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241bf70f-cff9-4aef-966f-50907e37e5ba | . Rather, the plaintiff only provides general categories of records in No. 11-445 that it challenges with respect to Exemption 3 | National_Security_Counselors_2013-08-15.txt |
f6570597-31b1-4b69-b91d-c83e9636d01e | . For example, the plaintiff states that he challenges the CIA’s withholding of “internal templates utilized by the agency in tasking FOIA requests,” “internal rules, policies and procedures governing FOIA processing including classification, referrals, coordinations, and fees,” and “organizational information revealing CIA’s internal systems of decentralized information management.” See Pl | National_Security_Counselors_2013-08-15.txt |
f25aba38-3757-462c-9380-821c459e7e2c | .’s First 445 Opp’n at 11. The plaintiff also states that it “still challenges the withholdings in documents where both Exemptions (b)(3) and (b)(5) are claimed.” Id. at 11 n.10. These general categories have left the Court to deduce which specific records the plaintiff is challenging under Exemption 3 in No. 11-445 | National_Security_Counselors_2013-08-15.txt |
10da545a-f62d-4ea7-8f7b-aed392ab9c1f | . The Court’s comparison of the plaintiff’s loose guidance with the CIA’s Vaughn index yields the conclusion that the plaintiff is challenging at least 300 of the 498 records withheld by the CIA in No. 11- 445 under Exemption 3 and the CIA Act | National_Security_Counselors_2013-08-15.txt |
f2aeafce-71b6-4ca0-b24b-81b7dd13034b | . The plaintiff’s failure to identify by Bates number the specific documents at issue, however, has made it much more difficult for the Court to ascertain the exact documents at issue and their description in the CIA’s Vaughn index | National_Security_Counselors_2013-08-15.txt |
e8a31b6e-c204-4586-bf1e-112d38fbd054 | . As a result, the Court is unable to provide a document-specific parsing of which documents or portions thereof were properly or improperly withheld by the CIA under Exemption 3 and the CIA Act. It will be the parties’ task to provide this document-specific summary of disputed documents within twenty days of the Court’s decision. See infra Part IV | National_Security_Counselors_2013-08-15.txt |
4bf63379-344f-4f34-9f5c-4c7cb4e15b22 | . 101 other internal CIA information,” Third Lutz Decl. ; see also First Lutz Decl | National_Security_Counselors_2013-08-15.txt |
4382bd22-ab43-4eca-941e-358826672ad3 | . (asserting that “internal organizational data are absolutely protected by law”), and (2) “the ‘functions’ of the CIA,” including “its core functions, which plainly include intelligence activities, intelligence sources and methods, and the collection, analysis, and dissemination of foreign intelligence,” Second Lutz Decl. | National_Security_Counselors_2013-08-15.txt |
49e891d4-c499-4251-8826-01cb61bcb56f | . The plaintiff, on the other hand, contends that the CIA Act’s protections are much narrower, extending only to information about the CIA’s personnel—e.g., their names, their official titles, or how they are organized | National_Security_Counselors_2013-08-15.txt |
0875198c-cff3-4c09-ac68-7f9f6e1e8797 | . The CIA has invoked § 403g and Exemption 3 with respect to seven general categories of information: (1) “internal templates utilized by the [CIA] in tasking FOIA requests,” Third Lutz Decl. ; (2) “internal rules, policies and procedures governing FOIA processing including classification, referrals, coordinations, and fees,” id.; (3) “administrative routing data and file paths,” id | National_Security_Counselors_2013-08-15.txt |
7f239e56-a2e3-4623-872b-702a6e93d474 | .; (4) “organizational information revealing CIA’s internal system of decentralized information management,” id.; (5) “employee names and personal identifiers, including employee signatures, numbers, and initials,” id.; (6) “[i]nternal information concerning ways in which CIA is able to store and retrieve information,” First Lutz Decl. Ex. DD at 137, 142, No. 11-444, ECF No | National_Security_Counselors_2013-08-15.txt |
e2ba636f-589e-4595-bccf-5033f842cf33 | . 20-9; and (7) “information about the CIA’s core functions,” including “intelligence activities, intelligence sources and methods, and the collection, analysis, and dissemination of foreign intelligence,” Second Lutz Decl. . The plaintiff concedes that categories (3) and (5) above fall within the scope of § 403g, see Pl.’s First 445 Opp’n at 11; Pl | National_Security_Counselors_2013-08-15.txt |
b863b31a-3cc1-4060-959a-6030d2f72b01 | .’s First 444 Opp’n at 30, but challenges the other five categories of information as being outside § 403g’s scope. At the outset, one thing is clear: 50 U.S.C. § 403g is “precisely the type of statute[] comprehended by exemption (b)(3).” Weissman v. CIA, 565 F.2d 692, 694 (D.C. Cir. 1977). 102 The exact reach of § 403g, however, remains shrouded in some uncertainty | National_Security_Counselors_2013-08-15.txt |
