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ff0ef100-0a86-430b-bb35-e70465d3fff8 | the plaintiff “does not challenge CIA’s withholdings under Exemption 1 | National_Security_Counselors_2013-08-15.txt |
0f60b730-10a1-4b53-aa3a-318567776e45 | .” See Pl’s First 445 Opp’n. at 6. The plaintiff nevertheless maintains that “the Court has no way of knowing which of the withheld information actually does fall within these criteria.” Id. The Court disagrees. The plaintiff is reading the CIA’s declaration and Vaughn index in isolation, rather than reading both documents together | National_Security_Counselors_2013-08-15.txt |
fba2d111-bd53-4273-a6c6-29557533dd1c | . Although the CIA’s Vaughn index only states, for example, that information was withheld because it “contains classified information disclosing intelligence sources and methods,” see, e.g., Third Lutz Decl. Ex. K pt. 1, at 109, No. 11-445, ECF No | National_Security_Counselors_2013-08-15.txt |
52a2365a-5114-48eb-b9af-8046124addf9 | . 29-2, the CIA’s declaration explains in much more detail what is meant by “intelligence sources and methods” or “intelligence activities,” see Third Lutz Decl. ¶–30 | National_Security_Counselors_2013-08-15.txt |
e166dd2b-fd42-4095-8713-c8e607c634da | . Hence, reading all of the CIA’s materials together, the CIA has plausibly established that the information withheld contains information about intelligence-gathering activities, and given that conclusion, the plaintiff appears to concede that the CIA’s Exemption 1 withholdings are entitled to summary judgment. See Pl | National_Security_Counselors_2013-08-15.txt |
d8dc7f8c-d54d-4df4-981e-3a7716cb8dad | .’s First 445 Opp’n at 6 (“To the extent the withheld information falls within one of these two criteria, NSC does not challenge CIA’s withholdings under Exemption (b)(1).”). The same is true of the DIA’s declaration, though the DIA’s declaration provides less detail about the nature of the classified information that was withheld | National_Security_Counselors_2013-08-15.txt |
cf89be34-2dc6-435e-9de4-68523600bfc2 | . As discussed above, the DIA’s Vaughn index states that each of the two documents withheld under Exemption 1 are 87 “document[s] consist[ing] of a work tasking within the Intelligence Community on a classified subject matter,” which “would reveal . . | National_Security_Counselors_2013-08-15.txt |
721a0d22-c803-4ac4-b988-82182fedcbfa | . intelligence sources and methods and would therefore compromise the intelligence information collection mission effectiveness of the intelligence community.” Second Williams Decl. Ex. A at 18, 24. This is undoubtedly “something more than a parroting of the statutory standards.” See Pl.’s First 445 Opp’n at 9 | National_Security_Counselors_2013-08-15.txt |
c101fb1f-820c-4c40-a4f9-0628f3fbe630 | . Although many details of these two documents remain unknown, the DIA’s declaration plausibly establishes that the withheld information relates to sensitive operations within the Intelligence Community, the substance of which is properly classified in the interest of national security. That is sufficient to grant summary judgment. See Morley, 508 F.3d at 1124 | National_Security_Counselors_2013-08-15.txt |
5e3a3952-b655-473b-8741-f9165e3083a4 | . The plaintiff asserts that “something more” is required to warrant summary judgment under FOIA Exemption 1, and suggests two specific pieces of information in this regard: (1) “the date of classification of each document,” and (2) “the person who classified it.” Pl.’s First 445 Opp’n at 9 | National_Security_Counselors_2013-08-15.txt |
0760e8ca-1499-43a5-91bd-6da1797cf312 | . The plaintiff’s reason for demanding this information is that it is necessary “to ensure that the information was classified in accordance with Executive Order 13526.” Id. The Court construes the plaintiff to assert that the CIA and DIA have not complied with the procedural requirements of Executive Order 13,526, and in particular § 1.7(d) of that Executive Order | National_Security_Counselors_2013-08-15.txt |
dcc42de7-5381-43b3-b4fa-bd64ccceecc9 | . That provision states that information sought through a FOIA request may be classified after the request is submitted, but “only if such classification . . . is accomplished on a document- by-document basis with the personal participation or under the direction of the agency head, the deputy agency head, or the senior agency official.” Exec. Order 13,526 § 1.7(d) | National_Security_Counselors_2013-08-15.txt |
aab380a3-c654-4c53-8ecf-9be1421551d3 | . At the outset, Executive Order 13,526 does not require that a classifying authority indicate when information is originally classified. See, e.g., Judicial Watch, Inc. v. U.S. Dep’t of Def., 857 F. Supp. 2d 44, 58 (D.D.C. 2012) (observing that “[Executive Order] 13526 does not 88 require that the date of classification be indicated on the records themselves”) | National_Security_Counselors_2013-08-15.txt |
