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Leopold v. Central Intelligence Agency

United States District Court, D. Columbia.

March 31, 2015

JASON LEOPOLD, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant

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[Copyrighted Material Omitted]

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For JASON LEOPOLD, Plaintiff: Jeffrey Louis Light, LEAD ATTORNEY, LAW OFFICES OF JEFFREY LIGHT, Washington, DC.

For CENTRAL INTELLIGENCE AGENCY, Defendant: Vesper Mei, LEAD ATTORNEY, U.S. DEPARTMENT OF JUSTICE, Washington, DC.

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MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge.

The Central Intelligence Agency's former detention and interrogation program has generated no small amount of controversy over the last decade. In this Freedom of Information Act suit, Plaintiff Jason Leopold seeks access to what he refers to as an " internal study" that the agency drafted about the program. The CIA has refused to release the series of documents that comprise the so-called study, contending that they are fully exempt from disclosure under FOIA Exemption 5 and that portions of them may also be withheld under Exemptions 1 and 3. The government and Leopold have now cross-moved for summary judgment. Because the Court finds that the CIA's invocation of Exemption 5 is sound, it will grant the agency's Motion and deny Plaintiff's.

I. Background

In March 2009, the Senate Select Committee on Intelligence announced plans to review the CIA's former detention and interrogation program. See Def. Mot., Exh. 1 (Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, CIA), ¶ 11. As part of this effort, the Committee negotiated with the CIA for certain of its staff members to have " unprecedented direct access to millions of pages of unredacted CIA documents." Id. In light of this agreement, and in anticipation of the numerous policy decisions that senior officials would need to make in connection with the Committee's investigation, then-Director of the CIA Leon Panetta " expressed a desire to remain informed about what was contained in the millions of pages of documents that would be made available to the Committee." Id., ¶ 13. In particular, " Panetta and other senior CIA leaders wished to be informed of noteworthy information" that could help " inform other policy decisions related to the Committee's study." Id.

A Special Review Team was thus formed to review the documents being turned over and to " prepar[e] summaries of certain key information." Id., ¶ 14. The SRT's composition changed over time, but it generally included ten employees and contractors. The team leaders would assign team members

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research topics, some of which related to particular detainees and some of which related to " overarching programmatic subject-matters." Id., ¶ 15. Team members would then conduct searches for documents " related to their assigned topic" and review them to " determine[] whether certain contents of those documents might be relevant to informing senior CIA leaders in connection with the SSCI's study." Id. If a team member found information that she " believed was significant" about her topic, she would describe the information in her Review. Id. " The intent, over time, was for each Draft Review to become a rough guide to noteworthy information on a particular topic," which would help guide senior CIA leaders' " policy decisions." Id.

The project was abandoned, however, after only a year. The agency determined that its " continued work on the Reviews could potentially complicate a separate criminal investigation by the Department of Justice into the detention and interrogation program." Id., ¶ 18. As a result, the Reviews were never finished. Id., ¶ 19. Indeed, when the project was cast aside, they " covered less than half of the millions of pages of documents that the CIA ultimately made available to the SSCI." Id. The Reviews themselves were also left in varying states. Some, for instance, consisted of " only rough notes regarding some relevant documents." Id. " Other[s] . . . were in a more polished form[,]" having " undergone preliminary editing and formatting in preparation for their review by the Chief of the Director's Review Group." Id. According to the agency, had the project not been forsaken, the Reviews " would likely have been reviewed and edited by a number of senior CIA officials -- including the Deputy General Counsel for Litigation and Investigations, the General Counsel, the Director's Chief of Staff, the Executive Director, and the Deputy Director -- before being presented to the Director as finished products." Id.

Several years after the CIA terminated the project, Senator Mark Udall publicly referenced an " internal study" that the agency had allegedly drafted about its former detention and interrogation program. Catching wind of this, Plaintiff submitted a FOIA request to the agency on December 26, 2013, seeking " any records constituting, discussing, or mentioning the [CIA's] internal study of its detention and interrogation program." Lutz Decl., Exh. A (FOIA Request) at 1. The request asked for documents related to " the same internal study that the Senate Intelligence Committee asked to be provided to it" and attached a New York Times editorial discussing Udall's reference to the study. Id. Leopold additionally requested expedited processing. See id. at 2.

The government, however, failed to respond to the expedited-processing request by January 13, 2014, which Plaintiff alleges was the response deadline. See Compl., ¶ ¶ 15-18. Wasting no time, Leopold filed suit the following day. The day after that, the agency issued a letter informing him that it could not process his request because he had not reasonably described the records he sought. See Lutz Decl., Exh. B (Letter from Michele Meeks, Information and Privacy Coordinator, to Leopold, Jan. 15, 2014). The parties thereafter engaged in discussions to narrow his request. Plaintiff ultimately agreed to limit it to " the supposed 'internal study' and to exclude any documents that 'merely mention or discuss' such a study." Lutz Decl., ¶ 7; id., Exh. C (E-mail from Vesper Mei, Senior Counsel, Federal Programs Branch, to Jeffrey Light, Plaintiff's Counsel (Feb. 21, 2014)); id., Exh. C (E-mail from Jeffrey Light to Vesper Mei (Feb. 25, 2014)). The CIA has, accordingly, " interpret[ed] Mr. Leopold's request to be seeking the most

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current version of the supposed internal study." Lutz Decl., ¶ 7.

The agency asserts, and Leopold does not dispute, that this " internal study" -- often referred to in the media as the " Panetta Review" -- " is actually [the] series of more than forty draft documents" that the SRT created. Id., ¶ 8. The agency has refused to release any of the documents or any portions of them, relying on FOIA Exemptions 1, 3, and 5. It now moves for summary judgment on the ground that it has properly withheld the Reviews, and Leopold cross-moves, arguing the contrary.

II. Legal Standard

Summary judgment may be granted if " the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc.,477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Holcomb v. Powell,433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006). A fact is " material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. A dispute is " genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. See Scott v. Harris,550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Liberty Lobby, 477 U.S. at 248; Holcomb, 433 F.3d at 895. " A party asserting that a fact cannot be or is genuinely disputed must support the assertion" by " citing to particular parts of materials in the record" or " showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the ...


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