ACLU v. CIA, No. 18-2784, 2022 WL 306360 (D.D.C. Feb. 2, 2022) (Nichols, J.)

ACLU v. CIA, No. 18-2784, 2022 WL 306360 (D.D.C. Feb. 2, 2022) (Nichols, J.)

Re:  Request for records relating to nomination of Gina Haspel to serve as Director of Central Intelligence Agency

Disposition:  Granting defendant's motion for summary judgment

• Exemption 1:  Relying on the declarations of [agency declarant], who holds the authority to determine whether documents are properly classified, the CIA has established that each of the Executive Order's four requirements are met here."  "First, an original classification authority properly classified the information at issue."  "Second, the records in question were produced by, and remain under the control of, the federal government."  "Third, the withheld information falls under classification category § 1.4(c) of Executive Order 13526 (which allows the agency to classify information concerning 'intelligence activities (including covert action), intelligence sources or methods, or cryptology')."  "And fourth, the withheld information remains classified because the disclosure of this information could reasonably be expected to result in damage to national security."
  
  "The Court's in camera review of the material underlying [certain records], which all involve withholdings under Exemption 1, supports this conclusion."  "As a result, the Court concludes that the CIA has put forth plausible assertions that its Exemption 1 withholdings conform to FOIA and the applicable executive order."
   
• Litigation Considerations, Summary Judgment:  "[Plaintiff] also argues that '[i]f the CIA has indeed withheld information on Haspel's classification authority and conflict of interest under Exemption 1, it has not sufficiently justified its withholdings.'"  "[Plaintiff] might have a point if the CIA did in fact withhold under Exemption 1 information regarding Haspel's classification authority and alleged conflict of interest."  "But the Second [agency] declaration states that the CIA has not withheld any information under Exemption 1 on the ground that it related to Haspel's original classification or any potential conflict of interest . . . and [plaintiff] has provided no reason to second-guess this representation."  Regarding a similar argument made by Plaintiff pertaining to Defendant's Exemption 3 withholdings, the court found that "[n]ot only has [plaintiff] failed to overcome the presumption of good faith afforded to a government official's detailed and non-conclusory declaration . . . but the Court's in camera review of certain material underlying specific withholdings pursuant to the National Security Act under Exemption 3 buttresses the declarant's representations."
   
• Exemption 3:  "The National Security Act represents an exempting statute for purposes of FOIA Exemption 3."  "In her first declaration, [agency declarant] states that the information withheld pursuant to the National Security Act includes the identities of covert personnel, code words, covert CIA locations, clandestine intelligence methods and activities, and classification and dissemination control markings."  "Though some of the material withheld under Exemption 3 overlaps with material withheld under Exemption 1, the CIA posits that Exemption 3 also shields additional material not covered under Exemption 1, such as 'unclassified intelligence methods pertaining to the Agency's manner in which it protects its intelligence,' disclosure of which 'could significantly impair the CIA's ability to carry out its core mission of gathering and analyzing foreign intelligence.'"  "The Court concludes that the CIA has satisfied its burden of showing that the material withheld pursuant to the National Security Act relates to intelligence sources and methods."  "The Court also concludes that the material withheld under Exemption 3 pursuant to the National Security Act falls within that statute's coverage."
  
  "The Central Intelligence Act is also an exempting statute for purposes of FOIA Exemption 3."  "The CIA has invoked the Act to redact under Exemption 3 portions of over 100 of the entries on the Vaughn index on the basis that if disclosed, CIA employees' names and personal identifiers would come to light."  "The Court finds that the Agency's withholdings fall within the scope of the CIA Act."
   
• Exemption 5, Deliberative Process Privilege & Litigation Considerations, Vaughn Index/Declaration:  "The CIA has invoked the deliberative process privilege to withhold under Exemption 5 portions of over 100 of the entries on the Vaughn index."  "The descriptions accompanying each entry invoking this privilege vary, sometimes significantly."  "Though the descriptions differ, the documents have a common thread: They are draft documents, email exchanges, and preliminary communications in response to Senate, White House, and media inquiries."  "Draft documents, emails providing input on draft documents, and communications regarding how to respond to inquiries generally (but not always) constitute pre-decisional and deliberative intra-agency correspondence."  "Here, the CIA has sufficiently demonstrated that the drafts it withheld are subject to the deliberative process privilege."  "As reflected in the [agency] declarations, these draft documents 'reflect the CIA's internal and confidential decision-making process during Haspel's nomination process for CIA Director.'"  "Moreover, the descriptions accompanying the relevant entries make clear that the Agency did not treat the documents as final, but rather as preliminary versions subject to feedback and change."  "As [agency declarant] stated in her declaration, the documents 'do not convey final Agency viewpoints on a particular matter, but rather reflect different considerations, opinions, and approaches that preceded the Agency's final decision regarding the nomination process.'"  "The Court concludes that the draft documents withheld pursuant to the deliberative process privilege were both pre-decisional and deliberative."  "And for similar reasons, the same goes for the emails providing input on draft documents and the communications regarding how to respond to inquiries."  " [Plaintiff] argues that, at least as to certain documents, the CIA has failed to provide detailed and individualized descriptions of the nature of the specific deliberative process involved, the significance of the document in that process, and the nature of the decisionmaking authority vested in the document's author and recipient of each record the Agency claims is pre-decisional and deliberative."  "Both the revised Vaughn index and the second supplemental declaration provide additional detail regarding the nature of the deliberative processes associated with several of the withheld documents and further demonstrate the applicability of the deliberative process privilege."  "Plus, the Court's in camera review clarified who authored the documents, who received the documents, as well as the significance of the documents, and further supports the CIA's argument that these documents are covered by the deliberative process privilege."
   