972fec9c-a63c-44e9-a986-d7db878cf68a | . The clear purpose of § 403g is “further to implement [50 U.S.C. § 403-1(i)] that the Director of National Intelligence shall be responsible for protecting intelligence sources and methods from unauthorized disclosure.” See 50 U.S.C. § 403g. Although the D.C | National_Security_Counselors_2013-08-15.txt |
e64a3ecb-f85d-4451-9a2c-9fd7fa40eb13 | . Circuit has held that “the CIA is not required under section 403g to make an independent showing of a nexus between the withholding of personnel data and the security of foreign intelligence activities or the protection of intelligence sources and methods” in order to withhold information under Exemption 3, see Baker v. CIA, 580 F.2d 664, 669 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
19ed59f6-6858-460c-8771-a034d4e237ba | . 1978), the two provisions—§ 403-1(i) and § 403g— are often invoked together. In the instant case, however, the CIA solely invokes § 403g as a basis to withhold responsive information under Exemption 3. In one of its first decisions to interpret the scope of § 403g in the context of Exemption 3, the D.C | National_Security_Counselors_2013-08-15.txt |
aaee751d-820c-4599-acfc-74d9bb218c28 | . Circuit delineated an outer limit: § 403g does not “allow[] the [CIA] to refuse to provide any information at all about anything it does.” Phillippi v. CIA, 546 F.2d 1009, 1015 n.14 (D.C. Cir. 1976). In other words, § 403g does not “accord the [CIA] a complete exemption from the FOIA.” Id. One other consistent limit applied to § 403g by the D.C | National_Security_Counselors_2013-08-15.txt |
c5d9cef8-076f-4a10-94bd-252962888c8e | . Circuit is that the provision applies only to “information about [the CIA’s] internal structure.” Id.; accord Larson, 565 F.3d at 865 n.2 (noting “the applicability of [§ 403g] to withhold internal CIA organizational data”); Linder v. Dep’t of Defense, 133 F.3d 17, 25 (D.C. Cir. 1998) (stating that § 403g applies to “information concerning the [CIA’s] personnel”); Baker v. CIA, 580 F | National_Security_Counselors_2013-08-15.txt |
9e92b8d3-4d2f-4182-bbfe-f6dd1a0ce664 | .2d 664, 670 (D.C. Cir. 1978) (“[S]ection 403g creates a very narrow and explicit exception to the requirements of the FOIA. Only the specific information on the CIA’s personnel and internal structure that is listed in the statute will obtain protection from disclosure.”) | National_Security_Counselors_2013-08-15.txt |
fa69ee53-b0e4-4162-b762-78dfd859c1d7 | . The thrust of these cases is that § 403, standing alone, only protects “information on the CIA’s personnel and internal structure,” see 103 Baker, 580 F.2d at 670, such as the names of personnel, the titles and salaries of personnel, or how personnel are organized within the CIA. From the D.C | National_Security_Counselors_2013-08-15.txt |
03d53b2b-85b1-4ac2-b105-f50cebd10ea6 | . Circuit’s limited guidance, the Court concludes that the CIA’s proposed construction of § 403g’s scope is too broad, in much the same way as the CIA’s proposed construction of FOIA Exemption 2 above was too broad. The CIA would have § 403g exempt from disclosure all “information about the [CIA’s] functions.” See Def.’s First 443 Mem. at 11; accord Def | National_Security_Counselors_2013-08-15.txt |
3c0711de-b9a4-46ab-bca6-efe457d8f939 | .’s First 444 Reply at 16 (contending that CIA Act exempts disclosure of “information that relates to the internal structure, organization, and functions of the CIA”); Defs.’ Reply in Supp. Mot. Summ J. on Counts 1, 2, 3, 5, 6, 7, 8, 9, 10, and 13 (“Defs.’ First 445 Reply”) at 7, No. 11-445, ECF No | National_Security_Counselors_2013-08-15.txt |
447d8e71-6752-44bc-8175-97bd2b9db160 | . 35 (“[T]he CIA Act protects from disclosure information about the Agency’s organization and functions.”). The CIA relies heavily on the malleable terms “functions” and “organization” in § 403g to expand the provision’s scope, and it is true that those are the two terms used in § 403g with potentially the broadest sweep | National_Security_Counselors_2013-08-15.txt |
dc59d39f-1635-4669-b01e-89926076ede9 | . Nevertheless, the plain text of the statute limits protection from disclosure only to the functions and organization pertaining to or about personnel, see 50 U.S.C. § 403g (exempting from disclosure, inter alia, “the organization [and] functions . . . of personnel employed by the [CIA]”), not to all information that relates to such functions and organization | National_Security_Counselors_2013-08-15.txt |
80beba7e-0b17-498b-a49e-81af9a325f0d | . It is this latter interpretive leap that renders the CIA’s proposed construction of § 403g inappropriately broad. The D.C. Circuit has long held that § 403g is a “very narrow and explicit exception,” see Baker, 580 F | National_Security_Counselors_2013-08-15.txt |
