Instead, the Government need only provide the Court enough information for it to
reasonably conclude that the withheld materials do, in fact, pertain to confidential law
enforcement techniques and practices. Because the Government has detailed how the withheld
information does so, and the harm that would result from its disclosure, the Court finds that the
exemption 7(E) withholding is reasonable. 6
6
Plaintiffs make no argument about the reasonably foreseeable harm requirement from the FOIA
Improvement Act of 2016. See 5 U.S.C. § 552(a)(8)(A)(i). But if it had, the Government would
easily satisfy § 552(a)(8)(A)(i). Cf. Reporters Comm. for Freedom of the Press v. U.S. Customs
& Border Patrol, 567 F. Supp. 3d 97, 120 (D.D.C. 2021) (noting foreseeable harm requirement
is more easily met when invoking exemptions for which the risk of harm through disclosure is
self-evident). Reasonably foreseeable harm is always present when the Government properly
invokes exemption 1, because significant harm from disclosure is a requirement for classification
in the first place. More, the requirement does not apply to exemption 3. 5 U.S.C.
§ 552(a)(8)(B). And the Government has explained at length the harms that would result from
disclosure of the 7(E) materials. E.g., Seidel Decl. ¶ 33.
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D.
Last, Plaintiffs argue that the Government “has simply failed to present credible evidence
that there are no further segregable portions of the released records.” Opp’n at 14. They provide
no support for this claim, except for the assertion that “[a]ll [the Government] provides is a self-
serving sentence that it has determined no further information can be segregated.” Id. But the
Government provided a reasonably detailed statement supporting its claim on non-segregability.
Koch certified that he reviewed the record “on a line-by-line and page-by-page basis” and
determined that there was “no additional meaningful, non-exempt information that may be
reasonably segregated and released” without disclosing exempt information. Koch Decl. ¶ 47.
This is substantively identical to the declaration approved by the D.C. Circuit in
Machado Amadis v. U.S. Department of State, 971 F.3d 364, 371–72 (D.C. Cir. 2020). Because
the Circuit found that declaration sufficient, the Court likewise finds that the Koch Declaration is
sufficient here. Koch certified under pain of perjury that he reviewed the report and determined
that no further information was segregable. Koch Decl. ¶ 47. And because the Government
cannot prove the negative assertion that no other segregable information exists, that type of
declaration must be sufficient to carry its burden. The Court therefore concludes that the
Government has satisfied its burden to show that it has disclosed all non-exempt reasonably
segregable information to Plaintiffs.
IV.
FOIA is a broad statute designed to grant the public access to the Government’s inner
workings. But it is not a cudgel to force disclosure of sensitive national security information.
Armed with little more than speculation about what the redacted document may say, Plaintiffs
invoke FOIA to try to force the intelligence community to divulge secrets they cannot otherwise
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obtain. Then Plaintiffs turn around and say the intelligence community’s unwillingness to give
them that information is itself proof that it must. FOIA does not countenance such a strategy to
outmaneuver its exemptions. The Government has met its obligations under the statute, so the
Court will grant the Government’s Motions for Summary Judgment. A separate Order will issue
today.
2024.03.26
09:46:28 -04'00'
Dated: March 26, 2024 TREVOR N. McFADDEN, U.S.D.J.
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