Skip to main content

Connell, III v. CIA, No. 21-627, 2023 WL 2682012 (D.D.C. Mar. 29, 2023) (Cooper, J.)


Connell, III v. CIA, No. 21-627, 2023 WL 2682012 (D.D.C. Mar. 29, 2023) (Cooper, J.)

Re:  Request for records concerning “CIA’s ‘operational control . . . over Guantanamo Bay detainees’”

Disposition:  Granting defendant’s motion for summary judgment

  • Exemption 1 & Exemption 3:  The court holds that “because [defendant’s] Declaration ‘logically’ and ‘plausibly’ supports the response under FOIA Exemptions 1 and 3, the Court will uphold it.”  “Beginning with Exemption 1, [defendant] correctly notes that it protects from disclosure any information that has been properly classified pursuant to Executive Order (‘E.O.’) 13526, which established the current system for classifying national security information.”  “[Plaintiff] further explains that she holds ‘original classification authority’ under E.O. 13526, meaning she has authority to assess the proper classification of CIA information up to the TOP SECRET level.”  “Exercising that authority, [defendant] declares that she ‘ha[s] determined that the existence or nonexistence of the requested records is a properly classified fact; the records concern “intelligence activities” and “intelligence sources and methods” within the meaning of . . . the Executive Order; the records are owned by and under the control of the U.S. Government; and . . . the disclosure of the existence or nonexistence of [the] requested records reasonably could be expected to result in damage to national security.’”  “[Defendant] continues, stating that formally acknowledging the existence or nonexistence of records ‘reflecting a classified or otherwise publicly unacknowledged connection between the CIA and the topics in Plaintiff’s Amended FOIA request would reveal classified intelligence information and jeopardize the clandestine nature of the Agency's intelligence activities.’”  “Either a confirmation or a denial, [defendant] posits, ‘could be used by terrorist organizations, foreign intelligence services, and other hostile adversaries to undermine CIA intelligence activities and attack the United States and its interests.’”

    “[Defendant] alternatively based the Glomar response on FOIA Exemption 3, which shields information that is specifically exempted from disclosure by statute.”  “One such statute is the National Security Act, which directs the Director of National Intelligence to ‘protect intelligence sources and methods from unauthorized disclosure.’”  “The CIA relies on the National Security Act to protect its own sources and methods.”  “Consistent with her discussion of Exemption 1, [defendant] asserts that ‘acknowledging the existence or nonexistence of records reflecting a classified or otherwise unacknowledged connection to the CIA in this matter would reveal information that concerns intelligence sources and methods, which the National Security Act is designed to protect.’”  “While the National Security Act does not require the CIA to identify the damage to national security that might result should it confirm or deny the existence of a responsive record, [defendant] points to the same potential harms noted with respect to Exemption 1.”  “Courts ‘must accord substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.’”

    “Before tackling [plaintiff’s] waiver argument and the declassified materials upon which it is based, the Court will first pinpoint the topic of [plaintiff’s] FOIA request that he claims the agency has publicly acknowledged.”  “As discussed above, [plaintiff] initially sought ‘any and all information’ related to the CIA’s purported ‘operational control . . . over Guantanamo Bay detainees.’”  “He later clarified that he was interested in materials reflecting ‘what “operational control” means,’ with reference to seven specific topics as examples.”  With that understanding in mind, the court finds that “none of the unclassified information [plaintiff] highlights constitutes public acknowledgement by the CIA of its ‘operational control’ of Camp 7 or the ins and outs of ‘what [such] operational control means.’”  “As a result, none of the materials referenced constitute a public acknowledgement by the CIA of the existence of documents concerning the agency’s purported operational control of Camp 7.”  “The agency therefore has not waived its ability to assert a Glomar response to [plaintiff’s] amended FOIA request.”
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Updated May 1, 2023