c94ea689-3711-4af6-85f6-8717192c71bf | .2d at 670, yet the CIA’s proposed construction of § 403g would come dangerously close to exempting from disclosure “any information at all about anything [the CIA] does,” see Phillippi, 546 F.2d at 1015 n.14. It would be hard to imagine “anything [the CIA] does,” see id., that does not somehow “relate[] to the internal structure, organization, [or] 104 functions of the CIA,” see Def | National_Security_Counselors_2013-08-15.txt |
3b93c8cd-b45c-43f1-a683-2156df97f935 | .’s First 444 Reply at 16. Indeed, the term “functions” in § 403g would become particularly broad under the CIA’s proposed construction because the CIA’s functions would encompass any kind of activity appropriately carried out by the CIA. See, e.g., Black’s Law Dictionary 742 (9th ed | National_Security_Counselors_2013-08-15.txt |
6d5c3a27-a9fd-4e04-b3c1-3340f7480a2d | . 2009) (defining “function” as “[a]ctivity that is appropriate to a particular business or profession”); Webster’s Third New Int’l Dictionary 920 (1981) (defining “function” as “the action for which a person or thing is specially fitted, used, or responsible or for which a thing exists”) | National_Security_Counselors_2013-08-15.txt |
4606c27a-0de3-420d-a782-816d36761dff | . The CIA appears to recognize the breadth of its proposed interpretation in this regard, contending in multiple places that “it is not clear that there is any practical difference between the organization and functions of CIA personnel and those of the Agency” since “the CIA is composed of and acts entirely through its employees.” See Def.’s First 443 Reply at 9; see also Def | National_Security_Counselors_2013-08-15.txt |
091e76b5-299e-42da-97da-69ccb7d0afd6 | .’s First 445 Reply at 7 (“The CIA is composed of and functions entirely through its personnel.”). This perspective, however, “strip[s] the word ‘personnel’ of any real meaning.” See Milner, 131 S. Ct. at 1269. If “personnel” really just means “the Agency,” then § 403g would essentially apply to “any information at all about anything [the CIA] does,” see Phillippi, 546 F.2d at 1015 n | National_Security_Counselors_2013-08-15.txt |
aabc6689-3377-4843-9541-f7290228c309 | .14, in contravention of the D.C. Circuit’s limitation on that provision’s scope. Cf. Milner, 131 S. Ct. at 1269 (observing that “[u]nder this interpretation, an agency’s ‘internal personnel rules and practices’ appears to mean all its internal rules and practices,” and thus “[t]he modifier ‘personnel’ . . . does no modifying work”) | National_Security_Counselors_2013-08-15.txt |
a0c7e200-994a-4d93-93f9-dddb7c110856 | . On this point, a distinction drawn by the Supreme Court in Milner is instructive. Although Milner dealt with Exemption 2, not Exemption 3, the scope of 50 U.S.C. § 403g is limited in a way similar to the way the Supreme Court limited Exemption 2 in Milner. As discussed above, in Exemption 2, “[t]he use of the term ‘personnel’ . . | National_Security_Counselors_2013-08-15.txt |
cc235121-df57-420b-8dd3-bd6dba51aa18 | . connotes not that the file 105 or department or practice/rule is for personnel, but rather that the file or department or practice/rule is about personnel—i.e., that it relates to employee relations or human resources.” Milner, 131 S. Ct. at 1269 (emphasis in original). That distinction is apt with respect to § 403g as well | National_Security_Counselors_2013-08-15.txt |
0b15cdef-92bd-4807-9e64-4102e1bc6417 | . Congress did not intend § 403g to exempt all information for personnel, but only information about personnel, i.e., their “organization, functions, names, official titles, salaries or numbers.” 50 U.S.C. § 403g | National_Security_Counselors_2013-08-15.txt |
f2ce816d-e367-44a9-870f-2282389ed91f | . Therefore, just because a piece of information relates to or concerns something CIA personnel do in carrying out their governmental responsibilities does not mean it is exempt from disclosure under § 403g. The breadth of the CIA’s proposed interpretation is also underscored by the D.C. Circuit’s decision in Hayden v. NSA, 608 F.2d 1381 (D.C. Cir. 1979) | National_Security_Counselors_2013-08-15.txt |
f3812d9f-d96f-4360-b866-58b39873a7da | . In that case, the National Security Agency (“NSA”) sought to withhold responsive records under FOIA Exemption 3 and Section 6 of the National Security Agency Act, Pub. L. No. 86-36, § 6(a), 73 Stat. 63, 64 (1959), 50 U.S.C. § 402 note. See Hayden, 608 F.2d at 1389–90. That provision provides that “nothing in this Act or any other law . . | National_Security_Counselors_2013-08-15.txt |
eea06714-2bf2-45f0-8c33-8587f935dd6b | . shall be construed to require the disclosure of the organization or any function of the National Security Agency, [or] any information with respect to the activities thereof.” 73 Stat. at 64. The FOIA requester in Hayden argued that this provision of the NSA Act “should be applied for Exemption 3 purposes in the same manner as similar statutes which concern the [CIA].” Hayden, 608 F | National_Security_Counselors_2013-08-15.txt |
