Tuesday, January 30, 2018
Johnson v. CIA, No. 17-1928, 2018 U.S. Dist. LEXIS 17830 (S.D.N.Y. Jan. 30, 2018) McMahon, J.)
Re: Request for certain email chains
Disposition: Holding in abeyance defendant's and plaintiff's motions for summary judgment
- Waiver: The court holds off on ruling on the parties motions for summary judgment. The court relates that "Plaintiff does not contest that the withheld information would not [be] exempt from disclosure if it had not been divulged to his competitors; rather, he argues that CIA has, by disclosing to reporters not authorized to have access to this classified information, waived its right to rely on the relevant exemptions." The court notes that "[a]ll of this information is highly classified" and "it is undisputed that CIA disclosed the withheld information to the three journalists." The court finds that, "[i]n this case, CIA voluntarily disclosed to outsiders information that it had a perfect right to keep private." "There is absolutely no statutory provision that authorizes limited disclosure of otherwise classified information to anyone, including 'trusted reporters,' for any purpose, including the protection of CIA sources and methods that might otherwise be owed." "The fact that the reporters might not have printed what was disclosed to them has no logical or legal impact on the waiver analysis, because the only fact relevant to waiver analysis is: Did the CIA do something that worked a waiver of a right it otherwise had?" "The answer: CIA voluntarily disclosed what it had no obligation to disclose (and, indeed, had a statutory obligation not to disclose)." "In the real world, disclosure to some who are unauthorized operates as a waiver of the right to keep information private a[s] to anyone else." The court holds that "[t]he issue here is a serious one, and so are the possible consequences if the court were to conclude, that CIA's limited disclosure to some members of the press operated as a waiver." "[The court] suggests, therefore, that the Government go back and treat the question of waiver with the seriousness it deserves." "A comprehensive discussion of the doctrine and an analysis of cases (especially FOIA cases) in which it was discussed is plainly called for especially now that this court has put the Government on notice[.]"
Updated June 27, 2018