Court of Appeals Decisions
ACLU v. DOJ, Nos. 10-4290, 10-4289, 10-4647, 10-4668, 2012 WL 1829579 (2d Cir. May21, 2012) (Wesley, J.). Holding: Reversing the district court's judgment insofar as it required disclosure of portions of two memoranda prepared by OLC and transcripts of an in camera, ex parte proceeding; and affirming the district court's determination with respect to the withholding of records and a photograph pursuant to Exemption 3. The Second Circuit reverses the district court's holding that "required disclosure of the information [in two OLC memoranda for which defendants asserted Exemption 1] – either in full or in accordance with the district court's compromise," whereby the Government would substitute a neutral phrase created by the court for certain redacted information. The Second Circuit finds that based on its "ex parte and in camera review of the unredacted OLC memoranda and the Government's classified declarations, [it] agree[s] with the Government that the redacted information was properly classified because it pertains to an intelligence activity" in accordance with Executive Order 12,598. Noting that it "give[s] substantial weight to the Government's declarations, which establish that disclosing the redacted portions of the OLC memoranda would reveal the existence and scope of a highly classified, active intelligence activity," the Second Circuit concludes that "[t]he Government's declarations describe in persuasive detail how revealing the redacted information would cause exceptionally grave harm to national security by (1) 'damaging on-going activities and relationships with foreign intelligence liaison partners, which are of utmost importance to the CIA's overseas intelligence operations,' . . . (2) 'alerting [United States'] adversaries of the existence of [the] intelligence method, which would give them the opportunity to alter their conduct to adapt to this new information and make future intelligence operations more dangerous and less effective,' . . . and (3) 'increasing the risks for all individuals involved in those operations, including CIA officers and assets.'"
Moreover, the Second Circuit "reject[s] the district court's suggestion that certain portions of the redacted information are so general in relation to previously disclosed activities of the CIA that their disclosure would not compromise national security." Rather, the Second Circuit finds that "even if the redacted information seems innocuous in the context of what is already known by the public, '[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because, much like a piece of a jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.'"
ACLU v .DOD, 628 F.3d 612 (D.C. Cir. Jan. 18, 2011) (Sentelle, J.). The D.C. Circuit affirms the district court's decision that the CIA properly withheld transcripts of Combat Status Review Tribunals and documents submitted by detainees in connection with those hearings pursuant to Exemptions 1 and 3. Public domain/waiver: The Circuit rejects appellant's contention that the withheld information is the same as that contained in "three sets of declassified and released government documents" and a Red Cross report that was leaked to a journalist. Instead, the Circuit finds "[r]eview of the government documents cited by [appellant] supports the CIA's assertion that there are substantive differences between the disclosed documents and the information that has been withheld" and notes that "[d]espite [appellant's] arguments to the contrary, none of these documents contains a comprehensive description of the actual capture, detainment, or interrogation of any specific detainee." With respect to the Red Cross report, the Circuit notes that it is "hard pressed to understand [appellant's] contention that the release of a nongovernment document by a nonofficial source can constitute a disclosure affecting the applicability of the FOIA exemptions." The Circuit finds that "[b]ecause the Red Cross report was not 'made public through an official and documented disclosure,' the information that it contains cannot be considered 'officially acknowledged.'"
The D.C. Circuit also dismisses the appellant's argument that "the redacted information is not exempt from FOIA because the interrogation techniques and conditions of confinement withheld from the requested documents have been prohibited by the President." The Circuit finds appellant's reliance on the Supreme Court's decision in CIA v. Simsinapposite, noting that the decision "says nothing suggesting that the change in the specific techniques of intelligence gathering by the CIA renders unprotected sources and methods previously used." Moreover, the Circuit finds that "[t]o the extent that [appellant's] claim rests on [its] belief that the enhanced interrogation techniques were illegal, there is no legal support for the conclusion that illegal activities cannot produce classified documents." Accordingly, the Circuit concludes that "the President's prohibition of the future use of certain interrogation techniques and conditions of confinement does not diminish the government's otherwise valid authority to classify information about the techniques and conditions and to withhold it from disclosure under exemptions 1 and 3."
The D.C. Circuit rejects appellant's claims that "the redacted information does not qualify as 'sources or methods' under FOIA exemptions 1 and 3 because the government lacks the authority to classify information derived from the detainees personal observations and experiences" and that "indefinite detention cannot be a permissible justification for the classification of information." Noting that pursuant to Executive Order 12,958 the CIA has the authority to classify information that is under the government's control, the Circuit finds that "[t]he fact that the information originated from detainees then in the government's custody has no relevance to the unquestionable fact that the information so obtained is in the government's control." Moreover, the Circuit determines that "[a]ny documents generated in the process of interrogation are in the hands of the government and will remain subject to the government's authority whether the detainees are retained, released, or transferred."
Lastly, the D.C. Circuit finds unavailing appellant's contention that "the government cannot withhold the information under exemption 1 because public release of the information would not damage national security" and likewise rejects appellant's specific objection to the CIA's position "that the redacted information will harm national security because it could be used as propaganda by al Qaeda." The Circuit notes that the CIA "does not rely on the propaganda justification alone," but also "identified four other potential harms" to justify its withholdings. The Circuit concludes that "[e]ven ignoring the propaganda justification, the CIA's affidavits establish that public disclosure of the withheld information 'reasonably could be expected to result in damage to the national security,'" finding that "it is both plausible and logical that the disclosure of information regarding the capture, detention, and interrogation of detainees would degrade the CIA's ability to carry out its mission." Additionally, the Circuit observes that "[t]o the extent that the [appellant] relies on the government's official disclosures [contained in certain previously released memoranda and reports], we have repeatedly rejected the argument that the government's decision to disclose some information prevents the government from withholding other information about the same subject."
The D.C. Circuit concludes that the district court properly "held that the redacted information qualified as 'intelligence sources or methods' under exemptions 1 and 3'" because the CIA's affidavits "explained with sufficient detail why the withheld information qualifies as 'intelligence sources or methods' and adequately described the potential harm to national security that could result from the information's public disclosure" and there is "no evidence of bad faith by the government."
Houghton v. NSA, No. 09-4440, 2010 WL 1784058 (3rd Cir. May 5, 2010) (unpublished disposition) (per curiam). The court finds that NSA properly determined that revealing whether it has investigative records pertaining to plaintiff "could reveal information about intelligence activities, sources and methods, including intelligence targeting, priorities, and capabilities," and thus the existence of such information was properly classified.
Larson v. Dep't of State, No. 06-5112, 2009 WL 1258276 (D.C. Cir. May 8, 2009) (Sentelle, C.J.). Defendant CIA properly invoked Exemption 1 to withhold "four intelligence cables that report detailed descriptions of information obtained from a particular CIA source and provide general information about the source." These documents were properly classified by the CIA, as their release "would seriously undermine the CIA's ability to retain its current intelligence sources and attract future intelligence sources." Additionally, "disclosing the cables could lead to the unauthorized disclosure of intelligence methods. . . ." Courts properly "'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record because the Executive departments responsible for national defense and foreign policy matters have unique insights in what adverse affects [sic] might occur as a result of [disclosure of] a particular classified record.'" Defendant "CIA sufficiently detailed the classified information in the withheld cables, why that information was classified, and why it logically must remain classified in the interest of national security." Furthermore, the CIA has explained that the passage of time does not lessen the agency's need to protect its sources. Similarly, the court "easily conclude[s]" that the CIA properly utilized Exemption 3 as well for the withheld material, by means of the National Security Act, 50 U.S.C. § 403-1(i)(1) (2006), which allows for the withholding of material relating to intelligence sources and methods. Defendant NSA also properly invoked Exemptions 1 and 3, providing sufficient details to justify nondisclosure, i.e., "the necessity to foreign intelligence gathering of keeping targets and foreign communications vulnerabilities secret." NSA's affidavit provides sufficient information for the court to rule on its withholdings, given "the substantial weight owed agency explanations in the context of national security." NSA has also demonstrated that the withheld information was properly classified. Plaintiffs' demand for further details from both the CIA and NSA "is not required by-indeed is even contrary to-[the court’s] precedent." NSA has also shown that the withheld information is covered by section 6 of the National Security Act, 50 U.S.C. § 402 (2006), which protects from disclosure "the organization or any function of the National Security Agency"; 18 U.S.C. § 798(a)(3)-(4) (2006), which "prohibits the unauthorized disclosure of classified information 'concerning the communication intelligence activities of the United States'"; and 50 U.S.C. § 403-1(i), "which . . . instructs the Director of National Intelligence to protect intelligence sources and methods from unauthorized disclosure." Finally, defendant NSA properly refused to confirm or deny the existence of records responsive to one plaintiff' s request, concluding that acknowledgment of the existence of such information "could reasonably be expected to cause serious damage to the national security."
