United States District Court, District of Columbia
JAMES E. BOASBERG, District Judge.
A lightning rod for controversy, the Central Intelligence Agency's former detention and interrogation program has spawned a welter of cases under the Freedom of Information Act demanding access to the inside story. In this particular suit, the American Civil Liberties Union and the American Civil Liberties Union Foundation seek to compel disclosure of two records relating to the program: the 6, 963-page "Final Full Report" drafted by the Senate Select Committee on Intelligence after a comprehensive investigation, and a separate internal CIA study commissioned by former Director Leon Panetta. Contending that the Final Full Report is a congressional record exempt from the strictures of FOIA, the four defendant agencies move to dismiss that count of the Complaint. The CIA - the only agency asked to produce the Panetta Review - separately seeks summary judgment on that withholding, invoking FOIA Exemptions 1, 3, and 5. Concurring in full with the Government, the Court will enter judgment in its favor.
Given the circumstances surrounding the genesis of the disputed records, an overview of these events and the origins of the FOIA requests here may prove useful to the reader. In its explication, the Court first addresses the SSCI Report and the FOIA request pertaining to it, then turns to the Panetta Review and its corresponding request.
A. The SSCI Report
1. Initiation of Investigation
In March 2009, the Senate Select Committee on Intelligence announced plans to comprehensively review the CIA's former detention and interrogation program. See Def. Mot. for Summary Judgment, Att. 1 (Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, CIA), ¶ 11. To fulfill that ambition, Committee personnel required "unprecedented direct access to millions of pages of unredacted CIA documents." Id . Wary of freewheeling disclosure of such sensitive information, the CIA negotiated with SSCI to devise accommodations that "respected both the President's constitutional authorities over classified information and... Congress's constitutional authority to conduct oversight of the Executive Branch." Def. Mot. to Dismiss, Att. 1 (Declaration of Neal Higgins, Director of the Office of Congressional Affairs, CIA), ¶ 11.
Those efforts were realized in a June 2, 2009, letter from the SSCI Chairman and Vice Chairman to the CIA Director, in which the Committee agreed that its review of Agency records would take place in a secure electronic reading room at a CIA facility. See id., ¶¶ 10-11; see also id., Exh. D (June 2, 2009, Letter from SSCI to the CIA), ¶ 2. The Agency would, in turn, create a segregated network drive there where SSCI members and staffers could "prepare and store their work product... in a secure environment." Higgins Decl., ¶ 11; see also June 2, 2009, SSCI Letter, ¶¶ 5-6.
One key provision of the 2009 letter, and "a condition upon which SSCI insisted, " concerned the status of such work product. See Higgins Decl., ¶ 12. More specifically, the letter instructed:
Any documents generated on the network drive referenced in paragraph 5, as well as any other notes, documents, draft and final recommendations, reports or other materials generated by Committee staff or Members, are the property of the Committee and will be kept at the Reading Room solely for secure safekeeping and ease of reference. These documents remain congressional records in their entirety and disposition and control over these records, even after the completion of the Committee's review, lies exclusively with the Committee. As such, these records are not CIA records under the Freedom of Information Act or any other law.... If the CIA receives any request or demand for access to these records from outside the CIA under the Freedom of Information Act or any other authority, the CIA will immediately notify the Committee and will respond to the request or demand based upon the understanding that these are congressional, not CIA, records.
June 2, 2009, SSCI Letter, ¶ 6 (emphasis added). The governing terms so defined, SSCI began its Brobdingnagian task.
2. Approval and Transmission of Early Drafts
More than three years later, on December 13, 2012, SSCI held a closed session in which it approved an initial version of its full investigative report, as well as a stand-alone "Executive Summary." See Higgins Decl., ¶ 15. It then transmitted both drafts to the Executive Branch for review, soliciting "suggested edits or comments" but limiting dissemination to specific individuals identified in advance to the Chairman. See ECF No. 41-1 (December 14, 2012, Letter from Senator Dianne Feinstein to President Barack Obama).
On April 3, 2014, after revising both documents in response to the CIA's feedback, the Committee met again in closed session to determine their proper disposition. See Higgins Decl., ¶ 17. It ultimately voted to approve both documents, but to designate at that time only the Executive Summary for declassification and eventual public release. See SSCI, Committee Study of the CIA's Detention and Interrogation Program: Executive Summary at 8 (Dec. 3, 2014) [hereinafter "Executive Summary"], available at http://www.intelligence.senate.gov/study2014/executive-summary.pdf; Higgins Decl., Exh. F. (April 3, 2014, Senator Feinstein Press Release) ("The full 6, 200-page full report has been updated and will be held for declassification at a later time."). Both documents were transmitted to the Executive Branch in the summer of 2014. See Higgins Decl., ¶ 21.
Over the next several months, SSCI and the CIA engaged in further discussions regarding the processing of the Executive Summary, and the Committee continued to edit that document - and the Full Report - in light of those conversations. See Higgins Decl., ¶ 19. After much negotiation, the Director of National Intelligence declassified a minimally redacted final version of the Executive Summary, which SSCI then publicly released on December 9, 2014. See id., ¶ 20.
