United States District Court, D. Columbia.
INSTITUTE FOR POLICY STUDIES, Plaintiff: Andrea C. Ferster,
LEAD ATTORNEY, Andrea C. Ferster, Washington, DC; Brian
Gaffney, LAW OFFICES OF BRIAN GAFFNEY, APC, Pacifica, CA.
UNITED STATES CENTRAL INTELLIGENCE AGENCY, Defendant: Fred
Elmore Haynes, LEAD ATTORNEY, U.S. ATTORNEY'S OFFICE FOR
THE DISTRICT OF COLUMBIA, Washington, DC.
C. Lamberth, Judge.
Freedom of Information Act (" FOIA" ), 5 U.S.C.
§ § 552 et seq., case once again comes
before the Court on the Cross-motions for summary judgment,
and on defendant's Motion to Clarify the Court's
August 18, 2012 Memorandum Opinion and Order, and the
opposition and reply thereto. Upon consideration of these
filings, the applicable law, and the entire record in this
case, the Court will GRANT in part and DENY in part the issue
left to be decided in Plaintiff's Motion for summary
judgment , GRANT in part and DENY in part the same issue
in Defendant's Motion for summary judgment , and
GRANT defendant's Motion for Clarification .
case has been pending in this Court since 2006, and its
factual history is laid out in detail in the Court's most
recent opinion in this case. See Inst. for
Policy Studies v. CIA, 885 F.Supp.2d 120, 131-32 (D.D.C.
2012). The issue now before the Court is whether and how the
operational file exemption applies to the records sought in
this case, and whether any exception to that exemption
50 U.S.C. § 3141(f)(4)(A)--the statute governing the
treatment of the CIA's operational files under FOIA--if a
complainant alleges that the CIA has improperly withheld
requested records due to improper exemption of operational
files, the CIA must " demonstrate[e] to the court by
sworn written submission that exempted operational files
likely to contain responsive records currently perform the
functions set forth in subsection (b) of this
section." As Judge Walton has observed, in such settings
the law of the D.C. Circuit requires that the government
offer more than conclusory language, recitation of the
statutory standard, and vague and sweeping statements which
give the Court neither basis to credit the government's
assertions nor factual support for essential elements of the
operational files exemption. See Aftergood v.
Nat'l Reconnaissance Office, 441 F.Supp.2d 37, 45
(D.D.C. 2006) (citing King v. U.S. Dep't of
Justice, 830 F.2d 210, 219, 265 U.S. App.D.C. 62 (D.C.
Cir. 1987) and Senate of Puerto Rico ex rel. Judiciary
Comm. v. United States DOJ, 823 F.2d 574, 585, 262 U.S.
App.D.C. 166 (D.C. Cir. 1987)).
even exempted operational files are
subject to search and review for information concerning . . .
any special activity the existence of which is not exempt
from disclosure under the provisions of [FOIA] ... or the
specific subject matter of an investigation by the
congressional intelligence committees, the Intelligence
Oversight Board, the Department of Justice, the Office of
General Counsel of the Central Intelligence Agency, the
Office of Inspector General of the Central Intelligence
Agency, or the Office of the Director of National
Intelligence for any impropriety, or violation of law,
Executive order, or Presidential directive, in the conduct of
an intelligence activity.
50 U.S.C. § 3141(c)(2)-(3).
order for the special activity exception to apply, the
requestor must identify a " particular" CIA
activity in connection with its request. Sullivan v.
CIA, 992 F.2d 1249, 1253-54 (1st Cir. 1993). The Senate
Report offers some examples of what qualifies: Requests
relating to " the Bay of Pigs invasion or the CIA's
role in replacement of the Guatemala regime in the
1950s" are sufficiently specific, but requests seeking
to declassify " a broad category or type of covert
action operations," such as " covert efforts to
counter Soviet influence in Western Europe during the
1950s," are not. S. Rep. No. 305, at 24-25. In
Sullivan, the First Circuit considered and rejected
the argument that the CIA's decades-long efforts to
thwart Fidel Castro qualified as " special
activity," reasoning that those were less like "
the overthrow of the Guatemalan government," which
" was a discrete operation with a beginning, an end, and
a circumscribed middle," and more like the " CIA
operations against Soviet influence in Western Europe during
the 1950s." 992 F.2d at 1254.