District Court Decisions
Int'l Counsel Bureau v. DOD, No. 08-1063, 2012 WL 6019294 (D.D.C. Dec. 4, 2012) (Bates, J.).Holding: Granting DOD's motion for summary judgment. The court holds that DOD properly withheld forced cell extraction videos as well as a video showing a detainee receiving a haircut while restrained. DOD divided the videos into multiple segments. First, the parties agreed that plaintiff only seeks "solo images of a detainee." Accordingly, the video of the detainee receiving a haircut was properly withheld because it does not contain any solo images. In addition, the parties agreed that only videos with solo images lasting ten seconds or longer were reasonably segregable. With regard to the remaining videos, the court finds that of thirty-nine solo images in the videos, there are thirteen images containing solo images lasting ten seconds or longer that were properly withheld under Exemption 1. The court holds that DOD's declarations "providing plausible explanations of the harm to national security from the release of even solo images of a detainee, and explanations for why the videos were appropriately classified in their entirety 'merit substantial weight.'" Specifically, DOD "has identified particular harms and dangers to national security from disclosure of the information ICB seeks. It claims that release of even solo images would allow such images to be manipulated and/or used as a propaganda tool and that release of the footage also raises the risk of its use as a vehicle for covert communications." Although the court comments that the arguments regarding the risk of the videos increasing harm to military members because it "would encourage detainees to trigger more forced cell extractions in the chance that such encounters would be videotaped," are "[p]erhaps more hypothetical," it gives weight to DOD's assessment. The court accordingly concludes that "the Department has provided sufficient explanations as to how these solo images, if released, 'reasonably could be expected to result in damage to the national security'" and upholds the use of Exemption 1 to withhold the videos. Because all the information at issue was properly withheld under Exemption 1, the court declines to address the Exemption 6 withholdings.
ACLU of N.J. v. DOJ, No. 11-2553, 2012 WL 4660515 (D.N.J. Oct. 2, 2012) (Salas, J.). Holding: Granting defendants' motions for summary judgment; denying plaintiff's motions for summary judgment. The court grants summary judgment to defendants with respect to all documents withheld under Exemption 1 except one map. The court holds that defendants "have not provided [it] with enough information to assess whether NK GEOMAP 450 would fall into Exemption 1." However, the court also notes that the map was properly withheld under Exemption 7, and accordingly may still be withheld.
With regard to the other documents, the court is satisfied that DOJ properly "invoked Exemption 1 based on Executive Order 13,526 §1.4(d)." Examining the declaration with regard to Domain Intelligence Notes (DINs), the court notes that the FBI's declaration provides "a thorough description of the information contained in each section of each DIN….The Vaughn index elaborates that these documents are utilized by agents to inform them of [ ]threats and to counteract the activities detailed within them." With respect to a 2009 Baseline Domain Assessment (BDA) and a 2009 Electronic Communication (EC) that was "the basis" for the assessment, the court finds that the declaration provides sufficient detail to determine that there was an "adequate factual basis" for invoking Exemption 1. The court notes that the declaration explains that the BDA and the EC concern "operations, including threats and vulnerabilities," and concludes that the documents "logically" were withheld under Exemption 1.
ACLU of Mich. v. FBI, No. 11-13154, 2012 WL 4513626 (E.D. Mich. Sept. 30, 2012). Holding: Granting defendant's motion for summary judgment and denying plaintiff's motion. The court concludes that Domain Intelligence Notes (DINs), Program Assessments, Electronic Communications, and Maps were properly withheld pursuant to Exemption 1. The court finds that these items "all contain information that (1) relates to intelligence activities, sources, and methods and/or (2) foreign relations or foreign activities of the United States." The court emphasizes that the FBI has included "detailed descriptions" and "concrete illustrations" of the expected damage to national security that would result if this information were released. Specifically, the FBI argued that "disclosure of certain DINs could damage foreign relations," and cites potential injury to "diplomatic relations." With regard to the Assessments, the FBI noted that it withheld portions "to protect intelligence gathering abilities and operations and foreign relations. An Assessment discusses the threats and vulnerabilities, key concerns, and priorities for the FBI's Detroit Field Office's area of operations." Additionally, the FBI argued that disclosure of the ECs "would cripple the FBI's efforts to stay ahead of perpetrators that threaten national security," because they "contain information that pertains to the FBI's intelligence activities and methodologies." Finally, the FBI also demonstrated that "[m]aps 'provide a view of the intelligence data an analyst collects in a visual format [and] are another method of utilizing the highly sensitive intelligence tools available to [the analyst]." Accordingly, "[g]iving substantial weight to [the FBI's] statements, the Court finds that [the FBI's declarant] fairly describes the content of the material withheld, that he adequately states the FBI's ground for nondisclosure, and that those grounds are reasonable and consistent with the criteria set forth in E.O. 13,526."
ACLU v. CIA, No. 11-0933, 2012 WL 4356338 (D.D.C. Sept. 25, 2012) (Jackson, J.).Holding: Granting defendant's motion for summary judgment as to all but one document and granting plaintiff's cross-motion for summary judgment as to the one document and remanding for further agency review. The court holds that the CIA properly withheld all eleven documents under Exemption 1. The court notes that the "'intelligence sources or methods' language under Exemptions 1 and 3" is analyzed in the same way. Since the court has already determined that the information concerns an 'intelligence source or method' under Exemption 3, the information also meets this prong under an Exemption 1 analysis. As to "whether disclosure of the information could reasonably be expected to result in damage to the national security," the court defers to the CIA's affidavits predicting harm. The court determines that the CIA's justifications are "plausible and logical." The court holds that is not "unreasonable for the government to believe that disclosure of information about [the use of certain interrogation techniques] would reveal details about interrogation methods that could assist foreign terrorist organizations and foreign governments, and thereby damage national security." The court rejects the argument that the information should be released because the information could not cause "any new damage to the national security" given what has already been placed into the public domain. The court accepts the CIA's assertion" that the withheld documents contain detailed information that is not in the public domain." The court also acknowledges that even if the information may seem "innocuous given what is already publicly available, '[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because much like a piece of a jigsaw puzzle, each detail may aid in piecing together other bits of information even when the individual piece is not of obvious importance in itself.'"
Elec. Frontier Found. v. DOJ, No. 11-939, 2012 WL 4319901 (D.D.C. Sept. 21, 2012) (Leon, J.). Holding: Granting defendant's motion for summary judgment.The court finds that "specific portions of the OLC Opinion that contained highly specific, classified information relating to FBI intelligence sources or methods" were appropriately withheld by DOJ under Exemption 1. "[T]he Department's submitted declarations are sufficiently specific to satisfy its burden without going so far as to disclose protected information." The court rejects the plaintiff's argument that there is no "'logical connection' between the withheld information… and the claimed exemption." The withheld information "reflects classified factual information provided to OLC by the FBI that, if disclosed, could cause damage to national security." Finally, while the "plaintiff accuses the Department of improperly classifying some of the material to avoid embarrassment or conceal law-breaking," the court notes that "the plaintiff however has no evidence to support its bald allegation of government misconduct."
ACLU v. DOJ, No. 09-0642, 2012 U.S. Dist. LEXIS 137204 (W.D. Wash. Sept. 21, 2012) (Lasnik, J.). Holding: Ordering the defendant to remove certain redactions and produce certain documents to plaintiff and finding that for the remaining redactions, no further disclosures are necessary. "Defendant has not shown that the [redacted information] was properly classified, that the terminology used to describe a new handling code or the mention of an attached document constitute intelligence sources or methods, or that disclosure of this information would reveal a protected intelligence source or method." Additionally, "redacted information relat[ing] to coding options available to an official nominating an individual for inclusion in the NCIC/VGTOF" were not properly classified because the "redacted information does not reveal intelligence collection methods or sources, [or] describe investigative techniques or procedures." Disclosure of paragraphs discussing "the source of certain intelligence streams and the methods by which those streams are shared" will not be ordered.
