Driggs v. CIA, No. 23-1124, 2025 WL 2242761 (E.D. Va. Aug. 6, 2025) (Novak, J.)

Driggs v. CIA, No. 23-1124, 2025 WL 2242761 (E.D. Va. Aug. 6, 2025) (Novak, J.)

Re: Request for records concerning Americans allegedly held as prisoners of war (“POWs”) following Korean and Vietnam Wars

Disposition:  Dismissing certain plaintiffs from suit; denying remaining plaintiffs’ motions for summary judgment and in camera inspection; granting defendant’s motion for summary judgment

• Litigation Considerations:  “[T]he Court finds that Plaintiffs have waived their right to challenge the redactions to the Critical Assessment.”  “An email from Plaintiffs’ attorney, dated February 2, 2025, identifies the redactions to the Review of the Charges as ‘the only redactions that the plaintiffs will challenge.’”  “Meanwhile, the February 10, 2025 Joint Status Report, signed by attorneys for both parties, contains a paragraph setting forth ‘the issues that Plaintiffs intend to continue to pursue in this action.’”  “That paragraph discusses only two issues:  parameters for the search for records and Plaintiffs’ desire ‘to understand the basis for redactions . . . for one of the records.’”  “Finally, the parties’ February 28, 2025 Joint Status Report relates that ‘the parties will cross move for summary judgment and Plaintiffs may move for in camera review of the released record to which Plaintiffs seek to challenge the redactions.’”  “Indeed, Plaintiffs’ summary judgment brief concedes that ‘the undersigned inadvertently neglected to inform defendant that plaintiffs also challenge the redactions to Senator Smith’s Critical Assessment.’”  “The Court holds Plaintiffs to their representations in the two joint status reports.”  “As such, the Court determines that Plaintiffs waived their right to challenge the redactions to the Critical Assessment, leaving only Defendant’s redactions to the Review of the Charges at issue in this case.”
   

• Litigation Considerations, Mootness and Other Grounds for Dismissal:  The court holds that “In [Moore v. CIA, No. 20-1027, 2022 WL 2983419 (D.D.C. July 28, 2022)]’s partial summary judgment opinion, Judge Lamberth issued a final ruling granting summary judgment to the CIA on the propriety of withholding the Review of the Charges – the same document that Plaintiffs seek in the instant litigation – pursuant to FOIA Exemptions 1 and 3.”  “The CIA in Moore expressly invoked these FOIA Exemptions to justify withholding the Review of the Charges in full.”  “If Exemptions 1 and 3 justify withholding the document in full, then they also, of logical necessity, justify withholding whatever portions of the document that the CIA subsequently redacted in the context of this litigation.”  “Plaintiffs’ argument concerning an identical issue of fact or law therefore falls flat.”  “The Moore litigation also satisfies the other required showings for a finding of collateral estoppel in the instant case.”  “Because the CIA’s motion for summary judgment hinged on the applicability of the FOIA Exemptions, that issue was clearly ‘essential to the judgment.’” “Summary judgment constitutes ‘a final and valid judgment.’”  “And the record demonstrates that both sides fully briefed the applicability of the FOIA Exemptions to the Review of the Charges in Moore, rendering the issue ‘actually litigated.’” “However, Plaintiffs are correct that collateral estoppel only bars the Moore Plaintiffs in this case.”  “The CIA, bearing the burden of proof, fails to advance any arguments that the remaining plaintiffs ought to be barred . . . .” “Indeed, it ‘only contends that issue preclusion prevents the overlapping Plaintiffs’ from relitigating the issue.”  “As such, the non-overlapping Plaintiffs stand entitled to pursue this litigation without the Moore litigation providing a procedural bar.”  “In sum, the Court finds that collateral estoppel bars [certain plaintiffs] from this suit.”  “The Court will therefore dismiss those Plaintiffs.”

   

• Litigation Considerations, Evidentiary Showing, Declarations:  “[T]he Court rejects Plaintiffs’ arguments as to bad faith on the part of the CIA and finds that the presumption of good faith applies to the CIA’s affidavits in this case.”  “As to the question of whether agency misconduct in the generation of records defeats the agency’s good faith presumption, the overwhelming weight of the case law supports the CIA’s position.”  “Based on the weight of the case law, the Court finds that agency bad faith must relate to the present FOIA action in order to defeat the presumption of good faith afforded to agency affidavits.”  “As such, Plaintiffs’ allegations concerning the drafting of the NIE over twenty-five years ago cannot, as a matter of law, overcome the presumption of good faith in the CIA’s affidavits.”  “Nor do Plaintiffs adequately allege bad faith in the CIA’s present-day actions.”  “[T]o the extent that they allege a CIA cover-up in this litigation to avoid potential embarrassment to the agency today, Plaintiffs provide no more than conclusory allegations.”
   
