Am. Civil Liberties Union v. CIA, No. 13-1870, 2015 WL 2406825 (D.D.C. May 20, 2015) (Boasberg, J.)

Am. Civil Liberties Union v. CIA, No. 13-1870, 2015 WL 2406825 (D.D.C. May 20, 2015) (Boasberg, J.)

Re: Request for two records related to former detention and interrogation program

Disposition: Granting defendant's motion for summary judgment

• Procedural Requirements, "Agency Records":  The court considers the Senate Select Committee on Intelligence report and finds that it is not an agency record.  The court first notes that "[n]either party . . . disputes that at the time SSCI drafted the Full Report, it constituted a congressional document exempt from FOIA."  Instead, the court explains, the issue "is whether the Report, once transmitted to Defendants, became an 'agency record' subject to FOIA."  The court first notes that "[i]n its June 2009 letter to the CIA, SSCI expressly stated its intent that the documents it generated during its investigation 'remain congressional records in their entirety and disposition,' such that 'control over these records, even after the completion of the Committee's review,' would 'lie[ ] exclusively with the Committee.'"  "[I]it continued, 'As such, these records are not CIA records under the Freedom of Information Act, or any other law.'"  The court finds that "[b]y its express terms . . . the SSCI–CIA agreement . . . applies both to 'documents generated on the network drive' and to 'any other notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or members'" and this "language encompasses the Final Full Report."  The court then considers a note that was written contemporaneously with transmission and finds that "[it] . . . need not confine its consideration to the moment of transmission."  However, "[w]hile [the contemporaneous note] does bestow a certain amount of discretion upon the agencies to determine how broadly to circulate the Report, such discretion is not boundless."  "Most significantly, the dissemination authorized by the [contemporaneous] letter is limited to the Executive Branch alone."  "It plainly does not purport to authorize the agencies to dispose of the Report as they wish—e.g., to the public at large."  The court finally finds that "[its] conclusion is further reinforced by SSCI's divergent treatment of the Executive Summary."  The court explains that "SSCI's deliberate decision not to publicly release the Full Report, combined with its assertion that it would consider that course of action in the future, serve to further undermine Plaintiff's theory that Congress intended to relinquish control over the document only days later."
   
• Exemption 5, Deliberative Process Privilege:  "The Court sees no reason to disturb its prior conclusion: the Panetta Review is properly characterized as both predecisional and deliberative."  The court relates that it previously held in Leopold v. CIA,  No. 14–48, 2015 WL 1445106,  (D.D.C. Mar. 31, 2015), "that 'Exemption 5 acts as a complete shield' over the contested documents."  The court explains that it found that the document was both predecisional, because it was "generated by lower-level employees 'to aid senior agency officials' deliberations about how to respond' to SSCI's ongoing investigation into the CIA's former detention and interrogation program, as well as 'how to deal with other policy issues that might arise therefrom,' as well as deliberative, because it was "'[I]ntended to facilitate or assist development of the agency's final position on the relevant issue[s].'"  The court also holds that "[a]lthough it may well be that some of the facts contained within the Panetta Review have been otherwise disclosed, the Court does not believe that the official-acknowledgement doctrine has resonance in this case."  The court explains that "'[e]ven if the information sought is exactly the same as the information which was acknowledged, . . . "the very fact that a known datum appears in a certain context or with a certain frequency may itself be information that the government is entitled to withhold."'"