Skip to main content

Donoghue v. NARA, No. 23-00157, 2024 WL 4263830 (D.D.C. Sept. 23, 2024) (Chutkan, J.)

Date

Donoghue v. NARA, No. 23-00157, 2024 WL 4263830 (D.D.C. Sept. 23, 2024) (Chutkan, J.)

Re:  Requests for records concerning incident involving supply vessel on which plaintiff was a merchant seaman

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

  • Litigation Considerations, Adequacy of Search:  “[Plaintiff] does not, in earnest, contest the adequacy of either NARA or the CIA’s searches, however, the court independently finds their searches sufficient.”  “The court finds that both [defendants’] Declarations set forth in reasonable detail, and in good faith, the type of information their agency (and its relevant components) retains, the way that information is organized, the locations searched, the scope of the searches, and the search terms used.”      “And to the extent that [plaintiff] sought records that would reveal a classified or unacknowledged association between himself and the CIA, to which the CIA issued a Glomar response, . . . ‘the adequacy of a search is irrelevant . . . because the issue is whether the [CIA] has given sufficiently detailed and persuasive reasons for taking the position that it will neither confirm nor deny the existence or non-existence of any responsive records.’”
     
  • Exemption 1; Exemption 3:  The court relates that “[i]n issuing its Glomar response, the CIA relies exclusively on FOIA Exemptions 1 and 3 . . . .”  “Here, the CIA relies on Executive Order (‘E.O.’) 13,526, . . . which is ‘the operative classification order under Exemption 1, [that] sets forth both substantive and procedural criteria for classification[]’ . . . .”  “[Defendant’s declarant] is an original classification authority . . . .”  “The information sought is also ‘owned by and under the control’ of the United States government because it relates to ‘intelligence activities, intelligence sources and methods, and foreign relations or foreign activities of the United States[,]’ thus concomitantly falling into two of the eight classification categories.”      “Finally, [defendant’s declarant] asserts that she ‘determined that [revealing] the existence or nonexistence of records . . . might reveal a classified or otherwise unacknowledged association between the subject of the request and the Agency[,]’ . . . and she identifies several ways in which acknowledging the existence or nonexistence of information could damage national security . . . .”  “More specifically, acknowledgement could ‘jeopardize the clandestine nature of the Agency’s intelligence activities or otherwise reveal previously undisclosed information about CIA sources, capabilities, authorities, interests, domestic or foreign relationships, strengths, vulnerabilities, and/or resources[,]’ . . . and ‘would tend to reveal whether or not the Plaintiff had a covert or clandestine association with the CIA, or whether or not the CIA had an intelligence interest in the Plaintiff[]’ . . . .”      “The court finds this information sufficient to show that that CIA has sufficiently established that the existence or non-existence of responsive records is classified under E.O. 13,526, thus justifying its Glomar response.”

    “The CIA’s reliance on Exemption 3 is proper for similar reasons.”  “The CIA satisfies the first requirement by invoking § 102A(i)(1), . . . ‘a recognized withholding statute . . . of the National Security Act of 1947[]’ . . . .” “Section 102A(i)(1) shields ‘intelligence sources and methods from unauthorized disclosure.’”  “The CIA has also met the second requirement.”  “Material is properly withheld under § 102(A)(i)(1) of the National Security Act if it ‘can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods.’”  “Here, [defendant’s declarant] specifically attests that acknowledging the records could place intelligence sources and methods at risk of unauthorized disclosure.”  “Accordingly, the court finds that the CIA has also met its burden in justifying its Glomar response under Exemption 3.”

    “[Plaintiff] appears to contend that the CIA previously acknowledged the existence of the composite file by allegedly providing it to Baldwin County Circuit Court personnel in 2008.”  “[Plaintiff] has offered only speculation regarding the CIA’s purported official acknowledgment.”  “Furthermore, to successfully employ the public acknowledgement exception, a requestor ‘has the burden of showing that there is a permanent public record of the exact portions he wishes[]’ . . . .”  “Here, to the contrary, [plaintiff] alleges that two unknown agents privately presented a confidential file, marked ‘DO NOT COPY’ to the prosecutor, his attorney, and perhaps a few other court personnel . . . .”  “Accordingly, the court cannot find that the CIA has officially acknowledged the composite file.”
     
  • Litigation Considerations, Vaughn Index/Declaration:  The court relates that “[plaintiff] also alleges that Defendants have long possessed the composite file and are intentionally withholding it, borne out of a decades-long governmental conspiracy orchestrated to conceal the alleged bad acts in Baldwin County.”  The court finds that “[plaintiff’s] broad and unfounded allegations are insufficient to overcome the presumption of good faith accorded to Defendants’ Declarations.” “Consequently, the court finds no merit in [plaintiff’s] arguments that Defendants’ Declarations indicate bad faith.”

    Additionally, responding to plaintiff’s request for a Vaughn Index, “the court finds no basis for a Vaughn Index in this case.”  “A Vaughn index itemizes and explains redactions in a FOIA production, . . . but in this case, there are no redactions, as NARA produced its responsive records in full.”  “The CIA produced no records, as they did not locate any unclassified records, and issued a Glomar response for classified records, if any.”
     
  • Litigation Considerations, In Camera Inspection:  Responding to plaintiff’s request for in camera inspection, the court finds that “[plaintiff] has not shown any indicia of bad faith; therefore, ‘in camera review is neither necessary nor appropriate[]’ . . . .”
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Litigation Considerations, Adequacy of Search
Litigation Considerations, In Camera Inspection
Litigation Considerations, Vaughn Index/Declarations
Updated November 6, 2024