85561569-6540-4ea3-a4fb-9d2370cacb02 | . Likewise, Executive Order 13,526 does not require that a classifying authority indicate “the person who classified” the information in question, as the plaintiff asserts. See Pl.’s First 445 Opp’n at 9. Rather, with regard to the identity of the party classifying information, the Executive Order only requires that an “original classification authority is classifying the information,” see Exec | National_Security_Counselors_2013-08-15.txt |
41f0305f-9fb0-4443-a2d4-a6a35999cc4a | . Order 13,526 § 1.1(a), and the plaintiff does not contend that the information withheld by either the DIA or the CIA was classified by someone other than an “original classification authority | National_Security_Counselors_2013-08-15.txt |
c6f7bc15-95be-4093-aa96-fcfec2c89cd3 | .” The crux of the plaintiff’s somewhat veiled procedural argument is that the CIA and the DIA were required to provide the date of classification and the identity of the classifying authority in order to ensure that those agencies complied with § 1.7(d). Section 1 | National_Security_Counselors_2013-08-15.txt |
e78798e3-e7a1-46df-a0ef-0c23f67a5e5a | .7(d), however, only applies when information is “classified or reclassified after an agency has received a request for it under the [FOIA]” or other similar statutes. See Exec. Order 13,526 § 1.7(d) | National_Security_Counselors_2013-08-15.txt |
fa7e8352-d351-49e0-9f04-501a1dd484e7 | . The plaintiff essentially argues that it is the agency’s burden under FOIA Exemption 1 to establish affirmatively in every instance whether information was classified before or after a FOIA request for that information was submitted. The Court disagrees. As the Court has previously held, “an agency need only satisfy the requirements of Executive Order § 1 | National_Security_Counselors_2013-08-15.txt |
33cbb79f-bddb-49e2-9c9f-16b3e1dbe4e9 | .1(a) to classify information properly for purposes of FOIA Exemption 1.” Mobley, 2013 WL 452932, at *20 (collecting cases) | National_Security_Counselors_2013-08-15.txt |
9300a62d-feb2-4218-94a3-ab87b10ad69b | . If the agency’s release or other representations suggest that information may have been classified after the relevant FOIA request was submitted, the agency has the burden of coming forward with evidence to establish either (1) the information was classified prior to the FOIA request; or (2) the agency satisfied the requirements of § 1.7(d). See, e.g., TREA Senior Citizens League v. U.S | National_Security_Counselors_2013-08-15.txt |
1f3b2e9e-3b5e-4197-b4dc-45814e2441b6 | . Dep’t of State, No. 10- 1423, 2013 WL 458297, at *5 (D.D.C. Feb. 7, 2013) (agency required to demonstrate 89 compliance with § 1.7(d) where agency declaration stated that information “‘was originally UNCLASSIFIED,’ but ‘is currently classified CONFIDENTIAL’”) | National_Security_Counselors_2013-08-15.txt |
0fda366e-24a7-49bc-b39c-bcec8185d4c5 | . It is the plaintiff’s initial burden, however, to raise a genuine factual question regarding whether information was classified after a FOIA request was submitted for that same information, and only then would the burden shift to the agency to establish that either (1) the information was classified prior to the FOIA request; or (2) the agency satisfied the requirements of § 1.7(d).33 See, e.g | National_Security_Counselors_2013-08-15.txt |
a1df282e-0baf-4b9d-90e1-cdcadf5ec339 | ., Larson, 565 F.3d at 867 (where agency’s affidavit demonstrates that information was properly classified under Executive Order, summary judgment is warranted so long as “[t]he affidavit is not controverted by any contrary evidence in the record or any evidence suggesting agency bad faith”) | National_Security_Counselors_2013-08-15.txt |
34d15d31-0f04-4313-b972-a52f5da7a652 | . In this case, the plaintiff seeks to satisfy its initial burden by pointing to the fact that nine of the sixteen documents withheld under Exemption 1 by the CIA—all of which were responsive to the FOIA requests challenged in Counts One and Two in No. 11-445—“have ‘Unclassified’ written next to Classification in the Vaughn indices.” See Pl.’s First 445 Opp’n at 5 n.6 | National_Security_Counselors_2013-08-15.txt |
98537337-b00c-452b-87ab-07d79bf99afc | . According to the plaintiff, “[t]his suggests that the information was not classified until after CIA received these FOIA requests.” Id. The Court agrees | National_Security_Counselors_2013-08-15.txt |
9bc2eb55-9de5-4a0e-a990-a57b42d01eec | . The denomination of these nine documents34 as “Unclassified” in the CIA’s Vaughn index raises a genuine factual question regarding whether the classified information contained in these documents was classified prior to the FOIA requests submitted by the plaintiff | National_Security_Counselors_2013-08-15.txt |
f779cd64-8fab-4bb4-aed8-242601186230 | . Accordingly, the burden is now on the CIA to establish that either (1) the information in these nine documents was classified prior to the 33 The Court recognizes that satisfying this initial burden may be difficult in most cases because classifying authorities are not required to indicate the date of classification under Executive Order 13,526. See Judicial Watch, 857 F. Supp. 2d at 58 | National_Security_Counselors_2013-08-15.txt |