286b5cd0-c504-46a8-b31e-397a41c7fce4 | .2d at 1389–90. The Circuit rejected this analogy, stating that, in contrast to the CIA Act, the NSA Act “protects not only organizational matters . . . but also ‘any information with respect to the activities’ of the NSA.” Id. at 1390 | National_Security_Counselors_2013-08-15.txt |
f70488d8-044d-4061-9fc5-2597007e8eb7 | . The Circuit further stated that “[a]ny difference in FOIA Exemption 3 treatment of the CIA and NSA results necessarily from this difference in their respective exemption statutes.” Id. 106 Hayden is apropos here because it highlights a material difference in language between the NSA Act and the CIA Act, which in turn illuminates Congress’s intent to circumscribe the scope of the CIA Act | National_Security_Counselors_2013-08-15.txt |
2ab77cf9-2a9d-4067-b616-344f7bd7a6c5 | . Although in Hayden the Circuit relied primarily on the NSA Act’s language exempting from disclosure “any information with respect to the [NSA’s] activities,” see id | National_Security_Counselors_2013-08-15.txt |
6a008246-5358-4f06-a706-5ba1932b7753 | . at 1390, another noticeable difference between the language of the two statutes is that the CIA Act exempts from disclosure “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency,” 50 U.S.C. § 403g, while the NSA Act more broadly exempts from disclosure “the organization or any function of the [NSA],” 73 Stat. at 64 | National_Security_Counselors_2013-08-15.txt |
06665084-8b47-47b7-9455-46bd89e097db | . The CIA contends that the CIA Act exempts from disclosure, inter alia, “the ‘functions’ of the CIA,” Second Lutz Decl. , but the NSA Act demonstrates that when Congress intends for a disclosure exemption statute to sweep that broadly, the statute will explicitly exempt the functions of the agency, rather than simply the functions (or organization) of personnel employed by the agency | National_Security_Counselors_2013-08-15.txt |
6aa86021-100f-48c5-9681-039b6c7d6243 | .43 Although the CIA characterizes the plaintiff’s interpretation of § 403g as “hyper- semantic” and “extreme” in its narrowness, see Defs.’ First 445 Reply at 6–7, the CIA’s sweeping construction of § 403g is no less so in the opposite direction of breadth | National_Security_Counselors_2013-08-15.txt |
d39aa704-6615-4563-9a0b-28b8acebb22d | . The CIA cites three cases—two from within this Circuit—that it says support its reading of the statute, and it warns that “[t]his Court should reject NSC’s invitation to become the first to adopt NSC’s extreme interpretation of the CIA Act.” Id. at 7 | National_Security_Counselors_2013-08-15.txt |
bec0bf92-a49d-4dd7-aa9a-ee9157897b0e | . The Court will discuss each of these cases to 43 Although the CIA does not specifically propose it, the Court reads the CIA’s arguments to invite the following reading of 50 U.S.C. § 403g: “the Agency shall be exempted from . . . the publication or disclosure of the organization [of ], functions [of], names, official titles, salaries, or numbers of personnel employed by[,] the Agency | National_Security_Counselors_2013-08-15.txt |
5e34709c-cd00-40c5-a71a-19c528984d4e | .” Crucially, the CIA’s proposed reading of the statute would require the addition of a comma before the phrase “the Agency,” which would permit the words “organization [of]” and “functions [of]” to modify “the Agency,” rather than to modify “personnel employed by the Agency | National_Security_Counselors_2013-08-15.txt |
cfff5fec-142a-47b1-b106-fa74003f1d38 | .” Only by making these crucial alterations to the language of the statute could the text support the broad reading that the CIA proposes. It is not the job of the CIA or this Court, however, to amend statutory language. 107 examine whether the CIA’s warning is worth heeding | National_Security_Counselors_2013-08-15.txt |
8753ed47-e04c-4862-9fc0-68799c439870 | .44 The first case—an unreported decision from outside this Circuit—held that the CIA properly withheld certain information under § 403g because it “concerned the CIA’s organization, functions, names and/or official titles, and therefore meet the requirements of 50 U.S.C. § 403g.” See Roman v. NSA, Nos. 09-2947, 09- 4281, 09-3344, 09-2504, 09-5633, 2012 WL 569747, at *11 (E.D.N.Y. Feb. 22, 2012) | National_Security_Counselors_2013-08-15.txt |
129dc1ad-6490-4678-9235-39433621243f | . The extreme brevity of the court’s analysis of the CIA Act in Roman (one sentence) gives this Court no foothold to agree or disagree with that court’s reasoning. The reasoning in the second case, Schoenman v. FBI, 841 F. Supp. 2d 69 (D.D.C. 2012), is similarly slim | National_Security_Counselors_2013-08-15.txt |
937075fe-4e09-4200-84ae-98a492bb7f48 | . The court in Schoenman interpreted § 403g to “require the protection of ‘intelligence sources and methods from unauthorized disclosure,’” see id. at 83, and although those are all words in § 403g, they are not the operative language of the statute. Rather, those words are included in § 403g solely to reference the National Security Act, 50 U.S.C. § 403-1(i) | National_Security_Counselors_2013-08-15.txt |
