Cox v. DOJ, No. 17-3329, 2020 U.S. Dist. LEXIS 223596 (E.D.N.Y. Nov. 26, 2020) (Mauskopf, J.)

Cox v. DOJ, No. 17-3329, 2020 U.S. Dist. LEXIS 223596 (E.D.N.Y. Nov. 26, 2020) (Mauskopf, J.)

Re:  Request for Senate Select Committee on Intelligence's ("SSCI") Study of the Central Intelligence Agency's Detention and Interrogation Program ("SSCI Report"), as well as related records

Disposition:  Denying defendants' motion to dismiss; denying in part and granting in part defendant's motion for summary judgment

• Litigation Considerations:  The court holds that defendants' motion to dismiss is denied.  The court finds that, "[f]irst, a motion to dismiss on the basis that the requested documents are not agency records is properly brought on the merits - under Federal Rule of Civil Procedure 12(b)(6) or as a motion for summary judgment under Rule 56 - not Rules 12(b)(1) or 12(h)(3)."  "The Second Circuit has construed the mention of 'jurisdiction' in § 552(a)(4)(B) 'to reference remedial power, not subject-matter jurisdiction.'"  "An agency's motion to dismiss based on the fact that the requested documents are not 'agency records' thus does not implicate the Court's power to order that relief, but the merits of the action, and is therefore properly brought as a motion to dismiss for failure to state a claim under Rule 12(b)(6)."  "Because the Agencies moved to dismiss pursuant to Rule 12(b)(1) and 12(h)(3), both the Agencies and [plaintiff] 'relied upon matters outside the pleadings' in briefing this motion to dismiss."  "Still, the Court finds that the parties' briefing is not appropriate for conversion to summary judgment."  "In opposing the motion to dismiss for lack of jurisdiction, [plaintiff] argued that he should be entitled to discovery before the Court dismisses the action based on Congress's intent to control the SSCI Report."  "Furthermore, [plaintiff] expressed an interest in potentially cross-moving for summary judgment, and conversion of the motion would deprive him of the opportunity to do so."  "Ultimately, the Court cannot say, as is necessary to convert a Rule 12 motion to a motion for summary judgment, that the 'parties should reasonably have recognized the possibility of conversion,' so the Court declines to convert the Agencies' motion to dismiss into a motion for summary judgment."
  
  "In adjudicating a motion to dismiss pursuant to Rule 12(b)(6), the Court may 'consider those documents submitted by the parties which are matters of public record or which are deemed included in the Complaint.'"  "[Plaintiff] appended to his second amended complaint the December 2012 Letter, the April 2014 Letter, the December 2014 Letter, and his FOIA requests to the Agencies."  "The Court may therefore consider these documents in adjudicating this motion to dismiss."  However, "[t]he Court cannot take judicial notice of the June 2009 Letter for the purpose of this motion to dismiss."  "This letter was not appended to or incorporated by reference in Cox's complaint."  "Even if the Court could take judicial notice of this based on its (arguable) status as a public record, the Court could consider the document only for the fact of its existence, 'not for the truth of the facts asserted' within the letter."  "It would therefore be improper for the Court to evaluate the June 2009 Letter for the purpose of determining the SSCI's intent regarding copies of the SSCI Report as it would not be using 'the extraneous documents . . . to establish their existence, but rather to provide the reasoned basis for the court's conclusion.'"  Notably, in the "June 2, 2009, letter, the SSCI wrote to then-CIA Director Leon Panetta regarding the planned review of records at the CIA."  "The letter outlined 'procedures and understandings' under which the SSCI and its staff would conduct its review."  "The letter discussed the documents that would be provided, protections for computers used by SSCI staff, and – most significantly, for the purposes of the instant action – SSCI's control over notes, documents, reports, and other materials generated by SSCI staff."  "According to the Agencies, '[b]efore the review commenced, the Senate Committee and officials at the CIA negotiated arrangements to deal with access to classified materials by Senators and their staff, and agreed on rules regarding the Committee's control over its work product.'"  "The Agencies maintain that the June 2009 letter 'memorialized' these 'arrangements.'"
   
