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Smith v. CIA, No. 15-224, 2017 WL 1208396 (D.D.C. Mar. 31, 2017) (Chutkan, J.)

Date

Smith v. CIA, No. 15-224, 2017 WL 1208396 (D.D.C. Mar. 31, 2017) (Chutkan, J.)

 

Re: Request for records related to alleged uranium diversion from Nuclear Materials and Equipment Corporation ("NUMEC") to Israel

 

Disposition: Granting defendant's motion for summary judgment; denying plaintiff's motion to amend complaint

  • Litigation Considerations, Adequacy of Search, Procedural Requirements, Searching for Responsive Records & Exemption 3: "The court finds that the CIA conducted an adequate search." The court relates that "[defendant] determined [the identity of the offices which were] were reasonably likely to possess records responsive to Plaintiff's request[]" and "[e]ach division conducted a search of its record system." The court recounts the search terms and the databases searched and "finds the CIA's search adequate." It also finds "[defendant's] decision not to search operational [National Clandestine Service ("NCS")] files pursuant to the Act appropriate." The court relates that "[t]he CIA's declaration states that the operational files likely to contain records responsive to Plaintiff's request involve functions including 'documenting the conduct of foreign intelligence operations.'" "The agency's decision not to search those files is therefore clearly within the CIA Information Act's exemption of operational files as defined in the Act." "However, the Act does not apply in three circumstances: (1) when a requester seeks information on themselves pursuant to FOIA or the Privacy Act, (2) when a requester seeks information concerning 'any special activity the existence of which is not exempt from disclosure under FOIA, and (3) when a requester seeks information concerning 'the specific subject matter of an investigation by the congressional intelligence committees, the Intelligence Oversight Board, the Department of Justice ("DOJ"), the Office of General Counsel of the Central Intelligence Agency, the Office of Inspector General of the Central Intelligence Agency, or the Office of the Director of National Intelligence for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.'" "The DC Circuit has held that in order to meet the third exception, 'three questions must be answered in the affirmative.'" "First, whether the statute covers the investigating entity; second, whether the information requested is 'the specific subject matter of [the] investigation,' and third, whether the investigation concerns 'impropriety' or 'misconduct' by intelligence agencies." The court finds that "[p]laintiff has submitted a Department of Justice memorandum . . . setting forth the Attorney General's views on 'whether the jurisdiction of the Joint Atomic Energy Committee is exclusive' and 'whether the statute of limitations has run on any possible criminal offenses arising out of the discrepancy in nuclear materials at the Nuclear Materials and Equipment Company (NUMEC).'" "The court does not find that the . . . memorandum suggests the existence of a DOJ investigation[.]" "The memorandum contains no references to the CIA or to any impropriety by the CIA in its conduct of intelligence activity, nor does it contain any statements from which the court could infer an investigation into any such impropriety." The court finds similarly regarding another memorandum presented by plaintiff. "Finally, Plaintiff argues that a Government Accounting Office ('GAO') investigation meets the Act's criteria, but the court disagrees." The court finds that "[i]t is clear that the GAO report was prepared at the behest of the Chairman of the House Subcommittee on Energy and Power, and not any intelligence committee; the report therefore does not constitute the product of an investigation 'by the congressional intelligence committees' or any other entity listed in section 3141."
     
  • Exemption 1: "The court finds the CIA has met its obligations under FOIA, conducting an adequate search and releasing all reasonably segregable portions of responsive records, and will therefore grant the CIA's motion for summary judgment." The court relates that "[t]he CIA invoked exemption 1 pursuant to Executive Order 13526 as to portions of a number of records [concerning NUMEC]." "The FBI justified its . . . withholdings, pursuant to Executive Order 13526's classification criteria, in order to 'protect from disclosure information that would reveal the actual intelligence sources and methods used by the FBI against specific targets of foreign counterintelligence investigations,' and to protect information about 'activities by the United States or foreign governments and agencies that if known, could seriously and demonstrably impair relations between the United States and a foreign government.'" "The State Department invoked exemption 1 as to information from confidential 'diplomatic exchanges' that 'concerns sensitive aspects of U.S. foreign relations,' release of which 'has the potential to inject friction into, or cause damage to, a number of [U.S.] bilateral relationships with countries whose cooperation is important to U.S. national security.'"
     
  • Exemption 3: "The court finds that each agency has set forth information that sufficiently justifies its withholding in accordance with the three statutes." The court relates that "[t]he CIA named the National Security Act and CIA Act as the statutes specifically exempting disclosure, the FBI named the National Security Act, and the Department of Energy named the Atomic Energy Act."
     
  • Exemptions 6 & 7(C):"Plaintiff has not identified, nor is the court aware of, any public interest that would be served by disclosing the identities of the FBI special agents." "FBI's invocation of FOIA exemptions 6 and 7(C) is therefore appropriate."
     
  • Exemption 7(E): "The FBI withheld information pertaining to a 'sensitive technique used by FBI agents to conduct criminal investigations.'" "The court finds the FBI has justified its FOIA exemption 7(E) withholding."
     
  • Litigation Considerations, Pleadings: "The court does not find it in the interest of justice to allow Plaintiff to amend his Complaint at this stage in the litigation and add the Department of Justice as a defendant." The court relates that "[p]laintiff requests permission to amend his complaint and add the Department of Justice as a defendant." "He does so in hopes of obtaining proof from the DOJ that it conducted an investigation into the CIA, which Plaintiff believes will then entitle him to a CIA search of its operational files." The court finds that "[p]laintiff filed this lawsuit in 2015." "If he believed the Department of Justice was an appropriate defendant based on its response to his 2011 FOIA request in 2012, he had the opportunity to name the agency when he brought this case in 2015."
Court Decision Topic(s)
District Court opinions
Exemption 1
Exemption 3
Exemption 6
Exemption 7(C)
Exemption 7(E)
Litigation Considerations, Adequacy of Search
Litigation Considerations, Pleadings
Procedural Requirements, Searching for Responsive Records
Updated December 15, 2021