2911cd76-7957-4c89-b5f8-ddd09f174833 | . 34 The nine documents are identified in the CIA’s Vaughn index by the following Bates numbers: C05366473, C01499710, C05403192, C05403194, C05403197, C05403198, C05403199, C05403203, and C05549838. The first of these documents was responsive to the FOIA request at issue in Count One in No. 11-445, while the latter eight were responsive to the FOIA request at issue in Count Two in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
dc9f0bf0-1e84-4877-be69-11b80bab81c4 | . 90 plaintiff’s FOIA request; or (2) the agency satisfied the requirements of § 1.7(d) in classifying the information. The CIA may satisfy the burden by submitting a supplementary declaration. The plaintiff does not, however, raise any genuine factual question regarding whether the DIA properly classified the information contained in the two disputed documents related to Count Five in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
86d3e6d0-aa97-49c7-a840-9c90be6e4a5e | . The DIA has thus satisfied its burden of plausibly establishing that the information contained in those two documents was properly classified under Executive Order 13,526. Therefore, with respect to information withheld under Exemption 1, the Court grants summary judgment to the DIA on Count Five in No. 11-445, and the Court also grants summary judgment to the CIA on Counts Three and Seven in No | National_Security_Counselors_2013-08-15.txt |
c9df1958-c49d-468c-9bfe-fb23c0a01009 | . 11-445. The Court denies summary judgment to the CIA, however, on Counts One and Two in No. 11-445 with respect to information withheld under Exemption 1. Specifically, the CIA has not satisfied its burden of demonstrating that nine records responsive to the FOIA requests at issue in Counts One and Two were properly classified, as discussed above. 2. Exemption 1 Withholdings in No | National_Security_Counselors_2013-08-15.txt |
223b4b28-2ec2-49b1-907e-c9c052168f75 | . 11-443 The plaintiff also challenges the CIA’s decision to withhold dozens of article titles from documents that were responsive to the plaintiff’s May 12, 2010 FOIA request for “all Tables of Contents (‘TOCs’) from the [CIA] in-house journal Studies in Intelligence.” See Second Lutz Decl. Ex. A at 1. The plaintiff’s argument in this regard is two-fold | National_Security_Counselors_2013-08-15.txt |
164c57c1-7f6e-4f7b-b8d1-0bebef74f4db | . First, the plaintiff argues that the “CIA has exhibited the ‘general sloppiness’ of its FOIA review process in several ways,” and therefore the plaintiff believes that “the Court should not afford substantial weight to the assertions made in the Lutz Declaration.” See Pl.’s First 443 Opp’n at 6, 11. Second, the plaintiff makes essentially the same argument it made in No | National_Security_Counselors_2013-08-15.txt |
a93bdc8c-5850-4818-b6ec-66d5c8681aec | . 11-445: the CIA is not entitled to summary judgment “because CIA’s Vaughn index entries consist generally of nothing more 91 informative than a parroting of the statutory standard.” See id. at 11–12. With regard to both arguments, the plaintiff points to several pieces of information that the CIA withheld from disclosure, which are publicly available. See id | National_Security_Counselors_2013-08-15.txt |
3e421fe8-158a-48d7-a4b7-6cea80ae7ca6 | . at 6 (“NSC has identified no less than eighty-six pieces of information withheld by CIA which have been officially disclosed elsewhere.”); id. at 12 (pointing to the “banal and generic” nature of “officially disclosed information . . . which was withheld under Exemption (b)(1)”) | National_Security_Counselors_2013-08-15.txt |
eb15d953-ca85-4122-a49f-b718d06e9d37 | . As to the first argument, the Court agrees with the CIA that the plaintiff’s argument is “based on the faulty premise that agencies are required to exhaustively search public sources to determine whether information is publically available before asserting FOIA exemptions.” See Def.’s Reply in Supp. Mot. Summ. J. on Count Three (“Def.’s First 443 Reply”) at 3, No. 11- 443, ECF No. 43 | National_Security_Counselors_2013-08-15.txt |
5509cad4-8926-4b74-8a76-64f2fc8f4820 | . Agencies do not have an affirmative duty to ascertain whether information has been made publicly available before deciding to withhold it from release under the FOIA. See, e.g., Davis v. Dep’t of Justice, 968 F.2d 1276, 1279 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
5e3785a6-4909-4eaa-aa79-10e4565407dc | . 1992) (“[T]he task of proving the negative—that information has not been revealed—might require the government to undertake an exhaustive, potentially limitless search.”) | National_Security_Counselors_2013-08-15.txt |
2651a73e-4fab-467f-b4c7-5943ed164a31 | . Therefore, the fact that certain pieces of information withheld by the CIA had previously become publicly available does not demonstrate any “general sloppiness” on the part of the CIA that would undercut the “substantial weight” accorded to “an agency’s affidavit concerning the details of the classified status of the disputed record.” See Afshar v. Dep’t of State, 702 F.2d 1125, 1131 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
