James Madison Project v. CIA, No. 22-00321, 2025 WL 2465941 (D.D.C. Aug. 27, 2025) (Nichols, J.)

James Madison Project v. CIA, No. 22-00321, 2025 WL 2465941 (D.D.C. Aug. 27, 2025) (Nichols, J.)

Re: Request for records concerning Havana syndrome

Disposition:  Granting defendant’s motion for summary judgment

• Exemption 1; Exemption 3:  The court relates that Part 1 of plaintiff’s request “sought a copy of the CIA’s purported January 19, 2022 ‘assessment’ of the causes of [the “‘anomalous health incidents’” (“AHIs”)].”  “The CIA justifies . . . withholdings [taken for this portion of the request] under FOIA Exemptions 1 and 3.”  “[Defendant’s] declaration, supplemented by the classified declaration, adequately explains why Exemptions 1 and 3 justify the agency’s redactions to the first two documents and its total withholding of the third.”  “Beginning with Exemption 1, [defendant’s declarant], an original classification authority, has attested that the undisclosed information is ‘currently and properly classified’ and is ‘owned by and [ ] under the control of the U.S. Government.’”  “[Defendant’s declarant] also attests that the withheld information pertains to ‘intelligence activities . . . sources and methods’ within the meaning of Executive Order 13,526.”  “As she explains, all three responsive documents are ‘finished intelligence products on the topic of AHIs.’”  “The CIA determined that certain information in the two partially released documents ‘related to [classified] intelligence sources, methods, and activities, including the CIA’s bases for the statement[s] in [the documents’] title[s].’” “Regarding the third document, the CIA determined that the ‘unique nature and sensitivity of the document’ meant that it was wholly related to ‘intelligence sources, methods, and activities connected to the topic of AHIs.’”  “The classified declaration offers additional details about the withheld information that corroborate those conclusions.”  “Turning to the final requirement of Exemption 1 – seemingly the only requirement in real dispute – the CIA has also justified why revealing the ‘specific information collected’ about AHIs, ‘the methods used’ to investigate them, ‘or even the scope of the information collected’ could reasonably be expected to harm national security.”  “As [defendant] explains, that is because releasing that information – which the CIA has never previously disclosed – would expose the ‘CIA’s sources and methods for gathering [such] information, the apportionment of Agency resources allocated to gathering [such] information, the existence or nonexistence of [CIA] relationships with certain foreign entities, the CIA’s collection capabilities, and potentially, CIA’s collection gaps, if they exist.’”  “And as to the third document, the classified declaration persuasively explains why, given the particular nature of the document, releasing any part of it could reasonably be expected to inflict harm for similar reasons.”  “The Court finds it ‘unwise to undertake searching judicial review’ of these ‘executive affidavits predicting harm to the national security.’” “[Defendant’s] declaration also explains why Exemption 3, as applicable through the National Security Act of 1947 and the CIA Act of 1949, further justifies the withholding of part 1 information.”  “Again, those statutes respectively authorize the CIA to protect from disclosure its ‘intelligence sources and methods’ and the personally-identifying information of CIA personnel.”  “Here, [defendant] attests that the National Security Act ‘applies co-extensively to all the information protected by Exemption [1] because [the withheld] information relates to specific intelligence sources and methods.’”  “But as she notes, the National Security Act also extends beyond Exemption 1, because it additionally covers unclassified sources and methods, ‘such as classification and dissemination control markings,’ which ‘highlight areas of particular intelligence interest, sensitive collection sources or methods, foreign sensitivities, and procedures for gathering, protecting, and processing intelligence.’”  “And [defendant’s declarant] further attests that some of the withheld information in the two partially released part 1 documents is protected by the CIA Act, because it concerns the ‘names and other personally-identifying information of Agency personnel, such as [their] functions, official titles, Agency identification numbers, and telephone numbers.’”  “The Court accepts these representations by [defendant’s declarant], which plaintiffs have offered no reason to doubt.”
  
