Skip to main content

De Sousa v. CIA, No. 14-1951, 2017 WL 943898 (D.D.C. Mar. 9, 2017) (Howell, C.J.)

Date

De Sousa v. CIA, No. 14-1951, 2017 WL 943898 (D.D.C. Mar. 9, 2017) (Howell, C.J.)

 

Re: Request for records concerning government's decision not to assert immunity on plaintiff's behalf

 

Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

  • Exemption 1, Glomar: First, the court holds that "the CIA's Glomar response was warranted as to each category of records sought by the plaintiff in her two FOIA requests." The court relates that "[t]he CIA has identified the following three classified facts that would be revealed if the CIA were to confirm or deny the existence of records responsive to the plaintiff's two FOIA requests: (1) 'whether the CIA had an intelligence interest in Abu Omar and/or his alleged rendition/kidnapping;' (2) 'whether or not the CIA was involved in the alleged rendition operation in Milan;' and (3) 'whether or not the CIA had a relationship with the Plaintiff.'" The court also finds that "with its supplemental declaration, the CIA has adequately addressed the plaintiff’s first objection[]" by "includ[ing] a chart indicating which of the three Glomar facts identified in the original declaration would be revealed with a response to each category of records listed in the plaintiff's first and second FOIA requests." Additionally, the court rejects "plaintiff's second contention is that the CIA has not explained how twelve of the fourteen categories of records 'requested by Plaintiff would reveal one or more of the[ ] three Glomar facts[]'" because the court finds that disclosure of these categories would lead to "reasonable inferences" which would undercut the Glomar facts. Finally"[t]he Court need not reach [plaintiff's contention that "the CIA has 'officially acknowledged' its relationship with the plaintiff, in writing, and, therefore, may no longer use a Glomar answer in responding to the plaintiff's FOIA requests"] because, assuming arguendo that the plaintiff has shown the CIA's official acknowledgement of its affiliation with the plaintiff, the CIA’s Glomar response was still proper given that each category of records sought by the plaintiff implicates another Glomar fact."

    Second, regarding the State Department's action, the court finds that "[t]he plaintiff does not challenge the State Department's response to her first FOIA request." As to plaintiff's second request, the court finds that "the State Department's partial Glomar response was warranted[]" because "every request propounded to the State Department presumes that at least some individuals convicted in connection with the rendition – including the plaintiff – were affiliated with the CIA[]" and "[w]hether these individuals were affiliated with the CIA is properly classified."
     
  • Exemption 5, Deliberative Process Privilege: The court holds that "this action is remanded to the agency so that it may supplement the record with additional information concerning the withholding." The court finds that "[t]he letter at issue bears all the markings of a predecisional document." "It is a draft letter that describes and rationalizes a proposed course of action among high level officials." "That the letter is undated and unsigned, or that it may never have been sent, is of no moment." "Indeed, common sense dictates that a letter suggesting a proposed course of action would not be drafted or sent after the action had already been taken." "If the draft, unsigned letter was never actually sent to the President, a reasonable inference could be drawn that its contents ultimately were rejected or revised, in which case the deliberative process privilege's protections would be at their apex." However, the court notes that defendant's "second declaration indicates that the United States government ultimately adopted the course of action set out in the letter[.]" The court finds that "[t]he Department of Defense must explain whether [an] official [at issue] . . . relied on the reasoning set out in the letter from the Secretary of Defense to the President." "If so, the letter has lost its predecisional character, and the Department of Defense has not properly relied on Exemption 5."
     

  • Litigation Considerations, "Reasonably Segregable" Requirements: The court holds that "the State Department and Department of Defense met their segregability burdens by submitting Vaughn indexes, in combination with the attestations of their respective declarants that documents were reviewed 'on a line-by-line basis' and no further segregation would be possible."

 

Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 5
Exemption 5, Deliberative Process Privilege
Glomar
Litigation Considerations, “Reasonably Segregable” Requirements
Updated December 13, 2021