Lenz v. CIA, No. 20-3327, 2024 WL 4346263 (D.D.C. Sept. 30, 2024) (Lamberth, J.)
Lenz v. CIA, No. 20-3327, 2024 WL 4346263 (D.D.C. Sept. 30, 2024) (Lamberth, J.)
Re: Request for records concerning 1962 raid of businesses in Philippines and extent of U.S. government’s role in that raid
Disposition: Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s motion for summary judgment
- Exemption 1, Glomar Response; Exemption 3: “The Court will grant the CIA’s motion regarding its Glomar response to items 2, 4, 6, and 9 of Plaintiff’s FOIA request.” “The CIA asserted a Glomar response, also known as a ‘neither confirm nor deny’ (NCND) response, for the inquiries numbered 2, 4, 6, and 9 of Plaintiff’s FOIA request.” “Specifically, the CIA argues that responding to items 6 and 9 would reveal a classified and statutorily protected fact under Exemptions 1 and 3.” “The CIA also argues that responding to items 2 and 4 would do the same ‘to the extent that those items implicate records that might reveal whether there is a classified or otherwise unacknowledged association with the Agency.’” “Plaintiff responds that a Glomar response is improper because the CIA has already officially acknowledged the existence of records responsive to these inquiries.” “As the Court will explain, given the stringent requirements of the ‘official acknowledgment’ exception and Plaintiff’s failure to meet this burden, the CIA properly asserted Glomar.” “Regarding Exemption 1’s applicability to support a Glomar response, the CIA argues that the existence or nonexistence of the requested items (6 and 9 in full, and 2 and 4 ‘to the extent’ that those items implicate records revealing a classified or unacknowledged association with the CIA) is properly classified pursuant to sections 1.4(c) and 1.4(d) of Executive Order 13526.” “Section 1.4(c) protects from disclosure ‘intelligence activities (including covert action), intelligence sources or methods, or cryptology,’ and Section 1.4(d) protects ‘foreign relations or foreign activities, including confidential sources.’” “In other words, the CIA asserts that confirming or denying the existence of records responsive to items 6 and 9, and 2 and 4 to an extent, could disclose intelligence activities, sources, and methods, or foreign relations or activities, in such a way that ‘could reasonably be expected to cause damage to national security.’” “Additionally, the CIA argues that Exemption 3 supports a Glomar response to these same four inquiries.” “[T]he CIA argues that acknowledging the existence or nonexistence of records responsive to items 6 and 9, and classified associations to the people referenced in items 2 and 4, would reveal intelligence sources and methods protected under the National Security Act, 50 U.S.C. § 3001 et seq.”
“Plaintiff challenges CIA’s Glomar response to each of the four inquiries, arguing that ‘information regarding each of those items had already been officially acknowledged and the CIA has previously acknowledged an intelligence interest in those individuals.’” “However, it is not clear to this Court where Plaintiff got each of their exhibits [that they rely on to make their required showing], as the CIA also observes in its reply.” “Based on [plaintiff’s] statements, the Court concludes that the exhibits Plaintiff is using to support its theory of official acknowledgment by the CIA all came from discovery in the Rule 60(b)(6) litigation.” “Without more from Plaintiff to support their official acknowledgment claim, however, their argument fails.” “The record appears to be documents provided in discovery by a different agency – namely, the IRS in the Rule 60(b) proceeding, to which the CIA was not a party.” “It is well-established that ‘a plaintiff cannot meet the burden of demonstrating prior disclosure when the prior disclosure . . . was made by someone other than the agency from which the information is sought.’” “Plaintiff argues that the CIA participated in the Rule 60(b) proceeding, so therefore, disclosures in that litigation can be attributed to the CIA.” “Specifically, Plaintiff states that the CIA ‘attended an ex parte meeting with [the judge overseeing the discovery dispute] and the Tax Division to review the unredacted text’ in responsive documents and agreed to release information ‘knowing that this information would be publicly available.’” “At the outset, the Court declines to conclude that this alleged involvement is enough to ascribe these disclosures to the CIA, without any authority cited by Plaintiff for the Court to make this leap.” “But moreover, no matter what agency they are ascribed to, these documents do not appear to be ‘official’ statements.”
“Lastly, the Court concludes that in any event, Plaintiff fell short of meeting their burden to ‘pinpoint’ an official agency record that contains information that ‘matches’ information requested under FOIA.” “Plaintiff's arguments are conclusory, failing to identify passages from the Rule 60(b) litigation documents that the CIA specifically reviewed or released, and failing to compare those portions to the language of their FOIA request.”