  “In parts 2 and 3 of their FOIA request, plaintiffs respectively sought ‘[a]ll intelligence information relied upon in formulating conclusions in [the CIA’s January 19, 2022, AHI assessment]’ and ‘[a]ll factual, medical and/or scientific findings made in the course of formulating the conclusions in the Assessment.’”  “As noted above, the CIA issued a ‘no number, no list’ response as to both parts – it ‘acknowledge[d] the existence of documents responsive to the request, but neither number[ed] nor identifie[d] them by title or description,’ as a standard Vaughn index would do.” “In particular, the CIA explained that providing the number of responsive records or further describing them – such as by detailing their dates, authors, page counts, or subject matter – would ‘reveal[ ] information that is itself protected from disclosure pursuant to FOIA Exemptions [1] and [3].’”  “The CIA also explained that, beyond confirming that ‘the CIA office charged with examining AHIs’ is ‘in possession of at least one responsive record’ regarding parts 2 and 3, ‘the CIA [did] not otherwise conduct[ ] a search.’” “As the CIA made clear at oral argument, it concluded from the plain text of plaintiffs’ request that the actual materials sought in parts 2 and 3 – the specific ‘intelligence information gathered or obtained by the CIA on AHIs’ – would necessarily be eligible for withholding under Exemptions 1 and 3.”  “Beginning with Exemption 1, [defendant’s declarant] attests that, as with many aspects of the records sought in part 1, a significant portion of that information is owned and controlled by the U.S. government; is currently and properly classified; and pertains to intelligence activities, sources, or methods, pursuant to Executive Order 13,526.”  “Disclosure of that classified information could thus be reasonably expected to harm national security for the same reasons discussed above, with respect to the withheld part 1 information.”  “And while the information sought in parts 2 and 3 also includes unclassified intelligence source information, such as classification and dissemination control markings, as well as information pertaining to CIA personnel, [defendant’s declarant] further attests that – again as with part 1 – that additional information is protected by Exemption 3, via the National Security and CIA Acts.”  “Plaintiffs do not appear to seriously dispute that the contents of the materials they seek in parts 2 and 3 – i.e., the CIA’s actual intelligence conclusions – are exempt from disclosure under Exemption 1, Exemption 3, or both.” “Instead, they challenge the CIA’s decision to withhold under those exemptions even ‘details regarding the volume and nature of that responsive information’ – i.e., the CIA’s failure to ‘mere[ly] disclos[e] the details of a normal Vaughn index.’”  “It is true, as plaintiffs note, that a ‘no number, no list’ response – which the Court of Appeals has described as effectively a ‘radically minimalist’ form of a Vaughn index – can ‘only be justified in unusual circumstances, and only by a particularly persuasive affidavit.’”  “But with the benefit of the CIA’s classified declaration, and given plaintiffs’ acknowledged request for bare intelligence information, the Court finds that such unusual circumstances are present here.”  “As [defendant’s] declaration explains, disclosing ‘[e]ven the number of documents responsive to part 2 or part 3 of the request, or the dates or page counts of those documents, would reveal intelligence sources and methods by potentially identifying the total amount of information gathered or obtained by the CIA, and when the CIA gathered or obtained information or expended intelligence-gathering resources to do so.’”  “[Defendant’s declarant] attests that disclosing that kind of ‘scope’ information would expose ‘the CIA’s and the U.S. Government’s intelligence capabilities and methods’ in a manner that could permit our enemies to ‘generally enhance [their] intelligence or counterintelligence activities at the expense of the United States’ national security.’”  “Importantly, ‘[a]ny information at all [would] provide[ ] insight into what the CIA knows or is capable of.’”  “An adversary could draw an equally valuable inference from the revelation of a small number of responsive documents – which might suggest a limitation on the CIA’s intelligence gathering or its focus on a non-AHI intelligence interest – as it could from the revelation of a large number of responsive documents – which might suggest the converse.”  “Similarly, adversaries could draw any range of valuable inferences from whatever qualitative descriptions the CIA might offer about the intelligence information sought in parts 2 and 3.”  “Plaintiffs contend that these explanations from [defendant’s] declaration are too ‘broad and vague’ to support the CIA’s ‘no number, no list’ response.”  “To be sure, the Court sympathizes with plaintiffs’ concern:  that is why it suggested that the CIA lodge a classified declaration to bolster its publicly available rationale.”  “But having now reviewed that declaration – which contains some (but by no means all) of the information that would appear in a Vaughn index – the Court concludes that the CIA has carried its burden of showing that Exemptions 1 and 3 protect disclosure of the number and listing of the documents responsive to parts 2 and 3 of plaintiffs’ request.”  “In its classified declaration, the CIA provided a more detailed explanation of how that scope of information implicates CIA intelligence activities, sources, and methods, as well as how its disclosure could harm national security in the manner that the CIA has described publicly.”  “Although the Court of course cannot discuss those details and examples here, they persuade it that the number and listing of responsive documents must remain secret because any insight into the scope of the CIA’s intelligence efforts regarding AHIs could aid foreign adversaries in their efforts to evade or undermine the CIA.”
   
• Litigation Considerations, Evidentiary Showing, Adequacy of Search:  The court relates that “Plaintiffs do not dispute that the CIA conducted an adequate search for records responsive to part 1 of their request.”  Regarding Parts 2 and 3, the court finds that “Plaintiffs . . . maintain that, even if the CIA were otherwise permitted to issue a ‘no number, no list’ response to parts 2 and 3 of their request, it was not permitted to do so without first conducting an actual search for responsive records.”  “The parties agree that ‘no court has squarely addressed’ that particular question.” “But it is well established that, when an agency is justified in wholly ‘refusing to confirm or deny its possession of responsive documents’ – a measure known as a Glomar response – ‘the agency need not conduct any search for responsive documents,’ because doing so would be ‘meaningless.’”
   
• Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing:  The court holds that “[h]ere, the Court’s segregability inquiry is quite straightforward.”  “[Defendant’s declarant] attested that, ‘[w]ith respect to the two documents released in part, and the one document withheld in full in response to part 1 of the request, the CIA conducted a line-by-line review of each of these documents, and released all reasonably segregable, nonexempt information that could be released.’” “And ‘[w]ith respect to the CIA’s response to parts 2 and 3 of the request,’ [defendant’s declarant] ‘determined that no records or portions of records may be released,’ for the reasons discussed above.”  “The Court credits these statements from [defendant’s] declaration, which, when coupled with the agency’s elaboration of its withholding determinations in its public and classified declarations, ‘show with reasonable specificity why documents withheld pursuant to a valid exemption cannot be further segregated.’”