Hetzler v. Record/Info.Dissemination Section, FBI, No. 07-6399, 2012 WL 3886367 (W.D.N.Y. Sept. 6, 2012) (Telesca, J.). Holding: Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment; directing defendant to re-process and re-release specific documents withheld under Exemptions 1, 6, 7(C), and 7(D). After conducting an in camera review of the documents, the court notes that some of the documents contain information that "was declassified decades ago," while other portions remain classified. However, "[t]hat a document has been declassified or unclassified does not necessarily preempt the government agency from asserting the national security exemption." As to certain portions of the declassified documents, the "[t]he Court is not persuaded that [d]efendants have carried their burden of showing that disclosure of this information could cause serious damage to national security in light of" (1) the age of the documents; (2) the fact that the investigation has been closed for some time and the subject is deceased; and (3) the fact that the organization with which the subject is believed to have sympathized does not pose a current threat to the United States or its interests. The defendant is ordered to re-process and re-release certain information related "to the FBI's findings and observations regarding [the subject of the request]." The court grants summary judgment to the defendants with regard to the withholding of information that remains classified, including standard FBI terminology or phraseology, intelligence source information, and information pertaining to foreign relations or foreign activities.
Inst. for Pol'y Stud. v. CIA, No. 06-960, 2012 WL 3301028 (D.D.C. Aug. 14, 2012) (Lamberth, J.). Holding: Granting, in part, defendants' motion for summary judgment on the basis that certain withholdings under Exemptions 1, 2, 3 and 7(E) were proper and that plaintiff conceded other withholdings under Exemptions 2, 3, 6, 7(C), 7(D) and 7(F), and that all reasonably segregable material was released; denying plaintiff's motion to strike portions of the declarations; and ordering CIA to conduct searches for responsive records in three different directorates which were not initially searched. Finding no evidence of bad faith, the court defers to the CIA's assertion of Exemption 1 to protect analytical assessments, an intelligence report, various cables and articles, and briefings, the disclosure of which could damage national security. With respect to plaintiff's contention that the CIA "failed to describe [certain] information withheld with any specificity," the court concludes that "defendant's descriptions were sufficient to justify its withholdings in these documents" and finds that "[i]f defendant were to describe the redacted parts of the document with more specificity, as the plaintiff requested, defendant would have been disclosing the exact information it sought to withhold." The court also concludes that DEA properly asserted Exemption 1 to redact intelligence sources.
The court concludes that the CIA cannot invoke a Glomar response in conjunction with Exemption 1 "[b]ecause defendant has demonstrated the existence of documents pertaining to 'Pablo Escobar' [beyond open source material and therefore] . . . has acknowledged their existence." The court also notes that because Escobar is deceased "it would be incredibly difficult for [him] to frustrate the CIA's [intelligence methods]," as initially argued in defendant's submissions.
Moore v. FBI, No. 11-1067, 2012 WL 3264566 (D.D.C. Aug.13, 2012) (Kollar-Kotelly, J.). Holding: Dismissing complaint against the Executive Office of the President under Federal Rule of Civil Procedure 12(b)(6); granting, as conceded, the Criminal Division and U.S. Parole Commission's motions for summary judgment; and granting FBI and CIA's motions for summary judgment based on the adequacy of their searches and the CIA's assertion of the Glomar response in conjunction with Exemptions 1 and 3; and granting BOP and EOUSA's motions for summary judgment on the basis that plaintiff failed to exhaust his administrative remedies. The court holds that the CIA properly refused to confirm or deny "the existence of records [concerning plaintiff] 'that would reveal a classified connection to the CIA'" pursuant to Exemptions 1 and 3. The court concludes that CIA properly asserted "the Glomar response in accordance with §3.6(a) of Executive Order 13,526" "[a]s to any potentially classified records pertaining to intelligence sources or activities." Further, the court determines that "[t]he CIA properly relied upon the Central Intelligence Agency Act of 1949 . . ., 50 U.S.C. §403(g), also to support its Glomar response." Moreover, the court finds that "[p]laintiff has not adequately countered the CIA's reasonably detailed declaration with any contradictory evidence of bad faith." To the extent that plaintiff asserts that disclosure of the information would be in the public interest, the court finds that "it is only exemptions 6 and 7(C) – not asserted here – that 'the court is called upon to balance the conflicting [public/private] interests and values involved; in other exemptions Congress has struck the balance and the duty of the court is limited to finding whether the material is within the defined category.'"
Hall v. CIA, No. 04-814, 2012 WL 3143839 (D.D.C. Aug. 3, 2012) (Lamberth, J.). Holding: Granting, in part, CIA's renewed motion for summary judgment on the basis that its searches for certain responsive records were adequate, that certain withholdings under Exemptions 1, 3, 5 and 6 were proper, and that it released all reasonably segregable material; ordering CIA to conduct searches for other records; concluding that CIA must take affirmative steps with respect to certain referred records; ordering release of certain information withheld under Exemption 6; determining DOD must further justify certain Exemption 3 withholdings; and denying plaintiffs' requests for discovery and for in camera review. With regard to classified records that are "more than 25 years old," the court concludes that the CIA properly invoked Exemption 1 to protect that information. With respect to plaintiffs' argument that the documents lack the proper classification markings, the court finds that the CIA provided an adequate explanation; namely, that "the documents in their redacted form are not classified – therefore the markings required by §1.6(a) [of Executive Order 13526] 'are inapplicable to the documents released to Plaintiffs.'" The court also rejects plaintiffs' challenge to the adequacy of the agency's declarant, finding that the declarant "meets the test for the level of personal knowledge necessary for a FOIA declaration" where his statements were made based on personal knowledge and the information made available to him in his official capacity. As to plaintiffs' assertion that the agency's national security concerns are "speculative," the court finds that the CIA's declaration "contains the necessary level of specificity required in exemption 1 claims, as specific documents are referenced, and the reasons for information withholding cited." Lastly, although the court notes that "records over 25 years old that have permanent historical value are automatically unclassified," the court finds that this requirement does not apply to the instant information which was withheld pursuant to §3.4(b)(1) of the Executive Order because it "would expose sources and reveal intelligence methods."
ACLU v. U.S. Dep't of State, No. 11-1072, 2012 WL 2989833 (D.D.C. July23, 2012) (Kollar-Kotelly,J.). Holding: Granting the State Department's motion for summary judgment on the basis that it properly withheld the requested information pursuant to Exemption 1 and released all reasonably segregable information; and denying plaintiff's cross-motion for summary judgment and its request for in camera review. "[A]ffording substantial weight and deference to the State Department's declaration," the court concludes that the agency properly invoked Exemption 1 to withhold the requested embassy cables. For one, the court treats as conceded the State Department's assertion that it satisfied the first three of four requirements of Executive Order13526 pertaining to classified information. The court determines that plaintiff "simply offers no rejoinder to the State Department's affirmative showing that all the information at issue (1) was classified by an original classification authority, (2) is owned, produced or controlled by the United States, and (3) falls within one or more of the eight relevant [protected] categories" of EO 13526, but notes that "even absent such a concession, the record is clear that all three have been met." As to the fourth category, which focuses on the damage to national security that would be occasioned by release, the court concludes that "it is both plausible and logical that the official disclosure of the information at issue in this case 'reasonably could be expected to result in damage to the national security.'" Specifically, the court finds that the State Department, referencing EO 13526 § 1.4(a) and (c), properly withheld information "concerning details of military flight operations, the procedures for obtaining allied cooperation in the performance of military flight operations, and communications with Canadian officials revealing intelligence activities, sources, or methods" on the basis that its disclosure "has the potential to, among other things, inhibit the United States' ability to successfully carry out military operations and enable foreign governments or persons hostile to the United States' interests to develop countermeasures to the United States' intelligence activities, sources, or methods." Similarly, the court determines that the State Department, referring to EO 13526 § 1.4(b) and (d), properly withheld information "concerning, among other things, discussions, assessments, or recommendations relating to bilateral affairs with, or the policies, political situation, or security situation of [twelve different countries]; and discussions, assessments, or recommendations relating to the foreign policy implications of former detainees held in United States custody under suspicion of terrorism including complaints against United States officials pertaining to the alleged torture of detainees held in Guantanamo Bay, Cuba." The court defers to the State Department's judgment that release of this information has the potential to "degrade the confidence in the United States' ability to maintain the confidentiality of information; inhibit the United States' ability to assess sources of information essential to the conduct of foreign affairs; and damage the United States' relationship with foreign governments, agencies, and officials."
