Cable News Network, Inc. v. CIA, No. 21-00733, 2023 WL 6121874 (D.D.C. Sept. 19, 2023) (Chutkan, J.)

Cable News Network, Inc. v. CIA, No. 21-00733, 2023 WL 6121874 (D.D.C. Sept. 19, 2023) (Chutkan, J.)

Re:  Request for records concerning third party

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 1:  The court relates that “[i]n its final response letter, the CIA stated that it did not locate any responsive records that ‘would reveal an openly acknowledged CIA affiliation with the subject’ and issued a Glomar response refusing to confirm or deny the existence of any responsive records that ‘would reveal a classified association between the CIA and the subject.’”  “[Plaintiff] did not challenge the adequacy of the CIA’s response in the first part, so the court treats this argument as conceded and will address only whether the Agency’s Glomar response is justified.”  The court relates that “[h]ere the CIA invokes Executive Order No. 13526.”  “The parties do not dispute that the information was classified by an original classification authority or that it is under the control of the United States government.”  “The CIA claimed that the existence or nonexistence of responsive records concerning [the third-party subject] falls within two categories listed in section 1.4:  ‘intelligence activities (including covert action), intelligence sources or methods, or cryptology’ . . . and ‘foreign relations or foreign activities of the United States’ . . . .”  “And as the original classification authority, the CIA contends that disclosing or even acknowledging the existence of the information [plaintiff] seeks could jeopardize national security.”  The court finds that “the CIA’s affidavit did not merely repeat the language in the statute and the executive order.”  “[T]he CIA explained in sufficient detail the potential damage to its use and maintenance of human intelligence sources if it does not issue a Glomar response.”  “The CIA stated that disclosing whether it maintained a classified association with [the third-party subject] would ‘jeopardize the clandestine nature of the Agency’s intelligence activities or otherwise reveal previously undisclosed information about CIA sources, capabilities, authorities, interests, relationships with domestic or foreign entities, strengths, weaknesses, and/or resources.’”  “The Agency explained that its intelligence activities ‘must remain secret in order to be effective.’”  “Specifically, if [the third-party subject] were a ‘confidential source or a target of collection,’ disclosing that information would ‘expose Agency tradecraft, other human sources, and specific intelligence interests and activities.’”  “Such a disclosure would not only ‘place[ ] in jeopardy every individual with whom [the third-party subject] has had contact,’ but would also undermine other human sources’ confidence in the Agency’s promise of confidentiality.”  “The Agency further explained that even if it had no association with [the third party subject], it would still have to issue a Glomar response, because if ‘the CIA were to invoke a [Glomar] response only when it actually possessed responsive records, the [Glomar] response would be interpreted as an admission that responsive records exist’ and therefore become meaningless.
  
  The court relates that “[plaintiff] points out that [a prior, pertinent case] concerned a foreign national, while this case involves the CIA’s records about a U.S. citizen.”  The court finds that “[plaintiff], however, fails to identify any authority setting a different standard for Glomar responses concerning foreign nationals than those concerning U.S. citizens.”  “To the contrary, the D.C. Circuit has repeatedly held that the CIA’s domestic intelligence activities are entitled to the same level of protection as its foreign ones.”  “Consequently, the court declines to scrutinize the CIA’s Glomar response more strictly simply because the subject is a U.S. citizen.”
   
• Exemption 1, Waiver of Exemption 1 Protection; Waiver and Discretionary Disclosure, Waiver:  The court relates that “[plaintiff] contends that the CIA has waived its right to issue a Glomar response because its intelligence interest in [the third-party subject] has already been officially acknowledged.”  The court finds that “[plaintiff] points to various sources suggesting that the U.S. intelligence community maintained a mass surveillance program over prominent African-American leaders, and that [the third-party subject] was a leading figure in the civil rights movement.”  “But [plaintiff] cites no source directly establishing that the CIA has surveilled or otherwise maintained an intelligence interest in [the third-party subject], so the court cannot conclude that the specific information sought has been disclosed.”  “Furthermore, while [plaintiff] points to court opinions, Congressional reports, FBI activities and commentaries, it cites no statement made by the CIA or its officers disclosing or acknowledging its activities regarding [the third-party subject].”  “Because ‘only the CIA can waive its right to assert an exemption to the FOIA,’ . . . the court concludes that the CIA’s right to issue a Glomar response here has not been waived.”  “Accordingly, the CIA’s Glomar response is justified under FOIA Exemption 1.”
   
• ​​​​​​​Exemption 3:  The court relates that, “[h]ere, the CIA invokes the National Security Act of 1947, which requires the Director of National Intelligence to ‘protect intelligence sources and methods from unauthorized disclosure.’”  The court finds that “the D.C. Circuit ‘held that the National Security Act, which also authorizes the Executive to withhold “intelligence sources and methods” from public disclosure, [ ] qualifies as an exemption statute under [E]xemption 3.’”  “Thus, the only remaining inquiry is whether the withheld material relates to intelligence sources and methods.”  “[T]he CIA’s affidavit details how disclosing or acknowledging the existence of the information [plaintiff] seeks could reveal ‘clandestine CIA intelligence activities, sources, and methods.’”  “And considering that the withheld information is covered by Exemption 1, the court need not go into greater detail here.”  “In short, the CIA’s Glomar response is also justified under FOIA Exemption 3.”