• Exemption 5, Other Considerations:  "The CIA has demonstrated that harm is reasonably foreseeable if agency employees expect that their deliberations about efforts to support future nominations to high profile positions like the Director of the CIA will be publicly disclosed."  "In particular, in her second supplemental declaration, [agency declarant] states that disclosure would 'discourage' employees 'from providing particularly useful knowledge, perspectives, and opinions and prevent the Agency from benefitting from their skill in Haspel's nomination process and future nominations.'"  "Such disclosures, according to [agency declarant], would also 'inhibit open and candid discussions that would provide pertinent information related to and about the nominee, Agency policy, and Agency positions, that are necessary for accurate and complete responses' to inquiries."  "Put differently, disclosure would 'chill the free flow of open discussions during a very high profile nomination process.'"  "Revealing the draft material would also 'reveal Agency considerations of material it . . . otherwise discarded.'"  "And disclosure could also 'mislead or confuse the public by disclosing rationales that were not the basis for the Agency's final decision.'"  "The Court's in camera review of the material . . . supports the conclusion that disclosure of the material would harm and impede the agency going forward."  "The [plaintiff] argues that, in attempting to demonstrate foreseeable harm, the CIA has improperly relied on 'broad categorical justifications rather than evaluating the harm posed by each disclosure, and their predictions of harm consist entirely of conclusory, boilerplate generalities and speculation.'"  "Not so. In her first declaration, [agency declarant] discussed her familiarity 'with all of the documents withheld in full and in part pursuant to the deliberative process privilege,' and that '[d]isclosure of any of these documents would inhibit the frank communications and free exchange of ideas that the privilege is designed to protect.'"  "'If the withheld information were released, CIA employees may hesitate to offer their candid opinions to superiors or coworkers, and such self censorship would tend to degrade the quality of Agency decisions.'"  "[Agency declarant] also explained that 'revealing this information could mislead or confuse the public by disclosing rationales that were not the basis for the Agency's final decisions.'"  "In her third declaration, and as already discussed, [agency declarant] provided further detail about the harm disclosure of the withheld material would cause the agency."
   
• Exemption 5, Attorney-Client Privilege:  "Though the descriptions of the material withheld under the attorney-client privilege differ here and there, each includes reference to communication between and among CIA attorneys and officials about legal positions."  "Take, as a representative example, the description accompanying Entry 66."  "That description states that the withheld document 'consists of email communications from a CIA Attorney to a Senior Agency official discussing a legal position on a particular Agency specific issue about Haspel as the CIA Director nominee,' which constitutes 'legal advice provided by OGC attorneys that was solicited by an Agency component.'" "That description, and others like it, describes agency employees requesting legal advice in connection with confidential information."  "In her first declaration, moreover, [agency declarant] explains that the information [the] CIA withheld as protected by the attorney-client privilege consists of confidential communications between agency officials or agency personnel and attorneys within the CIA's Office of General Counsel."  "The Court, in short, concludes that the CIA properly invoked the attorney-client privilege to withhold material under Exemption 5."  "[Plaintiff] argues that the CIA has failed to offer sufficient facts establishing that the assessment or advice contained in each record rests on confidential disclosures."  "The Court disagrees; the CIA has established that the withheld records include attorney communications that are based upon confidential communications."  "Indeed, [agency declarant] has declared that the CIA withheld 'confidential communications between Agency officials or Agency personnel and attorneys within the CIA's Office of General Counsel.'"  "And to reiterate, the Court's in camera review of the material . . . which all involve withholdings pursuant to the attorney-client privilege, supports [agency declarant's] assertion." "Plus, the [plaintiff] has failed to explain what additional relevant information the CIA could provide without disclosing the privileged contents of the communications."
   
• Exemption 6:  "[T]the CIA has invoked Exemption 6 for . . . entries on the Vaughn index that if disclosed, the Agency contends, would reveal 'identifying information of CIA employees, non-agency government personnel, and other third-parties unaffiliated with the Agency.'"  "The Court concludes that the CIA has satisfied its burden of showing through the Vaughn index and the [agency declarant] declarations—which contain reasonably specific details rather than merely conclusory statements—that release of the withheld information would result in a substantial invasion of privacy to CIA personnel."  "The Court also concludes that [plaintiff] has not set forth a countervailing public interest that would outweigh these important privacy interests."