• Procedural Requirements, Agency Records:  "Based on the record before the Court, and drawing all inferences in [plaintiff's] favor, the Court cannot say that Congress 'manifested a clear intent to control' the SSCI Report."  The court relates that "[t]he Agencies rely to a large extent on the SSCI's June 2009 Letter to the CIA to argue that the SSCI intended to retain control over copies of the SSCI Report."  "However, as explained above, the Court cannot take judicial notice of this letter for the purposes of the instant motion to dismiss."  "On the other hand, documents of which the Court can take judicial notice – including the December 2012 Letter, the April 2014 Letter, and the December 2014 Letter appended to [plaintiff's] complaint – provide mixed evidence of the SSCI's intent to relinquish control over the SSCI Report."  The court finds that "[t]he Agencies accurately note the December 2012 Letter provides some support for the conclusion that the SSCI intended to retain control over the December 2012 SSCI Report."  However, the court also finds that "[i]f the December 2012 Letter contains indicia of the SSCI's intent to control the SSCI Report, it is difficult to ignore the absence of similar language in two subsequent letters from Senator Feinstein regarding the April 2014 SSCI Report and the December 2014 SSCI Report."  "In the April 2014 Letter, Senator Feinstein stated that she 'encourage[d] and approve[d] the dissemination of the updated report to all relevant Executive Branch agencies.'"  "Then, in the December 2014 Letter, Senator Feinstein used language even more indicative of an intent to relinquish control:  'T]he full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated.'"  "'To help achieve that result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit.'"  "Both of these letters provide compelling evidence that SSCI intended to 'relinquish control' over the SSCI Report upon transmittal."  "The Agencies' remaining arguments in support of the conclusion that Congress intended to retain control over these records are not sufficient to justify dismissal here."  "The Agencies point to the fact that the SSCI's proceedings during the creation of the report were in closed session, and that SSCI information is by default confidential, but these facts provide little insight into what the SSCI intended with the reports once the SSCI transmitted them to the Agencies."
   
• Exemption 1:  The court finds that "[plaintiff] cannot meaningfully challenge the FBI's exemption one withholdings and the Court cannot meaningfully review them."  "Accordingly, the Court denies summary judgment with respect to the FBI's exemption one withholdings without prejudice."  The court explains that "nowhere in the CIA's Vaughn affidavit does it specifically list the documents it is withholding pursuant to exemption one."  "In addition to not identifying the bases upon which each record was withheld, the CIA's Vaughn affidavit omits discussion of some records withheld pursuant to exemption one altogether."  Regarding defendants' counter-argument, the court finds that "[t]he information necessary for [plaintiff] to challenge the agencies' withholdings or for the Court to perform de novo review of those withholdings must present in an agency's Vaughn affidavit – not provided by counsel in an agency's reply brief."  The court finds that "[plaintiff] cannot meaningfully challenge the FBI's exemption one withholdings and the Court cannot meaningfully review them."  "Although the Court denies summary judgment with respect to the FBI's exemption one withholdings at this time, the Court also declines [plaintiff's] request to engage in in camera review of . . . any . . . documents withheld pursuant to exemption one."  "Instead, the CIA and FBI are directed to supplement their Vaughn submissions regarding the FBI's withholding pursuant to exemption one of documents responsive to [plaintiff's] FOIA request."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the FBI and CIA are directed to supplement their Vaughn submissions to adequately support the withholding of each record withheld pursuant to exemption five, and to support the conclusion that they released all reasonably segregable information in the records withheld."  The court explains that "[t]he FBI's Vaughn affidavit includes a single paragraph to justify its withholdings pursuant to the exemption five deliberative process privilege followed by a footnote identifying – by the Court's count – 63 pages of records withheld in full or in part pursuant to the exemption."  Additionally, the court finds that "[t]he FBI not only fails to provide a detailed basis for its exemption five withholdings, but at times wholly fails to justify its decision to withhold documents in full."  "[Plaintiff] reasonably argues that 'such "handwritten notes" [that defendants state that they withheld] likely contain "factual material" such as notes on the content of the [SSCI Report] itself.'"  "In contrast to this reasonable basis for doubting that these handwritten notes contain no segregable information, [defendants] provide only rote assurances that they have released all segregable material in the documents withheld."  "The Agencies are entitled to a presumption that they have adequately disclosed segregable material, but [plaintiff] specifically rebuts that presumption here – and the Agencies present no further basis upon which the Court could conclude they have released all segregable, non-exempt information withheld pursuant to exemption five."
   
• Exemption 5, Attorney-Client Privilege:  The court holds that "[u]pon review of the Vaughn submissions from the DOJ, DOD, ODNI, and State Department, the Court finds that the Agencies carry their burden of establishing proper withholding of documents pursuant to FOIA exemption five, including the release of all segregable non-exempt information."  "The affidavits 'demonstrate that the information withheld logically falls within the claimed exemption,' they 'are not controverted by either contrary evidence in the record nor by evidence of agency bad faith,' and ultimately, appear 'logical or plausible.'"  "The Court need not address whether the crime-fraud exception applies to exemption five because Cox has not met his burden of establishing that review of these documents would reveal evidence that the communications were made in furtherance of criminal or fraudulent activity."  "The Court is conscious of the fact that its review at this stage of the litigation is de novo, and as a result, [plaintiff] should not be obliged to make a substantial showing with respect to the application of the crime-fraud exception before the Court reviews the Agencies' documents in camera."  "At the same time, [plaintiff] is challenging the propriety of the Agencies' withholdings pursuant to exemption five, and under the Second Circuit's 'restrained approach,' [plaintiff] must make some showing of 'contrary evidence' or that is 'suggestive of bad faith' by the Agencies before the Court conducts in camera review to test that the Agencies properly withheld these documents pursuant to exemption five."  "For the Court to review these documents in camera based on a concern that the crime-fraud exception applies, [plaintiff] must make some initial showing that an agency's request for guidance, or the guidance provided, was 'itself in furtherance' of the crime or fraud he claims occurred."