Open Soc'y Just. Initiative v. CIA, No. 19-234, 19-1329, 2020 WL 7231954 (S.D.N.Y. Dec. 8, 2020) (Engelmayer, J.)

Open Soc'y Just. Initiative v. CIA, No. 19-234, 19-1329, 2020 WL 7231954 (S.D.N.Y. Dec. 8, 2020) (Engelmayer, J.)

Re:  Request for records concerning murder of Jamal Khashoggi

Disposition:  Granting in part and denying in part defendants' motion for summary judgment; granting in part and denying in part plaintiff's motion for summary judgment

• Litigation Considerations, Vaughn Index/Declaration & Exemption 1:  The court relates that "[e]ach agency 'acknowledge[s] the existence of one or more additional records responsive to the request,' but defends the 'no number, no list response' on the ground that they 'cannot describe the[se records] on the public record – including by providing details such as the volume of records, their dates, titles or subject matter – without revealing exempt information.'"  "[Plaintiff] argues that providing a blanket 'no number, no list' response rather than at least a Vaughn index 'subverts established FOIA requirements.'"  The court finds that "[t]his argument overreaches."  "Although the Second Circuit has not yet upheld a grant of summary judgment on this basis, it has pointedly refrained from holding that entry of summary judgment could never be warranted for an agency that has made a 'no number, no list' response to a FOIA request."  "On the contrary, the Circuit has stated that '[a]n agency may withhold information [as to] the number of responsive documents and a description of their contents if those facts are protected from disclosure by a FOIA exemption.'"  "Accordingly, the parties' cross-motions cannot be resolved based on [plaintiff's] argument that a 'no number, no list' response can never be appropriate."  "The issue instead is whether, and to what degree, the agencies have made the showing necessary to justify their claim here that any further elaboration would reveal classified information protected by Exemption One."
  
  Turning to that analysis, the court notes that "the Government admits that its 'official statements [have] acknowledge[d] the government interest in the subject of this FOIA request, and the existence of one or more responsive records' . . . ."  "But, it argues, these acknowledgments are put in general terms, and as such do not oblige it to disclose the specific nature, date, or volume of any individual responsive records."  "These, it contends, remain exempt under Exemption One."  The court finds that "[i]n the main, the Government is correct."  "The agencies' public affidavits attest that these records have been properly classified pursuant to E.O. 13,[526] and fall within two categories of information protected under § 1.4 of that order:  'intelligence activities . . . sources or methods' and 'foreign relations.'"  "The agencies assert that revealing more about these records – including their dates, nature, and lengths, as a standard Vaughn index would disclose – 'would give advantage to foreign intelligence services and other groups by giving them insight into what the United States' intelligence capabilities and interests are, or are not, which could enable adversaries to circumvent U.S. intelligence activities, and generally enhance its intelligence or counterintelligence activities at the expense of the U.S. national security.'"  "The agencies' classified filings filed ex parte, which the Court has carefully reviewed in camera, validate this representation."  "And [plaintiff] has not supplied any reason to regard the presumption of good faith accorded to an agency's affidavits as having been rebutted."  "Accordingly, except where an official acknowledgment has disclosed a record in a manner specific enough to waive the agency's right to invoke Exemption One, that exemption protects the records that [plaintiff] seeks from compulsory revelation."  "Under Second Circuit law, the information sought to be disclosed about the record must be 'as specific' as the information that was previously disclosed."  "[Plaintiff's] contrary premise that a generalized statement such as those made by the President, Vice President, CIA Director, and Defense Secretary regarding the U.S.'s Khashoggi investigation . . . can broadly waive the CIA and ODNI's authority under Exemption One to withhold the defining features of a particular document is therefore incorrect."  "However, as to two distinct records, [plaintiff's] arguments gain more traction."  "These are the tape of Khashoggi's killing and the CIA's report on the killing."
  