Miller v. DOJ, No. 05-1314, 2012 WL 2552538 (D.D.C. July3, 2012) (Lamberth, J.). Holding: Concluding that plaintiff exhausted his administrative remedies with regard to fees assessed by the FBI; and granting defendant's renewed motion for summary judgment on the basis that it properly withheld certain information pursuant to Exemptions 1, 3, 5, 7(C), 7(D), 7(E) and 7(F). The court holds that, "[i]n light of defendant's explanation and plaintiff's failure to provide any legal objection," defendant properly withheld pursuant to Exemption 1 "an 'intelligence report regarding the overseas location and activities of a particular fugitive from justice'" which "contains 'specific information provided by a source, and if disclosed, reasonably could be expected to reveal the identity of the contributing source.'" Segregability: "Seeing no evidence of bad faith, the Court . . . defer[s] to defendant's opinion about segregability and hold[s] that the entire document may be withheld."
Mobley v. DOJ, No. 11-1437, 2012 U.S. Dist. LEXIS 79410 (D.D.C. June8, 2012) (Howell,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly asserted Exemption 1 to withhold thirteen documents in full; and concluding that defendant's redactions to another document made pursuant to Exemption 5 were conceded where plaintiff did not contest them. The court concludes that the in camera, ex parte submissions filed by defendant "amply sustained its burden of showing that the documents at issue were properly withheld from disclosure under FOIA exemption 1." As a preliminary matter, the court notes that due to the "'highly sensitive nature'" of the records at issue, the Office of Legal Counsel was unable to submit public affidavits to demonstrate that the requirements of Executive Order 13526 were met "because 'the very association of the identities of the original classifying authorities with this matter is itself a classified fact.'" After review, the court finds that the in camera, ex parte classified filings establish that the procedural and substantive requirements of Executive Order 13526 were satisfied and further finds that "[t]hese submissions were sufficiently thorough and detailed to allow for appropriate judicial review of the agency's decision."
The court rejects plaintiff's contention that defendant should be required to disclose additional information about the withheld records, such as the date the record was created, the author of the record, the number of pages, and information about its classification. The court notes that although it "is cognizant of its responsibility to 'make as much as possible of the in camera submission available to the opposing party' as is appropriate," it determines that "[i]n this instance, . . . no portion of the in camera submission is appropriate for disclosure since, as the defendant made clear, the submission contains 'highly classified' information, 'including information that is classified Top Secret.'" Noting that the court, like plaintiff is disadvantaged, where information cannot be made available on the public record and where "it does not have 'benefit of criticism and illumination by a party with the actual interest in forcing disclosure,'" the court observes that it "must therefore scrutinize carefully the government's justifications for the withholdings, which it has done in this case." The court concludes that "[b]ased upon this review, [it] agrees with the defendant that even the 'banal information' regarding the documents that the plaintiff seeks in this case is properly classified." Moreover, the court comments that "[i]ndeed, the D.C. Circuit has often recognized that national security concerns may override a plaintiff's desire for information necessary to litigate FOIA claims." "[T]he Court concludes not only that the documents responsive to the plaintiff's FOIA request are properly withheld under FOIA exemption 1, but that considerations of national security appropriately preclude the defendant from publicly releasing additional information regarding the documents."
N.Y. Times Co. v. DOJ, No. 11-7562, 2012 WL 1869396 (S.D.N.Y. May17, 2012) (Pauley,J.). Holding: Granting defendant's motion for summary judgment on the basis that it properly asserted Exemptions 1 and 3 to withhold a classified report; and declining to find bad faith where the court's in camera inspection bears out defendants' exemption claims; and concluding that no portions of the report are reasonably segregable. The court holds that the requested report was properly withheld pursuant to Exemption 1. As an initial matter, the court notes that plaintiffs "do not dispute that the first two conditions for classification [under Executive Order 13526] are met," namely, that the report was classified by an original classification authority, and that it is owned or produced by, or under the control of the government. Based on its in camera review of the documents at issue, the court finds that "the Report falls within at least one of the eight categories listed in section 1.4" of Executive Order 13526, which protects intelligence sources and methods. Moreover, the court "credits the Government's assertion that disclosing this information could enable America's adversaries to develop means to degrade and evade the nation's foreign intelligence collection capabilities."
Hiken v. DOD, No. 06-2812, 2012 WL 1929820 (N.D. Cal. May24, 2012) (Ware,J.). Holding: Granting defendants' partial motion for reconsideration; allowing defendants to assert Exemption 1 with regard to information for which it had asserted Exemption 2 prior to Milner, and holding that those documents are properly classified under Exemption 1; and concluding that defendants properly asserted Exemption 6. "Upon review of the government's declaration regarding the documents and the documents themselves, the Court finds they are properly classified under Exemption 1" as "military plans, weapons systems, or operations."
Ctr. for Int'l Envtl.Law v. Off.of U.S. Trade Rep., No. 01-498, 2012 WL 640882 (D.D.C. Feb.29, 2012) (Roberts,J.). Holding: Denying defendant's motion for summary judgment; granting plaintiff's cross-motion for summary judgment; and ordering the release of a document for which Exemption 1 was asserted where defendant failed to provide a sufficient explanation as to why its disclosure could reasonably be expected to damage the United States' foreign relations. The court holds the U.S. Trade Representative (USTR) failed to establish that the document at issue is properly classified under Executive Order 12958 §1.2(a)(3), as amended, because it did not demonstrate that release "'reasonably could be expected to cause damage to the United States' foreign relations.'" Rather, the court finds that "USTR's various arguments do not present a logical or plausible explanation for its determination, and the record does not support a reasonable anticipation of harm from disclosure." First, the court notes that there is a "meaningful difference between the United States' disclosure of information that it receives in confidence from a foreign government, with the foreign government's understanding that the information will be kept secret, and[, as is the case here,] the United States' disclosure of a document that it itself created and provided to others." The court finds that "USTR's arguments regarding loss of trust are at a high level of generality, asserting that the confidentiality agreement facilitates the 'give-and-take of negotiations' . . . without articulating particular reasons why its foreign negotiating partners would have any continued interest in maintaining the secrecy of the United States' own initial position on the phrase 'in like circumstances,'" particularly, because "the FTAA negotiations are not ongoing." The court finds that USTR's "failure to assert any particular sensitivities implicated by Document 1 leaves the breach of the confidentiality agreement as the sole basis for inferring a loss of trust," which is not adequate to support its Exemption 1 claim. The court notes that "because breach of a confidentiality agreement does not suffice to establish harm where the breach is caused by release of the United States' own information, reasons for predicting a loss of foreign governments' trust must be tied, but are not tied here, to the specific content of the document at issue." As to USTR's argument that disclosure will reduce its flexibility in negotiations which will, in turn, harm foreign relations, the court finds that it "ha[s] presented no 'logical or plausible' reason, . . . why future negotiating partners would have so firm an expectation that the current or future United States administration would or should adhere to the same interpretation of 'in like circumstances' presented in the FTAA context such that the United States will be impeded in presenting a different interpretation." Additionally, the court determines that USTR's assertion that withholding the records "is necessary to preserve its negotiating capital is unpersuasive." Rather, the court concludes that "the risk that international arbitrators will adopt [what USTR has characterized as its preliminary] position, much less rely on it to the United States' detriment in arbitration, is too speculative to justify a reasonable expectation of harm to foreign relations."
Abuhouran v. U.S. State Dep't, No. 11-271, 2012 WL 473241 (D.D.C. Feb. 14, 2012) (Huvelle,J.). Holding: Dismissing the amended complaint brought by plaintiff's sister for lack of standing under Federal Rule of Civil Procedure 12(b)(1); treating as conceded defendants' claims of exemption, the court concludes that the defendants properly withheld information pursuant to Exemptions 1, 5, 6, 7(A) and 7(C) and that the State Department released all reasonably segregable information; and denying plaintiff's request for costs and fees as he is not a prevailing party. The court concludes that detailed information in defendant's declaration establishes that the State Department properly withheld "portions from a two-page telegram... sent from the American Embassy in Beirut to [the State Department] that were 'originally and currently classified confidential' under sections 1.4(b) and (d) of [Executive Order] 13526... , and a two-page telegram... in its entirety" pursuant to Exemption 1.
