Sack v. CIA, No. 12-537, 2014 WL 2769103 (D.D.C. June 17, 2014) (Cooper, J.)

Sack v. CIA, No. 12-537, 2014 WL 2769103 (D.D.C. June 17, 2014) (Cooper, J.)

Re: Request for records concerning CIA's polygraph program

Disposition: Granting in part and temporarily denying in part defendant's motion for summary judgment

• Exemption 1:  First, "the Court concludes that the CIA has properly withheld classified documents concerning its polygraph program as an intelligence method."  The court finds that "[defendant's] declarations, which are entitled to deference, present a 'logical' and 'plausible' argument that polygraphs of CIA job applicants constitute an intelligence method."  The court explains that "[p]olygraphing job applicants can credibly be said to protect against individuals illegally using or revealing classified information obtained after misrepresenting their reasons for applying to the Agency, which falls within the CIA's 'broad power to protect the secrecy and integrity of the intelligence process.'"
  
  Second, the court finds that, contrary to plaintiff's assertions and "[g]iven the 'substantial weight' this Court affords agency affidavits absent evidence to the contrary, . . .  the CIA has established that it need not comply with the additional procedures required by § 1.7(d)."  The court explains that "[defendant's] second declaration, however, explains that '[a]ll of the responsive records for which Exemption (b)(1) was asserted were classified prior to the receipt of plaintiff's FOIA request.'"
   
• Exemption 3:The court holds that it "will require the CIA to provide a supplemental declaration and Vaughn index describing in further detail the information in each of the contested documents that has been withheld exclusively on the basis of the Central Intelligence Act" and "will rule on the Plaintiff's Exemption 3 challenge upon receipt of the supplemental memorandum and any response thereto."  The court notes that "[t]he CIA's withholdings under Exemption 3 rely on Section 102(A)(i)(1) of the National Security Act and Section 6 of the Central Intelligence Act, 50 U.S.C. § 3507."
   
• Exemption 5, Deliberative Process Privilege:The court finds that "[t]he CIA has . . .  justified its withholding of records under Exemption 5."  The court explains that "[d]rafts such as these reflecting internal evaluations of expert recommendations fall within the deliberative process privilege covered by Exemption 5."
   
• Discretionary Disclosure and Waiver, Waiver:  The court finds that two "documents are no longer at issue" because, "[a]fter re-reviewing the two documents, the CIA determined that they did in fact contain the same information as the prior release, and provided the withheld records to [plaintiff]."
   
• Litigation Considerations, "Reasonably Segregable" Requirements:  The court holds that "[b]ecause the CIA here has explained that it reviewed each withheld document on a line-by-line basis, and because the Agency's descriptions of the documents withheld and justifications for the withholdings are sufficiently detailed, it has satisfied its burden to establish that it has released all reasonably segregable, non-exempt material."  The court finds that "[w]hile the internal [inconsistency] of the CIA's statement that it could not segregate nonexempt material in documents where it did just that may reflect carelessness in the preparation of its Vaughn index, the statement alone is not sufficient, under the circumstances of this case, to overcome the presumption of good faith accorded to the Agency."