• Exemption 1:  The court relates that “[t]he CIA invoked Exemption 1 to justify some of its redactions to the Review of the Charges.”  “The CIA invokes Executive Order 13,526 as the relevant order authorizing its redactions.”  “The CIA contends that it fulfills all of the procedural requirements set forth in E.O. 13,526 and that the information in question was properly classified pursuant to that Order.”  “For the reasons set forth below, the Court agrees.”  “[Defendant’s declarant’s] first affidavit testifies that she is ‘a senior CIA official and hold[s] original classification authority at the TOP SECRET level under written delegation of authority pursuant to section 1.3(c) of Executive Order (‘E.O.’) 13526.’”  “[Defendant’s declarant] likewise states ‘that the information is owned and controlled by the U.S. Government.’”  “As such, and applying the presumption of good faith to [defendant’s declarant’s] statements, the Court finds that the CIA has satisfied requirements (1) and (2) for classification under E.O. 13,526.”  “The CIA further claims that the redacted information falls within categories (c) and (d) as listed in Section 1.4 of E.O. 13,526.”  “That section sets forth an exhaustive list of classification categories.”  “As relevant here, Section 1.4(c) allows classification of information that pertains to ‘intelligence activities (including covert action), intelligence sources or methods, or cryptology,’ while Section 1.4(d) permits classification of information pertaining to ‘foreign relations or foreign activities of the United States, including confidential sources.’”  “The CIA identifies these categories as the types of information legally relevant under the Order.”  “[Defendant’s declarant’s] initial affidavit states that the CIA’s redactions protect ‘the priority of intelligence activities and targets; methods of collection; and classified relationships’ and that ‘the release of this information could significantly impair the CIA’s ability to carry out its core missions of gathering and analyzing foreign intelligence and counterintelligence and conducting intelligence operations, thereby damaging national security.’”  “The Court finds that the determinations made by [defendant’s declarant’s] and the level of detail offered in the First Affidavit easily satisfy the CIA’s burden under E.O. 13,526.”  “[T]he Court finds the affidavit’s detail sufficient for purposes of this inquiry.”
  
  The court also notes that “Plaintiffs allege that EO 13,526’s automatic declassification provision mandates that the documents in question be declassified, rendering the CIA’s continued insistence on redactions improper.”  “E.O. 13,526, § 3.3 sets out the standard for ‘Automatic Declassification.’”  “Under that provision, if a record is over twenty-five years old and has been determined to possess historical value, it ‘shall be automatically declassified on December 31 of the year that is 25 years from the date of origin, except as provided in paragraphs (b)-(d) and (g)–(j) of this section.’”  The court finds that “[t]he CIA and DoD authored the Review of the Charges in 2000.” “As such, EO 13,526’s automatic declassification provision will not apply until December 31 of this year.”  “Second, Plaintiffs argue that the CIA’s redactions violate E.O. 13,526, § 1.7.”  “Section 1.7 directs that ‘[i]n no case shall information be classified, continue to be classified, or fail to be declassified in order to:  (1) conceal violations of law, inefficiency, or administrative error; [or] (2) prevent embarrassment to a person, organization, or agency.’”  “As explained above, Plaintiffs have failed to provide more than conclusory allegations suggesting that a cover-up motivates the CIA’s redactions.”  “Finally, Plaintiffs allege that nondisclosure of the redactions to the Review of the Charges violates E.O. 12,812, which previously directed all executive departments and agencies to ‘expeditiously review all documents, files, and other materials pertaining to American POWs and MIAs lost in Southeast Asia for the purposes of declassification.’”  “As the CIA indicates, however, the directive implementing E.O. 12,812 required completion of these declassification efforts by November 11, 1993.”  “The Review of the Charges, meanwhile, was not authored until 2000.”  “As such, EO 12,812’s directive toward declassification of POW-related materials by 1993 plainly does not apply to the Review of the Charges, rendering Plaintiffs’ argument meritless.”
   
• Exemption 3: The court relates that “[h]ere, the CIA invokes the National Security Act of 1947, 50 U.S.C. §§ 3001–3244, and the CIA Act of 1949, 50 U.S.C. §§ 3501-3533, both of which ‘are considered exemption statutes for the purposes of [FOIA] Exemption 3.’”  “The National Security Act directs that ‘[t]he Director of National Intelligence shall protect, and shall establish and enforce policies to protect, intelligence sources and methods from unauthorized disclosure.’”  “The CIA Act, meanwhile, exempts the CIA from ‘the provisions of any other law which require the publication or disclosure of the organization or functions of the Agency, or of the names, official titles, salaries, o[r] numbers o[f] personnel employed by the Agency.’”  “Case law establishes that the CIA Act’s protections apply to both past and current personnel of the agency.”  The court finds that “[a]s their text reveals, the statutes cited by the CIA protect the exact sort of information that the CIA’s First Affidavit asserts the redacted documents to contain:  ‘intelligence sources and methods,’ 50 U.S.C. § 3024(i)(1), and ‘the organization and functions of the Agency,’ 50 U.S.C. § 3507.”  “The CIA’s affidavit describes how disclosure could compromise those types of information.”  “Given the Court’s earlier finding of no bad faith, the Court finds that the CIA has met its burden to show that FOIA Exemption 3 applies.”
  
  “Plaintiffs do not contest the statutes’ applicability, but they argue that the CIA has provided an insufficient connection between the redacted comments and national security, and that intelligence officials were not concerned with public disclosure of POW information.”  “But Exemption 3 requires no more than to establish that the redacted information falls within the statutes’ coverage – something that the CIA’s affidavit, whose good faith the Court must presume, easily accomplishes.”
   
• Litigation Considerations, In Camera Inspection:  “Having already found that the CIA met its burden here, the Court sees no need for in camera inspection of the redacted documents.”  “The Court therefore declines Plaintiffs’ request for in camera review.”