028b4c51-2de7-43b7-a377-a3c456aeddfc | . 1983).35 This is especially 35 It makes no difference that “a significant majority of the officially disclosed information is present on CIA’s website . . . or in other official CIA publications.” See Pl.’s First 443 Opp’n at 7 | National_Security_Counselors_2013-08-15.txt |
27acb669-bccd-452d-9dd7-18bc98b91ddf | . To meet its burden at summary judgment, an agency is not required to demonstrate that it exhaustively cross-referenced information responsive to a FOIA request with every officially disclosed piece of information to determine whether it is publicly available— even if the agency responding to the request is the same agency that previously disclosed the information. See Davis, 968 F.2d at 1279 | National_Security_Counselors_2013-08-15.txt |
8170afe6-c22f-4324-a9aa-b614a9f12a6e | . Rather, the initial burden of production on the issue of official disclosure lies with the requester, who must “point to ‘specific’ information identical to that being withheld.” Id. at 1280. If the requester carries its burden, of course the agency would then be required to produce the withheld information the requester, see, e.g., Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
ebb3d318-f56d-4968-865b-ff7e539536fc | . 1990) (“[W]hen information has been ‘officially 92 true in a case like the instant one where the CIA made eminently reasonable efforts to determine whether information contained in the withheld records had been previously made available through any form of official public disclosure. See Supp. Decl. of Martha M. Lutz (Nov. 15, 2012) (“Fourth Lutz Decl.”) ¶–7, No. 11-443, ECF No. 43-1 | National_Security_Counselors_2013-08-15.txt |
eb83076c-e3c7-43ff-99b6-7bfe3d7504ba | . Therefore, the Court does not find the plaintiff’s examples of withheld but publicly available information to be evidence of “general sloppiness” on the part of the CIA.36 The plaintiff’s second argument does not fare any better. At the outset, the Court notes one point of confusion regarding the plaintiff’s challenge with respect to the information withheld by the CIA under Exemption 1 | National_Security_Counselors_2013-08-15.txt |
6c0fbcf2-9fc5-4fb6-bfc5-138d59fd2a12 | . As discussed above, the plaintiff points to dozens of pieces of information—including some article titles—that were withheld by the CIA under Exemption 1, but which are also publicly available. See Pl.’s First 443 Opp’n at 6–10, 12–13 | National_Security_Counselors_2013-08-15.txt |
bc8649b4-d03f-4ab9-bc87-2442426211f8 | . It is unclear, however, whether the plaintiff seeks an order from the Court directing the CIA to provide copies of this publicly available information to the plaintiff in connection with its FOIA request. The CIA appears to indicate that if any information was released through a “form of official public disclosure,” the CIA “released the identical information” to the plaintiff | National_Security_Counselors_2013-08-15.txt |
7534e8d0-8225-4051-b217-0ce1924bd91f | . See Fourth Lutz Decl. . The plaintiff appears only to be using these alleged official disclosures of information to undermine the credibility of the CIA’s declarations. In any event, this issue now appears moot because the CIA has provided the plaintiff with any officially disclosed acknowledged,’ its disclosure may be compelled even over an agency’s otherwise valid exemption claim | National_Security_Counselors_2013-08-15.txt |
c7e03475-9518-4b6e-bcff-cabcc50feb46 | .”), but the agency does not bear the burden of establishing an exhaustive public records search in the ordinary course of seeking summary judgment in a FOIA case. 36 As discussed below, see infra note 49, the plaintiff does not make clear in its briefing whether it is making an argument premised on “bad faith” or “general sloppiness” in No. 11-443 | National_Security_Counselors_2013-08-15.txt |
1014b265-4b50-4eae-b323-4dd4524c8977 | . To the extent that the plaintiff presents the examples of withheld but publicly available information to be evidence of “bad faith,” in addition to “general sloppiness,” the Court concludes that such examples are not evidence of bad faith for the same reasons it concludes that they are not evidence of “general sloppiness | National_Security_Counselors_2013-08-15.txt |
766f686e-2c86-46cf-83fa-261932db10a5 | .” 93 information, and the plaintiff does not ask the Court to order the CIA to disclose any officially disclosed information. The CIA justifies its withholding of information under FOIA Exemption 1 by stating, inter alia, that “the documents at issue implicate intelligence activities.” See Second Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
0a172fed-2453-4105-b01e-27372b3ac987 | . Specifically, “the withheld information would reveal the Agency’s presence in certain foreign countries, the location of certain covert operations, intelligence collection techniques, and clandestine relationships with certain foreign governments.” Id | National_Security_Counselors_2013-08-15.txt |
