Thursday, February 7, 2013
Re: Request for all records pertaining to plaintiffs Disposition: Granting the Department of Defense, Department of State (State), and FBI's motions for summary judgment; granting in part and denying in part CIA's motion for summary judgment; instructing CIA to conduct supplemental search
- Adequacy of Search: The court agrees that the CIA's policy of "'generally interpret[ing] [first-person] FOIA requests…to be for non-public documents' is reasonable." However, in this case, "only '[m]ost material from the [Open Source Center database (OSC)] is…available to the public,'… and therefore some portion of the records contained in the OSC database are necessarily non-public." The court concludes, "the CIA's determination not to search the OSC database in response to the plaintiffs' request is problematic to the extent that non-public, responsive records exist in the OSC." In deciding which party has the burden of "determining which OSC records are publicly available and which are not," the court states "the CIA may choose, in its discretion, to charge fees to the plaintiffs for any records that it produces from this search that it identifies as being publicly available." The plaintiffs may then "challenge any fees that they believe are improperly levied on this basis." The court also finds that "the CIA's decision not to search its FOIA office for responsive records was reasonable" when "the plaintiffs' specific disclaimer regarding the July 22, 2010 request could be reasonably interpreted to disavow an interest in obtaining records about that prior request." Plaintiffs next challenge State's "failure to assert that it searched the component where eighteen classified documents originated." The court concludes, "[u]pon review of the government's ex parte, in camera filing, in conjunction with the public declarations submitted by the State Department, the Court is satisfied that the State Department searched all of its components reasonably likely to contain responsive information." The plaintiffs also challenge the adequacy of the FBI's search, specifically the FBI's contention that it need not search shared drives or unspecified e-mail systems. First, although the records indicate a potential investigation into Mr. Mobley's wife and mother-in-law for employment fraud, the request sought records relating to "'the Mobley family's dealings at the U.S. Embassy-Sana'a.'" Therefore, any records related to employment fraud would not be responsive to the request and the argument that the "FBI's failure to produce any records about the investigation into Ms. Islam indicates a deficiency in the Bureau's search is unavailing." Regarding a search of the shared drives, the court notes that "an agency's search obligations are dictated by whether the scope of the search is 'reasonably calculated to uncover all relevant documents.'" Although a follow-up e-mail from plaintiffs' attorney requested a search of the shared drives, the court concludes "even when a requester specifically asks an agency to search a particular database, the agency has no obligation to do so unless that database is 'likely to contain responsive materials.'"
- Glomar & Waiver: The initial response letter from the CIA "only disclosed that the CIA was 'able to locate responsive material,' and the context of the letter clearly conveyed that this 'responsive material' was limited to responsive records that would reveal an unclassified connection to the CIA." "[T]he Court interprets the CIA's initial response letter to not have established the existence or nonexistence of responsive records that would reveal a classified connection to the CIA, the CIA did not waive its ability to issue a Glomar response to those records."
- Glomar & Exemption 1: The court considers the question "whether an agency must establish a timeline for the declassification of a Glomar fact in order to issue a Glomar response under FOIA Exemption 1, assuming that such a timeline could be established without the need to create tangible records." The court acknowledges that "[n]ot only are Glomar responses intangible forms of classified information, but the CIA is correct that they are also 'fundamentally different in nature' than other classified information because they 'arise solely in the context of a response to a request for records.'" The court concludes, "the CIA is not required to establish a declassification timeline in order to 'properly classif[y]' a Glomar fact under Executive Order 13,526." The court goes on to explain "the very nature of the Glomar posture requires that agencies categorically refuse to either confirm or deny the existence of responsive records that would reflect a classified or unacknowledged affiliation with a person because confirmation or denial that such records exist has the potential to harm national security, in and of itself." The rationale for this is that "the CIA may simply not know that a given person should be of intelligence interest at any given time." Although the plaintiffs ask the court to make its own determination as to whether the plaintiffs should have been of intelligence interest, the court will not second-guess the CIA's stated reasons for asserting the Glomar response.