16e282d2-90db-4c7d-b900-da3b12da5714 | . To the extent that the Schoenman court construed § 403g, rather than 50 U.S.C. § 403-1(i), broadly to protect the disclosure of “intelligence sources and methods,” this Court does not find its reasoning persuasive.45 44 The third case cited by the CIA, ACLU v. Department of Justice, 808 F. Supp. 2d 280, 288 (D.D.C | National_Security_Counselors_2013-08-15.txt |
a7635e01-cb56-463c-9892-91bf5110d2ca | . 2011), which is from this Circuit, held that the CIA could withhold “whether the CIA cooperates with, is interested in, or actually directs drone strikes” because such information “pertains to (possible) functions of CIA personnel.” The district court’s holding in this regard was reversed by the D.C. Circuit on appeal, see ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir | National_Security_Counselors_2013-08-15.txt |
6bcc37e4-f46b-4e57-b3ec-e730f7739d9e | . 2013) (holding that “the CIA’s broad Glomar response is untenable”), though the Circuit did not specifically address the district court’s interpretation of the CIA Act. It is unclear whether the lower court’s reasoning regarding the scope of the CIA Act survived reversal, however | National_Security_Counselors_2013-08-15.txt |
dfe32642-37b3-4c82-9d43-8b61988e5f0d | . Additionally, the ACLU case involved the application of the Glomar doctrine, which deals with an agency’s refusal to confirm or deny the existence or non-existence of records responsive to a FOIA request. See, e.g., id. at 426 | National_Security_Counselors_2013-08-15.txt |
2df7d074-939c-4e7b-a60a-4456a447a180 | . Deciding the validity of a Glomar response presents a different set of considerations than deciding whether an agency is entitled to withhold responsive records, and therefore the reasoning of ACLU is inapposite to this case in any event. 45 The CIA only cites Schoenman for the proposition that § 403g protects “internal organizational data,” see Def | National_Security_Counselors_2013-08-15.txt |
87450eac-0930-4269-a18e-b472e329a1a2 | .’s First 445 Reply at 7, which the Court does not dispute | National_Security_Counselors_2013-08-15.txt |
44e88d19-f39a-45ed-84a7-c3e87a0c9f50 | . The nuance that neither the Schoenman court nor the CIA identifies, however, is that “internal organizational data,” just like information about the CIA’s “internal structure” are only protected from disclosure by § 403g insofar as such information is about the organization of personnel employed by the CIA, not about the structure or organization of any aspect of the agency | National_Security_Counselors_2013-08-15.txt |
2ec1ef1d-4ba9-4ded-9a50-bc472b959c4a | . 108 Accordingly, the Court holds that certain specific categories of information withheld by the CIA in this case pursuant to § 403g clearly fall outside that provision’s scope, including (1) internal templates utilized by the CIA in tasking FOIA requests, (2) internal rules, policies and procedures governing FOIA processing, and (7) information about the CIA’s “core functions,” including | National_Security_Counselors_2013-08-15.txt |
b5c1e12d-863c-4160-92ed-24848e0ebbde | intelligence activities, intelligence sources and methods, and the collection, analysis, and dissemination of foreign intelligence | National_Security_Counselors_2013-08-15.txt |
904fc584-1746-4ff5-8764-be12b83e55d9 | .46 This leaves two categories of information from the above list that need to be addressed: (4) “organizational information revealing CIA’s internal system of decentralized information management,” Third Lutz Decl. ; and (6) “[i]nternal information concerning ways in which CIA is able to store and retrieve information,” First Lutz Decl. Ex. DD at 137, 142 | National_Security_Counselors_2013-08-15.txt |
14a1646c-39cb-4cf1-843e-e5bcfb9dbeb7 | . Shorn of the gratuitous addition of the words “internal” and “organizational,” it appears that the information referred to in these categories is information about how the CIA manages, stores, and retrieves information | National_Security_Counselors_2013-08-15.txt |
0cc1880f-a3aa-49e9-ab37-c642a7981f39 | . The CIA, however, does not explain how disclosure of this information would reveal “the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” 50 U.S.C. § 403g | National_Security_Counselors_2013-08-15.txt |
bf2dfedc-0430-4c17-9796-bc0aab69b167 | . It is undoubtedly true that managing, storing, and retrieving information is a function of some, if not all, CIA personnel, but, as discussed above, the CIA is attempting to augment the scope of § 403g by withholding information that merely relates to or concerns that function. The language of the statute simply does not support such a broad reading | National_Security_Counselors_2013-08-15.txt |
