ACLU v. CIA, No. 16-1256, 2021 WL 5505448 (D.D.C. Nov. 24, 2021) (Sullivan, J.)

ACLU v. CIA, No. 16-1256, 2021 WL 5505448 (D.D.C. Nov. 24, 2021) (Sullivan, J.)

Re:  Request for records concerning prepublication review process

Disposition:  Granting in part and denying in part defendant's motion for summary judgment; granting in part and denying in part plaintiff's cross-motion for summary judgment

• Exemption 1:  "[T]he Court grants the CIA's Motion for Summary Judgment as to Exemption 1."  The court relates that "[t]he CIA invokes Exemption 1 to redact the name of one covert agency officer."  The court notes that defendant "explains that the information falls under classification category § 1.4(c) of [Executive Order No. 13526] because it concerns 'intelligence activities (including covert action), [or] intelligence sources or methods' and that 'its unauthorized disclosure could reasonably be expected to result in damage to national security.'"  "[T]he CIA argues that it properly withheld the name of the covert officer because the name of the officer 'is currently and properly classified "because it concerns intelligence activities (including covert action), intelligence sources or methods."'"  "[Plaintiff] states that it challenges this reaction 'only insofar as two facts are true, first, the individual is a former, rather than a current, covert officer, and second, the formerly covert officer disclosed their affiliation with the CIA in one or more of their publications.'"  "But [the court finds that] as the CIA points out, [plaintiff] 'cite[s] no authority – because none exists – for the proposition that they may simply assert wholly hypothetical propositions, "take" them to be true, and seek summary judgment in their favor based on nothing more than such wishful, and wholly speculative, thinking.'"  Additionally, the court relates that "[Plaintiff] argues that the CIA has not established that the name of the covert officer is properly classified because the CIA 'has not provided "reasonable specificity of detail" to demonstrate that disclosure of the name would cause harm to national security.'"  "The Court disagrees with [plaintiff] that the CIA's affidavit is deficient."  "In its declaration, the CIA explains in detail the harm that the disclosure of the covert officer's name would cause to national security."  "Given the national security context and substantial weigh[t] accorded to agency affidavits . . . the CIA properly invoked Exemption 1 due to the reasonable expectation of damage disclosure will have on national security."  The court relates that "[plaintiff] also argues that even if the CIA's claim was valid, it 'waived the claim by officially acknowledging the author's name' on an 'unclassified internal blog.'"  "The CIA responds – and the Court agrees – that the intra-agency dissemination of information does not amount to making the information 'public through an official and documented disclosure.'"  For similar reasons, the court rejects "[plaintiff's argument] that even if the CIA had a valid Exemption 1 claim, it waived it by 'officially acknowledging' the employee's name."
   
• Exemption 3 & Waiver & Discretionary Disclosure, Waiver:  "[T]he Court grants the CIA's Motion for Summary Judgment as to Exemption 3."  The court relates that "[t]he CIA invokes Exemption 3 to justify the redaction under the CIA Act of 1949 ('CIA Act')."  The court finds that "[i]t is well established that the CIA Act is an Exemption 3 statute."  "Section 6 of the CIA Act provides that 'the Agency shall be exempted from . . . any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency[.]'"  "The CIA states that it invoked the CIA Act to protect the 'names of personnel currently or formerly employed by the CIA, the disclosure of which the CIA Act expressly prohibits.'"  The court relates that "[plaintiff] argues that the CIA has failed to carry its burden to sustain a withholding under Exemption 3 because:  (1) Section 6 of the CIA Act 'protects only information that the CIA treats as confidential, not the names of authors it has repeatedly authorized to publish about their CIA service under their own names'; and (2) the CIA waived reliance on the CIA Act through 'official acknowledgment.'"  Responding to plaintiff's first argument, the court finds that "[plaintiff] provides no precedent for its assertion that 'the CIA must demonstrate that it treats the information as confidential.'"  "'"Exemption 3 differs from other FOIA exemptions in that . . . the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute’s coverage."'"  "Here, the relevant statute is Section 6 of the CIA Act which provides that 'the Agency shall be exempted from . . . any other law which require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency[.]'"  "And the withheld material is the names of current and/or former CIA employees."  "In view of the 'sole issue' before the Court, the names of the CIA employees are protected by Section 6 of the CIA Act."  Responding to plaintiff's second argument, "[t]he Court concludes that [plaintiff] has not met its burden because it has failed to point to 'an official and documented disclosure' of the names of the CIA employees."  "The CIA employee's publication of a book disclosing the employee's affiliation with the CIA does not satisfy the requirement that the disclosure be 'official and documented.'"
   
• Exemption 6:  "[T]he Court denies the CIA's Motion for Summary Judgment as to Exemption 6, and grants [plaintiff's] Motion for Summary Judgment."  First, "[t]he Court is persuaded that the list of the names of the CIA employees are 'similar files.'"  However, "[t]he Court concludes that the CIA has failed to meet its burden to justify withholding the names pursuant to Exemption 6."  "First, the CIA contends that it properly withheld the names of the CIA personnel because they 'have a substantial privacy interest in not having their identities and/or contact information disclosed, because such disclosure “could subject them to harassment or unwanted contact by the media.'"  "This conclusory statement falls short of establishing a substantial privacy interest."  "The CIA has not explained why disclosing the list of CIA employees' names could subject them to harassment nor who would harass them."  "Because the Court has concluded supra that the names are properly withheld pursuant to Exemption 1 and Exemption 3, and accordingly will not be disclosed, the Court need not provide the CIA with the opportunity [to supplement its declarations] here."  "Second, the CIA's assertion that disclosing the identity of the personnel 'would shed no light on CIA operations or activities,' . . . is unpersuasive because, as [plaintiff] points out, disclosure of the CIA personnel, each of whom had been granted an exemption from the Agency's prepublication process would shed light on 'how the CIA's prepublication review processes operate, including whether the CIA's processes have been politicized and discriminate on the basis of viewpoint,' . . . ."  "Weighing these two interests, the public interest outweighs the privacy interest of the published authors."  "Accordingly, the CIA did not properly invoke Exemption 6 to withhold the names of the CIA employees because disclosure of the names is a de minimis threat outweighed by the public interest in learning how the CIA's prepublication review processes work."
   
• Litigation Considerations, In Camera Inspection:  "[T]he Court finds that it can rely on the declarations to conduct its de novo determination."  "The affidavits supporting the withholdings pursuant to Exemptions 1 and 3 are reasonably detailed, explain why the names of the current and former employees 'logically fall[ ] within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'"  "Because the Court has found that it can rely on the declarations to conduct its de novo determination, in camera review is unwarranted."  "Additionally, it is unclear what the in camera review of a list of names would accomplish."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[t]he CIA's declaration states that a line-by-line review was conducted and all reasonable segregable non-exempt information has been released."  "[Plaintiff] does not contend that the CIA has failed to comply with its segregation requirements."  "The only withheld information are the names of current and/or former CIA officials."  "Accordingly, the Court concludes that the CIA has satisfied its segregability obligations under FOIA."