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American Civil Liberties Union, et al v. Central Intelligence Agency

September 25, 2012

AMERICAN CIVIL LIBERTIES UNION, ET AL., PLAINTIFFS,
v.
CENTRAL INTELLIGENCE AGENCY, DEFENDANT.



The opinion of the court was delivered by: Amy Berman Jackson United States District Judge

MEMORANDUM OPINION

Plaintiffs American Civil Liberties Union and American Civil Liberties Union Foundation (collectively "ACLU") bring this action against the Central Intelligence Agency ("CIA") under the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552 (2009). They seek the release of information about unauthorized interrogation techniques from eleven reports written by the CIA Office of the Inspector General ("OIG") that the CIA has withheld under exemptions to the FOIA disclosure requirement. These reports all relate to the detention, interrogation, or treatment of individuals apprehended after September 11, 2001, and held at detention facilities outside the United States. Ex. A to Lutz Decl. [Dkt. # 16-3] at 3. The parties have cross-moved for summary judgment. The Court will grant in part and deny in part both motions. The Court will remand the ACLU's challenge to withheld document number 3 to the agency for a more thorough determination of whether any of the information in the report has already been officially acknowledged. But because the rest of the information in the withheld documents is exempt from disclosure under FOIA Exemptions 1 and 3, and at least some is also exempt under FOIA Exemption 5, the Court finds that the remaining ten documents were properly withheld in their entirety.

BACKGROUND

The following facts are uncontested except where noted. The basis for this action is a FOIA request that the ACLU submitted to the CIA by letter dated April 25, 2011, seeking:

(1) All reports or conclusions of internal inquiry or investigation into the CIA's Inspector General or Office of the Inspector General . . . (2) all reports produced by the CIA OIC relating to the detention, interrogation, or treatment of individuals apprehended after September 11, 2001, and held at detention facilities outside the United States .

Ex. A to Lutz Decl. at 1. The letter requested expedited processing and a fee waiver. Id. at 3-- 16. The CIA timely acknowledged receipt of the request. Ex. B to Lutz Decl.

According to a declaration submitted on behalf of the CIA by Martha M. Lutz, the Information Review Officer for the Director's Area of the CIA, the mission of CIA's OIG is "to promote economy, efficiency, effectiveness, and accountability in the management of CIA activities by performing independent audits, inspections, investigations and reviews of CIA programs and operations." Lutz Decl. ¶¶ 1, 11. The OIG "provid[es] findings and recommendations to the CIA and its Director, as well as Congressional intelligence committees." Id. ¶ 11. Lutz's declaration further states: "I understand that the OIG's law enforcement functions . . . include investigation of alleged violations of federal law that involve a program or operation of the CIA." Id.

Having received no response to its request, the ACLU filed the initial complaint in this action on May 18, 2011. Compl. [Dkt. # 1]. It filed an amended complaint approximately a month later. Am. Compl. [Dkt. # 8]. The CIA responded to the ACLU's FOIA request on September 30, 2011. Ex. C to Lutz Decl. In response to a Minute Order issued by the Court, the CIA later submitted a Vaughn Index to plaintiff describing the documents and information withheld, and the FOIA exemptions applicable to each withholding. Ex. E to Lutz Decl; Minute Order (October 11, 2011).

In response to the first item in the ACLU's request, the CIA produced three partially redacted versions of a memorandum titled Review of Certain Aspects of the Operations of the Office of Inspector General ("Deitz Memorandum"). Lutz Decl. ¶ 8. This item appears as document number 12 in the CIA's Vaughn Index. Id.

In response to the second item, the CIA identified twelve responsive documents. Id. One document was removed from this litigation by agreement of the parties. Id. The remaining eleven documents were withheld in their entirety. Id. According to the Lutz Declaration, which describes the withheld documents, all eleven responsive documents are OIG reports. Id. ¶ 10. Documents numbered 1, 2, 4, 5, 7, and 8 in the Vaughn Index are reports on the treatment of detainees. Id. ¶ 13. Documents numbered 3 and 6 are reports on the use of certain interrogation techniques at an overseas CIA detention facility, as well as the non-registration of certain detainees. Id. ¶ 14. And documents numbered 9, 10, and 11 are reports on overseas CIA detention facilities and CIA counterterrorism operations. Id. ¶ 12.

The CIA has asserted FOIA Exemptions 1, 3, 5, and 7 as the basis for its redactions and withholdings. Ex. E to Lutz Decl.

After receiving the Vaughn Index, the ACLU responded by letter, notifying the CIA that it would exclude the following categories of information from its challenge: "the identities of CIA operatives; the specific questions asked of detainees by interrogators; the responses given by detainees to those questions; and the identities of foreign governments or agents." Lutz Decl.

¶ 9; Ebadolahi Decl. [Dkt. # 19-2] ¶ 12.

The parties have now cross-moved for summary judgment. See [Dkt. # 16, 19]. Pursuant to its authority to review withheld documents, the Court subsequently ordered the CIA to deliver all of the withheld documents to chambers for the Court's in camera review. Minute Order (July 12, 2012), citing Ray v. Turner, 587 F.2d 1187, 1195 (D.C. Cir. 1978). The Court has reviewed all of the disputed documents.

