Nat’l Sec. Archive v. CIA, No. 21-2857, 2022 WL 5062523 (D.D.C. Oct. 4, 2022) (Boasberg, J.)

Nat’l Sec. Archive v. CIA, No. 21-2857, 2022 WL 5062523 (D.D.C. Oct. 4, 2022) (Boasberg, J.)

Re:  Request for 1989 memorandum documenting unaddressed “‘analytical problem’” for U.S. Intelligence Community written by former Director of Defense Intelligence Agency, Lieutenant General Leonard Perroots

Disposition:  Granting defendant’s motion for summary judgment

• Waiver & Discretionary Disclosure, Waiver:  The court relates that “CIA here invokes Exemptions 1 and 3.”  The court notes that plaintiff concedes that “the exemptions that the CIA ‘claims protect the disputed document could arguably have been properly applied.’”  Plaintiff argues instead that defendant “‘waived the right to claim any exemption over at least the published portions of the document.’”  “According to [plaintiff], the Department of State previously published, with CIA sign-off, the transcribed text of the Perroots Memo with very minor redactions in Volume IV of the DOS Series ‘Foreign Relations of the United States’ (FRUS).”  “The Court has reviewed the Government’s classified, ex parte declarations, along with a copy of the requested Memo.”  “Having done so, it concludes that the transcript contained in Volume IV was not made public through an ‘official and documented disclosure’ by the CIA.”  “The Government’s declarations confirm that the CIA – and this includes the agency and its ‘components’ – was not properly involved in the document’s disclosure.”  “Plaintiff’s failure to show that the third precondition of the official-acknowledgment doctrine was satisfied is enough to render the doctrine inapplicable here.”
  
  The court relates that “Plaintiff next contends that notwithstanding who disclosed the material that ended up in the FRUS, the CIA must still explain why it continues to withhold information that is already public.”  “Once again, the Court begs Plaintiff’s indulgence, as it must be vague.”  “It assures [plaintiff], based on its review in camera of the documents, that the Agency has diligently explained in those declarations why it must continue to withhold the contents of the Perroots Memo despite the FRUS publication, and it has done so with specific reasons and support.”  “The Court’s confidence is buttressed by the fact that it must give ‘substantial weight’ to the CIA’s declarations ‘concerning the details of the classified status of the disputed record because the Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse [effects] might occur as a result of a particular classified record.’”  “The CIA has sufficiently explained why classification of the information is still warranted to protect ‘intelligence activities’ or ‘intelligence sources or methods.’”
   
• Exemption 1 & Exemption 3:  “Having dispensed with Plaintiff’s general objections to withholding here, the Court is left with the CIA’s reliance on Exemptions 1 and 3.”  “As Plaintiff does not contest the applicability of those exemptions on their merits, summary judgment for Defendant is appropriate.”