Inst. for Policy Studies v. CIA, No. 06-960, 2016 WL 354871 (D.D.C. Jan. 28, 2016) (Lamberth, J.)

Inst. for Policy Studies v. CIA, No. 06-960, 2016 WL 354871 (D.D.C. Jan. 28, 2016) (Lamberth, J.)

Re: Request for records concerning Columbian Organization Perseguidos por Pablo Escobar, People Persecuted by Pablo Escobar

Disposition: Granting defendant's motion for reconsideration of grant in part and denial in part of plaintiff's motion for summary judgment and grant in part and denial in part of defendant's cross-motion for summary judgment

• Exemption 1:  The court relates that "[t]he Court's August 19, 2015 Order relied on the Court’s conclusion that defendant had not properly invoked the 'operational files exemption,' and that even if it had, the 'special activity exception' to the [FOIA] applied."  "Both of these conclusions were erroneous."  The court explains that it previously "concluded both (1) that plaintiff had identified a sufficiently specific CIA activity in connection with its request, namely, an alleged CIA-linked effort to catch Pablo Escobar, and (2) that the government had declassified the requested material when it disclosed in its Vaughn Indices that the material contained discussion of 'special activities.'"  "The Court now realizes that it made an impermissible inference . . . . "  "Specifically, the Court improperly reasoned that the concession that there were special activities, when taken in conjunction with the unredacted text of the Los Pepes Panel documents demonstrating CIA involvement, meant that the CIA had effectively disclosed the existence of the specific special activities plaintiff had alleged."  "As the government correctly notes, however, this conclusion was unfounded."  The court explains that "[t]o proceed otherwise would, in addition to violating the law, allow FOIA plaintiffs to bootstrap themselves into the exception using the very transparency they crave."

Additionally, the court notes that it "previously rejected the government’s attempt to invoke the exemption [for operational files] because the declarations it offered in support thereof were conclusory, and gave the Court no independent way to evaluate the government’s claim."  "To address the Court’s concerns on this and other points, the government has submitted further briefing as well as a declaration by a more senior CIA official."  The court finds that "[t]he new declaration does not bolster the government’s invocation of the operational files exemption."  "As the government points out in its Motion to reconsider, however, the nature of plaintiff’s request—for files relating to supposed covert action operations to apprehend Pablo Escobar—would necessarily 'document the conduct of foreign intelligence or counterintelligence operations.'"  "The Court therefore concludes that the government did in fact properly invoke the operational file exemption in this case."