2dbaeab2-960c-4367-b719-6a76a06c7ca5 | . Unsurprisingly, the CIA avers that unauthorized disclosure of this information “could reasonably be expected to result in damage or serious damage to the national security.” Id | National_Security_Counselors_2013-08-15.txt |
e70edd0e-329e-450d-bd25-c6feb4e81200 | . The CIA’s declarant also goes on to describe in more detail the nature of “intelligence activities” and “foreign relations and activities” and why the release of information about these activities would harm the national security of the United States. See id. ¶–34 | National_Security_Counselors_2013-08-15.txt |
1c51f9fa-8a66-4bd9-aed3-ed3e30f47c35 | . Despite the CIA’s explanation regarding the classified information that it withheld under Exemption 1, the plaintiff complains that “the Court has no way of knowing which of the withheld information actually meets the criteria for classification, because CIA’s Vaughn index entries consist generally of nothing more informative than a parroting of the statutory standard.” See Pl | National_Security_Counselors_2013-08-15.txt |
39239083-8110-4483-89b9-4560571dd316 | .’s First 443 Opp’n at 11–12. Once again, however, the plaintiff narrowly focuses its attention on the CIA’s Vaughn index in isolation, without reading the Vaughn index in conjunction with the CIA’s declaration. Reading the two documents together, the CIA has clearly established that the article titles it withheld under FOIA Exemption 1 plausibly fall within that exemption | National_Security_Counselors_2013-08-15.txt |
1ee1564a-66fd-4c22-bb22-09c9010db7c3 | .37 37 The plaintiff agreed to limit the scope of its challenge in Count Three of No. 11-443 to “the redaction of titles in the Studies of Intelligence [sic] tables of contents.” Second Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
87777ac1-af7d-4875-bae0-f2faeeb1922c | . The plaintiff has stated that it “will abide by its agreement,” but nevertheless urges this Court to “rule sua sponte on CIA’s withholdings of authors’ 94 The plaintiff attempts to undercut this conclusion by pointing to four examples of Studies in Intelligence article titles that were withheld by the CIA under Exemption 1 but that are also publicly available. See Pl.’s First 443 Opp’n at 12 | National_Security_Counselors_2013-08-15.txt |
310c7101-f6c1-4fd8-bb14-7eceaa2b92b7 | . The plaintiff notes that these are “banal and generic titles,” which the plaintiff claims “further demonstrate[es] the lack of weight that should be given to CIA’s assertions.” Id. Once again, the Court disagrees. The fact that certain titles may appear to a lay person as “generic” or “banal” has no bearing on whether the information was properly classified | National_Security_Counselors_2013-08-15.txt |
a3bde785-c86a-4749-8028-631d98760b2d | . It is well understood in this Circuit that “the judiciary is in an extremely poor position to second-guess the executive’s judgment in th[e] area of national security.” Ctr. for Nat’l Sec. Studies, 331 F.3d at 928 | National_Security_Counselors_2013-08-15.txt |
17055f83-ad7b-4f7e-80a0-5d3f9f458cf2 | . Furthermore, this Circuit has recognized that “[m]inor details of intelligence information may reveal more information than their apparent insignificance suggests because, ‘much like a piece of jigsaw puzzle, each detail may aid in piecing together other bits of information, even when the individual piece is not of obvious importance in itself.’” Larson, 565 F.3d at 864 (quoting Gardels v | National_Security_Counselors_2013-08-15.txt |
5d42281e-7631-4cbb-8046-0c312288f4a6 | . CIA, 689 F.2d 1100, 1106 (D.C. Cir. 1982)). Since this Court lacks the expertise to second-guess the appropriateness of classifying certain information simply because it may appear harmless, the Court will not venture to do so here. In one final attempt to avoid summary judgment, the plaintiff raises anew the argument, discussed above, that the CIA is required to demonstrate compliance with § 1 | National_Security_Counselors_2013-08-15.txt |
14ede354-5a50-489e-9aa5-d636789d7ead | .7(d) of Executive Order 13,526. See Pl.’s First 443 Opp’n at 13–14; see also supra Part III.E.1(a) | National_Security_Counselors_2013-08-15.txt |
b4b1ef8d-a0d0-47e9-acce-7e3941584bb7 | . This time, the plaintiff argues that the “CIA should be required to explain how its statement to the Court that its declaration only describes the classification status of this information in December 2011 can be reconciled with the plain language of the Lutz Declaration, signed 8 August 2012, which states names.” Pl.’s First 443 Opp’n at 2 | National_Security_Counselors_2013-08-15.txt |
fb07dc89-432c-41f9-926a-0940e412efa2 | . The Court declines the plaintiff’s invitation and will rule only on those aspects of the CIA’s withholding that are disputed by the plaintiff in Count Three of 11-443, i.e., article titles. 95 in the present tense, “I have determined that . . . this information is currently and properly classified.’” Pl.’s First 443 Opp’n at 14 (emphasis in original) (citation omitted) | National_Security_Counselors_2013-08-15.txt |
