Moore v. CIA, No. 20-1027, 2022 WL 2983419 (D.D.C. July 28, 2022) (Lamberth, J.)

Moore v. CIA, No. 20-1027, 2022 WL 2983419 (D.D.C. July 28, 2022) (Lamberth, J.)

Re:  Requests for certain Korean War-era prisoner-of-war records

Disposition:  Denying plaintiffs’ motion for summary judgment; granting in part and denying in part defendant’s motion for summary judgment

• Litigation Considerations:  “The Court . . . finds that plaintiffs have not waived their objection to the adequacy of the CIA’s search.”  The court relates that defendant “contends that it does not need to address the adequacy of its search for records because plaintiffs waived the issue [in defendant’s status report “sent . . . to opposing counsel who confirmed that the representation was ‘perfect’”].”  The court finds that “[t]hat status report could have waived the search – if it included language that indicated waiver.”  “But this Court’s review of the status report shows that it lacks language that would indicate waiver of the adequate search issue.”  “Waiver is indicated when terms like ‘narrow’ or ‘withdraw’ are used.”  “Those explicit terms are not present in the status report.”  “Additionally, while courts in this Circuit have recognized a waiver of rights in a FOIA action based on a status report, this typically occurs in a joint status report.”  “Here, the status report was filed only by the defendant, not jointly.”  “Accordingly, the Court will order defendants to supplement the record regarding the adequacy of their search for documents.”
   
• Procedural Requirements, Searching for Responsive Records:  The court relates that “[i]n their discussion of the CIA’s search, plaintiffs repeatedly state that the CIA must search its operational files.”  “As this Court has recently explained, the CIA’s ‘[o]perational files are typically exempt from search and disclosure, but this Court [can] order[ ] their search under an exception.’”  “That exception is statutorily defined and has certain requirements.”  “Plaintiffs do not raise that exception here.”  “Accordingly, the Court will not order the CIA to search its operational files at this time.”
   
• Exemption 1:  The court holds that “[t]he CIA has established that its materials are properly classified under Executive Order 13526.”  The court relates that “[h]ere, the CIA used Executive Order 13526 subsection 1.4(c) as its basis for classification.”  “Subsection 1.4(c) allows for the classification of documents regarding ‘intelligence activities (including covert action), intelligence sources and methods, or cryptology.’”  “[Defendant] determined that records requested by the plaintiffs would reveal the ‘priority of intelligence activities and targets; methods of collection; and classified relationships.’”  “The affidavit goes further to say that disclosure of particular operations or targets could allow ‘intelligence targets to circumvent the CIA’s collection efforts[.]’”  “It also states that ‘[o]nce the nature of an intelligence method or the fact of its use in a certain situation is discovered, its usefulness in that situation is neutralized and the CIA’s ability to apply that method in other situations is significantly degraded.’”  “Moreover, ‘[r]evelation of these relationships could hurt the Agency’s relationship with these entities – entities that often agree to cooperate with the CIA on the understanding the relationship will remain secret.’”  The court finds that “[t]hese explanations and the sworn affidavit from an original classification authority meet the required standard for summary judgment.”
  
  The court relates that “[d]espite the CIA’s explanation and affidavits, plaintiffs raise three arguments to the CIA’s withholdings under Exemption 1.”  The court finds that “[n]one are persuasive.”  The court relates that “Plaintiffs first contend that the CIA ha[s] not complied with the automatic declassification requirements put in place by Executive Order 13526.”  “Most of the documents withheld under Exemption 1 here are over 25 years old, so they are automatically declassified unless the CIA can identify a relevant exception.”  “The CIA identifies two exceptions to the automatic declassification provision relevant here.”  “The material withheld by CIA, as denoted in the Vaughn Index, could ‘demonstrably be expected to’ both ‘reveal the identity of a confidential human source, a human intelligence source, a relationship with an intelligence or security service of a foreign government or international organization, or a nonhuman intelligence source; or impair the effectiveness of an intelligence method currently in use, available for use, or under development,’ or ‘reveal information, including foreign government information, that would cause serious harm to relations between the United States and a foreign government, or to ongoing diplomatic activities of the United States.’”  The court finds that “[defendant’s] Declaration certifies that all material withheld pertains to ‘intelligence activities,’ ‘intelligence methods,’ and ‘classified relationships,’ . . . which plainly fall within these two exceptions to automatic declassification.”  “Plaintiffs next argue that the withheld records are too old to justify continued classification.”  “Citing no evidence, plaintiffs claim that the release of withheld files would not damage national security.”  “But this Court is not in a position to second-guess an agency’s classification decisions absent a contradiction on the record or evidence of bad faith.”  “Plaintiffs final argument regarding the Exemption 1 withholdings is that the McCain Act requires the CIA to turn over the documents that plaintiffs requested to the Department of Defense (‘DOD’) and for the DOD to make them available in a ‘library-like location.’”  The court finds that “[t]his argument also misses the mark.”  “The McCain Act does not direct the CIA to declassify documents – in fact, it specifically exempts classified material.”  “It provides in pertinent part that the DOD will not make records available if ‘the record or other information is exempt from the disclosure requirements of section 552 of title 5, United States Code, by reason of subsection (b) of that section.’”
  
