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James Madison Project v. Off. of the Dir. of Nat’l Intel., No. 22-00674, 2024 WL 1299336 (D.D.C. Mar. 26, 2024) (McFadden, J.)

Date

James Madison Project v. Off. of the Dir. of Nat’l Intel., No. 22-00674, 2024 WL 1299336 (D.D.C. Mar. 26, 2024) (McFadden, J.)

Re:  Request for copy of report on Havana Syndrome

Disposition:  Granting defendant’s motion for summary judgment

  • Exemption 1:  “[T]he Court will grant summary judgment to the Government on its exemption 1 withholdings.”  The court relates that “Plaintiffs challenge the sufficiency of only one affidavit:  that of . . . [the Office of the Director of National Intelligence (ODNI).]”  “Because they have not challenged the sufficiency of the other affidavits, any such challenges have been forfeited.”  “But the [challenged] Declaration is enough to warrant summary judgment for the Government.”  “[ODNI’s declarant] attests, under penalty of perjury, that he is an ‘original classification authority’ for ODNI, which is to say that he ‘make[s] original classification and declassification decisions for intelligence information up to and including the TOP SECRET level.’”  “He then attests that he personally reviewed all the redacted information and confirmed it is properly classified, consistent with the requirements of Executive Order 13526.”  “Indeed, he specifically articulates the bases under Executive Order 13526 justifying the classification – for example, that some information pertains to ‘intelligence activities’ or ‘intelligence sources and methods.’”  “And he attests that the disclosure of such information is reasonably likely to harm national security – he even explains how.”  “That is all that is needed.”

    “Plaintiffs disagree.”  “They want [ODNI] to ‘elaborate or provide . . . further clarity’ on these claims.”  “They do not clearly explain why such ‘further clarity’ is needed.”  “But, charitably construed, they appear to be raising a claim that the [ODNI] Declaration is ‘conclusory’ . . . .”  “Not so.”  “The [ODNI] Declaration is as specific as it needs to be.”  “In fact, requiring what Plaintiffs ask for would defeat the whole point of exemption 1:  Forcing [ODNI] to detail the contents of the withholdings and why they were classified would render their classification futile.”  “[Plaintiffs] next argue that the affidavit is insufficient because of a purported mismatch.”  “They say that, because [ODNI] attests there is classified information in places they find odd, his affidavit is untrustworthy.”  However, the court finds that “the oddity Plaintiffs point to is only skin-deep.”  “The other purported oddities also have reasonable explanations . . . .”
     
  • Exemption 3:  The court relates that “[t]he Government has identified the National Security Act and the Central Intelligence Agency Act as two statutes that justify its exemption 3 withholdings.”  “Plaintiffs agree that these statutes, ‘in and of themselves, qualify as withholding statutes.’”  The court finds that “[t]he Government’s declarations met [its] burden.”  “The Defense Intelligence Agency’s declaration, for instance, explained that revealing the withheld information would ‘reveal intelligence sources and methods’ in a way that ‘would allow adversaries to employ countermeasures, thus reducing the effectiveness of the sources and methods as intelligence collection tools.’”  “Similarly, the CIA declaration made clear that revealing the withheld information would ‘expose the identities of CIA personnel, which could subject them to harassment or unwanted contact.’”  “These explanations are representative of those offered by each agency here.”  “Plaintiffs’ remaining objections largely revolve around the length of the sections to be withheld.”  “But that is not the test.”  “The Government could withhold the entire document if it could show that it all fell within some exemption’s remit.”  “Last, Plaintiffs again suggest that it would be odd to find protected information in certain portions of the report.”  “Why, they ask again, would the biographies of panelists be exempted from disclosure?”  “Again, the answer is simple:  The National Security Act bars disclosure of the ‘names, official titles, salaries, or number of personnel employed’ by certain intelligence community agencies.”  “And the panelist biographies may well contain sufficient information to identify the panelists, even without their names.”  “But, once more, the length or location of the withheld information is not material to whether it is exempted from disclosure, so long as the claimed exemption is supported by a competent agency declaration, as those here were.”  “Under these circumstances, the Government’s exemptions ‘appear[ ] logical or plausible,’ and therefore pass muster.
     
  • Exemption 7(E):  The court relates that “[t]he FBI invoked this exemption to cover various withholdings that would reveal methods for ‘collection and analysis of information and sensitive investigative techniques used to conduct national security investigations.’”  “And the Government explained the harms that would result from such disclosure.”  “Plaintiffs concede that exemption 7(E) ‘sets a low bar’ for the Government.”  “Yet they argue the Government has failed to meet that bar because it has invoked exemption 7(E) for the entirety of Appendix J.”  “Again though, the Government has explained the sensitive law enforcement information contained within Appendix J and the harm that would result from its disclosure.”  “So the mere fact that the exempt information covers a long passage in the report is immaterial.”  “And it cannot be true, as Plaintiffs suggest, that the FBI must disclose to them the withheld material to protect that material from disclosure.”  “Indeed, under Plaintiffs’ theory, exemption 7(E) is curiously self-defeating.”  “It would require divulging the exact information the Government seeks to withhold in order to justify the withholding.”  “Instead, the Government need only provide the Court enough information for it to reasonably conclude that the withheld materials do, in fact, pertain to confidential law enforcement techniques and practices.”  “Because the Government has detailed how the withheld information does so, and the harm that would result from its disclosure, the Court finds that the exemption 7(E) withholding is reasonable.”
  • Litigation Considerations, “Reasonably Segregable” Showing:  “The Court . . . concludes that the Government has satisfied its burden to show that it has disclosed all non-exempt reasonably segregable information to Plaintiffs.”  The court relates that “the Government provided a reasonably detailed statement supporting its claim on non-segregability.”  “[Defendant’s declarant] certified that he reviewed the record ‘on a line-by-line and page-by-page basis’ and determined that there was ‘no additional meaningful, non-exempt information that may be reasonably segregated and released’ without disclosing exempt information.”
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 7(E)
Litigation Considerations, “Reasonably Segregable” Requirements
Updated May 2, 2024