d6577d16-8f46-4916-90ec-c516a6d688a1 | . The first CIA statement referenced by the plaintiff actually said that “[i]nformation that was properly classified and withheld from the CIA’s FOIA production in December 2011, may no longer be classified.” See Joint Status Report at 2. This is not the same as saying the CIA’s declaration “only describes the classification status of this information in December 2011,” as the plaintiff claims | National_Security_Counselors_2013-08-15.txt |
fab7fafe-bef2-4e08-907a-fc6da755a097 | . See Pl.’s First 443 Opp’n at 14 (emphasis omitted). The fact that information that was withheld as classified in December 2011 “may no longer be classified,” see Joint Status Report at 2 (emphasis added), is not inconsistent with the statement that such information currently remains classified | National_Security_Counselors_2013-08-15.txt |
3ffd0a0c-428f-4d30-a422-80b81410cbeb | . The plaintiff has thus failed to raise a genuine factual question regarding whether the article titles withheld by the CIA were classified after a FOIA request was submitted for them, and therefore the CIA carries no burden to demonstrate its compliance with § 1.7(d) of Executive Order 13,5256. Therefore, the Court grants summary judgment, in part, to the CIA on Count Three in No | National_Security_Counselors_2013-08-15.txt |
83b7db12-7359-403b-82af-17943ef8d98c | . 11-443 with respect to the information withheld by the agency under FOIA Exemption 1. The Court denies summary judgment, in part, however, with respect to a single document withheld in part by the CIA under Exemption 1. That document was located and released in part by the CIA on November 15, 2012, when the CIA filed its reply brief in No. 11-443. See Fourth Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
f2d96ddd-03fd-4315-9f5a-db7716763137 | . The only information provided by the CIA about this document is that it is “a two-page classified TOC from volume 53 (number 2)” of Studies in Intelligence. See id. The plaintiff has clarified that it challenges these Exemption 1 redactions made by the CIA. See Notice of Clarification at 1, No. 11-443, ECF No. 60 | National_Security_Counselors_2013-08-15.txt |
c8bd4aaf-337d-4cd8-9dce-82c62cf18518 | . The CIA has not provided sufficient information about this document to satisfy its burden under the FOIA, and therefore the CIA will 96 be required to submit a further supplemental affidavit to establish that the portions of this document withheld under Exemption 1 “are in fact properly classified.” See 5 U.S.C. § 551(b)(1) | National_Security_Counselors_2013-08-15.txt |
d0de5663-5665-4aa1-9b2e-12bd41c82642 | . * * * In sum, with respect to information withheld pursuant to Exemption 1, the Court grants summary judgment to the DIA on Count Five in No. 11-445, and to the CIA on Counts Three and Seven in No. 11-445. The Court grants in part and denies in part summary judgment to the CIA on Counts One and Two in No. 11-445 and on Count One in No. 11-443. With respect to Counts One and Two in No | National_Security_Counselors_2013-08-15.txt |
9a701e40-aca8-449a-ba8b-c5dd5dfc90bc | . 11-445, the Court denies summary judgment to the CIA as to the withholding of nine documents labeled with Bates numbers: C05366473, C01499710, C05403192, C05403194, C05403197, C05403198, C05403199, C05403203 and C05549838. The Court grants summary judgment to the CIA on Counts One and Two in No. 11-445 in all other respects related to the withholding of information pursuant to Exemption 1 | National_Security_Counselors_2013-08-15.txt |
33f6d6ad-539e-4b1b-b5e3-e376efbd4524 | . With respect to Count One in No. 11-443, the Court denies summary judgment as to the “two-page classified TOC from volume 53 (number 2)” of Studies in Intelligence. See Fourth Lutz Decl. . The Court grants summary judgment to the CIA on Count One in No. 11-443 in all other respects related to the withholding of information pursuant to Exemption 1. G | National_Security_Counselors_2013-08-15.txt |
c62e5a80-2b8d-444f-bb6c-38372c52fd43 | . Exemption 2 The CIA withheld thirteen documents in full under FOIA Exemption 2.38 See Third Lutz Decl. Ex. K pt. 2, at 1, 8–14, 16–18, 22, 27, No. 11-445, ECF No. 29-3. Exemption 2 applies to matters that “related solely to the internal personnel rules and practices of an agency.” 5 U.S.C. § 552(b)(2) | National_Security_Counselors_2013-08-15.txt |
8fa1ab4f-f3b3-4062-abdd-74ba1f84cb74 | . The CIA states in its declaration that all thirteen documents withheld under 38 The plaintiff previously indicated that it intended to challenge Exemption 2 withholding decisions made by the ODNI as well. See Hackett Decl. Ex. E at 1, ECF No. 29-8. The plaintiff, however, does not pursue that challenge in its opposition to the defendants’ motions for summary judgment in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