STANDARD OF REVIEW

"FOIA cases are typically and appropriately decided on motions for summary judgment." Moore v. Bush, 601 F. Supp. 2d 6, 12 (D.D.C. 2009), citing Miscavige v. IRS, 2 F.3d 366, 368 (11th Cir. 1953); Rushford v. Civiletti, 485 F. Supp. 477, 481 n.13 (D.D.C. 1980). In the FOIA context, "the sufficiency of the agency's identification or retrieval procedure" must be "genuinely in issue" in order for summary judgment to be inappropriate. Weisberg v. DOJ, 627 F.2d 365, 371 n.54 (D.C. Cir. 1980), quoting Founding Church of Scientology v. NSA, 610 F.2d 824, 836 (D.C. Cir. 1979) (internal quotation marks omitted). However, a plaintiff "cannot rebut the good faith presumption" afforded to an agency's supporting affidavits "through purely speculative claims about the existence and discoverability of other documents." Brown v. DOJ, 742 F. Supp. 2d 126, 129 (D.D.C. 2010), quoting SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (internal quotation marks and citations omitted).

In any motion for summary judgment, the Court "must view the evidence in the light most favorable to the nonmoving party, draw all reasonable inferences in his favor, and eschew making credibility determinations or weighing the evidence." Montgomery v. Chao, 546 F.3d 703, 706 (D.C. Cir. 2008); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247--48 (1986). However, where a plaintiff has not provided evidence that an agency acted in bad faith, "a court may award summary judgment [to the government] solely on the basis of information provided by the agency in declarations." Moore, 601 F. Supp. 2d at 12. The district court reviews the agency's action de novo, and "the burden is on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B); accord Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981).

ANALYSIS

Along with the letter described above, in which the ACLU agreed to exclude certain information from this challenge, the ACLU's cross-motion for summary judgment narrows the scope of this litigation. According to the memorandum in support of the cross-motion, the ACLU seeks the release of only "descriptions in the OIG reports of the use of unauthorized interrogation methods." Mem. in Support of Pls.' Cross-Mot. for Summ. J. and in Opp. to Def.'s Mot. for Summ. J. ("Pls.' Mem.") at 6; see also id. at 4 (describing the only contested material as "the portions of the OIG reports describing the use of unauthorized techniques."). These are activities that "both the CIA and the OIG regard as ultra vires." Id. at 3. Accordingly, the Court enters judgment in favor of the CIA's withholdings to the extent they are unrelated to descriptions of alleged "use of unauthorized techniques." In addition, the ACLU has asserted that the portion of its FOIA request seeking "all reports or conclusions of an internal inquiry or investigation into the CIA's Inspector General or Office of the Inspector General" is "no longer at issue in this litigation." Id. at 4 n.2. So the Court will enter judgment in favor of the CIA regarding the three redacted copies of the Deitz Memorandum (document number 12), which were returned in response to the withdrawn portion of the ACLU's request. See Lutz Decl. ¶ 8; Ex. E to Lutz Decl. at 92--93; Reply Mem. in Further Support of Def.'s Mot. for Summ. J. and in Opp. to Pls.' Cross-Mot. for Summ. J. ("Def.'s Opp.") [Dkt. # 21] at 2--3.

In support of the remainder of its withholdings, the CIA exerts FOIA Exemptions 1, 3, 5, and 7.

The purpose of FOIA is to require the release of government records upon request and to "ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." Nat'l Labor Relations Bd. v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). At the same time, Congress recognized "that legitimate governmental and private interests could be harmed by release of certain types of information and provided nine specific exemptions under which disclosure could be refused." FBI v. Abramson, 456 U.S. 615, 621 (1982); see also Ctr. for Nat'l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C. Cir. 2003) ("FOIA represents a balance struck by Congress between the public's right to know and the government's legitimate interest in keeping certain information confidential."). The Supreme Court has instructed that FOIA exemptions are to be "narrowly construed." Abramson, 456 U.S. at 630.

To prevail in a FOIA action, an agency must satisfy two elements. First, the agency must demonstrate that it has made "a good faith effort to conduct a search for the requested records, using methods which can be reasonably expected to produce the information requested." Ogelsby v. U.S. Dep't of Army, 920 F.2d 57, 68 (D.C. Cir 1990). The ACLU does not contest the adequacy of the CIA's search in this case. Second, an agency must show that "materials that are withheld . . . fall within a FOIA statutory exemption." Leadership Conference on Civil Rights v. Gonzales, 404 F. Supp. 2d 246, 252 (D.C. Cir. 2005).

When an agency seeks to withhold a document from disclosure, it must specify the exemption claimed and explain why it is entitled to claim it. Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007), quoting King v. DOJ, 830 F.2d 210, 219 (D.C. Cir. 1987) (internal citations omitted). The agency bears the burden of justifying the decision to withhold records under FOIA's statutory exemptions. See 5 U.S.C. § 552(a)(4)(B). A court may grant summary judgment based solely on information provided in an agency's affidavits or declarations if they "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." Casey, 656 F.2d at 738. 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., 926 F.2d at 1200 (internal quotation marks and citations omitted). "Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the exemption are likely to prevail." Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d 504, 509 (D.C. Cir. 2011), citing Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009). Furthermore, "[i]n the national security context, . . . we must 'accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.'" ACLU v. Dep't of Justice, 681 F.3d 61, 69 (2d Cir. 2012), quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).

I. The CIA Properly Withheld all Eleven Documents under FOIA Exemption 3.

FOIA Exemption 3 authorizes the government to withhold information that is:

Specifically exempted from disclosure by statute . . . if that statute

(A)(i) requires that the matters be withheld from the public in such a manner as to leave no ...


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