- Exemption 1; Exemption 3; Waiver and Discretionary Disclosure, Waiver; Litigation Considerations; Vaughn Index/Declaration: “In sum, [the] Court holds that the CIA did not properly assert FOIA Exemptions 1 and 3 for the documents which are already in the public domain, identified in Plaintiff’s summary judgment motion.” “For the requests to which the CIA did not assert a Glomar response, the CIA conducted a search which led to the identification of 36 documents in total.” “The CIA withheld two of the documents in part (Documents 1–2) and withheld 34 in full (Documents 3–36).” “The CIA used combinations of Exemptions 1, 3, and 5 to withhold these documents – of note, Exemption 1 was used for nearly every document.” “To support its use of 1.4(c) and (d), the CIA argues that ‘certain records at issue contain information that would reveal specific intelligence targets, the locations of CIA activities – current and historic – and the targets of specific CIA operations.’” “The CIA further argues that ‘certain documents at issue here show the processes and policies for working with foreign services, foreign individuals, and clandestine assets who aid the CIA in its intelligence operations.’” “‘Revelation of these relationships could hurt the Agency’s relationships with these entities – entities that often agree to cooperate with the CIA on the understanding that the relationships will remain secret.’”
“The CIA uses Exemption 3, in addition to Exemption 1, to ‘apply independently and coextensively’ in supporting their withholding decisions.” “Every document that the CIA withheld under Exemption 1 was also withheld under Exemption 3.” “There are only two documents, Document 1 and Document 14, which the CIA withheld pursuant to Exemption 3 without also invoking Exemption 1.” “The CIA is specifically relying on two statutes, the National Security Act of 1947 (National Security Act) and the Central Intelligence Agency Act of 1949 (CIA Act).” “The National Security Act is a well-established Exemption 3 withholding statute for protecting intelligence sources and methods.” “And indeed, the CIA relies on the National Security Act to withhold information that would ‘reveal intelligence sources and methods.’”
“Plaintiff goes through each document that the CIA withheld pursuant to Exemptions 1 and 3 and challenges the CIA’s description and reason for withholding.” “Plaintiff’s overarching argument is embedded in its identification and explanation of each of the CIA’s withheld documents: the document-by-document attack of the CIA’s withholdings is a tour of all the ways in which Plaintiff already knows what those documents contain, thereby undermining the CIA’s claimed exemptions.” “Plaintiff identified Documents 3–22 and uploaded them as exhibits . . . and Plaintiff also states that they were unable to identify Documents 24–36 because ‘none of these documents contain adequate descriptions to allow Plaintiff or the Court to determine the merits of the . . . exemptions claimed as a basis for withholding these documents in full.’” “In sum, using Plaintiff’s words, ‘[m]ost importantly, the information the CIA has claimed is classified in the documents that the Plaintiff was able to identify in previously released unredacted documents, disproves any claim that most of the information in the documents withheld in full is classified.’” “Plaintiff is correct.” “During this Court’s in camera review, it became apparent that the documents withheld in full, which Plaintiff identified, are on PACER as exhibits in this litigation, completely undermining the CIA’s basis for their continued withholding.” “To this Court, the CIA’s blanket withholding of public documents, and its failure to respond to Plaintiff’s identification of this fact, demonstrates that the CIA has not taken its disclosure obligation seriously in response to Plaintiff’s FOIA request.”
Additionally, “[h]ere, particularly in the context of the CIA’s apparent disregard of its FOIA disclosure obligations, [the] Court holds that the CIA’s Vaughn index is inadequate.” “The CIA asserted Exemption 1 and 3 across the board for many public documents, a concerning pattern which calls into question whether the CIA should be afforded any deference in their withholding determinations for any of the other withheld documents.” “But even on its face, the Vaughn index is lacking.” “Here, the descriptions merely recite the legal standard for each exemption asserted, with the same definition copied and pasted for every document.” “The ‘fatal flaw’ with such descriptions ‘is that it is essentially a restatement of the generic rationale for the [exemption] itself.’”
- Litigation Considerations, Vaughn Index/Declaration; Exemption 5: The court relates that “[t]he CIA invoked Exemption 5 only for a few select documents . . . .” “In the Vaughn index, the CIA lists Exemption 5 as a basis for withholding [these documents] and lists the privilege invoked.” “However, [the court finds that] nowhere in the CIA’s motions or the . . . Declaration does the CIA further explain the need to invoke Exemption 5 for these documents.” “[B]ased on the inadequate descriptions, this Court finds that the CIA has not provided a basis for invoking Exemption 5 for [these documents].” “Consistent with the outcome above regarding the inadequacy of the Vaughn index, the CIA will be ordered to submit updated descriptions for these documents that comport with the D.C. Circuit’s standards of adequacy.”