d0fbcba2-7472-4fb8-beef-903a7ea38a60 | . 97 Exemption 2 “are internal training documents containing the procedures and guidelines utilized by CIA officers in processing FOIA and Privacy Act requests.” Third Lutz Decl. . The plaintiff concedes that “the withheld records . . . technically pertain to personnel, in that they are instructions for personnel to follow.” Pl.’s First 445 Opp’n at 9 | National_Security_Counselors_2013-08-15.txt |
0ab9a341-413f-468f-bcf9-12a6dcde886b | . The plaintiff nevertheless contends that, “[i]n order to be properly withheld [under Exemption 2], the information must be of a relatively trivial nature.” Id. (citing Dep’t of Air Force v. Rose, 425 U.S. 352, 369–70 (1976) and Lesar v. DOJ, 636 F.2d 472, 485 (D.C. Cir. 1980)) | National_Security_Counselors_2013-08-15.txt |
e91eb93d-8063-495f-879f-28bc1b5081a9 | . This triviality requirement applies, according to plaintiff, because the rationale for Exemption 2 is “that the very task of processing and releasing some requested records would place an administrative burden on the agency that would not be justified by any genuine public benefit.” Id. at 9–10 (collecting cases) | National_Security_Counselors_2013-08-15.txt |
6400b135-5aba-4566-beb6-7386ee34b6c3 | . The plaintiff contends that “public awareness of how the CIA processes FOIA requests is of great public benefit, especially to the FOIA requester community.” Id. at 10 (emphasis in original). In an attempt to refute the viability of the plaintiff’s triviality requirement, the CIA cites to Milner v. U.S. Department of the Navy, 131 S. Ct | National_Security_Counselors_2013-08-15.txt |
a89a521d-cfb9-470c-be3e-7327e771cf1c | . 1259 (2011), which recently limited the reach of Exemption 2, as well as Institute for Policy Studies v. CIA, 885 F. Supp. 2d 120, 146 (D.D.C. 2012), which was a post-Milner case that permitted the CIA’s withholding of “the signature of a CIA officer as well as internal filing instructions and administrative routing information” under Exemption 2 | National_Security_Counselors_2013-08-15.txt |
8d3b12b8-1a3f-4c4a-b871-f6e36796b3b1 | . While the CIA is correct in positing that the plaintiff’s proposed triviality requirement has no basis in Exemption 2, the Milner case is otherwise not helpful to the CIA’s effort to cloak its nondisclosure under this exemption | National_Security_Counselors_2013-08-15.txt |
743acb20-4184-43a0-ac6b-b019a4b5a083 | . The Supreme Court in Milner held that the phrase “personnel rules and practices” in Exemption 2 refers to an agency’s “rules and practices dealing with employee relations or human resources.” Milner, 131 S. Ct. at 1265 | National_Security_Counselors_2013-08-15.txt |
0099ae9c-6fcb-4ff9-b8aa-8cfb459ba802 | . Without attempting to “formulate a comprehensive list,” 98 the Supreme Court held that “all the rules and practices referenced in Exemption 2 share a critical feature: They concern the conditions of employment in federal agencies—such matters as hiring and firing, work rules and discipline, compensation and benefits.” Id | National_Security_Counselors_2013-08-15.txt |
293dcb22-f1ac-4ffd-8278-bac8b9b465ca | . The Supreme Court in Milner also specifically considered the government’s argument that Exemption 2 “‘encompasses records concerning an agency’s internal rules and practices for its personnel to follow in the discharge of their governmental functions.’” Id. at 1269 | National_Security_Counselors_2013-08-15.txt |
a17c2d28-0231-4ef7-9946-749ce857b236 | . The Supreme Court rejected this “odd reading” of the statute, holding instead that “[t]he use of the term ‘personnel’ [in Exemption 2] connotes not that the . . . practice/rule is for personnel, but rather that [it] is about personnel—i.e., that it relates to employee relations or human resources.” Id. at 1269–70 (emphasis in original) | National_Security_Counselors_2013-08-15.txt |
499bc913-dad8-4b29-9f59-2dd923d135c8 | . Indeed, the Supreme Court in Milner said that the government’s proposed construction of Exemption 2 would “strip[] the word ‘personnel’ of any real meaning,” extending Exemption 2 to “all [an agency’s] internal rules and practices” because “agencies necessarily operate through personnel, and so all their internal rules and practices are for personnel.” Id. at 1269 | National_Security_Counselors_2013-08-15.txt |
d5a2c40d-dc07-427f-9d98-bf904fb25c61 | . The Court cautioned that the government’s proposed construction “would produce a sweeping exemption, posing the risk that FOIA would become less a disclosure than ‘a withholding statute’ since “[m]any documents an agency generates in some way aid employees in carrying out their responsibilities.” Id. at 1270 | National_Security_Counselors_2013-08-15.txt |
45b16fc1-d026-402e-9c5b-94544d9bf1c4 | . The Supreme Court’s guidance in Milner is crystal clear regarding the scope of Exemption 2, and it is equally clear, under Milner, that Exemption 2 does not apply to the “internal training documents” withheld by the CIA. See Third Lutz Decl. . These documents, which “contain[] the procedures and guidelines utilized by CIA officers in processing FOIA and Privacy Act requests,” id | National_Security_Counselors_2013-08-15.txt |
