Gov't Accountability Project v. CIA, No. 19-449, 2021 WL 2823125 (D.D.C. July 7, 2021) (Moss, J.)
Gov't Accountability Project v. CIA, No. 19-449, 2021 WL 2823125 (D.D.C. July 7, 2021) (Moss, J.)
Re: Request for records concerning provision of certain nuclear technologies to countries in Middle East
Disposition: Granting in part and denying in part defendant's motion for summary judgment; denying plaintiff's motion for summary judgment
- Exemption 1, Glomar Response: The court holds that "the CIA has, with one exception, carried [its] burden." "To start, the subject matter of [plaintiff's] request falls within the coverage of Executive Order 13526." "[Plaintiff's] FOIA request, recall, sought records related to the following five topics: ['](1) civil nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia; (2) the Middle East Marshall Plan; (3) negotiation of a U.S.-Saudi "123" Civil Nuclear Cooperation Agreement; (4) the IP3 Corporation and its proposal for nuclear and cyber cooperation with various Middle Eastern countries; and (5) Westinghouse, including its March 2017 bankruptcy and the subsequent policy response of the U.S. Government.'" "Each of these topics, as [plaintiff] itself admits, pertains directly to the interest of the United States in the provision of nuclear technologies to countries in the Middle East." The court finds that "Section 1.4 of Executive Order 13526 . . . prevents the unauthorized disclosure of precisely the types of information that [plaintiff] requests." "That portion of the Executive Order twice affirms that classification of information pertaining to foreign relations is proper . . . and it curtails, in three separate subsections, disclosure of information related to the U.S. government's interests in nuclear material . . . ." "In view of the deference that the executive is owed in this context, the Court concludes that the CIA has adequately shown that 'unauthorized disclosure' vel non of the type of information sought 'could reasonably be expected to cause identifiable or describable damage to the national security.'" "[Defendant's] declaration explains that a non-Glomar response in this case would give rise to a cognizable threat to national security in three ways." "First, and most directly, it would provide U.S. adversaries 'insight into the scope and nature of [the] CIA's intelligence activities and interests.'" "Second, [defendant] explains that acknowledgment vel non of the requested records would impinge on the CIA's ability 'to operate as an effective clandestine intelligence agency.'" "Finally, [defendant] explains that, in light of the CIA's clandestine nature and given that a non-Glomar response would elucidate the agency's intelligence interests, public revelation of the information GAP seeks would enable foreign organizations to counter the CIA's efforts and to threaten the United States." "Based on [defendant's] declaration, it is not particularly challenging to see how disclosure of whether the CIA possesses records responsive to [plaintiff's] FOIA request 'could reasonably be expected to cause identifiable or describable damage to the national security.'"
Regarding plaintiff's public acknowledgement argument, the court finds that "there exists only a congressional report recounting a private businessman's two emails and a reference to efforts made by [a private firm] 'to promote their plan with high-level stakeholders . . . .'" "The 'strict' official acknowledgement doctrine requires more." "Beyond this difficulty, the D.C. Circuit has cautioned courts 'not [to] deem "official" a disclosure made by someone other than the agency from which the information is being sought.'" "[Plaintiff] has adduced no evidence that the CIA itself – or any other executive agency or department for that matter – has ever acknowledged vel non the records that [plaintiff[ now seeks." Separately, the court finds that "'[a] plaintiff alleging that an agency has classified information to conceal a violation of law "must provide something more than conjecture to show that the agency's withholding decision violates Executive Order 13,526."'" The court finds that "[defendant's] declaration avers that the CIA[] 'determin[ed] that the existence or nonexistence of the requested records is classified and has not been made to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interests of national security.'" "The Court has no reason to doubt that averment at this juncture, conclusory as it may be."
However, the court also finds that "[t]here is one category of records that neither party has addressed in detail and that might not, necessarily, reveal the CIA's intelligence interests (or non-interests): unsolicited communications from third parties that, for whatever reason, are responsive to [plaintiff's] FOIA request." "It is hard to see how revealing whether such unsolicited records exist would expose the agency's intelligence interests, methods, or sources in a manner that could imperil national security." "Accordingly, as to such unsolicited communications, if any, the Court must deny the CIA's motion for summary judgment." "But because [plaintiff] only alludes to this argument, and because neither party has developed the issue, the Court is not prepared – at least on the present record – to grant summary judgment in [plaintiff's] favor on this issue." "For present purposes, the Court will merely reserve judgment on the question and will permit both parties to renew their respective motions as appropriate."