Project for Priv. & Surveillance Accountability, Inc. v. ODNI, No. 22-2134, 2025 WL 2506561 (D.D.C. Sept. 2, 2025) (Cooper, J.)

Project for Priv. & Surveillance Accountability, Inc. v. ODNI, No. 22-2134, 2025 WL 2506561 (D.D.C. Sept. 2, 2025) (Cooper, J.)

Re: Request for records concerning intelligence community’s purchase of Americans’ private data

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; denying plaintiff’s motion for summary judgment

• Exemption 1; Exemption 3:  The court finds that “ODNI’s Exemption 1 and Exemption 3 justifications are similar.” “The agency defends its Exemption 1 withholdings on the ground that the contested information was properly classified pursuant to Executive Order 13,526 and concerns ‘intelligence activities (including covert action), intelligence sources or methods, or cryptology.’”  “And ODNI justifies its Exemption 3 withholdings under the [National Security Act’s] protection against the unauthorized disclosure of ‘intelligence sources and methods.’”  “So although the Exemptions 1 and 3 analyses differ, in this case, the driving inquiry is the same: whether disclosure would improperly reveal intelligence activities, sources, or methods.”  First, “ODNI has withheld portions of a 2021 letter from Senators Ron Wyden and Martin Heinrich to Director Haines and Central Intelligence Agency (“CIA”) Director William Burns; the letter was ‘previously processed and [publicly] released by’ the CIA in redacted form.”  “In the letter, to which ODNI hyperlinks in its Vaughn Index, Senators Wyden and Heinrich request an ‘expedited declassification review of the Privacy and Civil Liberties Oversight Board’s (PCLOB’s) “Executive Order 12333 Central Intelligence Agency Deep Dive II.”’”  “The publicly-available version of the Senators’ letter suggests that the CIA redacted information about secret activities it undertook pursuant to EO 12,333, potentially in relation to how agencies gather data on Americans.”  “And the Vaughn Index description of these pages states that the withheld portions of the letter ‘summarize[ ] and quote[ ] some of the classified information’ that the agency has declined to make public.” “Taken together, the redacted letter, the Vaughn Index description, and the [defendant’s] declaration provide enough detail for the Court to conclude that the documents ‘logically and plausibly’ include information about intelligence sources and methods . . . and that the disclosure of such information could jeopardize U.S. intelligence capabilities.”
  
  “The Court next considers . . . two sets of materials: (1) ‘meeting minutes from a legal working group between DIA [and other government agencies] regarding the legal considerations of commercial data use, the obtaining of commercial data, the current status of a specific ongoing effort and certain issues resulting from return to service actions of military members assigned to DIA, and a discussion of Garrity issues as they relate to security clearance investigations and reviews,’ . . . and (2) an ‘email between DIA and ODNI and senior [intelligence community] leaders regarding DIA’s use of commercial data after publication of a New York Times article on that same subject[]’ . . . .”  “Segregable information within both of these materials has been released to [plaintiff].”  “DIA has met its burden for applying Exemptions 1 and 3 to the withheld portions of these pages.”  “As the DIA Vaughn Index previews and the . . . declaration elaborates, ‘the withheld information speaks to the intelligence sources and methods used by the [DIA] to review and analyze information gathered from commercial data,’ and ‘also contains references to both specific intelligence sources and methods and information derived from those intelligence sources and methods.’” “In addition, DIA explains that the information withheld on these pages ‘could be used to identify sources working with the U.S. government and military,’ and release of such material could ‘expose those sources to serious harm’ and provide ‘adversaries of the United States’ with ‘sufficient information about specific intelligence collection and analysis techniques’ that they could use to resist intelligence-gathering.”  “To sum up: ODNI’s redactions to [these pages] are proper under Exemptions 1 and 3, and the agency need not disclose the redacted material.”
  
  “In contrast, ODNI has not persuaded the Court that its desired withholdings on pages 000017, 000024, and 000106–116 are warranted, at least under Exemptions 1 and 3.”  “First, ODNI seeks to redact one paragraph on page 000017 of its production and one paragraph on page 000024, asserting that each paragraph falls under the coverage of Exemptions 1 and 3 because it contains ‘properly classified’ information and ‘discuss[es] intelligence sources and methods.’”  “But ODNI offers nothing to describe or contextualize the general contents of either page.”  “The Court agrees with [plaintiff] that [defendant’s] declaration and ODNI[’s] Vaughn index provide ‘little more than boilerplate language’ alluding to ‘intelligence methods’ and ‘generically summarizing some reasons why such methods are typically kept confidential.’”  “Although courts give ‘special deference [to] agency affidavits on national security matters,’ . . . ‘deference is not equivalent to acquiescence; [an agency] declaration may justify summary judgment only if it is sufficient “to afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding.”’”  “Here, the generic language of ODNI’s Vaughn Index does not allow the Court to meaningfully evaluate the validity of the withholding.”  “The declaration ‘parrot[s] established legal standards’ (if that) without providing any useful description of the documents from which the Court could begin analysis.”  “Although the Court is mindful of the inherent difficulty in describing intelligence sources with specificity, agencies must do more than simply restate the text of the exemptions.”
  
