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.
case comes before the Court on defendant's Motion 
for Reconsideration of the Court's August 19, 2015 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 Defendant's Motion 
for Reconsideration for the reasons provided below.
Court's August 19, 2015 Order relied on the Court's
conclusion that defendant had not properly invoked the "
operational files exemption," and that even if it had,
the " special activity exception" to the Freedom of
Information Act (" FOIA" ), 5 U.S.C. § §
552 et seq., applied. Both of these conclusions were
The Special Activities Exception
the special activities exception, the Court had consulted
Sullivan v. CIA, 992 F.2d 1249 (1st Cir. 1993), and
concluded both (1) that plaintiff had identified a
sufficiently specific CIA activity in connection with its
request, namely, an alleged CIA-linked effort to catch Pablo
Escobar, and (2) that the government had declassified the
requested material when it disclosed in its Vaughn Indices
that the material contained discussion of " special
activities." The Court now realizes that it made an
impermissible inference in its August 19, 2015 Opinion.
Specifically, the Court improperly reasoned that the
concession that there were special activities, when taken in
conjunction with the unredacted text of the Los Pepes Panel
documents demonstrating CIA involvement, meant that the CIA
had effectively disclosed the existence of the specific
special activities plaintiff had alleged.
government correctly notes, however, this conclusion was
unfounded. Because the relevant Vaughn Indices say that
mention of special activities has been redacted but do not
describe those activities, it is possible that there are
special activities discussed in the redacted portions of
those documents that do not relate to Pablo Escobar at all.
The Vaughn Indices' disclosure of special activities,
whether or not those activities relate to Pablo Escobar, at
most declassifies the mere existence of discussion of some
sort of special activity in the Los Pepes Panel documents.
And where nothing more has been declassified than the mere
existence of some sort of special activity, the Court's
rationale--that " [special] activities (1) did exist,
(2) were CIA-linked, and (3) have been declassified"
--does not apply. The Sullivan court recognized as
much when it noted that " declassification occurs only
when 'an authorized Executive Branch official has
officially and publicly acknowledged the existence . . . of a
specific special activity.'" Sullivan, 992
F.2d at 1254 (quoting S. Rep. No. 98-305, at 24 (1983)).
proceed otherwise would, in addition to violating the law,
allow FOIA plaintiffs to bootstrap themselves into the
exception using the very transparency they crave. This is
precisely what government officials dread: Each new speck of
disclosure making it easier for plaintiffs to argue that the
government has already disclosed so much that it has
effectively declassified the matter. This might sound like a
dream to some FOIA plaintiffs, but in practice it would be a
nightmare, discouraging disclosure for fear that every
trickle would become a flood. To illustrate the potential
problem, one need look no further than this case.
Plaintiff's argument takes the government's decision
to explain in the Vaughn Indices its redaction of material
from the Los Peopes Panel Reports, adds to that the
government's decision to unredact portions of those
reports, and infers that a special activity targeting Pablo
Escobar has been disclosed and thus declassified. But if such
an argument prevails in court, the government will be far
more tempted to simply redact even more material, or provide
even less detail in future Vaughn Indices. And who could
blame it? Plaintiff's argument would, if accepted, punish
the government for doing precisely what FOIA
requires--providing what disclosure it safely can, and where
it cannot safely disclose, explaining why--by creating a
constant risk of inadvertent declassification. The caselaw
shows that FOIA does not command such a result.
The Operational File Exemption
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."
50 U.S.C. § 3141(f)(4)(A). The Court previously rejected
the government's attempt to invoke the exemption because
the declarations it offered in support thereof were
conclusory, and gave the Court no independent way to evaluate
the government's claim. See August 19, 2015 Mem.
Op. 3-4. To address the Court's concerns on this and
other points, the government has submitted further briefing
as well as a declaration by a more senior CIA official.
See Def.'s Mot. for Reconsideration Ex. A.
declaration does not bolster the government's invocation
of the operational files exemption. As the government points
out in its Motion to reconsider, however, the nature of
plaintiff's request--for files relating to supposed
covert action operations to apprehend Pablo Escobar--would
necessarily " document the conduct of foreign
intelligence or counterintelligence operations." 50
U.S.C. § 3141(b)(1). In short, by providing the
specificity needed to claim the " special
activities" exception, plaintiff has enabled the
government to logically demonstrate that the exempted
operational files likely to contain responsive records in
fact perform the statutorily protected function described in
(b)(1). Compare Plaintiff's Opp. To Def.'s
Supp. Summ. J. 20 (alleging that the government took part in
a " Colombian Task Force,  designed to assist in the
apprehension of Escobar" ), with H.R. Rep. No.
98-726(I), at 21 (1984) (" foreign intelligence
operations consist of . . . special activities (also called
covert actions) conducted in support of ...