7a8cfd77-1cda-40c3-bbfc-4897500ab335 | . 46 As to category (7) above, the Court does not hold that the CIA is necessarily required to disclose information about intelligence gathering in response to FOIA requests. Rather, the Court narrowly holds that § 403g does not generally protect all information pertaining to intelligence gathering. There are numerous other ways that the CIA could protect such information from FOIA disclosure | National_Security_Counselors_2013-08-15.txt |
a8957495-0854-493a-a82c-164655456f25 | . Most notably, the CIA could invoke the National Security Act, 50 U.S.C. § 403-1(i), if the information would reveal intelligence sources or methods, or FOIA Exemption 1, if the information is properly classified | National_Security_Counselors_2013-08-15.txt |
f8f9ed04-df4f-45eb-ab8c-366b10a2bf7b | . 109 The CIA contends in its reply brief that “information about how the [CIA], or [CIA] personnel, store and retrieve information is clearly information about the [CIA’s] internal structure.” Def.’s First 444 Reply at 21. Although the D.C. Circuit has interpreted § 403g to encompass “information about [the CIA’s] internal structure,” see Phillippi, 546 F.2d at 1015 n | National_Security_Counselors_2013-08-15.txt |
c0381e03-541f-4f64-9382-6c34b8bc9fab | .14, later Circuit case law has clarified, in line with the statutory text, that “internal structure” refers to the structure or organization of personnel employed by the Agency, not the structure or organization of any aspect of the CIA,47 see, e.g., Baker, 580 F | National_Security_Counselors_2013-08-15.txt |
9e242914-b320-45da-90a2-220b4ed7553f | .2d at 669 (“Congress intended to create an exemption in section 403g for certain personnel information that could be withheld from disclosure by the CIA without a separate intelligence or security justification.”); Linder, 133 F.3d at 25 (§ 403g applies to “information concerning the [CIA’s] personnel”) | National_Security_Counselors_2013-08-15.txt |
4c86e993-6c72-4adb-9ad2-c3cd7b129408 | . For example, the organization of the CIA’s computer systems is not protected by § 403g, even though the organization of personnel would be. Accordingly, the Court holds that the CIA may not invoke § 403g to withhold information merely because that information may be used by CIA personnel to carry out their responsibilities or functions. The “functions . . | National_Security_Counselors_2013-08-15.txt |
8c183384-5997-4ec9-bab9-d2f1a886a25c | . of personnel employed by the [CIA]” are protected from disclosure under § 403g, but how CIA personnel carry out those functions is not. The CIA Act does not protect all information about CIA functions generally; it more narrowly protects information that would reveal that a given function is one “of personnel employed by the Agency.” 50 U.S.C. § 403g. The CIA may only invoke 50 U.S.C | National_Security_Counselors_2013-08-15.txt |
cb0e7d87-33b6-464a-ad23-b24d203c2996 | . § 403g to withhold information under the FOIA if it would reveal the specific categories of personnel-related information enumerated in the statute, i.e | National_Security_Counselors_2013-08-15.txt |
1fef7072-0ce3-4b73-bf6a-5609f6120ed7 | .,“the organization, 47 Similarly to information about intelligence-gathering measures, information about how the CIA stores and retrieves information is likely in many cases to be highly sensitive and may accordingly warrant protection from disclosure under other provisions, such as Executive Order 13,526, FOIA Exemption 1, or the National Security Act, 50 U.S.C. § 403-1(i). See supra note 46 | National_Security_Counselors_2013-08-15.txt |
fef4f3e0-77f5-487b-8ab1-0fee1c26862d | . 110 functions, names, official titles, salaries, or numbers of personnel employed by the Agency.” Id.48 Although this resolves the primary, underlying legal question at the heart of the plaintiff’s challenge to the CIA’s Exemption 3 withholding decisions, the plaintiff has also raised five other issues regarding the CIA’s Exemption 3 withholding decisions | National_Security_Counselors_2013-08-15.txt |
45988b1f-bdb4-4f81-a79e-7b49ca165599 | . The Court will discuss each of these issues in turn. First, and related to the immediately preceding discussion, in No. 11-443 the plaintiff levels the serious allegation that the CIA is invoking 50 U.S.C. § 403g not just incorrectly but also in “bad faith.” See Pl.’s First 443 Opp’n at 5 | National_Security_Counselors_2013-08-15.txt |
61eceda7-e141-4a7c-9db7-3a97a794255f | .49 To support this accusation, the plaintiff points to “five pieces of unclassified information” in two Studies in Intelligence indices (not Tables of Contents) that the plaintiff asserts are “evidence of CIA’s bad faith invocation of exemptions | National_Security_Counselors_2013-08-15.txt |
