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International Counsel Bureau v. U.S. Central Intelligence Agency

March 31, 2011

INTERNATIONAL COUNSEL BUREAU, PLAINTIFF,
v.
U.S. CENTRAL INTELLIGENCE AGENCY, ET AL., DEFENDANTS.



The opinion of the court was delivered by: John D. Bates United States District Judge

MEMORANDUM AND OPINION

Plaintiffs International Counsel Bureau and Pillsbury, Winthrop, Shaw, Pittman, LLP (collectively, "ICB") bring this action against the United States Central Intelligence Agency ("CIA" or "the Agency") and others, pursuant to the Freedom of Information Act ("FOIA"), 5 U.S.C. 552 et seq., seeking records pertaining to four individuals allegedly detained (or previously detained) at Guantanamo Bay Naval Base, Cuba. Plaintiffs pursue several FOIA requests to the CIA and other agencies seeking (a) records containing references to or reflecting the terms of the U.S. government's policies and practices relating to the transfer or release of detainees held at Guantanamo and (b) records relating to four current and former detainees at Guantanamo: Fawzi Khaled Abdullah Fahad Al Odah, Khalid Abdullah Misha'al Al-Mutairi, Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al Kandari ("detainees"). Now before this Court is the CIA's motion for partial summary judgment and the plaintiffs' cross-motion for summary judgment with respect to ICB's request to the CIA for detainee-specific records. At issue is whether the CIA properly issued a "Glomar"response to ICB's FOIA request for records concerning the detainees, neither confirming nor denying the existence of responsive records.

BACKGROUND

ICB has made a series of FOIA requests to several agencies in this action, as well as a related action before this Court, International Counsel Bureau v. U.S. Dep't of Defense, 08-cv-01063 (JDB), seeking records relating to the four aforementioned detainees. However, the Agency's partial summary judgment motion and ICB's cross-motion for summary judgment concern only the propriety of the CIA's "Glomar" response to ICB's requests for information, as set forth in paragraphs 65-66 of the amended complaint.*fn1 Accordingly, this Memorandum Opinion addresses only the FOIA requests at issue in these motions.

On September 4, 2009, ICB submitted two FOIA requests to the CIA. The first request sought:

Any and all records relating to or reflecting any alleged breaches or violations by the Detainees of any governing rules of discipline and/or behavior during their detention by the United States Government ("USG"). This request includes, but is not limited to, records related to any disciplinary actions taken by personnel in response to such breaches.

Any and all records relating to or reflecting any investigations into alleged abuse or mistreatment of any of the Detainees while under the control of the USG. This request includes, but is not limited to, records related to any disciplinary actions taken against USG personnel for engaging in such abuse or mistreatment.

[a]ny recording, including any image, photograph, picture, film, drawing, painting, video, videotape, tape recording, audiotape, CD, or DVD, depicting or reflecting the image, likeness, voice, audible action, or any other aspect or activity of any [of the four detainees].

Am. Compl. ¶ 65; see also Ex. A to Declaration of Ralph S. DiMaio, Information Review Officer for the National Clandestine Service, CIA ("DiMaio Decl.").

The CIA responded by letter dated September 23, 2009, indicating that plaintiffs had submitted a previous request for information related to the four individuals, which had already been denied. See Ex. B to DiMaio Decl. ICB subsequently asked that the CIA treat the September 4, 2009 FOIA request as a new request, rather than an appeal. In a reply letter, the CIA agreed but also denied the FOIA request itself, informing plaintiffs that:

[i]n accordance with section 3.6(a) of Executive Order 12958, as amended, the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request. The fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949 as amended. Therefore, your request has been denied pursuant to FOIA exemptions b(1) and b(3).

Ex. D to DiMaio Decl. ICB had also submitted another FOIA request seeking "a complete set of medical records and / or psychological records..." relating to Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al Kandari. Ex. G to DiMaio Decl. The CIA denied this request as well, and issued exactly the same response as quoted above. See Ex. H to DiMaio Decl. The CIA now moves for partial summary judgment with respect to the appropriateness of its "Glomar" response to both requests. ICBopposes the CIA's motion, challenging the CIA's invocation of Exemptions (b)(1) and (b)(3) as the basis for its "Glomar" response, and also cross-moves for summary judgment, contending that the CIA's search was inadequate; ICB requests that this Court order the CIA to conduct an adequate search of all its department and staff functions.

STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate "if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact and that the movant 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). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

FOIA requires a federal agency to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized "to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant." 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139 (1980). The agency has the burden of proving that "each document that falls within the class requested either has been produced, is unidentifiable, or is wholly exempt from the Act's inspection requirements." Goland v. CIA, 607 F.2d 339, 352 (D.C. Cir. 1978) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C. Cir. 2000) (the government has the burden of proving each claimed FOIA exemption). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe "the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); see also ...


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