Open Soc'y Just. Initiative v. CIA, Nos. 19-234, 19-1329, 2021 WL 4150522 (S.D.N.Y. Sept. 13, 2021) (Engelmayer, J.)

Open Soc'y Just. Initiative v. CIA, Nos. 19-234, 19-1329, 2021 WL 4150522 (S.D.N.Y. Sept. 13, 2021) (Engelmayer, J.)

Re:  Request for records concerning Washington Post columnist Jamal Khashoggi

Disposition:  Granting defendants' motion for summary judgment; denying plaintiff's motion for summary judgment; denying plaintiff's motion for partial reconsideration of court's prior opinion

• Exemption 1:  "[T]he Court grants summary judgment to the CIA, permitting the full withholding under Exemption 1 of the CIA Report [at issue]."  "The public affidavit by [defendants] states that the CIA Report meets the requirements for classification pursuant to Executive Order 13526, and that the withheld information falls within a category listed in Executive Order 13526 § 1.4 – specifically, 1.4(c):  'intelligence activities (including covert action), intelligence sources or methods.'"  "[Defendant] attests that revealing 'the intelligence information in the CIA Report reasonably could be expected to cause exceptionally grave damage to the national security,' because it could 'reveal details regarding the nature, volume, and timing of the intelligence information available to the CIA as of November 2018, less than two months after Mr. Khashoggi was killed.'"  "[Defendant] adds that additional disclosure would reveal 'the intelligence sources and methods used to collect that information and potential gaps' in U.S. collection capacity."  "The CIA's classified filings, 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, that exemption protects the 2018 CIA Report from compulsory revelation, unless it can be found that an official acknowledgment has disclosed that report in a manner specific enough to waive the agency's right to invoke Exemption 1."  "The Court's determination is that the materials in the CIA Report do not meet [the] 'as specific as' nor [the] 'matching' requirement [for official acknowledgment]."  "The Court's line-by-line review of the CIA Report further confirms that there is no reasonably segregable, non-exempt information in the Report."  "The Report thus remains properly withheld under FOIA Exemption 1."  "Because defendants need only supply one legitimate basis for withholding a record, the Court has no occasion to consider the Government's alternative argument under Exemption 3."
  
  Separately, "[a]s to [plaintiff's] reconsideration motion, the Court assumes arguendo that reconsideration is warranted in light of the Government's intervening disclosures regarding Khashoggi's killing, but holds, on reconsideration, that the agencies' 'no number no list' responses remain permitted."  The court relates that "[plaintiff] argues that given the recent disclosures, 'it is not "logical or plausible" that no other CIA or [Office of the Director of National Intelligence ("ODNI")] documents contain information that has been impacted by the disclosures in the 2021 ODNI Assessment and 2020 [National Intelligence Council Memorandum ("NICM")] and therefore can be released without harm to U.S. national security.'"  "It asserts that it can no longer credibly be found – as the Court found earlier – that a public Vaughn index listing withheld records 'would give advantage to foreign intelligence services and other groups[,] . . . 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 Court reaches the opposite conclusion."  "The Court has reconsidered 'whether a no number, no list response' (as opposed to a Vaughn index identifying the withheld documents) remains justified."  "The Court considered both the unclassified and classified filings the Government has made as to why, notwithstanding the recent disclosures, Exemptions 1 and 3 still apply and justify a 'no number, no list' response."  "The Court is persuaded by the reasoning in those filings."  "Among other points, the Court notes that, as the Government aptly points out, nothing in the recent disclosures 'reveals the volume or specific nature of the intelligence in the possession of CIA or ODNI,' precisely because the recent disclosures were 'intentionally drafted to avoid disclosing intelligence sources.'"  "The Government is similarly correct to note that, although the ODNI's public release articulates 'high-level conclusions about the Saudi government's role in the killing, the intelligence underlying those conclusions and the sources or methods used to gather that intelligence were intentionally not disclosed.'"  "'Neither the 2021 Assessment nor the redacted 2020 NICM officially acknowledge the existence of any other specific records, much less the volume, dates, or other specific details about the intelligence possessed.'"  "The Court is also persuaded, for the reasons the agencies give, that they 'remain unable to identify the volume of intelligence that the CIA and ODNI possess about the killing, or any specific information about the responsive intelligence records in their possession – such as dates, document titles, senders, recipients, and subject matters – because that information would reveal the nature and sources and methods of the underlying intelligence.'"  "And the Court is persuaded that, if any withheld record contains overlapping information with records that have been disclosed, 'any such information . . . cannot be released without disclosing classified and statutorily protected information pertaining to intelligence sources and methods.'"