Knight First Amendment Inst. at Columbia University v. CIA, No. 18-02709, 2020 WL 58687 (D.D.C. Jan. 6, 2020) (McFadden, J.)

Knight First Amendment Inst. at Columbia University v. CIA, No. 18-02709, 2020 WL 58687 (D.D.C. Jan. 6, 2020) (McFadden, J.)

Re:  Request for records concerning "'duty to warn' [Jamal] Khashoggi of the attack"

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment

• Exemptions 1 & 3 Glomar:  "Finding ample support for the Intelligence Agencies' Glomar responses under Exemptions 1 and 3, the Court will not undercut the deference those agencies are due here."  The court relates that, "[h]ere, the Intelligence Agencies rely on FOIA Exemptions 1 and 3."  "To support the Exemption 3 claims, the Intelligence Agencies rely on the National Security Act of 1947 . . . ."  The court finds that "the Intelligence Agencies have shown 'the untoward consequences that could ensue were [they] required either to confirm or deny statements made by another agency.'"  The court then relates that "[t]he central issue here is whether the State Department's press briefing a week after Khashoggi's as-yet-publicly-unconfirmed killing constituted an 'official' disclosure that overcomes the Intelligence Agencies' Glomar responses."  "In response to a reporter's question, a State spokesperson said, 'although I cannot comment on intelligence matters, I can say definitively the United States had no advanced knowledge of Jamal Khashoggi's disappearance.'"  The court notes that "[plaintiff] voluntarily dismissed its claims against the State Department."  The court finds that to be significant "because 'a disclosure made by someone other than the agency from which the information is being sought' is not 'official.'"  The court relates that "[plaintiff] argues that – like the Intelligence Agencies – the State Department is part of the Intelligence Community and thus is 'positioned to speak on behalf of the entire Intelligence Community on issues related to foreign intelligence.'"  "But this is just a reformulation of the claim that one executive agency can speak for another one."  Additionally, the court finds that "there is a substantial difference between the State Department's general press statement, . . . and confirmation (or denial) that the Intelligence Agencies had (or did not have) 'credible and specific information indicating an impending threat' to Khashoggi that would trigger the duty to warn . . . ."  "Indeed, the State spokesperson qualified his statement to protect these same intelligence interests."  Overall, the court finds that "[plaintiff] has not met its burden of 'pointing to specific information in the public domain that appears to duplicate that being withheld.'"