Tarzia v. Clinton, No. 10-5654, 2012 WL 335668 (S.D.N.Y. Jan.30, 2012) (Maas,Mag.) (decision& order). Holding: Granting, in part, defendant's motion for summary judgment with respect to withholdings under Exemptions 1 and 5 and certain aspects of its search; and denying, in part, defendant's motion for summary judgment with respect to other aspects of its search, and on the issue of segregability for a document protected by the deliberative process privilege. The court holds that the State Department properly invoked Exemption 1 to withhold portions of "a four-page telegram" from the American Embassy in Beijing that "report a candid briefing by a Chinese official on a sensitive, ongoing topic of concern to the U.S. government given in the expectation of privacy," the release of which the agency contends "'would have a damaging effect on future exchanges on this and other sensitive topics between U.S. officials and Chinese officials.'" Contrary to plaintiff's assertion that "the 'vague and conclusory language of the [State Department's] [d]eclaration' is insufficient to demonstrate that the information received from the Chinese official was obtained in confidence," the court finds that the agency's "Supplemental Declaration describes in detail why releasing the information to [plaintiff] would jeopardize a valuable source within the Chinese government, and further shows that the document is properly classified pursuant to Executive Order 13,526, because it contains 'information provided to the United States Government by a foreign government... with the expectation that the information, the source of the information, or both, are to be held in confidence."
Schoenman v. FBI, No. 04-2202, 2012 WL 171576 (D.D.C. Jan.23, 2012) (Kollar-Kotelly,J.). Holding: Denying plaintiff's two motions to late file where he failed to establish "good cause" for the requested extensions and did not demonstrate that his failure to act within the specified times was the product of "excusable neglect" under Federal Rule of Civil Procedure 6(b)(1); granting CIA's motion for summary judgment on the basis that its withholdings pursuant to Exemptions 1 and 3 were proper; denying plaintiff's cross-motion for summary judgment; and entering final judgment marking the end of the case. The court holds that the CIA properly asserted Exemption 1 to protect: "(a) information that would reveal the identities of human and foreign intelligence service sources; (b) information pertaining to source relationships that the CIA has forged with foreign intelligence services and liaisons; and (c)information pertaining to the CIA's foreign intelligence activities and methods." The court finds that the CIA adequately "explain[ed] why the information withheld in this case is properly classified as 'confidential' or 'secret' under Executive Order13,526" where its declarations discussed "in considerable detail, that the disclosure of such information would cause damage or serious damage to national security." "[A]ccording substantial weight and deference to [the CIA's] declarations, the Court finds that it is both plausible and logical that the disclosure of the information withheld by the CIA 'reasonably could be expected to result in damage to the national security.'" With regard to plaintiff's assertion that the information resides in the public domain, the court finds plaintiff's "generalized argument falls considerably short of meeting [his] burden." The court also dismisses plaintiff's contention that "the classification of the information at issue is calculated to hide past or present government improprieties" as "'speculative, unsupported, and contradicted by all evidence in the record.'"
ACLU v. ODNI, No. 10-4419, 2011 WL 5563520 (S.D.N.Y. Nov. 15, 2011) (Sullivan, J.). Holding: Concluding that defendants have failed to justify the majority of their withholdings made pursuant to Exemptions 1, 3, and 7(E); denying plaintiff's motion to strike defendants' submission of classified declarations; granting, in part and denying in part, plaintiff's motion for an in camera review, and ordering defendants to submit for in camera review Vaughn indices and, if necessary, supplementary Vaughn affidavits; and deferring ruling on the parties cross-motions for summary judgment pending submission of supplemental materials. The court holds that ODNI, DOJ's National Security Division (NSD), NSA, and the FBI have failed to justify their withholdings pursuant to Exemption 1. With respect to ODNI, the court finds that the agency's declaration "failed to make the required showing that the information withheld 'logically falls' within Exemption 1" because it "'gives no contextual description . . . of the specific redactions made to the various documents,' . . . and fails even to identify the provisions of Executive Order13,526 that purportedly apply." The court notes that although some of the redacted documents "contain contextual clues, the very purpose of the Vaughn affidavit is to 'enable the court to review the agency's claimed redactions without having to pull the contextual information out of the redacted documents for itself.'" Similarly, the court concludes that the "conclusory and nearly identical justifications for the various NSD withholdings" fails "to 'describe the justifications for nondisclosure' under Exemption 1 with 'reasonabl[e] specific[ity].'" As to NSA's declaration, the court concludes that the agency failed to "calibrate its response to meet its obligation to 'identify or describe' the national security damage that could result from producing the information identified in Plaintiffs' specific requests . . . [but, rather,] relies on a blanket assertion that the instant FOIA request impermissibly 'seeks . . . operational details' about FAA collection." Moreover, the court finds that plaintiff's request asks for statistical information pertaining to the "alleged misuse and abuse of the FAA," but that NSA's declaration "does not 'identify or describe' the risks to national security that would accompany disclosure of such information." Moreover, with regard to the portion of the request asking for non-statistical information, the court finds that NSA failed to identify with "'reasonably specificity'" the harms that would be occasioned by disclosure. With respect to the FBI's submissions, the court finds that the FBI "carried its burden" for withholding case file numbers, which contain information that "could enable a hostile analyst 'to patch bits and pieces of information together until the actual use of the application of the source or method can be determined.'" However, the court concludes that the FBI did not adequately justify its other Exemption 1 withholdings where its declaration "makes little effort to describe the documents at issue or explain why they reflect intelligence 'methods,' 'activities,' or 'capabilities.'" Furthermore, the court comments that "notations on the redacted documents and the Deleted Page Information Sheets are similarly insufficient with neither 'provid[ing] the kind of fact-specific justification that either (a) would permit appellant to contest the affidavit in adversarial fashion, or (b) would permit a reviewing court to engage in effective de novo review of the FBI's redactions.'"
Eslaminia v. FBI, No. 99-3249, 2011 WL 5118520 (N.D. Cal. Oct. 28, 2011) (Patel, J.). Holding: Granting, in part, the FBI's motion for summary judgment with respect to documents for which it asserted Exemption 1, but ordering the release of certain excerpts within those documents, which were designated by the court as reasonably segregable. Based on itsin camera review and the agency's "detailed declarations," the court concludes that the FBI properly invoked Exemption 1 to withhold notebooks and handwritten notes taken from plaintiff's father's residence during the course of an investigation. The court notes that "[t]he declarations taken together provide adequate justification for [defendants'] in camera submission and for the assertion of the (b)(1) exemption" and finds that, additionally, "[t]he documents themselves provide ample further support for the claimed exemption." With respect to the issues as to whether certain documents "are or are about to be automatically declassified or should be declassified under the new Executive Order 13,526," "[t]he court is satisfied that the agency has sufficiently explained the reason for continued classification." The court finds that "even at this late date there is much in these documents that discloses intelligence sources and methods that still pertain to national security and justify continued classification and exemption under (b)(1)." In particular, the court notes that the lives of persons identified in the records "could be jeopardized by disclosure of their contacts with the author of the document, [plaintiff's father] and others." Moreover, the court determines that "[w]hether [the persons mentioned in the records are] living or deceased[,] these individuals have family and relatives remaining in Iran who could be victims of incarceration, torture or execution." In fact, the court notes that "[t]he declarations point out specific instances of such consequences."
ACLU v. DOJ, No. 10-436, 2011 WL 4005324 (D.D.C. Sept. 9, 2011) (Collyer, J.). Holding: Granting summary judgment to the CIA on the basis that it properly refused to confirm or deny the existence of records responsive to the request in conjunction with Exemptions 1 and 3. The court also holds that the CIA properly invoked the Glomar response in conjunction with Exemption 1 with respect to the information requested. The court concludes that through its declaration "the CIA has sufficiently demonstrated that disclosure of records sought by Plaintiffs would cause damage to national security by providing insight into the CIA's intelligence activities, sources and methods, which are properly classifiable under §1.4(c) of Executive Order 13526." The court notes that in its analysis of the propriety of CIA's application of Exemption 3, it "has already determined that the records sought pertain to 'intelligence sources and methods' under the NSA;" and, indeed, finds that "[i]nformation on drone strikes is even easier to fit within the purview of intelligence activities" covered by the Executive Order and that "[t]he fact of whether or not the CIA has responsive records would reveal whether the CIA has an interest in, or can employ, drone technology." Additionally, "[i]ndependently, the CIA also demonstrates that the fact of whether or not the CIA maintains responsive records also implicates 'foreign relations or foreign activities of the United States, including confidential sources.'" The court notes that "[b]ecause the CIA's operations are conducted almost exclusively outside the United States, they inherently involve foreign activities." Additionally, the court concludes that "[w]hile Plaintiffs may hold a general knowledge of the existence and use of drones, that knowledge does not mean that the underlying intelligence efforts that reveal and guide weapons to targets are somehow unprotected under FOIA and open to any requester." Noting that with respect to invocation of the Glomar response "the 'test is not whether the court personally agrees in full with the CIA's evaluation of the danger – rather, the issue is whether on the whole record the Agency's judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility in this field of foreign intelligence in which the CIA is expert and given by Congress a special role.'" Here, the court determines that "[t]he CIA has met its burden of showing that the release of any acknowledgment of responsive records could damage national security; [and, accordingly,] FOIA 'bars the courts from prying loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods.'"
