Open Soc'y Just. Initiative v. DOD, No. 20-5096, 2021 WL 3038528 (S.D.N.Y. July 15, 2021) (Furman, J.)

Open Soc'y Just. Initiative v. DOD, No. 20-5096, 2021 WL 3038528 (S.D.N.Y. July 15, 2021) (Furman, J.)

Re:  Request for records concerning earliest responses to COVID-19 pandemic

Disposition:  Granting in part defendant's motion for summary judgment; denying in part plaintiff's motion for summary judgment; reserving judgment on remainder of cross-motions

• Exemption 1, Glomar Response:  First, the court finds that "assuming that the CIA's Glomar response is justified under one of FOIA's exemptions, the official acknowledgement doctrine does not call for more disclosure."  The court relates that "[plaintiff's] invocation of the official acknowledgment doctrine is based solely on a single, four-sentence press release . . . issued by the ODNI on April 30, 2020."  The court finds that "the Press Release does not satisfy the specificity and matching prongs of the 'precise and strict' . . . test with respect to either Topic 2 or Topic 18 [of plaintiff's request]."  The court explains that "the Press Release may have revealed that the CIA would have some records concerning COVID-19."  "As noted, however, the 'disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure.'"  "That requirement is not satisfied."  "Topic 2 does not seek information pertaining to whether the CIA or other parts of the Executive Branch learned about COVID-19 or whether the CIA or other parts of the Executive Branch had a response when they first learned about COVID-19."  "Instead, it seeks more specific information: whether the CIA possesses records relating to the Executive Branch's response to COVID-19 when the Executive Branch was first informed of the disease."  "Nothing in the Press Release speaks to the response of the Executive Branch writ large (not to mention any component thereof) when it first became aware of COVID-19, let alone to whether the CIA possesses records on that subject."  "Similarly, [plaintiff] fails to satisfy the specificity and matching requirements with respect to Topic 18."  "It seeks records concerning communications between the CIA and the White House relating to COVID-19."  "But nowhere in the Press Release does the CIA (assuming arguendo that the Press Release even constitutes a disclosure by the CIA) admit that it had any communications with the White House or that it possesses records of such communications."
  
  Second, regarding the Glomar response itself, "the Court concludes that the CIA provides sufficient justification for its Glomar response to five of the twenty-one topics in [plaintiff's] request."  "First, in reference to Topic 3, which seeks '[r]ecords indicating when President Donald Trump was first informed of what is now known as SARS-CoV-2 and/or COVID-19,' [defendant] explains that confirming the existence or non-existence of responsive records 'could indicate whether the CIA possessed the ability to identify and provide the White House with an early warning about the virus, or whether initial notice instead came from another organization or agency.'"  "'Such information,' [defendant] elaborates, 'would further alert our adversaries and allies alike of the extent to which [the] CIA did or did not gather and share such information . . . [and] what the CIA's capabilities or weaknesses might be with respect to gathering such information in the future.'"  "Giving due deference to the CIA's views, that explanation for the Glomar response to Topic 2 is 'logical and plausible.'"  "It is also sufficient to cover Topics 1, 2, and 4, responses to which would also tend to reveal whether and to what extent the CIA was on the front line of surveilling and responding to the emerging viral threat."  "Similarly, in reference to Topic 16, which calls for '[r]ecords discussing Remdesivir, Chloroquine, Hydroxychloroquine ("Plaquenil"), Azithromycin ("Zithromax") and/or other drugs or substances, such as disinfectants, for treating what is now known as SARS-CoV-2 and/or COVID-19,' [defendant] explains that confirming the existence or non-existence of responsive records would reveal 'whether [the] CIA did or did not determine such scientific research information to be of intelligence value, or that it lacked the capability to gather such information.'"  "More broadly, [defendant] explains that '[t]he CIA’s mission' – namely, the gathering of foreign intelligence from other countries – 'is fundamentally different from that of . . . a national health organization' or scientific agency."  "As a result, whether and to what extent the agency is involved in generating or collecting 'scientific data or research' is, in itself, sensitive national security information and properly classified."  "It is 'logical and plausible' to maintain that confirming the existence or non-existence of records responsive to Topic 16 could reveal such information."  "Accordingly, once again, the Court concludes that the CIA properly invoked Glomar in response to Topic 16."
  
  "By contrast, the Court concludes that [defendant's] Declaration does not satisfy the CIA's burden with respect to the remaining sixteen topics in [plaintiff's] request."  "The rationales discussed above do not bear directly on these other topics."  "And the rest of [defendant's] Declaration is nowhere near as specific in explaining why the CIA cannot even confirm the existence or non-existence of responsive documents."  "[T]o accept the CIA's Glomar response based on little more than its say so, would be to create a wholesale 'CIA exception' to FOIA, which Congress itself has not done."  "That said, the Court is not prepared, at this time, to order the CIA to produce records that are responsive to these sixteen topics or even to provide a Vaughn index identifying them and explaining why they are being withheld, as [plaintiff's] requests."  "Given the national security sensitivities involved, it would not be reasonable for the Court to conclude that the CIA loses any entitlement to a FOIA exemption merely because its initial explanation was too circumspect."  "[T]he Court will give the CIA one more chance to make an adequate record for its Glomar response with respect to Topics 5-15 and 17-21."