  Regarding defendant’s Glomar response for certain requested records, the court relates that “[t]he CIA asserted that confirming or denying the existence of records relating to seven of plaintiffs’ requests would ‘reveal sensitive information about the CIA’s intelligence interests, personnel, capabilities, authorities, and resources.’”  “It thus maintains that the existence of the records itself is classified under Executive Order 13526.”  “Plaintiffs do not appear to dispute that the existence of these records could be properly classified under Exemption 1.”  “Accordingly, the Court holds that the existence or nonexistence of the requested records could be withheld under Exemption 1.”  “That is not the end of the Glomar analysis, however.”  “The Court will grant summary judgment to the defendants with respect to five requests that the CIA issued a Glomar response to.”  “The Court will deny summary judgment with respect to the other two requests.”  “[T]he Court will order the CIA to supplement its Vaughn Index as to request 1, having found that the CIA had publicly acknowledged an intelligence interest in request 1’s subjects.”  Regarding request 17, “[b]ecause of the multiple subcomponents of plaintiffs’ request 17 regarding the Combined Command for Reconnaissance Activity Korea . . . the Court will also deny summary judgment in regard to request 17 and order the CIA to explain in greater detail its Glomar response with respect to each subcomponent.”  “Plaintiffs’ exhibits have passing references at some of the elements of request 17 and the Court believes that a Glomar response may only be appropriate with respect to [certain] subcomponents.”
   
• Exemption 3:  “[The] Court finds that the CIA has properly withheld records under Exemption 3.”  The court relates that “[t]he CIA is specifically relying on two statutes, the National Security Act of 1947 and the Central Intelligence Agency Act of 1949 (‘CIA Act’), for its Exemption 3 withholdings.”  “The National Security Act of 1947 states that ‘[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.’”  “The CIA Act, on the other hand, provides that ‘the Agency shall be exempted from . . . the provisions of any other law which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency . . . .’”  “Both statutes are considered exemption statutes for the purposes of Exemption 3.”  The court relates that “Plaintiffs’ limited challenge to the CIA's invocation of Exemption 3 boil down to the withheld records being too old to be covered.”  “[T]he Court rejects these arguments.”  The court explains that “the CIA’s Vaughn Index and . . . Declaration provide persuasive evidence that these documents are properly withheld under Exemption 3 because they contain either intelligence methods or information about CIA personnel.”  “The Court will adhere to Circuit precedent that accords substantial weight to an agency’s affidavits justifying classification.”  With regard to plaintiffs’ argument that the CIA Act only applies to current personnel, the court observed that “the CIA Act refers to both current and former employees.”
   
• Exemption 6:  “The Court finds that the CIA has properly withheld documents under Exemption 6.”  “[The] Court agrees with the CIA that ‘personally identifiable information, including names, signatures, and other identifying information’ including ‘names, official titles, location, telephone number, and email addresses’ constitute ‘similar files.’”  Regarding the privacy interest, the court finds that “[t]here is beyond a de minimis interest here.”  The court relates that “[t]he CIA argues that the ‘release of the redacted names and other identifying information is reasonably likely to subject those individuals or those associated with them to increased harassment or threats based on their association with the CIA,’ . . . .”  “That is an assessment the Court is not inclined to dispute, given the fact that courts in this Circuit have consistently held that government officials have privacy interests in avoiding harassment.”  The court finds that “the balancing test here leans in favor of the CIA.”  “The Court does not think it necessary to engage in a particularly rigorous analysis of the rights at stake because the public interest is clearly zero.”  “It is difficult to see how ‘names, Agency identification numbers, and email addresses’ or ‘telephone numbers’ of specific, individual agents would give citizens any insight into ‘what their government is up to.’”  Regarding plaintiff’s objection that the records are older and so should no longer be protected, the court finds that “[t]he fact that the privacy interest of individuals had diminished [in a prior case] because of age was only relevant because there was a countervailing substantial public interest.”  “Here, plaintiffs do not contend and indeed the CIA disputes that the personal information at issue is itself of substantial public interest.”  “Accordingly, even if the privacy interests have diminished somewhat with age, the public interest remains de minimis.”  “The Court is also unpersuaded by plaintiffs’ argument that some of the individuals may be deceased and therefore lack a privacy interest.”  “Even upon the death of individuals, there are ‘reputational and family related privacy expectations that survive death.’”  “That fact, combined with the CIA’s sworn assertion that it cannot locate every individual mentioned in the records to discover if they are deceased, tilts the balance of interest in favor of the CIA.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “[T]he Court concludes that the CIA has submitted an adequate Vaughn Index and declaration to explain the withholdings.”  “Here, the CIA submitted a detailed Vaughn Index, especially regarding the four documents withheld in full.”  “For each document, the CIA provided a short one-line summary of what the document contains, states the FOIA exemptions under which it is withheld along with the document’s level of classification, and states the harm that would result from its disclosure.”  The court finds that “[t]his Vaughn Index, in combination with its affidavit explaining that it conducted a line-by-line segregability review . . . fulfills the CIA’s segregability requirement.”
   
• Litigation Considerations, In Camera Inspection:  The court holds that “in camera review is neither necessary nor appropriate.”  “There is no bad faith or contradictory evidence present in the record.”  The court relates that “Plaintiffs’ point to one discrepancy in the CIA’s FOIA production: a document was released prior to the plaintiffs’ FOIA request by the CIA with one less redaction than the copy provided to the plaintiff.”  “In response, the CIA admitted that this discrepancy was made in error and reissued the less-redacted version to the plaintiffs.”  The court finds that “[t]his is not evidence of bad faith.”  “An ‘inconsistent approach to the classification designations of several records is not evidence of bad faith [when the agency] has subsequently corrected any errors.’”