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NATIONAL SECURITY ARCHIVE FUND v. CENTRAL INTELLIGENCE AGENCY

September 30, 2005.

THE NATIONAL SECURITY ARCHIVE FUND, INC., Plaintiff,
v.
THE CENTRAL INTELLIGENCE AGENCY, Defendant.



The opinion of the court was delivered by: ROSEMARY COLLYER, District Judge

MEMORANDUM OPINION

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.

  II. LEGAL STANDARDS

  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 Declaration.

  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).

  III. DISCUSSION

  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. ¶ 18.

  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 ...


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