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ACLU v. CIA, No. 18-2265, 2022 WL 303280 (2d Cir. Feb. 2, 2022) (per curiam)


ACLU v. CIA, No. 18-2265, 2022 WL 303280 (2d Cir. Feb. 2, 2022) (per curiam)

Re:  Request for records referenced in publicly released executive summary of Senate Select Committee on Intelligence's Committee Study of CIA's detention and interrogation program.

Disposition:  Reversing district court's order requiring disclosure of certain information

  • Litigation Considerations, Considerations on Appeal:  "We review de novo a district court's grant of summary judgment in a FOIA case [and] [w]e also review de novo a decision to require partial production of documents following in camera review, in keeping with the spirit and the text of the FOIA and its presumption in favor of disclosure."
  • Exemption 1:  "The CIA offered a plausible reason for nondisclosure: to avoid associating the CIA with intelligence activities undertaken during a specific time and at a specific place."  "There is no basis in the record for the district court's assessment that the information is 'too old' to remain classified."  "'[E]ven if the redacted information seems innocuous in the context of what is already known by the public, minor 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.'"

    "The district court ordered the information disclosed because it could not 'see the need for classification of [Redacted].'"  "Again, we find that the CIA proffered a plausible reason for nondisclosure, and the district court's rationale simply is insufficient to reject the requested redaction, and its ruling as to this disclosure is reversed." 

    Regarding a separate piece of information "the CIA argues, releasing such information 'would give adversaries valuable insight into the CIA's tradecraft and [Redacted].'"  "The district court ordered disclosure because '[i]t's too well known[,] [t]hat's to be published.'"  "We find nothing in the record to support the district court's conclusion that the information is already well known [and e]ven assuming [the] district court knew the information prior to reading the Draft OMS Summary, it does not follow that the information is so well known as to justify disclosure." 

    Regarding "a passage . . . that described the CIA's construction of several detention facilities" the CIA "sought to redact this information on the ground that information related to how the CIA constructs facilities was potentially harmful to national security because it would offer insights into how the facilities are used during interrogations."  "The district court disagreed, stating it did not 'see a harm' from disclosure, and '[i]t only shows you're doing the right thing.'"  "The district court erred in not deferring to the CIA's plausible and logical reason for redacting this information, and its order requiring disclosure is reversed." 

    Regarding certain information withheld in a transcript, "[t]he district court ordered disclosure of this information from the transcript even though it previously, and correctly, determined that these materials were properly withheld from disclosure when the Draft OMS Summary was released."  "There was no basis for the district court to order the disclosure of information in the Transcript." 

    Regarding "the district court's order requiring a disclosure of certain information discussing and citing to certain press reports" the "[t]he district court reasoned that '[t]hese are public newspaper accounts and they should be produced.'"  "The CIA challenges this assessment, arguing that 'the author's selection of specific press reports to discuss, his focus on particular aspects of the reports, and the manner in which he describes them—all tend to reveal classified and statutorily protected information that the CIA has not officially acknowledged.'"  The "Court [of Appeals for the Second Circuit] requested supplemental briefing from both parties on the issue, and [was] persuaded by the rationales set forth in the government's letter brief that the contested material should be redacted."  "We thus reverse the district court's order disclosing the bare citations to press reports found in the Draft OMS Summary."
Court Decision Topic(s)
Court of Appeals opinions
Exemption 1
Litigation Considerations, Considerations on Appeal
Updated March 1, 2022