Darui v. Dep't of State, No. 09-2093, 2011 WL 2678715 (D.D.C. July 11, 2011) (Jackson, J.). Holding: Granting defendant's motion for summary judgment. The court concludes that the Department of State properly withheld two classified "diplomatic cables between the governments of the United States and Saudi Arabia" pursuant to Exemption 1. The court finds that the State Department's declaration establishes that all of the terms of the Executive Order 13526 are met. First, the court finds that declarant "is a proper classifying authority." Second, the court finds that cables "are 'owned, produced by or for, or under . . . the control of the United States Government.'" Third, the court concludes that the two documents at issue "meet the requirements of section 1.4 of the Executive Order," which "details seven categories of information that may be considered for classification." Notably, the court finds that its review of the documents bears out the agency's statement that the documents "'concern U.S. foreign relations, specifically, correspondence with a foreign government on a matter regarded by that government as sensitive, namely, archival inviolability under the Vienna Convention on Diplomatic Relations.'"
Lastly, the court holds that the agency established that disclosure of the records "'reasonably could be expected to result in damage to the national security.'" Despite plaintiff's contention that the government "has failed to claim a reasonable degree of specificity" in demonstrating that the information was properly classified, the court finds that "'the text of Exemption 1 itself suggests that little proof or explanation is required beyond a plausible assertion that information is properly classified.'" Moreover, plaintiff's "'argument for declassification does not overcome the 'substantial weight' the court must accord 'to an agency's affidavit concerning the details of the classified status of the disputed record.'" In response to plaintiff's contention that a prosecutor's "actions during [his] criminal proceedings undermine any deference to be accorded to the government's decision to withhold the documents," the court finds that a "single offhand remark [by the prosecutor concerning his opinion as to the sensitivity of the documents] is insufficient to overcome the substantial weight due to the [agency's] declaration." The court also finds that "[t]he fact that plaintiff viewed Documents 2 and 3 during his criminal trial does not undermine the government's position under the circumstances in this case," because "[v]iewing documents under seal as a litigant is different than requesting the same documents as a member of the public under FOIA." In addition, the court concludes that the fact that the documents were not classified at the time of plaintiff's criminal trial and were only subsequently classified in response to his FOIA request is of no consequence.
Int'l Counsel Bureau v. CIA, No. 09-2269, 2011 WL 1195875 (D.D.C. Mar.31, 2011) (Bates, J.). Re: Request for records pertaining to four individuals allegedly or previously detained at Guantanamo Bay Naval Base, Cuba. Holding: Granting CIA's motion for partial summary judgment as to its assertion of the Glomar response on the basis of either Exemption 1 or Exemption 3. Exemption 1/Glomar: The court holds that the CIA properly refused to neither confirm nor deny the existence of any records pertaining to four alleged Guantanamo Bay detainees on the basis that "'clandestine intelligence interest in a specific individual represents an intelligence activity, source and/or method' and is classified information within the meaning of Executive Order 12,958." Further, "unauthorized disclosure could reasonably be expected to cause serious damage to national security" and such information about a foreign national is properly classified "because it concerns U.S. foreign relations, and disclosure could reasonably be expected to 'adversely affect' U.S. foreign relations." At the outset, the court comments that it must "acknowledge the substantial weight accorded to agency affidavits with respect to the classified status of a record" and "while the review of the CIA's 'Glomar' response invoking Exemption 1 must be careful, it remains somewhat deferential to the CIA's national security expertise." The court finds that the "CIA provided 'reasonably specific detail' about the classified nature of the information, as well as the harm to national security and the adverse effect on foreign relations if the CIA was required to confirm or deny the existence of any records about the specific detainees at issue."
The court dismisses plaintiff's contention that similarities in the CIA's declaration filed in the instant case and those filed in another FOIA case "should prompt the court to take a skeptical view of the CIA's reliance on national security concerns to support its invocation of a 'Glomar' response here." Rather, quoting the D.C. Circuit in Larson v. Department of State, the court notes that it is "'not disquieted by [the agency's] similar responses in similar cases . . . [and] similar exemption explanations . . . is not a cause for further judicial inquiry.'"
ACLU of Wash. v. DOJ, No. 09-0642, 2011 WL 887731 (W.D. Wash. Mar. 10, 2011) (Lasnik,J.). Holding: Granting in part defendant's motion for summary judgment and ordering supplemental Vaughn index or disclosure. The court finds that the FBI has not justified its use of Exemption1 to withhold certain information, noting that "[t]he FBI has, in effect, parroted the language of the Executive Order  (in the disjunctive) and declared that the redacted information falls within one or more of the categories covered by the order." For example, with respect to the FBI's redaction of "'information which relates to unique record identifier and standard terminology/phraseology used in the most recent FBI investigations,'" the court finds that "the FBI has not provided enough information from which the Court could conclude that each of the withheld documents contains classified terminology/phraseology or that its release, in the absence of unique record identifiers, could reasonably be expected to damage national security." The court notes that the "[p]laintiff does not contest the [Department of State's] withholding" of "information relate[d] to intelligence-sharing with foreign governments" the disclosure of which "could damage U.S. foreign relations."
Schoenman v. FBI, No. 04-2202, 2011 WL 446857 (D.D.C. Feb. 9, 2011) (Kollar-Kotelly, J.). The court finds that the FBI properly invoked Exemption1 for classified information where it explained in detail how the records satisfied the procedural requirements under Executive Order 12,958, and demonstrated "in a reasonably detailed and non-conclusory manner – that each item of information withheld . . . falls within at least one of the categories enumerated within EO 12,958." The court finds that plaintiff's "contention that the FBI has released other material that was formerly classified, even if true, is neither indicative of bad faith nor sufficient to overcome the substantial weight and deference owed to the FBI's determination as to the harm that would flow from disclosure of the information withheld." As to whether the "FBI has waived the right to maintain its current classification designations," the court concludes that plaintiff "has failed to establish, as he must, that the information now requested is 'as specific as' and 'match[es] the information previously disclosed.'" The court also rejects plaintiff's argument that "the passage of time has rendered the FBI's classification claims questionable," noting that "[t]he applicable legal standard . . . is clear and 'allocates to the [g]overnment the responsibility for evaluating the harms associated with public disclosure, and neither the proponent of disclosure nor the district court is free to substitute its own policy judgments for those of the Executive."
ACLU v. DOD, No. 09-8071, 2010 U.S. Dist. LEXIS 114441 (S.D.N.Y. Oct. 25, 2010) (Jones, J.). Exemption 1/waiver: With respect to plaintiffs' request to DOD, the court determines that the agency properly invoked Exemption 1 to withhold "information regarding the detainees' citizenships, dates of capture, length of detention at Bagram, locations of capture, and circumstances of capture" where its declarations "sufficiently demonstrated that each withheld category of information logically falls within Exemption 1 and that Defense has sufficiently identified and described the possible damage to U.S. national security." The court rejects plaintiffs' argument that DOD "cannot treat as classified here what it treats as unclassified in [detainee review board (DRB) hearings] and analogous Guantanamo detainee hearings." The court determines that "there is no exactitude between the information previously disclosed and the information sought here, whatever information the Government has decided to release regarding Guantanamo detainees has no bearing on Plaintiffs' requests in this case." With respect to some information that was released on a discretionary basis at open DRB hearings, the court concludes that "[b]ecause Defense voluntarily released the previously redacted information that NGO and media representatives heard and because that discretionary disclosure does not constitute a waiver for the rest of the requested information under Exemption 1, the Court is satisfied that the DRB hearings have no further bearing on Plaintiffs' requests." Lastly, the court notes that although plaintiffs make various arguments disputing DOD's decision to classify the information, "in light of the 'substantial weight' accorded to agency affidavits, the Court will not conduct a detailed inquiry to determine whether it agrees with Defense's explanation."