c738e391-35cc-466d-a661-348f8516d8ee | .”50 The Court has reviewed these pieces of information in camera (they are redacted from the version of the documents on the public docket), and the Court does not believe that these redactions are evidence of bad faith | National_Security_Counselors_2013-08-15.txt |
ce699753-c689-48b4-9553-9b02f53ac27c | . In fact, because the Court does not have the benefit of 48 As a result of this holding, the Court is providing the plaintiff with the relief that it has requested on the CIA Act/Exemption 3 issue. The Court “find[s] that CIA has,” at least in part, “improperly invoked the CIA Act as an Exemption (b)(3) withholding statute.” See Pl.’s First 443 Opp’n at 19 | National_Security_Counselors_2013-08-15.txt |
d1a03379-ab03-4c25-b719-fc2c7bdea5df | . Hence, the CIA will have the opportunity “to file a more sufficient declaration and Vaughn indices justifying the actual relationship between the withheld information” and the language of the 50 U.S.C. § 403g, in line with the Court’s interpretation of that provision herein. See id. 49 This accusation of bad faith appears to be related to, if not co-extensive with, the plaintiff’s argument in No | National_Security_Counselors_2013-08-15.txt |
020968b7-e6f7-4002-b7b5-54169f763463 | . 11- 443, discussed above, regarding the supposed “general sloppiness” in the CIA’s FOIA review process. See supra Part III.F.2; see also supra note 36. It is frankly unclear from its briefing whether the plaintiff is accusing the CIA of bad faith with respect to the invocation of Exemption 1 and Exemption 3, or only Exemption 3 | National_Security_Counselors_2013-08-15.txt |
088b8574-8b59-478d-bbc8-a69b02618d35 | . The plaintiff says that it presents certain invocations of the CIA Act as “evidence of CIA’s bad faith invocation of exemptions,” see Pl.’s First 443 Opp’n at 6, and the plaintiff makes a passing reference later in its brief to the “specific evidence of bad faith as describe above,” id | National_Security_Counselors_2013-08-15.txt |
cc5b8e21-398f-4c24-830d-a3c1015cf0fe | . at 13, but the plaintiff does not clarify whether it considers “general sloppiness” and “bad faith” to be identical in this context. The Court, however, considers “general sloppiness” to be a separate concept from “bad faith” because the former does not indicate the sort of specific intent connoted by the latter, and therefore evidence of the former is not necessarily evidence of the latter | National_Security_Counselors_2013-08-15.txt |
a194dca9-b365-49c0-bcce-52e9340d6a73 | . 50 These indices are not records that were responsive to the plaintiff’s FOIA request. Rather, these indices “c[a]me into the [plaintiff’s counsel’s] possession from a third party and included information which CIA considered to be either classified or protected by the CIA Act (or both).” Pl.’s First 443 Opp’n at 5 | National_Security_Counselors_2013-08-15.txt |
ef9a2d81-d30e-477d-bcb1-3f301f1318a6 | . Thus, the plaintiff does not actually challenge the decision to withhold these five pieces of information. Instead, the plaintiff appears to present this evidence to the Court solely in an attempt to prove “bad faith” on the part of the CIA | National_Security_Counselors_2013-08-15.txt |
c1f11d4e-b636-4864-bf12-22765eb411f3 | . 111 an explanation from the CIA regarding its rationale for redacting this information under the CIA Act,51 the Court cannot say with certainty whether the CIA is even incorrect to rely on 50 U.S.C. § 403g to redact this information. Three of the five pieces of information are names, and the Court has no basis to determine whether these are not “personnel . . . employed by the Agency.” See 50 U | National_Security_Counselors_2013-08-15.txt |
69f78483-b9f7-404c-9e39-437c22f6564b | .S.C. § 403g. The other two pieces of information may not be covered by § 403g, and as discussed immediately above, the CIA has been reading that provision too broadly. There is no basis to conclude, however, that the CIA’s overbroad reading of § 403g was in “bad faith,” especially because prior interpretations of that provision’s scope are few and far between | National_Security_Counselors_2013-08-15.txt |
c752de95-fd2d-48e5-9c61-97f52181c2c4 | . Even the plaintiff concedes that the scope of § 403g has been an unresolved question in this Circuit. See Pl.’s First 443 Opp’n at 17 (“The very argument [about the scope of § 403g] has been made by [plaintiff’s counsel] in several other cases before this and other courts in this Circuit, but the question has yet to be decided in any of those cases.”) | National_Security_Counselors_2013-08-15.txt |
5bc13743-ab83-4fc2-b337-231357b24bf0 | . It is highly unlikely that the CIA was or could be acting in “bad faith” regarding its interpretation of § 403g—a finding that would require a showing that the CIA invoked this statute to withhold information while being aware of (and choosing to ignore) a definitive interpretation of that statute’s scope | National_Security_Counselors_2013-08-15.txt |
