Klayman v. CIA, No. 14-472, 2016 WL 1118253 (D.D.C. Mar. 22, 2016) (Moss, J.)
Re: Request for records concerning alleged CIA agent
Disposition: Granting defendant's motion for summary judgment
- Exemptions 1 & 3, Glomar: The court holds that defendant's response was appropriate. First, the court relates that "[t]he CIA contends that the fact of whether or not the records sought by Plaintiff exist is properly classified pursuant to Section 1.4(c) of Executive Order 13,526." The court notes that "[p]laintiff [only] disputes . . . that the 'subject matter is [ ]capable of being classified.'" The court rejects this argument and "finds that the CIA's detailed justification for invoking FOIA Exemption 1 in these circumstances is both 'logical [and] plausible.'" The court finds that "[t]he CIA has explained in 'specific detail' . . . that such a disclosure could be expected to result in damage to national security, and, absent controverting evidence or evidence of bad faith, the Court must defer to that judgment." "'[T]he mere confirmation or denial of the existence of responsive records would reveal a classified fact—namely, whether [the] CIA has a covert relationship with [the subject].'" Second, "[t]he Court finds that [defendant's] declaration is sufficient to sustain the Agency's Glomar response under these statutes for the same reasons it is sufficient to invoke Exemption 1." The court relates that "the CIA relies on the statutory limits on disclosure contained in Section 102(A)(i)(1) of the National Security Act of 1947 . . . and Section 6 of the Central Intelligence Act of 1949."
- Waiver: The court rejects "[p]laintiff['s] assert[ion] that the Agency's 'Glomar response [was] ineffective and unwarranted' because the information he sought had allegedly 'already been disclosed to third parties.'" The court finds that "[i]t defies commonsense to argue that any time a CIA official allegedly communicates with a third party, any such communication (if, in fact, one exists) has been 'made public' and is thus subject to FOIA disclosure." The court finds that "[e]ven if [the subject's] lawyer or his wife indicated—or implied—that [the subject] was affiliated with the CIA, their statements would not constitute an 'official acknowledgment' by the Agency." "For similar reasons, references to statements purportedly made by anonymous 'current and former officials' do not suffice to show that the CIA 'officially acknowledged' that it has, or ever had, any relationship with [the subject]."