ACLU v. DOD, No. 09-8071, 2010 U.S. Dist. LEXIS 114441 (S.D.N.Y. Oct. 25, 2010) (Jones, J.). Exemption 1 (Glomar): The CIA properly refused to confirm or deny the existence of records related to the rendition or transfer of detainees to Bagram and the interrogation and treatment of detainees. The court rejects plaintiffs' claim that the CIA should "process" the request because "acknowledging whether or not the CIA has responsive documents, would not reveal secret intelligence methods, tools, activities, the location of secret CIA activity, or secret CIA sources or targets." To the contrary, the court finds that "[i]n situations such as this, where the agency has determined that the requested records are classified under the terms of Executive Order 12,958, the responding agency may simply 'refuse to confirm or deny the existence or non-existence of requested records.'" The court likewise dismisses plaintiffs' contention that "CIA's classification and determination of the harm that may result from acknowledging the existence of responsive records" is contradicted by "volumes of contrary evidence" that are "'publicly-acknowledged and well-known.'" Rather, the court finds that the CIA has not lost its ability to assert the Glomar response because "'no authorized United States Executive Branch official has officially acknowledged the CIA's association or lack thereof with the "rendition and/or transfer," detention and treatment of individuals held at Bagram.'" Moreover, "none of the statements [presented by plaintiffs] specifically disclose the existence or nonexistence of [the requested] records." The court concludes that "[a]lthough Plaintiffs may disagree with the CIA's assessment of the potential harm to national security based on public awareness of the CIA's activities in Afghanistan, Plaintiffs have not presented contrary evidence that controverts the CIA's justification for providing a Glomar response." The court declines to consider the applicability of Exemption 3, since it finds all of the records at issue were properly withheld pursuant to Exemption 1.
Council on Am.-Islamic Relations, Cal. v. FBI, No. 09-823, 2010 WL 4024806 (S.D. Cal. Oct. 12, 2010) (Gonzalez, J.). Based on its in camera review of the documents and the agency's declarations, the court concludes that the FBI properly asserted Exemption 1 to protect file numbers, standard terminology used by the FBI in current cases, information that reveals the character of the case, alpha designators, intelligence sources and targets of foreign counterintelligence investigations. Despite plaintiffs' arguments that the declarations were "'vague, general and conclusory,'" the court finds that although the FBI "does rely on somewhat 'amorphous' categories, all of those categories are defined for the Court and Plaintiffs." Similarly, the court reject plaintiffs' claim that where the FBI has "already withheld [the identities of certain investigatory targets], there is no justification in withholding the 'standard terminology' as well, because the mere disclosure of the terminology will not reveal anything about who or what the FBI is investigating." In response, the court notes that "[t]he Supreme Court has indicated that non-disclosure in this context may still be appropriate because 'bits and pieces' of information 'may aid in piecing together bits of other information even when the individual piece is not of obvious importance in itself.'" Lastly, the court concludes that plaintiffs' contention that some information is publicly available "is not sufficient by itself to warrant disclosure" where the examples of publicly available sources proffered by plaintiffs "provide either general information on the FBI's intelligence-gathering methods or second-hand accounts of the FBI's investigative efforts" and therefore are not "as specific as the information that the FBI seeks to withhold."
Jarvik v. CIA, No. 08-1911, 2010 WL 3832557 (D.D.C. Sept. 28, 2010) (Urbina, J.). Upon review of the CIA's unclassified declaration, the court finds that procedurally it "demonstrates that the classification of withheld information has met the conditions outlined under Section 1.2(a) of the Executive Order." The court then finds that "[s]ubstantively, the CIA's classified declaration describes in sufficient detail why the withheld information 'logically falls' within one of the classification categories outlined in Section 1.4 of [the] Executive Order." As to plaintiff's arguments that "CIA erred in classifying certain public documents or documents relating to public events," the court finds that plaintiff's claims are speculative and concludes that it "is required to defer to the CIA's judgment with regard to the reasonable expectation that the disclosure of the withheld information, even 'seemingly innocent information' that has 'already been made public,' could result in damage to the national security."
Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). Exemptions 1 & 3/Glomar: The court dismisses plaintiffs' arguments that the government waived its ability to assert Glomar in connection with Exemption 3, finding that "the public disclosures never acknowledge the existence or nonexistence of operational cables relating to the approval of the use of [enhanced interrogation techniques] as to [two detainees]." Regarding various communications between the CIA and Yemen, the court determines that "an official disclosure by the Yemeni government is not equivalent to an official disclosure by the CIA." Similarly, the court finds the CIA properly asserted the Glomar response in connection with Exemption 1 to refrain from providing official acknowledgment of information which is not public and would harm national security if released.
Amnesty Int'l USA v. CIA, No. 07-5435, 2010 WL 3033822 (S.D.N.Y. Aug. 2, 2010) (Preska, J.). The court finds that information properly withheld under Exemption 3 is also appropriately withheld pursuant to Exemption 1 because the CIA's declarations "contain 'sufficient detail to forge the logical connection between information [withheld] and [Exemption 1].'" Based on its review of the classified version of the CIA's declarations, the court determines that the assertion of Exemption 1 was appropriate because disclosure "would pose a significant risk to national security." Additionally, to the extent some general information concerning the CIA's enhanced interrogation techniques and rendition programs is publicly available, the court finds that "the information contained in the withheld records are more detailed than the information that already exists in the public domain and would seriously damage national security if released." With respect to plaintiffs' contention that further disclosures are not likely to harm foreign relations, the court finds that "Plaintiffs' recitations of countries that have launched investigations [into their own involvement with the CIA's practices], . . . does not overcome the substantial deference the court must afford the agency in matters of national security." Lastly, the court disregards plaintiffs' unsupported assertion that the CIA classified records in order to conceal allegedly illegal techniques. Instead, the court concludes that "the agency's justification for classification [is] both 'logical and plausible [and finds] no evidence that even arguably suggests bad faith.'"
Fischer v. DOJ, No. 07-2037, 2010 WL 2745811 (D.D.C. July 13, 2010) (Huvelle, J.). With respect to certain records "marked at the 'Secret' level," the court is satisfied that the FBI's declaration "elaborates on the nature and uses of the information and the risks involved in its disclosure with sufficient detail to persuade the Court that it is properly classified pursuant to [Executive Order] 12958." The court comments that "[g]iven the need for deference to agency affidavits, plaintiff's bewilderment at the classification falls far short of overcoming the FBI's expert judgment that the disputed information must be withheld pursuant to E.O. 12958 because it is reasonably connected to national defense or foreign policy."
Int'l Counsel Bureau v. DOD, No. 08-1063, 2010 WL 2724201 (D.D.C. July 12, 2010) (Bates, J.). The court holds that portions of the FCEs were properly withheld pursuant to Exemption 1 to the extent that they show "how military personnel at Guantanamo Bay forcibly move prisoners in and out of their cells" on the basis that those "'sensitive internal procedures,' if released, would permit individuals 'to develop counter-tactics,' thus 'placing military members at risk.'" However, with respect to videos taken during periods in which detainees were not present, the court requires DOD to supplement its declarations with additional details describing how the "'participation of U.S. military personnel' in post-extraction activities . . . 'could reasonably be expected to result in damage to national security.'" Likewise, the court finds that DOD fails to adequately justify its withholding of the remaining audiorecording because its declarations do not "indicate, even vaguely, how the audiorecording might identify intelligence sources and methods" and "fall short of establishing that release could reasonably be expected to harm national security."
Tamayo v. DOJ, 07-21299 (S.D.Fla. June 18, 2010) (Jordan, J.) . Acknowledging that the court must "'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record,'" the court finds that the FBI’s declaration shows that it "followed the proper classification procedures." Based upon an in camera review, the court concludes that "the classified records at issue . . . 'logically fall within the claimed exemption' because there are reasonable grounds for expecting harm to national security" and that "disclosure would reveal the sources and methods applied in an investigation of a government official."