  “Second, ODNI seeks to redact material on pages 000106–000116, which reflect a ‘chain coordinating due-outs from the Annual Threat Assessment briefing to Congress’ that ‘includes draft written and verbal talking points, draft recommendations, and questions posed to the interagency group.’”  “To justify withholding these documents under Exemptions 1 and 3 (the agency also invokes Exemption 5 for a subset of these pages, which the Court addresses in the following subsection), ODNI relies on [defendant’s] declaration, which states generically that ‘the information’ on these pages describes ‘intelligence, activities, capabilities, or methods employed by [intelligence community] elements’ and ‘would tend to reveal specific intelligence sources and methods that are either still actively in use or which remain viable for use today.’”  “As above, these kinds of conclusory statements cannot sustain the application of Exemptions 1 and 3.”  “Neither the Vaughn Index nor [defendant’s] declaration substantiates with any detail how disclosing the draft due-outs would run the risk of revealing intelligence sources and methods.”  “The agency’s explanations also do not specify what material is on which page, making it even more difficult to analyze whether the agency’s withholdings are consistent with FOIA.”  “Because ODNI’s declaration uses ‘identical boilerplate language to justify each Exemption 1 withholding without addressing the specific harm to national security that would flow from the release of any particular document,’ and the Court cannot readily identify the specific harm that would result from disclosure of pages 000106–116, the agency’s explanation is insufficient to sustain Exemption 1 or 3 withholdings.”
   
• Exemption 6: The court relates that “ODNI only specifies why redactions on pages 000110–000112 and 000113–000115 merit protection under Exemption 5.”  “The agency’s explanation leaves pages 000106–000109 and 000116 unaccounted for by any FOIA exemption except Exemption 6.”  “As noted above, for the purposes of its cross-motion for summary judgment, [plaintiff] has disclaimed any challenge to agency withholdings under Exemption 6.” “Given the agency’s across-the-board imprecision, the Court orders ODNI to submit a supplemental affidavit to allow it to evaluate whether the redactions on pages 000106–000109 and 000116 are proper under Exemptions 1, 3, or 6.”
   
• Exemption 5, Deliberative Process Privilege, Attorney-Client Privilege, Foreseeable Harm and Other Considerations:  The court relates that “ODNI made redactions to pages 000110–000112 and 000113–000115 pursuant to FOIA Exemption 5.”  “Again, these pages are part of a ‘chain coordinating due-outs from the Annual Threat Assessment briefing to Congress’ that ‘includes draft written and verbal talking points, draft recommendations, and questions posed to the interagency group.’”  “ODNI asserts that the redactions on pages 000110–000112 are appropriate under the deliberative process privilege and that those on pages 000113–000115 are warranted under the attorney-client privilege.”  “The Court concludes, at least on this record, that the deliberative process privilege does not protect the redactions to pages 000110–000112, which purport to ‘reflect[ ] the recommendations of agency officials on what actions the agency should take following an Annual Threat Assessment briefing to Congress.’”  “To start, the justifications for the withholdings are conclusory.”  “ODNI wishes the Court to accept that the documents are predecisional because they are ‘part of a back-and-forth exchange among officials . . . made prior to any agency final decision.’”  “They are deliberative, says the agency, because the information ‘reflects the considerations that ODNI officials took into account in formulating their views about what agency actions were warranted.’” “And they are intra-agency decisions because more ‘agency officials made the recommendations to assist more senior agency decision-makers in determining what follow-on actions were needed.’”  “ODNI’s explanation simply restates the deliberative process privilege standard, providing no concrete details that would allow the Court to discern whether this standard is met.”  “For instance, it is not clear whether the recommendations discussed were later adopted formally or informally, which would preclude labeling them as ‘predecisional,’ nor does the Court have any specific context for evaluating the ‘decision-making authority, or lack thereof,’ of the ‘author[s]’ of the recommendations, another important factor in assessing whether the privilege applies.”  “Even if the Court accepted ODNI’s conclusory explanations, the matter would not end there.” “ODNI’s [foreseeable harm] explanation – that ‘disclosure of the information would cause foreseeable harm to ODNI’s deliberative decision-making process and attorney-client communications by chilling candid conversations about appropriate agency actions[]’ . . . —is neither ‘focused’ nor ‘concrete’ enough to satisfy this standard.”  “[The] Court has found that similarly boilerplate explanations do not pass muster under the FOIA Improvement Act.”
  