7f164929-1bd6-475f-be80-76b7b25b5c2c | ., are not human resources documents. Instead, they are the very “records concerning an agency’s internal rules and practices for its personnel to 99 follow in the discharge of their governmental functions,” which the Supreme Court specifically excluded from the scope of Exemption 2. See Milner, 131 S. Ct. at 1269. As a result, the Court will deny summary judgment to the CIA on Count Seven in No | National_Security_Counselors_2013-08-15.txt |
b32016e3-d4d2-4c72-a037-601d8949bb50 | . 11-445, regarding the agency’s decision to withhold thirteen documents under FOIA Exemption 2.39 * * * In sum, the Court denies summary judgment to the CIA on Count Seven in No. 11-445, regarding the agency’s decision to withhold thirteen documents under FOIA Exemption 2 | National_Security_Counselors_2013-08-15.txt |
47f44201-0698-4157-a001-d3e01f263064 | . These documents are labeled in the CIA’s Vaughn index as: C05520233, C05520227, C05520231, C05520236, C05520235, C05520226, C05520181, C05520232, C05520213, C05520218, C05520223, C05520228, and C05520234. H. Exemption 3 Next, the plaintiff challenges the withholding of several hundred records by the CIA, DIA, and ODNI, in whole or in part, under FOIA Exemption 3 | National_Security_Counselors_2013-08-15.txt |
99853cf8-639b-439b-818c-d45405e81364 | .40 That exemption, in the context of this case, applies to matters “specifically exempted from disclosure by statute . . . if that statute” either (1) “requires that the matters to be withheld from the public in such a manner as to leave no discretion on the issue,” or (2) “establishes particular criteria for withholding or refers to particular types of matters to be withheld.” See 5 U.S.C | National_Security_Counselors_2013-08-15.txt |
fb4ddf5b-8117-4c55-9e3b-80db96ece4ca | . § 552(b)(3).41 Specifically, the plaintiff challenges (1) the CIA’s Exemption 3 withholdings made under the authority of Section 6 of the CIA Act, 50 U.S.C. § 403g, in all three cases, (2) the DIA’s Exemption 3 withholdings 39 All of these documents were also withheld in full under FOIA Exemption 3. See Defs.’ First 445 Mem. at 16 n.3; see also infra Part III.E | National_Security_Counselors_2013-08-15.txt |
391cf658-2005-4baa-bbd6-af2473cf92ed | .3 (discussing Exemption 3 withholdings of the CIA). 40 The plaintiff also originally challenged the withholding of material under Exemption 3 by the State Department, see Pl.’s First 445 Opp’n at 23, but in the same brief the plaintiff “withdr[ew] its challenge . . . since it already has a copy of the full document,” id. at 24 | National_Security_Counselors_2013-08-15.txt |
d322d9c5-f38c-4ca8-be25-53b4ab4a630d | . The Court will therefore not address the State Department’s Exemption 3 withholding decisions. 41 All of the withholding statutes invoked by the defendants in this case were enacted prior to 2009, and therefore the second subparagraph of Exemption 3 does not apply here. See 5 U.S.C. § 552(b)(3)(B). 100 made under the authority of the National Security Act, 50 U.S.C. § 403-1(i)(1), in No | National_Security_Counselors_2013-08-15.txt |
8cd806dd-385f-4e9f-b585-ba0d13c9848f | . 11-445, and (3) the ODNI’s Exemption 3 withholding of the domain portions of e-mail addresses, under the authority of Section 6 of the CIA Act, in No. 11-445. The Court will discuss each category of withholding decisions in turn. 1. CIA The plaintiff challenges the CIA’s withholding of over 300 responsive records, in whole or in part, under FOIA Exemption 3 | National_Security_Counselors_2013-08-15.txt |
42f2f7f0-9cbc-4dbd-8f40-1bdaef129ac7 | .42 All of the information withheld by the CIA under Exemption 3 in all three cases was withheld under the authority of Section 6 of the CIA Act, 50 U.S.C. § 403g, which states in relevant part that “the [CIA] shall be exempted from the . . | National_Security_Counselors_2013-08-15.txt |
e545e5d9-6850-4de7-ad88-f8947aac257a | . provisions of any other law [including the FOIA] which require the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the [CIA].” See Def.’s First 443 Mem. at 9-10; Def.’s First 444 Mem. at 24-25; Defs.’ First 445 Mem. at 17 | National_Security_Counselors_2013-08-15.txt |
f5b6e466-7442-464e-876d-61705801b7fc | . The threshold question presented by the plaintiff’s Exemption 3 challenges against the CIA is the scope of 50 U.S.C. § 403g. The CIA interprets the statute broadly, contending in its declarations that the statute protects (1) “information revealing the organization, functions and 42 The plaintiff states in its briefing that it challenges the CIA’s withholding of two records, in part, in No | National_Security_Counselors_2013-08-15.txt |
91a0af46-453d-464d-8ad1-53ae6f379989 | . 11-443, see Pl.’s First 443 Opp’n at 14, and six documents, in part, in No. 11-444, see Pl.’s First 444 Opp’n at 30, 35. The plaintiff does not specify, however, exactly which Exemption 3 withholdings it challenges in No. 11-445, where the CIA withheld a total of 498 responsive records, in whole or in part, under this exemption | National_Security_Counselors_2013-08-15.txt |
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