In her foreword to the Summary, Chairman Feinstein described the Full Report, clarifying that it is "now final and represents the official views of the Committee." See Executive Summary, Chairman's Foreword at 5 (Dec. 3, 2014) [hereinafter "Chairman's Foreword"], available at http://www.intelligence.senate.gov/study2014/foreword.pdf. She further expressed her desire that "[t]his and future Administrations should use this Study to guide future programs, correct past mistakes, increase oversight of CIA representations to policymakers, and ensure coercive interrogation practices are not used by our government again." Id. at 5. In keeping with the Committee's earlier decision, however, the Final Full Report was neither sent for declassification nor publicly released. See id. at 3 ("I chose not to seek declassification of the full Committee Study at this time.").
3. Transmission of Final Full Report
Instead, during the several days immediately following the public release of the Executive Summary, SSCI sent a copy of the Final Full Report to President Obama and each Defendant agency. See Higgins Decl., ¶ 21; Def. Mot. to Dismiss, Att. 2 (Declaration of Julia Frifield, Department of State), ¶ 7; id., Att. 3 (Declaration of Mark Herrington, Department of Defense), ¶ 5; id., Att. 4 (Declaration of Peter Kadzik, Department of Justice), ¶ 5. Chairman Feinstein's transmittal letter - addressed to the President - stated as follows:
As you said publicly on August 1, 2014, the CIA's coercive interrogation techniques were techniques that "any fair-minded person would believe were torture, " and "we have to, as a country, take responsibility for that so that, hopefully, we don't do it again in the future."
I strongly share your goal to ensure that such a program will not be contemplated by the United States ever again and look forward to working with you to strengthen our resolve against torture. Therefore, the full report should be made available within the CIA and other components of the Executive Branch for use as broadly as appropriate to help make sure that this experience is never repeated. To help achieve that result, I hope you will encourage use of the full report in the future development of CIA training programs, as well as future guidelines and procedures for all Executive Branch employees, as you see fit.
Def. Mot. to Dismiss, Exh. 3 (December 10, 2014, Letter from Senator Dianne Feinstein to President Barack Obama) at 1.
The decision to share the Final Full Report within the Executive Branch has since drawn official Senate criticism, in large part due to a shift in Committee leadership that occurred after the 2014 elections gave the Republicans a Senate majority. Shortly after his installation as the new Chairman, Senator Richard Burr sent a letter to the President indicating that he had not been aware of the Report's transmission at the time it occurred. See Def. Mot. to Dismiss, Exh. 4 (January 14, 2015, Letter from Senator Richard Burr to President Barack Obama). He further advised that he considered the Report to be "a highly classified and committee sensitive document" and therefore requested that "all copies of the full and final report in the possession of the Executive Branch be returned immediately to the Committee." Id . The Chairman added: "If an Executive Branch agency would like to review the full and final report, please have them contact the Committee and we will attempt to arrive at a satisfactory accommodation for such a request." Id.
In response, now-SSCI Vice Chairman Feinstein wrote the President saying that she "do[es] not support" the request that all copies of the Full Report be returned to the Committee. See Def. Mot. to Dismiss, Exh. 5 (January 16, 2015, Letter from Senator Dianne Feinstein to President Barack Obama) at 1. She further reiterated the sentiment of her December 10, 2014, letter and asked that the Final Report be retained "within appropriate Executive branch systems of record, with access to appropriately cleared individuals with a need to know." Id. at 1-2. No action has yet been taken in response to Senator Burr's letter, as Defendants have agreed to retain their respective copies of the Report pending the Court's adjudication of the dispute at hand. See ECF No. 42 (Defendants' Response to Plaintiffs' Emergency Motion for an Order Protecting Jurisdiction).
4. FOIA Request and Initiation of Suit
In the midst of all this back-and-forth, the ACLU and the ACLU Foundation (jointly, "ACLU" or "Plaintiff") sent a FOIA request to the CIA, seeking "disclosure of the recently adopted [SSCI] report... relating to the CIA's post-9/11 program of rendition, detention, and interrogation." Def. Original Mot. to Dismiss, Att. 2 (Affidavit of Neal Higgins), Exh. A (February 13, 2013, FOIA Request). The CIA promptly denied the request, characterizing the Report as a "[c]ongressionally generated and controlled document" exempt from FOIA. See Higgins Aff., Exh. B (February 22, 2013, Letter from Michele Meeks, CIA Information and Privacy Coordinator). Unconvinced, the ACLU filed suit against the CIA to compel disclosure on November 26, 2013. Plaintiff also initially sought access to the CIA's official response to the SSCI Report. See Compl., ¶ 22. In light of its subsequent public release on December 9, 2014, the ACLU has since withdrawn that portion of its request. See Pl. Cross-Mot. & Opp. at 7 n.4.
By way of an additional FOIA request, amendments to its Complaint, and various status conferences, Plaintiff has since named three additional agencies as defendants - the Department of Defense, the Department of Justice, and the Department of State - and made clear that it seeks the final version of the Full SSCI Report. See id. at 7. Each of the agencies has now moved to dismiss the ACLU's claim under Federal Rule of Civil Procedure 12(b)(1) for lack of subject-matter jurisdiction. They argue that the Report remains a congressional record notwithstanding its transmittal to the Executive Branch and thus falls outside the scope of FOIA. Plaintiff opposes, maintaining that the Report should be considered an agency record.
B. The Panetta Review
The ACLU's case, however, sweeps wider still. It also seeks an entirely separate set of documents created by the CIA during the early stages of SSCI's investigation, which ...