James Madison Project v. DOJ, No. 16-227, 2020 WL 224535 (D.D.C. Jan. 15, 2020) (Lamberth, J.)

James Madison Project v. DOJ, No. 16-227, 2020 WL 224535 (D.D.C. Jan. 15, 2020) (Lamberth, J.)

Re:  Request for records concerning former CIA officer sentenced to two-and-a-half years in federal prison followed by three years of supervised release

Disposition:  Granting defendants' motion for summary judgment

• Exemption 1:  "[T]he Court finds that both agencies' validly invoked Exemption 1."  First, the court finds that "the CIA has provided sufficient information to justify its use of Exemption 1."  The court notes that "Plaintiffs challenge the invocation of Exemption 1 only in relation to intelligence activities and intelligence methods."  "Plaintiffs expressly waive their challenge to the invocation of Exemption 1 in relation to covert personnel, classified contracts, and locations of agency facilities."  The court finds that "the CIA has provided sufficient information to justify its use of Exemption 1."  "The documents at issue concern the CIA's identification and investigation of unauthorized disclosures of classified information by a former CIA officer as well as the CIA's internal discussions and consultation with other agencies and agency components regarding the investigation and [the subject former CIA officer's] ultimate arrest and prosecution."  "The intelligence activities, sources, and methods that the CIA withheld from these documents include counterintelligence investigation sources and techniques used to investigate the potential unauthorized disclosures, sensitive technical collection procedures used to conduct the investigation, and other information about CIA intelligence operations."  "Forcing the CIA to produce this information would mean forcing it to publicize details of certain CIA counterterrorism operations and other intelligence activities conducted abroad that are still classified."  Second, the court finds that the FBI, EOUSA, and NSD have all properly invoked Exemption 1 "for the same reasons outlined above in explaining why the CIA properly invoked Exemption 1."
   
• Exemption 3:  "[T]he Court finds that the CIA properly invoked Exemption 3."  First, the court finds that "[t]he CIA's Vaughn Index and . . . Declaration both make it clear that the CIA limited its withholdings under the CIA Act to information about the identities and functions of CIA personnel, which falls squarely within the [CIA Act]."  The court also finds that the CIA properly withheld information pursuant to the NSA Act because "[t]he information that the CIA has withheld consists of internal CIA and intra-agency communications regarding [the subject former CIA agent's] investigation and prosecution as well as CIA records that would reveal sensitive technical means of conducting counterintelligence operations."
   
• Exemption 5, Attorney Work-Product:  The court holds that "[t]he CIA properly withheld attorney work product in this case."  The court finds that "[the] documents consist of investigatory and/or legal documents, portions of which were compiled by or at the request of [the CIA's Office of General Counsel ("OGC")] and include interview reports, emails reflecting legal advice, case updates, draft memoranda, and feedback on draft reports or recommendations."  "The CIA knew from the outset of its investigation that any unauthorized disclosure of information was likely to be prosecuted, meaning that the withheld documents were prepared in anticipation of litigation."
   
• Exemption 5, Deliberative Process Privilege:  The court holds that "the CIA properly invoked the deliberative process privilege."  The court relates that "Plaintiffs specifically challenge the CIA's use of the deliberative process privilege to withhold crime reports from the CIA to DOJ, which contain the CIA's position and recommendation with respect to a possible criminal investigation or prosecution."  "As the CIA describes the intra-agency and inter-agency communications that were withheld, they were merely recommendations to the decisionmaker (in this case, DOJ) rather than a final or binding decision of its own, meaning that the deliberative process privilege applies."  "As explained in [defendant's] Declaration, DOJ is not bound by the recommendations of the CIA regarding prosecution, meaning that the CIA's recommendations in this context were not final decisions and were merely advisory."
   
• Exemption 5, Attorney-Client, Privilege:  "The Court . . . finds that the CIA has met its burden to show that the attorney-client privilege applies . . . ."  The court finds that "[a]ll three of the Vaughn Index entries that plaintiffs point to [in their arguments] clearly involve instances wherein OGC attorneys communicated in confidence with their client regarding the [subject former CIA agent's] investigation or prosecution."
   
• Exemptions 6 & 7(C):  The court holds that "summary judgment will be granted for the defense on this issue."  "The Court believes that the balancing test in this case tips in favor of the government. Although the Court disagrees with the government's characterization of [the subject former CIA agent] as a mere low-level employee (specifically during his time as the Chief of Counterterrorism Operations in Pakistan), his privacy interests still outweigh the public interest in the investigative file."  "The government is correct that the Chief of Counterterrorism Operations in Pakistan is not a public figure on par with the likes of House Majority Leader DeLay, former CIA Director General Patraeus, or former National Security Agency senior executive Drake (all of whom the plaintiffs argue are models for how [the subject former CIA agent's] personal information should be treated in this case)."  "The Court finds that [the subject former CIA agent] still retains a significant privacy interest in the FBI's investigative file, and although plaintiffs argue that [the subject former CIA agent's] interest is diminished because he claims his prosecution was a retaliatory act, that is not the case."  "[The subject former CIA agent] is not the one submitting this FOIA request, nor has he submitted any formal waiver of his privacy rights."  "He is also not a public figure in the same way that the persons plaintiffs cite were deemed public figures."  "Therefore, his privacy interests remain intact despite having served as the Chief of Counterterrorism Operations in Pakistan."  Additionally, the court finds that "Plaintiffs also fail to demonstrate how any public interest in the information outweighs the privacy rights at stake."  "The fact that the file would provide insight into how the FBI went about investigating the case is clearly insufficient to override the privacy interests at play here."  And, "[a]s the government aptly points out, plaintiffs provide no evidence of government misconduct aside from [the subject former CIA agent's] previous public statements, for which he, in turn, provided no concrete proof."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  "The Court finds that the CIA and EOUSA have released all reasonably segregable nonexempt information."  "The agencies' respective declarants conducted a line-by-line review of the responsive records and determined that all reasonably segregable nonexempt information was released."