Gov’t Accountability Project v. CIA, No. 19-449, 2022 WL 4598582 (D.D.C. Sept. 30, 2022) (Moss, J.)

Gov’t Accountability Project v. CIA, No. 19-449, 2022 WL 4598582 (D.D.C. Sept. 30, 2022) (Moss, J.)

Re:  Request for records concerning civil nuclear cooperation with countries in Middle East

Disposition:  Granting defendant’s renewed partial motion for summary judgment; denying plaintiff’s renewed partial motion for summary judgment

• Exemption 1:  “[T]he Court concludes that the CIA has sufficiently demonstrated that ‘unauthorized disclosure’ of the unsolicited records sought by GAP ‘could reasonably be expected to cause identifiable or describable damage to the national security.’”  “The Court previously decided that the CIA’s Glomar response was proper as to all but one category of documents that GAP seeks.”  “The Court reserved judgment on the propriety of the CIA’s nonresponse response as to unsolicited communications from third parties . . . .”  “In its renewed motion for summary judgment, the CIA contends that the Court’s [previous] conclusions . . . apply with ‘equal force’ to agency records, if any, derived from unsolicited communications, since it would maintain any such records only if ‘the [a]gency has concluded that they are relevant [to] the Agency’s mission.’”  The court relates that “[defendant] explains, without qualification, that ‘acknowledging the existence or nonexistence of records responsive to the Plaintiff’s FOIA request would reveal whether or not the CIA had a mission-related interest in, or connection to:  (i) discussions or initiatives related to civil nuclear and/or cyber cooperation with Middle Eastern countries; (ii) economic policy proposals; and/or (iii) policy responses to the Westinghouse bankruptcy.’”  “Perhaps most significantly, [defendant] also attests that [it], based on [its] ‘careful review,’ . . . has concluded ‘that the fact of the existence or non-existence of any such records is currently and properly classified under Section 1.4 of Executive Order 13526, and therefore exempt from disclosure under FOIA exemptions (b)(1) and (b)(3).’”  “Finally, [defendant] attests that [its] ‘determination that the fact of the existence or nonexistence of records responsive to the plaintiff's request is classified has not been made to conceal violations of law, inefficiency, or . . . to prevent embarrassment.’”  “In sum, the CIA’s argument is that evidence of its retention (or non-retention) of unsolicited documents related to nuclear cooperation would reveal the CIA’s (un-)involvement or (dis-)interest in such cooperative relationships.”  The court finds that “[defendant] draws a ‘logical’ and ‘plausible’ connection between the revelation that a non-Glomar response as to these documents would produce and the risk to national security that such a response would precipitate.”  “Notwithstanding the Court’s initial skepticism as to whether unsolicited communications would always ‘reveal [some]thing about the CIA’s interests, methods, or sources,’ . . . [defendant’s] Declaration cogently explains that unsolicited documents maintained by the CIA as agency records are, by definition, indicative of whether the CIA has a mission-related interest in, or connection to, the record’s subject . . . .”  “Once that threshold is reached, as it is here, the Court must respect the executive's unique prerogative in matters of national security.”