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Jarvik v. Central Intelligence Agency

September 28, 2010


The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge

Re Document Nos.: 13, 17




The plaintiff submitted a Freedom of Information Act ("FOIA") request to the Central Intelligence Agency ("CIA") seeking to obtain "CIA reports relating to the violence [in Andijan, Uzbekistan] of May, 2005 and its aftermath, as well as subsequent trials and evacuation of refugees." The CIA refused to produce any information responsive to the plaintiff's request, claiming that the information was exempt from production under the FOIA. The matter is now before the court on the CIA's motion for summary judgment and motion requesting leave to file in camera a Vaughn declaration. For the reasons discussed below, the court grants both of the CIA's motions.


On February 15, 2006, the plaintiff submitted a request to the CIA for "information or records on all CIA documents about events in Andijan, Uzbekistan from 2004-2006, including any CIA reports relating to the violence of May, 2005 and its aftermath, as well as subsequent trials and evaluation of refugees" ("the initial request").*fn1 Am. Compl. ¶ 6; Def.'s Mot. for Summ. J. ("Def.'s Mot."), Ex. A. A few weeks later, on March 6, 2006, the CIA responded that it could not "process the first part of [his] request -- CIA documents about events in Andijan, Uzbekistan, from 2004-2006" due to its lack of specificity, but it offered to conduct a search for documents responsive to "the second part of [his] request -- CIA reports relating to the violence of May 2005 and its aftermath, as well as subsequent trials and evaluation of refugees -- since it deals with a specific event." Am. Compl. ¶ 8; Def.'s Mot., Ex. B. The plaintiff agreed to the CIA's proposal in a letter on March 22, 2006 ("the amended request"). Def.'s Mot., Ex. C.

In March 2008, the plaintiff informed the CIA that he was ready to pay the required fees necessary to move forward with his FOIA request. Am. Compl. ¶¶ 16-18. After receiving no response from the CIA, the plaintiff filed suit in this court on November 5, 2008. Am. Compl. ¶¶ 19-20. The CIA states that it "accepted" the plaintiff's amended request on January 14, 2009. 1st Dimaio Decl. ¶ 5. On January 15, 2009, the court granted the parties' joint motion to stay the proceedings until May 11, 2009, in order to allow the CIA time to "provide the plaintiff with any and all releasable CIA records responsive to his [February 15, 2006] FOIA request (as that request was modified by the plaintiff's letter dated [March 22, 2006])." Minute Order (January 15, 2009).

On March 24, 2009, the CIA provided a "final response" to the plaintiff's amended request. Id., Ex. B. The CIA explained that it had "located material which [it] had determined is currently and properly classified and must be denied in its entirety on the basis of FOIA exemptions (b)(1) & (b)(3)." Id. The plaintiff administratively appealed this decision but did not receive a decision within the required timeframe.*fn2 Am. Compl. ¶¶ 26-7.

The CIA subsequently filed a motion for summary judgment, see generally Def.'s Mot., relying on the unclassified declaration of Ralph Dimaio, an Information Review Officer with the CIA.*fn3 Id., 1st Dimaio Decl. The CIA also filed a motion for leave to file in camera a classified Vaughn*fn4 declaration by Diamio. See Def.'s Mot. to File Its Vaughn Declaration In camera ("Def.'s Mot. to File In camera"). In support of its motion to file in camera, the CIA filed a second unclassified declaration by Dimaio. See Def.'s Reply in Support of Its Mot. to File In camera, 2d Dimaio Decl. With the defendant's motion for summary judgment and motion for leave to file in camera now ripe for adjudication, the court turns to the applicable legal standards and the parties' arguments.


A. The Court Grants the Defendant Leave to File its Vaughn Declaration In Camera

1. Legal Standard for In Camera Filing

District courts have "the explicit authority to conduct in camera reviews of agency files to determine the applicability of the claimed [FOIA] exemptions." Quinon v. Fed. Bureau of Investigation, 86 F.3d 1222, 1227 (D.C. Cir. 1996) (discussing Congress' 1974 amendments to FOIA, which expressly authorized in camera review). The court should not, however, resort to an in camera review as a matter of course. Quinon, 86 F.3d at 1227-28 (citing S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 9 (1974)). Instead, the court should first provide the government with an "opportunity to establish by means of testimony or detailed [public] affidavits that the documents are clearly exempt from disclosure." Id. (citing S. Conf. Rep. No. 1200, 93d Cong., 2d Sess. 9 (1974)). "[T]he court is to require the agency to create as full a public record as possible, concerning the nature of the documents and the justification for nondisclosure." Hayden v. Nat'l Sec. Agency, 608 F.2d 1381, 1383 (D.C. Cir. 1979). But where the public affidavits are insufficiently detailed to permit meaningful review of exemption claims, "the court may accept classified affidavits [i]n camera or it may inspect the documents [i]n camera." Hayden, 608 F.2d at 1384.

