The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge
The National Intelligence Council within the Central
Intelligence Agency ("CIA") regularly prepares intelligence
analyses of troubled hot spots around the globe. It prepared the
2004 National Intelligence Estimate on Iraq ("2004 Iraq NIE") in
July 2004. There is no dispute that the 2004 Iraq NIE contains
classified information not subject to disclosure under the
Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. The sole
question posed by this FOIA action is whether the CIA has
provided sufficient detail to support its determination that
there is no segregable, non-classified information in the
document that can be released to the National Security Archive
Fund, Inc. ("Fund"), a not-for-profit corporation that collects
and publishes declassified documents acquired through FOIA.
Before the Court are the CIA's Motion for Summary Judgment and
the Fund's Cross Motion for In Camera Review. Finding that the
CIA has sufficiently explained why no portion of the 2004 Iraq
NIE can be released at this time, the Court will grant the CIA's
motion for summary judgment, deny the Fund's cross motion for in
camera review, and dismiss the action. I. BACKGROUND
The underlying facts are not in dispute. By letter dated
September 16, 2004, the Fund requested that the CIA provide,
pursuant to FOIA, "the National Intelligence Estimate (NIE)
prepared in July 2004 on Iraq." Declaration of Martha M. Lutz,
Information Review Officer, CIA ("Lutz Decl.") ¶ 7. In addition,
the Fund asked that its request be expedited and that normal
search-and-review fees be waived. Id. The CIA responded on
September 28, 2004, denying the request for expedited processing
and placing the Fund in the "representative of the news media"
fee category. On October 20, 2004, following the denial of a
further request for expedited processing, the Fund filed this
action, together with a motion for a temporary restraining order
enjoining the CIA from continuing to deny expedited treatment to
the Fund's FOIA request.
By letter dated October 22, 2004, the CIA provided a final
response to the Fund's request. That letter reported the CIA's
determination that all material responsive to the request "is
properly classified and must be denied in its entirety on the
basis of FOIA exemptions (b)(1) and (b)(3)." Lutz Decl. ¶ 11. On
November 3, 2004, the Fund amended its complaint to seek release
of the 2004 Iraq NIE.
The single document requested by the Fund was prepared by the
National Intelligence Council ("NIC"), part of the Office of the
Director of Central Intelligence ("DCI"). Lutz Decl. ¶¶ 1, 13.
The NIC coordinates and presents "the substantive finished
intelligence output of the Intelligence Community as a whole;
that is, the intelligence products that pool the judgments of the
agencies making up the National Foreign Intelligence Board."
Id. ¶ 13. Such intelligence products are usually in the form of
NIEs. See id. The 2004 Iraq NIE provides an assessment of Iraq's capabilities for
internal stability and self-governance. . . .
. . . [It] is based on and incorporates all-source
reporting and intelligence, with classified
information inexorably intertwined through the
document. [It] analyzes political, social, economic,
and security information regarding Iraq, extrapolates
from this analysis to posit scenarios, and assigns
probabilities based on different combinations of
events and factors. [It] concludes with a section
intended to provide policymakers with additional
guidance on how U.S. policies related to Iraq may
best be implemented.
Id. ¶¶ 14-15. Martha M. Lutz, the Information Review Officer
for the Director of Central Intelligence Area, made the
determinations at issue here. Ms. Lutz holds original
classification authority at the TOP SECRET level and is
authorized to make classification and declassification decisions.
Id. ¶ 3. Ms. Lutz declares that she "carefully conducted a
line-by-line review" of the 2004 Iraq NIE before deciding that it
"must be protected from release in its entirety." Id. ¶ 6.
Summary judgment is the routine vehicle by which most FOIA
actions are resolved where there are no material facts genuinely
at issue. See Alyeska Pipeline Serv. Co. v. EPA, 856 F.2d 309,
314-15 (D.C. Cir. 1988); Military Audit Project v. Casey,
656 F.2d 724, 738 (D.C. Cir. 1981). FOIA requires agencies of the
federal government to release records to the public upon request,
unless one of nine statutory exemptions applies. NLRB v. Sears,
Roebuck & Co., 421 U.S. 132, 136 (1975). "[D]isclosure, not
secrecy, is the dominant purpose of the Act." Dep't of the Air
Force v. Rose, 425 U.S. 352, 361 (1976); see also DOI v.
Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). FOIA
gives an agency twenty working days to determine "whether to
comply with such request and . . . immediately notify the person
making such request of such determination and the reasons
therefor" and the requester's right to appeal any adverse
determination. 5 U.S.C. § 552(a)(6)(A)(I). This time limit may be
extended for up to ten days under unusual circumstances. Id. § 552(a)(6)(B)(I).
The court conducts a de novo review of an agency's
determination to withhold records. 5 U.S.C. § 552(a)(4)(B); see
Hayden v. Nat'l Sec. Agency/Cent. Sec. Serv., 608 F.2d 1381,
1384 (D.C. Cir. 1979). The government bears the burden of
justifying nondisclosure. See McCutchen v. U.S. Dep't of Health
& Human Servs., 30 F.3d 183, 185 (D.C. Cir. 1994). It may
satisfy that burden through the submission of agency declarations
of sufficient detail to describe the withheld material with
reasonable specificity and specify the reasons for nondisclosure.
U.S. Dep't of Justice v. Reporters Comm. for Freedom of the
Press, 489 U.S. 749, 753 (1989). This degree of particularity is
often supplied by a Vaughn index, named for Vaughn v. Rosen,
484 F.2d 820, 823-25 (D.C. Cir. 1973). In this case, since only a
single document is involved, the CIA has submitted the Lutz
Summary judgment may be entered under Rule 56 of the Federal
Rules of Civil Procedure when the pleadings, depositions, answers
to interrogatories, admissions on file, and affidavits show that
there is no genuine issue of material fact and that the moving
party is entitled to judgment as a matter of law. Fed.R.Civ.P.
56(c)). Material facts are those that "might affect the outcome
of the suit under the governing law." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In FOIA cases, summary judgment
is often entered from a record composed of government affidavits
or declarations that explain how requested information falls
within a claimed exemption, as long as the affidavits or
declarations are sufficiently detailed, nonconclusory, and
submitted in good faith, and a plaintiff has no significant basis
for questioning their reliability. Goland v. CIA, 607 F.2d 339,
352 (D.C. Cir. 1978). For the United States to prevail, it must
prove "that each document that falls within the class requested
either has been produced, is unidentifiable, or is wholly exempt from [FOIA's] inspection requirements."
Nat'l Cable Television Ass'n Inc. v. FCC, 479 F.2d 183, 186
(D.C. Cir. 1973).
A. Relevant FOIA Exemptions
The CIA identifies three FOIA exemptions that it asserts
protect the 2004 Iraq NIE from disclosure at this time:
Exemptions 1, 3, and 5. Exemption 1 allows an agency to withhold
matters that are: "(A) specifically authorized under criteria
established by an Executive order to be kept secret in the
interest of national defense or foreign policy and (B) are in
fact properly classified pursuant to such Executive order."
5 U.S.C. § 552(b)(1). For its authority to invoke Exemption 1, the
CIA cites Section 6.1(h) of Executive Order 12,958, as amended,
which defines "classified national security information" or
"classified information" as "information that has been determined
pursuant to this order or any predecessor order to require
protection against unauthorized disclosure and is marked to
indicate its classified status when in documentary form." Exec.
Order No. 12,958, 60 Fed. Reg. 19,825 (April 17, 1995). Ms. Lutz
declares that the 2004 Iraq NIE is protected under E.O. 12,958,
and thus FOIA Exemption 1, as "intelligence activities (including
special activities), intelligence sources or methods, or
cryptology" and "foreign relations or foreign activities of the
United States, including confidential sources." See Lutz Decl.
FOIA Exemption 3, upon which the CIA also relies, protects
matters that are specifically exempted from disclosure by a
statute other than FOIA itself, provided that such statute: "(A)
requires that the matters be withheld from the public in such a
manner as to leave no discretion on the issue, or (B) establishes
particular criteria for withholding or refers to particular types
of matters to be withheld." 5 U.S.C. § 552(b)(3). The CIA relies
on Section 6 of the Central Intelligence Agency Act of 1949*fn1 and Section 103(c)(7) of
the National Security Act ...