- Exemption 1: The court concludes that "State properly classified the three documents at issue under Executive Order 13,526 §1.4(b)." State's declaration explains "that this information was all provided 'with an expectation of confidentiality' because, absent such an expectation, 'foreign government officials…would be unwilling to share this kind of confidential information with Department officials if this kind of information were required to be released publicly under FOIA.'" The court finds that State's "sworn declaration sufficiently explains why confidentiality is paramount when it comes to the particular information contained in the documents at issue" and that the "explanation of why this information was conveyed in confidence is both logical and plausible."
- Exemption 1 & Executive Order 13,526: The court concluded that State complied with Executive Order 13,526, §1.7(d), which allows for classification after receipts of a FOIA request, when its regulations authorize the Deputy Assistant Secretary for Records and Publishing Services "'to be the official to classify information on a document-by-document basis,'" and the records at issue were in fact reviewed and classified by the individual holding this position. The court rejects plaintiff's assertion that section 1.7(d), "requires the agency head, deputy agency head, or senior agency official to 'make [a document-by-document classification] determination or direct another to do so each time such classification is desired and for each document." The Executive Order does not "prohibit delegation of the authority to perform this document-by-document classification, [therefore] the delegation is presumptively permissible."
- Exemption 3: The court cites to recent D.C. Circuit case law to rebut plaintiff's assertion that the CIA "is not authorized to invoke the National Security Act for purposes of the FOIA because that statute only gives authority to the Director of National Intelligence ('DNI') to protect intelligence sources and methods, not the CIA." These cases upheld the "CIA's reliance upon 50 U.S.C. § 403-l(i)(1) to invoke FOIA Exemption 3 [to withhold] information [qualifying] as 'intelligence sources and methods.'"
- Exemptions 7(C): The court affirms the FBI's withholding of the name of a deceased foreign law enforcement officer. The court concludes, "it is… reasonable to conclude that even merely releasing the deceased officer's identity would impose some unwarranted invasion of personal privacy upon the deceased officer's close relatives." "[T]he FBI has established at least a moderate privacy interest protected by Exemption 7(C), and [plaintiff] has not offered any public interest that disclosure would serve."
- Exemption 7(E): The court determines that State is entitled to summary judgment for the withholdings under Exemption 7(E). Although the plaintiff argues that State has not met the burden of demonstrating that "the controverted information pertains to law enforcement methods unknown to the public," the court concludes that State's declaration clarifies that the exemption is asserted to protect only unknown techniques or unknown details about known techniques.
- Segregability: The court concludes that the CIA has met is obligation to review for segregability when the declaration explains, "that the nature of the withheld documents is such that revealing even small portions of the documents would 'tend to reveal the specific information the CIA is seeking to protect.'" The court continues that State has met its burden when "the Vaughn index's reasonably detailed description of the documents in question, as well as [the declarant's] sworn assurance that '[a]ll of the withheld information was reviewed for segregability prior to release,'" is "sufficient to fulfill the agency's obligation to show with 'reasonable specificity' why [the withheld] document[s] cannot be further segregated."
- Waiver: Although plaintiff presented an "unredacted version of the document in question, obtained by [plaintiff's] counsel," the FBI points to the "absence of two fundamental indicia of official disclosure, i.e., appropriate dissemination control markings on the document itself, and internal records documenting approval for an official disclosure." The court holds that the plaintiff's "bare allegations . . . are insufficient to overcome the evidence presented by the FBI to the contrary." Therefore, the court finds that the document in question was not officially disclosed. The court rejects plaintiff's argument that the FBI must disclose third party names because "the State Department has already official[ly] disclosed the names of all of the individuals authorized to receive records about" plaintiff. "[T]he Court concludes that such an argument is without merit because the alleged prior disclosure of this information was done by the State Department, not the Department of Justice."
- Allegations of Bad Faith: The court finds that an "inconsistency, which the plaintiffs admit was 'a minor error'…is not evidence of bad faith, nor is it indicative of 'a general sloppiness in the declassification or review process.'"
Adequacy of Search
Allegations of Bad Faith
Updated August 6, 2014