  Analyzing these two items, first "[t]he Court agrees [with plaintiff regarding the tape of Khashoggi's killing], and rejects the Government's bid not to specifically identify the tape, to the extent possessed by either defendant agency, on a Vaughn index."  "President Trump's statement[ "'[w]e have the tape, I don't want to hear the tape, no reason for me to hear the tape . . . . I've been fully briefed on it,'"] literally admitted that U.S. 'intelligence agencies' had reviewed the tape and that the Government possesses it."  "That alone deprives the Government of the ability to claim that a Vaughn index listing the tape would disclose new information."  "And, although not necessary to this conclusion, to the extent that the CIA might disclaim its own possession of the tape as a fact not publicly known, the Vice President's official statement[, that CIA Director Gina Haspel had gone to Turkey to review evidence of the killing,] realistically acknowledged at least the historical possession of it by the CIA at the time of its investigation."  Second, regarding the CIA's report on the killing, the court finds that "[t]he CIA Director's explicit statement that the agency, along with 'briefing,' 'provid[ed] written products on [its] assessment of what happened to Mr. Jamal Khashoggi,' effectively admits the CIA's creation of written assessments as to the murder."  "And the Government does not contend that there is a meaningful difference between a written assessment of what happened to Mr. Jamal Khashoggi and a report on the same subject."  The court also finds that statements by the President "reveal the existence of a CIA-prepared work product as to Khashoggi's death and the potential involvement of the Saudi Crown Prince therein."  However, regarding plaintiff's arguments concerning the report's conclusion, "the Court does not find the President's casual locution in this interview to clearly acknowledge the conclusion in the CIA's written analysis."  "The statement reflects an acknowledgment that the agency identified strands of evidence pointing in both directions."  "But, beyond revealing that the report did not reach an ironclad conclusion in either direction . . . the President's halting and indistinct characterizations fall short of revealing the report's actual findings."  "Nor does the Court find the statements quoted above sufficiently specific so as to justify review in camera by the Court to determine how closely the President's words match the Report's conclusion."
   
• Litigation Considerations, Vaughn Index/Declaration & Exemptions 3, 5 & 6:  The court relates that "[t]he Government separately invokes FOIA Exemptions Three, Five, and Six."  The court holds that "[Exemption 3] does not protect these items from disclosure."  The court relates that "[t]he agencies here point to the National Security Act's protection of 'intelligence sources and methods' from unauthorized disclosure, 50 U.S.C. § 3024(i)(1), and the CIA Act of 1949's protection of 'the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency,' 50 U.S.C. § 3507, as the relevant withholding statutes."  The court finds that "[i]n neither their public nor their classified filings do defendants explain at all why the disclosure of the limited information conveyed about these disclosed items on a Vaughn index that only includes the information about these records already disclosed would reveal intelligence sources and methods."  Similarly, the court finds that "[t]he agencies, . . . do not develop any argument why [Exemption 5] justifies keeping classified – and off of a Vaughn index – the top-line descriptions of the tape of the killing and the CIA's report."  Finally, the court finds that "[Exemption 6] is also irrelevant to the identification on a Vaughn index the Court has ordered."
   
• Litigation Considerations, Adequacy of Search:  "The Court . . . finds [defendants'] searches adequate."  "The Court . . . has reviewed the agencies' classified filings."  "In conjunction with the agencies' public declarations, these provide sufficient factual detail to persuade the Court that the searches were adequate and reasonably calculated to discover the requested records."  In the public declarations, the court notes that the CIA stated "that experienced CIA personnel 'consulted with Agency officials knowledgeable about the subject matter of the requests in order to ascertain the potential universe of responsive records and to identify all of the specific offices and individuals who would be likely to possess those documents if they were to exist.'"  "Agency personnel 'ran a list of terms identified by subject matter experts through each of the records systems identified as likely to contain responsive material should it exist.'"  "These '[s]earches were conducted in all locations in which it is reasonably likely that responsive records would reside, and used search terms and methods reasonably calculated to locate those documents.'"  "Similarly, [ODNI] explained in a publicly filed declaration that ODNI personnel with records expertise 'identified the components that would likely possess potentially responsive documents, if they were to exist, and asked each of those component[s] to have everyone in that component who would likely have responsive documents to search all places likely to contain responsive documents.'"