2. The Defendant's In camera Filing of a Vaughn Declaration is Necessary and Appropriate

The defendant requests leave to file its Vaughn declaration in camera because it "could not provide an adequate explanation of its search and withholdings without revealing information that is classified, or that reasonably could be expected to lead to the discovery of classified information." Def.'s Mot. to File In Camera, at 2-3. The plaintiff argues that the defendant has not disclosed any material whatsoever*fn5 and has failed to submit a sworn statement "explaining why the Vaughn declaration has to be classified or explaining how the release of a declaration can lead to discovery of classified information." Pl.'s Opp to Def.'s Mot. to File In camera at 2. The plaintiff further argues that the adversarial process would be severely limited if this court is forced to determine whether the defendant's search of its records was adequate without the benefit of the plaintiff's analysis, which the court would not receive if it allows the Vaughn declaration to be filed in camera. Pl.'s Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s Opp'n") at 3.

The defendant responds that it has, in its first unclassified declaration, "explain[ed] its search and withholdings to the greatest extent possible without disclosing either classified information or information that reasonably could be expected to lead to the disclosure of classified information." Def.'s Reply in Support of Mot. to File In camera at 1; see also id., 2d Dimaio Decl. ¶ 3. The defendant explains that it cannot release a redacted version of the information because it can "neither enumerate nor describe the responsive material in any way without revealing classified information or impairing [the CIA's] functions." Id., 2d Dimaio Decl. ¶ 3. According to the defendant, public disclosure of "the nature and type(s) of responsive material, the date(s), the amount, volume, or extent of the responsive material in this case would provide insight into how [the] CIA carries out its core functions of foreign intelligence collection, production and use of intelligence sources and methods, including the extent of [the] CIA's intelligence interest in a particular subject matter." Id. Thus, the defendant asserts that it should be permitted to file an in camera classified declaration "to avoid damage to the national security and to [the] CIA's functions," while also ensuring that the court has the information necessary to conduct a meaningful review of its actions in response to the plaintiff's FOIA request. Id. ¶ 4.

The Circuit has acknowledged that an in camera review "deprives the FOIA requester of an opportunity to present his interpretation of the withheld documents." Quinon, 86 F.3d at 1228. Nevertheless, "[i]n a limited range of security cases, it is simply not possible to provide for orderly and responsible decisionmaking about what is to be disclosed, without some sacrifice to the pure adversary process." Hayden, 608 F.2d at 1385.

The Circuit has held that if a public record, after having been developed to its full extent, is insufficient for the district court to rule on the lawfulness of the agency's nondisclosure, then a "[district] court may accept classified affidavits [i]n camera." Id. at 1384. In Hayden, the district court allowed for in camera review of a classified affidavit detailing why requested documents could not be released under FOIA. Id. at 1383. Relying on that review, the district court granted summary judgment to the agency. Id. In affirming the district court's ruling, the Circuit noted that it was "appropriate to receive affidavits [i]n camera rather than in public" in circumstances where the district court "could reasonably find that public itemization and detailed justification would compromise legitimate secrecy interests." Id. at 1385.

Although the court is sensitive to the plaintiff's concerns regarding the limitations to the adversarial process that result from in camera filings, the court is persuaded that there is a reasonable chance of harm to both national security and the CIA if any additional information is revealed on the public record. See Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981) (deferring to the agency's assertions in holding that the information could cause serious damage to the national security); 2d Dimaio Decl. ¶¶ 3-4. Here, the CIA indicates that revealing even the number of CIA originated records responsive to the Plaintiff's FOIA request, indeed whether the CIA located one or more than one record, and additional information contained in a Vaughn index would disclose information about the nature and scope of the CIA's record material and necessarily would reveal the extent to which the CIA collected or did not collect information and/or prepared or did not prepare analysis on the events that are the subject of the Plaintiff's FOIA request, which in turn would reveal sensitive intelligence capabilities and interests (or lack thereof), in addition to a number of other pieces of information that could reasonably be expected to cause serious damage to the national security.*fn6

1st Dimaio Decl. ¶ 8.

After reviewing the defendant's classified and unclassified declarations, the court concludes, as did the court in Hayden, that "public itemization and detailed justification" could compromise ...

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