a4035835-04ce-4366-96e4-353b7a47b104 | . Second, the plaintiff contends that “the record demonstrates a general sloppiness in CIA’s review process in this case” because the CIA has withheld “names of individuals not ‘employed by the [CIA]” under the CIA Act, 50 U.S.C. § 403g. See Pl.’s First 443 Opp’n at 10–11 (emphasis in original) | National_Security_Counselors_2013-08-15.txt |
09ba1757-e14f-41ec-8b38-f6d8ad848401 | . Specifically, the plaintiff points to twelve instances of individual’s names that were withheld under the CIA Act but who are not employees of the CIA, but rather are military, diplomatic, and academic personnel or employees of other agencies in the intelligence community. See id. at 10 | National_Security_Counselors_2013-08-15.txt |
69e03dfe-6a3a-41ef-89c3-7a4250e34c2f | . The plaintiff asserts that these redactions indicate “general 51 The Court has no explanation from the CIA (a Vaughn index or otherwise) regarding these withholdings because they were not produced in response to a FOIA request, and they are not the subject of this litigation. 112 sloppiness” because “CIA may not invoke [50 U.S.C | National_Security_Counselors_2013-08-15.txt |
72552954-5779-40f7-8080-6158e9ab3801 | . § 403g] to withhold names of individuals not ‘employed by the Agency.’” Id. at 10–11 | National_Security_Counselors_2013-08-15.txt |
43e878e7-a2c3-4d70-a298-caafb5e734d3 | . The CIA responds that the plaintiff “has not cited to even one case in support of its claim that the CIA Act does not allow the Agency to protect the names of individuals who perform services for the CIA—such as authoring and publishing articles in the CIA’s internal journal—even if those individuals are employed by other entities.” Def.’s First 443 Reply at 11 | National_Security_Counselors_2013-08-15.txt |
e4db23b0-b370-4c92-b866-140f4903a384 | . This issue is not as clear-cut as the language of the statute might indicate or as the plaintiff appears to believe. The D.C. Circuit has held that the CIA is permitted to withhold “the names of attorneys retained for covert CIA activities and legal fees paid to them.” Halperin v. CIA, 629 F.2d 144, 147–51 (D.C. Cir. 1980) | National_Security_Counselors_2013-08-15.txt |
3a658c46-1c25-40c5-8220-63442734a8bf | . In so holding, the Circuit interpreted the phrase “personnel employed by the agency” to include “the services of persons affiliated with the Agency only temporarily,” such as “the services of private attorneys needed from time to time in connection with clandestine CIA activities.” Id. at 151 | National_Security_Counselors_2013-08-15.txt |
19e02bfa-49e0-4276-8762-5596ec058c51 | . The Circuit held that “congressional intent to protect ‘the confidential nature of the Agency’s functions’ leaves no room for a fine and formalistic distinction between functions performed by CIA staff attorneys operating under cover and functions performed by private attorneys pursuant to contract,” and thus § 403g contemplated “temporarily affiliated personnel.” Id | National_Security_Counselors_2013-08-15.txt |
a3279ca9-0092-442c-97d9-2ffb3defd1f8 | . Likewise, the Circuit held that the term “salaries . . . [of] personnel employed by the Agency” includes more than “only payments to regularly employed CIA staff personnel.” Id. Based on the D.C | National_Security_Counselors_2013-08-15.txt |
95dc53e7-72f6-417a-910e-ad1d92ddbb26 | . Circuit’s holding in Halperin, it may be that the CIA is entitled to withhold the names of individuals who author and publish articles in the agency’s internal journal, since they appear to be “temporarily affiliated personnel.” See id. The answer to that question remains unclear, and the Court need not decide 113 it here | National_Security_Counselors_2013-08-15.txt |
e2051fa0-8d98-4fa8-b42f-068e80b76e0c | .52 It suffices to conclude that the names withheld by the CIA are at least arguably protected from disclosure under the interpretation of § 403g announced in Halperin, and thus withholding those names does not rise to the level of “general sloppiness” that would caution against conferring substantial weight to the CIA’s declarations | National_Security_Counselors_2013-08-15.txt |
9feccc3c-cca1-4b28-8356-07252750674d | . Third, although the plaintiff did not originally challenge the withholding of “administrative routing information” with respect to Count Seventeen in No. 11-444, the plaintiff contended in its opposition brief that, “given the sheer size of the redacted blocks, it seems unlikely that they consist solely of administrative routing information.” Pl.’s First 444 Opp’n at 30 (emphasis in original) | National_Security_Counselors_2013-08-15.txt |
31bb2b10-640e-4f34-8f05-ec7928d073e4 | . In this regard, the plaintiff suggested to the Court that the CIA had withheld certain other information in bad faith under the auspices of withholding administrative routing information. See id. at 31 | National_Security_Counselors_2013-08-15.txt |
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