- Litigation Considerations, Mootness and Other Grounds for Dismissal: The court relates that “[a]fter referral from the CIA, the IRS and DOJ Tax asserted that certain pages from Documents 3–7 were withheld in full because ‘they consist of legal and factual memoranda, along with supporting materials, prepared by counsel, and involve agency personnel and agency counsel and officials, and their discussion and recommendations regarding the [at issue] prosecution.’” “Plaintiff argues that the agencies are collaterally estopped from asserting the attorney-client and attorney work product privileges under Exemption 5 because the application of these privileges, as it pertains to these very documents, was already decided adversely to the IRS.” “In 2005, as part of the Rule 60(b) litigation, the California district court rejected the IRS’s claims that the attorney-client privilege and work product doctrine barred production of certain documents and granted [the] motion to compel production, ordering the IRS to ‘turn over documents regarding the 1966 Tax Division investigation into the government’s role in the 1962 raids.’” “Separately, in 2006, [one former plaintiff in this case] filed a FOIA complaint in D.C. district court, seeking production of IRS records – including those that the IRS had been ordered to produce in the Rule 60(b) proceeding.” “The IRS moved for summary judgment, invoking several FOIA exemptions, the relevant one here being Exemption 5 based on the attorney client and work product privileges.” “In opposing summary judgment, [that former plaintiff] argued that the IRS was collaterally estopped from asserting Exemption 5, because those same documents were held to not be protected by the attorney client or work product privileges in the Rule 60(b)(6) proceeding.” “The D.C. district court agreed with [that former plaintiff].” “Here, Plaintiff’s argument is virtually the exact same as the plaintiff’s argument that prevailed in the D.C. district court – these documents are not protected by the attorney client or attorney work product privilege under Exemption 5, so the IRS is barred from invoking Exemption 5 on the CIA’s behalf.”
- Exemption 3: The court relates that “[t]he CIA, in coordination with DOJ Tax and IRS, withheld taxpayer privacy information in Documents 3–7 pursuant to Exemption 3, invoking the Internal Revenue Code (IRC) § 6103(a) as the statute prohibiting disclosure.” “Plaintiff is correct that the CIA is improperly withholding Documents 3-7 in full under Exemptions 1 and 5, and as explained above, the Court is ordering the CIA to produce Documents 3–7.” “Based on this Court’s review, it appears that the agencies have properly invoked Exemption 3 to protect the tax information in these documents under IRC § 6103(a).” “However, upon production of these documents, the CIA must supplement the Vaughn index to show that it disclosed all reasonably segregable non-exempt information – and once these documents are produced, then Plaintiff will have the opportunity to challenge these redactions if appropriate.”
- Exemption 6; Exemption 7(C): The court relates that, “[h]ere, the CIA, in coordination with the FBI, invoked Exemptions 6 and 7(C) ‘based upon the presence . . . of the unique internal FBI identification number of an FBI professional staff member’ in Document 4.” “The agencies stated that this record was compiled for law enforcement purposes ‘during the FBI’s participation in the investigation and prosecution of [the individual underlying the requests here] and others,’ and listed the various charges levied against [that individual] in the wake of the raids.” “The CIA argues that ‘[i]f the Court finds the CIA’s withholding in full under Exemptions 1 and 3 is proper, then the issue of the FBI’s partial withholding is moot,’ since Plaintiff is barred from seeing the document anyway.” “But, as is becoming a theme here, because the CIA has improperly withheld Document 4 under Exemptions 1 and 3, Plaintiff may have identified a proper basis to dispute these redactions had they seen them, as was their right.” “Upon production of Document 4, Plaintiff may challenge any remaining redactions that the agency should claim pursuant to Exemptions 6 and 7(C).”
- Exemption 7(D): The court relates that “[t]he FBI relied on Exemption 7(D) to redact the name and identifying information of a confidential source in Documents 3, 4, 5, and 6.” “The FBI also withheld information ‘received from and related to how a foreign government official gleaned specific investigatory information, the results of inquiries within their own country, and which shows the specific sensitive information shared with FBI investigators.’” “[A]gain, the Court is faced with an odd posture: Plaintiff arguing based on redactions he only suspects, but has not seen, because the documents in dispute are improperly withheld in full.” “Because Plaintiff has not been afforded an opportunity to review these redactions, upon the production of Documents 3–6, Plaintiff can challenge the bases of these redactions as appropriate.”
- Litigation Considerations, Evidentiary Showing, “Reasonably Segregable” Showing: “As is likely apparent at this point, the Court determines that the CIA did not release all segregable information.” “Plaintiff has produced more than a ‘quantum’ of evidence to overcome the presumption of segregability – nearly twenty documents withheld in full are available for the public on PACER, and the Vaughn index and accompanying motions provide no logical or plausible explanations for withholding.” “The CIA is therefore instructed to go back to each of these documents and make a serious attempt to segregate publicly available information from that which is legitimately withheld.”