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National Security Archive v. Central Intelligence Agency

May 10, 2012

NATIONAL SECURITY ARCHIVE, PLAINTIFF,
v.
CENTRAL INTELLIGENCE AGENCY, DEFENDANT.



The opinion of the court was delivered by: Gladys Kessler United States District Judge

MEMORANDUM OPINION

Plaintiff, National Security Archive ("NSA"), brings this action against Defendant, the Central Intelligence Agency ("CIA"), under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552. Plaintiff seeks material related to the CIA's internal investigation of the Bay of Pigs Operation. This matter is before the Court on Defendant's Motion for Summary Judgment [Dkt. No. 8] and Plaintiff's Cross-Motion for Partial Summary Judgment [Dkt. No. 10]. Upon consideration of the Motions, Oppositions, and Replies, and the entire record herein, and for the reasons set forth below, Defendant's Motion for Summary Judgment is granted and Plaintiff's Cross-Motion for Partial Summary Judgment is denied.

I. BACKGROUND*fn1

The NSA "is an independent non-governmental research institute and library" which "serves as a repository of government records on a wide range of topics pertaining to the national security, foreign, intelligence, and economic policies of the United States." Compl. ¶ 3 [Dkt. No. 1]. This case concerns the NSA's efforts to obtain a four-volume history of the Bay of Pigs Operation, compiled by former CIA historian Dr. Jack B. Pfeiffer in the late 1970s and early 1980s. On August 10, 11, and 15, 2005, the NSA sent the CIA letters seeking access to Volumes I, II, IV, and V of the Official History of the Bay of Pigs Operation. Lutz Decl. Exs. A, B, C [Dkt. No. 8-1].

In three separate responses, dated September 7, 2005, the CIA acknowledged that it had received the NSA's requests for Volumes I, II, IV, and V. Lutz Decl. Ex. D. However, according to the NSA, it received no substantive response from the CIA between September 7, 2005, and the filing of the Complaint, on April 14, 2011. Pl.' Mot. for Summ. J. 3. Three months after the Complaint was filed, on July 25, 2011, the CIA released Volumes I, II, and IV to the NSA. The CIA has offered no explanation as to why it failed to provide any materials to the NSA in the five years and seven months that elapsed between acknowledgment of the FOIA requests and the filing of this lawsuit, but was able to release extensive materials three months after this lawsuit was filed.

Nevertheless, the CIA did release Volumes I, II, and IV with minimal redactions. The only issue now in dispute is whether the CIA should also have released Volume V, which it has withheld in its entirety. Def.'s Mot. for Summ. J. 1; Pl.'s Mot. for Partial Summ. J. 1. According to the CIA, this volume, which is titled "CIA's Internal Investigation of the Bay of Pigs Operations," is covered by the deliberative process privilege and therefore exempt from disclosure under FOIA.*fn2 Def.'s Mot. for Summ. J. 3-4.

On September 26, 2011, the CIA filed its Motion for Summary Judgment. November 7, 2011, the NSA filed its Opposition and Cross-Motion for Partial Summary Judgment. On November 29, 2011, the CIA filed its combined Opposition and Reply [Dkt. No. 12]. On December 21, 2011, the NSA filed its Reply [Dkt. No. 14].

II. STANDARD OF REVIEW

The purpose of FOIA is to "'to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.'" Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (quoting Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976)). FOIA "requires agencies to comply with requests to make their records available to the public, unless the requested records fall within one or more of nine categories of exempt material." Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (citing 5 U.S.C. § 552(a), (b)). An agency that withholds information pursuant to a FOIA exemption bears the burden of justifying its decision, Petroleum Info. Corp. v. Dep't of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)), and must submit an index of all materials withheld. Vaughn v. Rosen, 484 F.2d 820, 827-28 (D.C. Cir. 1973). In determining whether an agency has properly withheld requested documents under a FOIA exemption, the district court conducts a de novo review of the agency's decision. 5 U.S.C. § 552(a)(4)(B).

FOIA cases are typically and appropriately decided on motions for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C. 2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). Summary judgment will be granted when the pleadings, depositions, answers to interrogatories, and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c).

In a FOIA case, the court may award summary judgment solely on the basis of information provided in affidavits or declarations when they (1) "describe the documents and the justifications for nondisclosure with reasonably specific detail;" (2) "demonstrate that the information withheld logically falls within the claimed exemption;" and (3) "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). Such affidavits or declarations are accorded "a presumption of good faith, which cannot be rebutted by 'purely speculative claims about the existence and discoverability of other documents.'" SafeCard Servs., Inc. v. Sec. & Exch. Comm'n, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. ANALYSIS

As noted above, the sole issue in this case is whether Volume V was properly withheld under FOIA Exemption 5. Exemption 5 permits an agency to withhold "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." 5 U.S.C. § 552(b)(5). Exemption 5 "is interpreted to encompass, inter alia, three evidentiary privileges: the deliberative process privilege, the attorney-client privilege, and the attorney work product privilege." Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002).

The relevant privilege here, the deliberative process privilege, "'covers documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.'" Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8-9 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975)); see also Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 874-75 (D.C. Cir. 2010). Because "advice and information would not flow freely within an agency if such consultative information were open to public scrutiny," Exemption 5 "allows agency staffers to provide decisionmakers with candid advice without fear of public scrutiny" and "helps to prevent premature disclosure of proposed policies and protects against ...


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