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Klayman v. Central Intelligence Agency

United States District Court, District of Columbia

March 22, 2016

LARRY KLAYMAN, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

MEMORANDUM OPINION AND ORDER

RANDOLPH D. MOSS United States District Judge

This case arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552. Plaintiff Larry Klayman challenges the Central Intelligence Agency’s (“CIA” or “Agency”) Glomar response to his request for records relating, among other things, to any communication between the CIA and the District Attorney’s Office in Douglas County, Colorado, concerning Raymond Allen Davis, who Plaintiff alleges is or was an agent of the CIA.[1] Plaintiff asserts that the records he sought might expose CIA interference in a civil case brought by his client, Jeffrey Maes, against Davis for an assault that occurred in Douglas County in 2011. Dkt. 20 at 7-8. In its motion for summary judgment, the CIA contends that its Glomar response was proper under FOIA Exemptions 1 and 3 because “the mere confirmation or denial of the existence of responsive records would reveal a classified fact-namely, whether [the] CIA has a covert relationship with Mr. Davis.” Dkt. 16-1 at 6 (Lutz Decl. ¶ 10); see also Dkt. 16 at 15-21. Plaintiff asserts that the Glomar response was improper because (1) the subject matter of the records sought is incapable of being classified; and (2) he seeks information that he claims was previously disclosed to third parties. Dkt. 20 at 11-20. The Court holds that the CIA’s Glomar response was proper and, accordingly, GRANTS Defendant’s motion for summary judgment. Dkt. 16.

I. BACKGROUND

In February 2011, the Associated Press (“AP”) reported on the fatal shooting of two men in Pakistan by Raymond Allen Davis and Davis’s subsequent detention by Pakistani authorities. See Adam Goldman & Kimberly Dozier, Arrested U.S. Official Raymond Allen Davis Is Actually CIA Contractor, Associated Press, Feb. 21, 2011; Dkt. 20-4 (Pl.’s Opp., Ex. 4). According to the AP story, anonymous former and current U.S. officials stated that Davis was a CIA contractor. See id. The article further stated, however, that the State Department identified Davis as a diplomat who worked at the U.S. Embassy in Islamabad and who was thus entitled to diplomatic immunity for the shooting. Id.

In March 2013, Davis pleaded guilty to third-degree assault in Douglas County, Colorado. Dkt. 20-7 at 2 (Pl.’s Opp., Ex. 7). According to the complaint in a subsequent civil lawsuit in which Plaintiff represented Jeffrey Maes, Davis severely assaulted Maes in the parking lot of a Colorado bagel shop after Maes pulled into a parking spot that Davis wanted. See Dkt. 20-5 at 3-4, 6 (Pl.’s Opp., Ex. 5). When Plaintiff perceived that “strange things . . . started to occur in the civil case, ” he submitted a FOIA request to the CIA, which is the subject of the instant litigation. Dkt. 20 at 7-8. By letter dated July 31, 2013, Plaintiff sought all records that referred or related to any of the following: communications between the CIA and the Douglas County District Attorney (“D.A.”) about Davis or Maes or litigation involving either man; information made available to the D.A. by the CIA; information regarding “government agencies deciding to investigate Mr. Davis;” and any communications between the CIA and the civil court or judge in Maes v. Davis, the state civil suit.[2] Dkt. 9 at 6-7 (Amend. Compl., Ex. 1). The letter alleged:

On at least one occasion, the Douglas County, Colorado District Attorney’s Office (“D.A.’s Office”) contacted and communicated with the Central Intelligence Office (“CIA”), seeking information regarding Raymond Allen Davis[, ] a former and/or current CIA agent who was recently convicted of assaulting an individual, Jeffrey Maes.

Id. at 6.

On December 23, 2013, the CIA responded to Plaintiff’s request, stating that it could “neither confirm nor deny the existence or nonexistence of records responsive to [the] request.” Id. at 10 (Amend. Compl., Ex. 2). The Agency further explained that

The fact of the existence or nonexistence of [the] requested records is currently and properly classified and is intelligence sources and methods, information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended, and section 102A(i)(1) of the National Security Act of 1947, as amended.

Id. In particular, the Agency relied on FOIA Exemptions 1 and 3, see id., which exempt from disclosure, respectively, matters that are properly classified pursuant to Executive Order, see 5 U.S.C. § 552(b)(1), and matters that are specifically exempted from disclosure by statute, see id. § 552(b)(3).

Plaintiff timely filed an administrative appeal of the Agency’s Glomar response. Dkt. 9 at 13 (Amend. Compl., Ex. 3). In a letter dated February 6, 2014, he argued that “[t]he CIA effectively claimed a national security exemption for an altercation at an Einstein Bros. bagel store, ” and that “there is no plausible way in which this altercation is a matter of national security.” Id. On April 25, 2014, the CIA denied the appeal, reasserting its Glomar response. Dkt. 16-1 at 30 (Def.’s Mot. Summ. J., Ex. D).

Freedom Watch, Inc.-an organization founded by Klayman-initiated this action on March 21, 2014, Dkt. 1, and the CIA moved to dismiss on the ground that the FOIA request did not mention Freedom Watch and thus it lacked standing to challenge the Agency’s response. Dkt. 6. With the CIA’s consent, Plaintiff then moved for leave to amend the complaint to substitute himself, Larry Klayman, for Freedom Watch. Dkt. 8. The Court granted the motion. Mar. 27, 2015 Minute Order. After Plaintiff filed the amended complaint, the CIA moved for summary judgment on June 3, 2015, Dkt. 16, and submitted the declaration of its Information Review Officer, Martha M. Lutz, in support of the motion. Dkt. 16-1 at 1 (Lutz Decl. ¶ 1). Plaintiff filed an opposition on August 13, 2015, Dkt. 20, and the CIA filed a reply later that month, Dkt. 22.

II. ANALYSIS

“The FOIA mandates broad disclosure of government records to the public, subject to nine enumerated exemptions. Given the FOIA’s broad disclosure policy, the United States Supreme Court has consistently stated that FOIA exemptions are to be narrowly construed.” Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (internal citations and quotation marks omitted). Under the D.C. Circuit’s decision in Phillippi v. CIA, 546 F.2d 1009, however, “an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a[] FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). “Such a response-commonly known as a Glomar response-is proper if the existence vel non of an agency record is itself exempt from disclosure.” Moore, 666 F.3d at 1333. “If, however, the ...


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