Nat’l Sec. Archive v. CIA, No. 23-5017, 2024 WL 2872953 (D.C. Cir. June 7, 2024) (Childs, J.)

Nat’l Sec. Archive v. CIA, No. 23-5017, 2024 WL 2872953 (D.C. Cir. June 7, 2024) (Childs, 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:  Affirming district court’s grant of government’s motion for summary judgment

• Litigation Considerations, Standing:  The Court of Appeals for the District of Columbia Circuit “find[s] that [the requester] has standing, and the Court has subject matter jurisdiction.”  “[The court] find[s] that [the requester] suffered a concrete injury when the CIA refused its FOIA request for the Perroots Memo.”  “Additionally, [the requester’s] injury is ‘“fairly trace[able]”’ to the CIA’s denial of its FOIA request, and it is likely that the injury would be ‘redressed by a favorable decision’ by [the] Court.”

• Waiver and Discretionary Disclosure, Waiver:  The Court of Appeals for the District of Columbia Circuit “affirm[s] the district court’s decision that the third element of the official acknowledgment doctrine remains unsatisfied and ‘that the CIA – and this includes the agency and its “components” – was not properly involved in the [Perroots Memo]’s disclosure’ to trigger waiver of FOIA Exemptions 1 and 3.”  The court relates that “[the requester] contends that the official acknowledgment doctrine is applicable to the Perroots Memo because ‘(1) . . . the CIA was involved in the Perroots Memo transcription’s publication, and (2) at least a portion of the text from the Perroots Memo is unquestionably public.’”  “[The court] reject[s] these contentions because the record, as observed by the district court, contains classified, supplemental, ex parte, and in camera declarations which establish that the CIA was not involved in the disclosure of the Perroots Memo.”  “That the State Department thanked the CIA for its contribution and acknowledged the CIA as the source of the Perroots Memo in the [Foreign Relations of the United States] Volume IV: Soviet Union, January 1983–March 1985 is of no consequence:  both were actions taken by the DOS, not the CIA.”  “For the same reason, although the DOS is statutorily required to ‘submit[ ] to the respective originating agency for declassification review,’ . . . its actions do not waive the CIA’s right to assert FOIA Exemptions 1 and 3.” 
  
  “[The requester] argues that application of the public domain doctrine equally necessitates disclosure of the Perroots Memo.”  “In this regard, [the requester] suggests that disclosure is appropriate because ‘the information requested is the same as what is publicly available in Volume IV’: Soviet Union, January 1983–March 1985, and it is already part of the permanent public record based on its availability for viewing in numerous court records via a Public Access to Court Electronic Records account, or by accessing the ‘Internet Archive Way Back Machine, a non-profit “digital library of Internet sites” that “archive[s] the Internet itself.”’”  “Despite [the requester’s] support for the existence of the public domain doctrine, [the court does] not recognize that this exception is separate and distinct from the official acknowledgment doctrine.”  “To this point, many of our decisions use the terms ‘public domain’ and ‘official acknowledgment’ interchangeably.”  “As [the court has] emphasized in [its] precedent, the mere public disclosure of information does not eliminate potential risks posed by further disclosure to national security interests – and cannot overcome an otherwise valid FOIA exemption.”