Florez v. CIA, No. 14-1002, 2015 WL 728190 (S.D.N.Y. Feb. 19, 2015) (Stein, J.)

Florez v. CIA, No. 14-1002, 2015 WL 728190 (S.D.N.Y. Feb. 19, 2015) (Stein, J.)

Re: Request for records concerning plaintiff's father

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

• Exemption 1:  "This Court concludes that the CIA has met its burden of establishing that FOIA Exemption 1 supports its Glomar response."  The court notes that "[p]laintiff does not contest that the information meets the first three requirements of classification; i.e., that (1) [defendant's declarant] is an original classification authority and that she assessed the current classification of the information; (2) the information is under the control of the U.S. government; and (3) any records, should they exist, fall within the category of 'intelligence activities' and 'intelligence sources and methods.'"  "Plaintiff contends solely that Exemption 1 is inapplicable because the disclosure of decades-old documents would not, as a factual matter, result in damage to national security."  The court finds that "the CIA has outlined how any acknowledgment of the existence of the requested records would reveal classified information regarding intelligence activities, sources, and methods, and why that information should logically remain classified."  "Such declarations are given 'substantial weight' when offered in the context of national security."  Additionally, the court finds that, "[d]espite plaintiff's exhortations, the age of the requested records does not render [defendant's] declarations 'implausible.'"  The court explains that, "[h]ere, the CIA addressed the passage of time in its declarations, explaining that the government's breach of a promise of confidentiality given to a 'human intelligence source,' in the parlance of the CIA, 'whether three or thirty years later' could reasonably impair relations with current sources, deter future recruiting, and provoke retaliation."

The court also finds that "the CIA's Glomar response remains valid" even though "certain information about [plaintiff's father] has in fact already been disclosed publicly by the CIA."  The court relates that plaintiff argues that "several documents available publicly from the CIA refer specifically to [plaintiff's father]."  "The two documents plaintiff identified do not show that the CIA was employing [plaintiff's father] as an intelligence source or targeting him in any way."  "They certainly do not reveal any intelligence activity conducted by [plaintiff's father] or any relationship that he may have had with the CIA."

• Exemption 3:  "The Court finds that the CIA's Glomar response is justified under both Exemption 1 and Exemption 3."  The court relates that "[t]he CIA relies on two statutes that specifically preclude the disclosure of records plaintiff seeks."  "First, Section 102A(i)(1) of the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1), requires that the Director of National Intelligence 'protect intelligence sources and methods from unauthorized disclosure.'"  Second, Section 6 of the Central Intelligence Agency Act of 1949, as amended, 50 U.S.C. § 3507, provides that, '[i]n the interests of the security of the foreign intelligence activities of the United States and in order further to implement ... the Director of National Intelligence['s] ... responsib[ility] for protecting intelligence sources and methods from unauthorized disclosure,' the CIA shall be exempted from the provisions of any law that 'require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.'"  The court finds that "[b]oth the National Security Act and Central Intelligence Agency Act are exempting statutes within the meaning of Exemption 3."  The court notes that "[i]n relying upon Exemption 3 to justify its Glomar response, the CIA contends that acknowledging the existence or nonexistence of the records [plaintiff] seeks could reasonably be expected to lead to the unauthorized disclosure of intelligence sources and methods as well as clandestine intelligence activities, which are at the core of the CIA's functions."  The court finds that "the fact that 'it is no secret' the CIA may 'use' foreign officials in some capacity does not mean that the CIA can no longer protect the specifics of its tactics."