Valfells v. CIA, No. 09-1363, 2010 WL 2428034 (D.D.C. June 17, 2010) (Collyer, J.). Exemptions 1 & 3 (Glomar)/waiver: "In this case, Plaintiffs do not challenge whether Exemptions 1 and 3 were legitimately raised nor do they dispute that a Glomar response is proper in cases where the fact of the existence or nonexistence of an agency record itself falls within a FOIA exemption." Instead, plaintiffs asserted that the CIA waived its ability to assert the Glomar response due to the fact that the FBI released a report containing "redactions of CIA-originating information made at the request of the CIA on the basis of Exemption 1." However, the court finds that plaintiffs' "[l]ogical deductions [about the source of the information] are not . . . official acknowledgments" and notes that, in fact, "[t]he CIA asked for redactions and thus attempted to avoid anything that could constitute an official acknowledgment, while the FBI, which has very different interests, was able to fulfill the goals of the FOIA and release most of the documents to Plaintiffs." The court contrasts the instant case with D.C. Circuit decision in Wolf v. CIA. In Wolf, "it was the Director of the CIA himself who divulged information before a Congressional committee," but, here, despite the fact that "responses to FOIA requests are also official to some degree, it cannot be said that an FBI response to a FOIA request constitutes an official action by the CIA." The court also notes that even if the FBI's disclosure of the report represented an "'official acknowledgment' by the CIA, as the CIA had the opportunity to review the report and request redactions, Plaintiffs would still be entitled to nothing more," and "the CIA would be required only to acknowledge the existence of information contained in the [report]."
Morley v. CIA, No. 03-2545, 2010 WL 1233381 (D.D.C. Mar. 30, 2010) (Leon, J.). CIA properly withheld classified material, including the locations of covert CIA installations, names of CIA employees and sources, intelligence methods, and agency cryptonyms. Plaintiff asserts that this information either should not be classified or has been released previously. As to the former, "'little proof or explanation is required beyond a plausible assertion that information is properly classified.'" As to the latter, plaintiff has not been able "'to point to specific information that was previously released and is now withheld.'"
Gov't Accountability Project v. U.S. Dep't of State, No. 08-1295, 2010 WL 1222156 (D.D.C. Mar. 29, 2010) (Leon, J.). The State Department properly withheld telegrams sent from U.S. embassies that "convey[ed] the views of foreign government officials. . . . The telegrams include information obtained in confidence during the course of the conduct of U.S. foreign relations." Defendant's declaration establishes that "the original classification authority in the State Department determined that disclosure of the withheld information could reasonably be expected to cause damage to national security and describes such damage." In particular, "disclosure of the information in question would cause foreign governments to become less willing in the future to furnish information important to the conduct of U.S. foreign relations."
Trentadue v. CIA, No. 08-788, 2010 U.S. Dist. LEXIS 29324 (D. Utah Mar. 26, 2010) (Waddoups, J.).Exemption 1/In camera review. The CIA properly invoked this exemption to withhold several classified documents related to the Oklahoma City bombing. Defendant's "Vaughn index and . . . affidavits" are sufficient. Though plaintiff asserts that there is no showing that an attorney who made notes on one of the documents had a proper security clearance, "that fact can be inferred from the fact that [the attorney in question] was allowed access to review classified documents." The court disagrees with plaintiff that in camera review is required, especially in light of the fact "that courts are ill-equipped to properly weigh national security interests and accordingly, 'if the agency . . . diligently and conscientiously submits affidavits summarizing the matters withheld wherein it clearly indicates the rationale for the claimed exemption, the trial court need not undertake an in camera inspection of the documents.'"
Physicians for Human Rights v. DOD, No. 08-273, 2009 WL 5125893 (D.D.C. Dec. 30, 2009) (Bennett, J.). The Joint Staff did not adequately justify its use of Exemption 1. The defendant's "submissions provide the most basic identifying information on the withheld portions, they do not describe their content, or explain in specific, non-generic terms – why it fits within the scope of Exemption 1" and, instead, "merely recite the exact language of [Executive Order] 12,958 as a justification for nondisclosure." The court concludes that the declaration provided by U.S. Special Operations Command (USSOCOM) is adequately detailed to support the use of Exemptions 1 and 6. "The redactions in the USSOCOM documents appear to be targeted and precise, and the responsive portions provide the reviewer with some of the surrounding context." DIA's affidavit does not adequately justify its assertion of Exemption 1 where it "merely characterizes [the redactions] as 'non-segerable [sic] classified information' that relates to 'intelligence sources and methods.'" Lastly, the court determines that the Department of State properly invoked Exemption 1 to withhold "top secret" information related "directly to intelligence activities, sources and methods, and foreign relations and activities of the United States." The Court finds that Department of State's declaration "supplies the necessary identifying information and descriptions of the withheld material" and that "the excised material appears to be relatively targeted, and the un-redacted responsive material provides sufficient context to serve as a basis for review."
Ancient Coin Collectors Guild v. U.S. Dep't of State, No. 07-2074, 2009 U.S. Dist. LEXIS 109303 (D.D.C. Nov. 23, 2009) (Leon, J.). The Department of State properly invoked Exemption 1 to withhold "information provided by foreign government officials with an express understanding that the United States was to hold the information in confidence." Disclosure of such information "would damage foreign policy by harming the United States's ability to conduct successful negotiations." This information "does not lose its confidential classification merely because the State Department released a general, unclassified summary of it."
Hall v. CIA, No. 04-00814, 2009 WL 3768002 (D.D.C. Nov. 12, 2009) (Kennedy, J.). The CIA's invocation of this exemption was proper as to some of its withholdings. "[T]he D.C. Circuit has articulated an expansive standard of deference in national security cases, noting that 'little proof or explanation is required beyond a plausible assertion that information is properly classified.'" The CIA's "explanations [of its use of Exemption 1] appear comparable to those the D.C. Circuit approved in Morley v. CIA." However, the CIA's assertion that the records withheld pursuant to Exemption 1 are all less than 25 years old is "plainly incorrect" in some instances. "The CIA should address this issue in its supplemental filing to this Court pursuant to this opinion," and until then will not be granted summary judgment on documents older than 25 years old.
ACLU v. DOD, No. 08-437, 2009 WL 3326114 (D.D.C. Oct. 16, 2009) (Lamberth, C.J.). "[T]he Court finds that plaintiffs have not satisfied their burden of proving that the government officially disclosed the specific information withheld. . . . Plaintiffs assert that the government's release of the declassified [Office of Legal Counsel] memoranda and the [Inspector General] Report demonstrates that the information they seek is in the public domain. These documents contain general information regarding defendants' interrogation program. . . . The redacted information at issue in this case, however, is specific and particular to each detainee and would reveal far more about the CIA's interrogation process than the previously released records." Furthermore, "the redacted information relates not just to the use of [enhanced interrogation techniques, EITs], but also to the interrogation methods and procedures that are authorized in the Army Field Manual and are in use today. . . . Release of such information would seriously damage national security by compromising intelligence sources and methods . . . even if the damage is not apparent to the casual observer." Given the fact that defendants reprocessed the responsive documents and made additional disclosures, "the Court can 'see no reason to question [defendants'] good faith in withholding the remaining [information] on national security grounds.' . . . The Court also finds that plaintiffs' reliance on the report authored by the . . . Red Cross is misplaced. This report does not constitute an official disclosure by the government. Without official disclosure, classified information is not considered to be public." Furthermore, "the Court does not see how the President's order prohibiting the use of EITs and closing the CIA's prisons justifies full disclosure of the records sought. Plaintiff's theory would require the government to fully disclose the details of every classified program that the government discontinues. This simply is not true." Similarly, plaintiffs' assertion that defendants cannot "redact portions of the detainees' statements that would expose 'intelligence sources and methods" is incorrect. "It is within defendants' broad discretion to determine 'whether disclosure of information may lead to an unacceptable risk of compromising the . . . intelligence-gathering process.'" Finally, "[t]he Court finds that defendants have shown that damage to national security would reasonably result if the detainees' statements were disclosed, and that defendants did not classify portions of the detainees' statements to conceal violations of the law or prevent embarrassment. . . . The redacted information . . . relates only to specific information that has not yet been disclosed to the public because of the damage its release would cause to national security." Plaintiffs have failed to show that this information was classified "in order to conceal violations of the law."
Citizens for Responsibility & Ethics in Wash. v. DOJ, No. 08-1468, 2009 WL 3150770 (D.D.C. Oct. 1, 2009) (Sullivan, J.). Upon consideration of DOJ's declaration, as well as in camera review of the documents, the court determines that DOJ has made a sufficient showing to justify its use of these exemptions.
Updated: February 2013