Elec. Privacy Info. Ctr. v. ODNI, No. 17-163, 2017 WL 6502723 (D.D.C. Dec. 18, 2017) (Contreras, J.)

Date: 
Monday, December 18, 2017

Elec. Privacy Info. Ctr. v. ODNI, No. 17-163, 2017 WL 6502723 (D.D.C. Dec. 18, 2017) (Contreras, J.)

Re: Request for classified assessment of U.S. Intelligence Community

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's cross-motion for summary judgment

  • Exemption 1:  The court holds that "ODNI, through its affidavit, has provided sufficient proof for this Court to find that the information released in the declassified report 'logically or plausibly' remains classified within the classified report, and therefore remains covered by Exemption 1."  The court relates that "ODNI's classification policies provide that '[i]nformation that individually is unclassified or classified at a lower level, may become classified or classified at a higher level when aggregated or compiled in a single document, if the compiled information reveals an additional association or relationship that meets the standards for classification under the Order, and is not otherwise revealed in the individual data items.'"  "As such, the unclassified and declassified information in the classified report may maintain a TOP SECRET classification if, when combined with the other information in the report, it 'reveals an additional association or relationship that meets the standards for classification under the Order, and is not otherwise revealed in the individual data items.'"  The court finds that "ODNI's release of this information in the declassified report does not undercut its claim that such information, when seen within the context of the redacted report, 'reveals an additional association or relationship that meets the standards for classification under the Order.'"
     
  • Exemption 3:  "[T]he Court finds that ODNI has met its burden of showing that the entire report, even portions of the report that have already been released in a separate document, is covered by Exemption 3."  First, the court finds that "ODNI has made clear, and [plaintiff] does not contest, that portions of the classified report are covered by Exemption 3."  "[Defendant's] declaration . . . explains that the report contains information regarding signal intelligence sources, human intelligence sources, intelligence methods, and intelligence activities."  "The parts of the report addressing these intelligence sources and methods, and what specific intelligence was gleaned from them, are all clearly covered by Section 102A(i)(1) of the National Security Act of 1947, and those parts are therefore properly withheld."  However, the court also finds that "ODNI has already indirectly conceded that there are portions of the report not covered by Exemption 3 when released out of context from the rest of the classified report."  Despite this, the court finds that "[the] representations from the agency are sufficient to demonstrate that the portions of the classified report that have already been released in the declassified report were properly withheld in response to [plaintiff's] FOIA request."  "[T]he Court finds that ODNI has met its burden of demonstrating that it cannot release a partially redacted version of the report without risking the integrity of U.S. intelligence methods and sources."  Additionally, the court finds that "[a]lthough the amount of protected information foreign intelligence agencies would be able to obtain by reviewing a fully redacted version of the report as opposed to a partially redacted version of the report is far smaller, the agency has still met its burden of demonstrating that it is plausible that even releasing a fully redacted version of the report would pose too great a risk to the collecting agencies' national security operations."
     
  • Waiver:  The court holds that while "ODNI has already conceded that some of the information in the classified report matches information in the declassified report[,]" "[plaintiff] has not met its burden of demonstrating that the information already released in the declassified report completely 'matches' and is 'as specific as' the information it seeks through a partially or fully redacted copy of the classified report."
     
  • Litigation Considerations, In Camera Inspection:  "[T]he Court denies [plaintiff's] request that it review the classified report in camera."  "Even if the Court were to inspect the document in camera, the Court would be no better situated to evaluate the agency's prediction that the release of such information would be harmful to national security."  "And the agency, which has already explained how the release of a partially or fully redacted copy of the report would harm national security, and which has already proactively released the conclusions from the classified report in order to inform the American public about Russian interference in our elections, has shown no indication of bad faith in its attempt to protect the classified report."
Topic: 
District Court
Exemption 1
Exemption 3
Litigation Considerations
Waiver
Updated July 3, 2018