  “The Court next turns to ODNI’s assertion of attorney-client privilege on pages 000113–000115, which ‘contain[ ] confidential communications between the Office of General Counsel (OGC) and ODNI staff.’”  “ODNI satisfies the standard here, having redacted ‘a client request for legal assistance and OGC’s provision of the requested legal advice,’ which was in turn ‘prepared with the joint expectation of the attorneys and ODNI staff that it would be held in confidence.’”
   
• Exemption 7(E):  “Finally, ODNI seeks to withhold information on pages 000117–000118, which comprise a ‘two-page letter’ from Senator Wyden to Director Haines and FBI Director Christopher Wray ‘requesting that [Haines and Wray] declassify certain information related to the collection of communications under Section 702 of the Foreign Intelligence Surveillance Act (FISA).’”  “The FBI, which was responsible for these pages of the production, has invoked FOIA Exemption 7(E) to protect this letter from full disclosure.”  “[Plaintiff] does not directly dispute that Exemption 7(E)’s first prong is satisfied.” “As to the second, although some of the FBI’s proffered explanation borders on boilerplate, the Court can conclude from the agency declaration that the withheld material, if disclosed, would reveal secret law-enforcement techniques or methods.”  “The FBI’s FOIA declarant explains that the agency withheld ‘non-public details concerning [its] gathering and collection of communications pursuant to Section 702.’”  “The declarant further notes that ‘the specific details included in Senator Wyden’s two-page letter and withheld by the FBI discuss certain national security techniques, procedures and guidelines that are utilized in furtherance of FBI’s law enforcement, national security, and intelligence missions under Section 702 of the FISA.’”  “Here, the FBI elaborates that release of the withheld information would ‘enable criminals to educate themselves about the national security technique employed for the collection and gathering of communications under Section 702 of the FISA’ and therefore circumvent the effectiveness of this technique.”  “Again, although verging on formulaic, this explanation satisfies 7(E)’s deferential standard; the Court can ascertain from the provided information how release of non-public law enforcement techniques would allow for circumvention of the law.”  “The explanation also adequately conveys how the disclosure of the FBI’s communication-gathering techniques would result in foreseeable harm, as individuals who circumvent the FBI’s methods could ‘continue to violate the law and engage in intelligence, terrorist, and criminal activities.’”
  
  “There is, however, one problem that the Court cannot immediately resolve.”  “According to [defendant’s] declaration, the redacted portions of Senator Wyden’s letter not only reveal the agency’s law enforcement techniques, but also, apparently, how the agency ‘applies and interprets Section 702 of the FISA in the context of its National Security investigations.’”  “Without more information, the FBI's discussion of its interpretation of federal law raises the specter that the agency is either inappropriately withholding ‘a body of “secret law” which the agency [is] using in its dealings with the public,’ . . . or is instead withholding ‘garden-variety legal analysis,’ which ‘does not fall under exemption 7(E).’”  “Given the FBI’s variegated explanation for its withholdings under Exemption 7(E), the Court is unable to determine whether the exemption covers all of the FBI’s desired redactions to Senator Wyden’s letter.”  “The government is directed to submit a supplemental affidavit to allow the Court to evaluate which redactions are proper.”
   
• Waiver and Discretionary Disclosure, Waiver:  The court relates that “[plaintiff] contends that, even if ODNI successfully invokes one or more FOIA exemptions, the agency is not entitled to summary judgment because it has officially acknowledged the information it now seeks to withhold.” “[Plaintiff] points to a recently-issued, unclassified ODNI policy document entitled ‘Intelligence Community Policy Framework for Commercially Available Information,’ which provides a broad overview of how members of the intelligence community access, collect, and process commercially available information.”  “[Plaintiff] does not bear its burden here.”  “There is nothing in the record to infer that the validly withheld material in this case specifically matches the information disclosed in the Framework.”  “ODNI has not denied that it and other intelligence agencies collect commercially available data for national security and intelligence purposes; what’s sensitive is more precisely how and why the agencies do so.”  “Said another way, the material that has been properly withheld by the ODNI, DIA, and FBI includes specific intelligence methods and sources and confidential legal communications, and [plaintiff] has offered the Court no basis for concluding that the Framework contains duplicative material.”  “[Plaintiff’s] reference to an unclassified policy document that covers the same subject or generally ‘similar information’ is therefore insufficient to compel disclosure of otherwise validly withheld material.”