Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

De Sousa v. Central Intelligence Agency

United States District Court, District of Columbia

March 9, 2017

SABRINA DE SOUSA, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY et al., Defendants.

          MEMORANDUM OPINION

          BERYL A. HOWELL Chief Judge

         The plaintiff, Sabrina De Sousa, brings this action against the U.S. Central Intelligence Agency, the U.S. State Department, and the U.S. Department of Defense, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, and the Privacy Act (“PA”), 5 U.S.C. § 552a, challenging various aspects of the defendants' responses to the plaintiff's six FOIA requests. Pending before the Court are the defendants' motion for summary judgment and the plaintiff's cross-motion for summary judgment. See generally Defs.' Mot. Summ. J. (“Defs.' MSJ”), ECF No. 22; Pl.'s Cross-Mot. Summ. J. (“Pl.'s Cross-MSJ”), ECF No. 25. For the reasons set out below, the defendants' motion is granted in part and denied in part, and the plaintiff's motion is denied.

         I. BACKGROUND

         The plaintiff served as a Foreign Service Officer for the U.S. State Department from 1998 to 2009. See De Sousa v. Dep't of State (De Sousa I), 840 F.Supp.2d 92, 96 (D.D.C. 2012). News reports indicate that, on February 17, 2003, while the plaintiff was stationed at the U.S. Consulate in Milan, U.S. and Italian intelligence agents kidnapped an Islamic cleric and suspected terrorist, Hassan Mustafa Osama Nasr, also known as “Abu Omar, ” in Milan and flew him to Egypt to be interrogated and tortured, an act known as an “extraordinary rendition.” Id. Although the plaintiff maintains that she was vacationing at a ski resort approximately 130 miles outside Milan when the alleged rendition occurred, Compl. ¶ 11, ECF No. 1, she was ultimately convicted in connection with the rendition in absentia, id. ¶ 37, after unsuccessfully imploring the U.S. government to assert diplomatic or consular immunity on her behalf, id. ¶¶ 23-27, 31. Thereafter, the plaintiff sued the CIA and the State Department alleging that their failure to assert immunity on her behalf violated her constitutional rights. See generally De Sousa I, 840 F.Supp.2d 92 (holding, inter alia, that the plaintiff's entitlement vel non to diplomatic or consular immunity is a non-justiciable political question). Seeking additional information as to the government's decision not to assert immunity on her behalf, the plaintiff filed six FOIA requests with the CIA, State Department, and Department of Defense. These FOIA requests, and the government's responses, are described below.[1]

         A. The Plaintiff's FOIA Requests to the CIA

         The plaintiff filed two FOIA requests with the CIA seeking a total of fourteen separate categories of records or information. First, on May 8, 2014, the plaintiff requested records discussing the CIA's consideration of reactive steps to the Italian prosecution and trial of U.S. citizens who had allegedly participated in the rendition, including the following ten categories of records: (1) “whether or not to take steps to defend or protect [the plaintiff] (including but not limited to invoking immunity) against the charges that [she] participated in the rendition/kidnapping . . . of Abu Omar;” (2) “whether or not to take steps to defend or protect any other individual (including but not limited to invoking immunity) charged with participation in the rendition;” (3) “whether or not to allow the trial of 26 U.S. citizens to proceed to convictions on charges of participating in the rendition;” and (4) “authorization for the rendition.” Defs.' Statement of Undisputed Material Facts (“Defs.' SMF”) ¶¶ 1-2, ECF No. 22-6. The request further sought records involving communications between CIA officials and (5) “Department of Justice representative(s) at the U.S. Embassy in Rome, mentioning or referring to the charges or trial of 26 U.S. citizens accused of participating in the rendition/kidnapping, ” (6) “officials at the U.S. Department of State (including . . . those at the U.S. Embassies in Cairo and Rome) mentioning or referring to the rendition, ” (7) “officials at the U.S. Department of Defense mentioning or referring to the rendition;” and (8) “members of Congress or their staff mentioning or discussing whether or not to take steps to defend or protect (including but not limited to invoking immunity) any of the 26 U.S. citizens accused of participating in the rendition.” Id. Finally, the request sought records (9) “mentioning whether or not the CIA Office of the Inspector General can or should investigate the rendition, ” as well as any (10) “[r]eports or other results from the Accountability Review Board on accountability for those responsible for the rendition.” See Id. In response to the plaintiff's first request, the CIA issued a Glomar response, stating that “the CIA can neither confirm nor deny the existence or nonexistence of records responsive to [the] request.” Id. ¶ 3.[2]

         The plaintiff's second request to the CIA, dated September 3, 2014, id. ¶ 4, sought an additional four categories of records concerning whether to seek clemency on behalf of the plaintiff and others in connection with the rendition convictions, id. ¶ 5. In particular, the request asked for records involving communications between CIA officials and (11) Avv. Fabio Cagnola, an Italian defense attorney, and (12) the office of the President of Italy that mention “clemency for the CIA officers (including [the plaintiff]) convicted in the Milan rendition case, ” as well as any other records that (13) mention clemency for the individuals convicted of participating in the rendition. Id. ¶ 5. The request also sought any records (14) mentioning the plaintiff's July 2, 2014 letter to Avv. Cagnola, Hon. John R. Phillips, Kathleen A. Doherty, and William Nardini regarding “clemency for the CIA officers (including [the plaintiff]) convicted in the Milan rendition case.” Id. The CIA acknowledged receipt of the request on February 11, 2015. Id. ¶ 6.

         B. The Plaintiff's FOIA Requests to the State Department

         The plaintiff also filed two FOIA requests with the State Department. On May 8, 2014, the plaintiff requested four categories of records, including those: (1) “[c]ommunications constituting or mentioning the Secretary of State's concurrence in 2002 or 2003 for authorization to proceed with the rendition/kidnapping of Abu Omar;” (2) “discussing whether or not to take steps to defend or protect [the plaintiff] (including but not limited to invoking immunity) against the charges that [the plaintiff] participated in the rendition/kidnapping of Abu Omar;” (3) “discussing whether or not to take steps to defend any other individual (including but not limited to invoking immunity) charged with participation in the rendition/kidnapping of Abu Omar;” and (4) “discussing or mentioning the letters [the plaintiff] sent to the Secretaries of State and the Assistant Secretary of State for Democracy, Human Rights, and Labor requesting immunity and an investigation into allegations of torture of Abu Omar.” Id. ¶ 12. The State Department acknowledged the request by letter, dated May 28, 2014. Id. ¶ 13.

         The plaintiff submitted a second request to the State Department on September 3, 2014, seeking six categories of records, including those (1) “[c]onstituting or reflecting communications between [State Department] officials and Avv. Fabio Cagnola which mention, discuss, or refer to clemency for the CIA officers (including [the plaintiff]) convicted in the Milan rendition case;” (2) “[c]onstituting or reflecting communications between CIA officials and the office of the President of Italy which mention, discuss, or refer to clemency for the CIA officers (including [the plaintiff]) convicted in the Milan rendition case;” (3) “[m]entioning, discussing, or referring to clemency for the CIA officers (including [the plaintiff]) convicted in the Milan rendition case;” (4) “[m]entioning, discussing, or referring to [the plaintiff's] July 2, 2014 letter to Avv. Fabio Cagnola, Hon. John R. Phillips, Kathleen A. Doherty, and William Nardini regarding clemency for the CIA officers (including [the plaintiff]) convicted in the Milan rendition case;” (5) “[c]onstituting or reflecting communications by or to [State Department] officials . . . requesting the assistance of Avv. Cagnola in file [sic] clemency action on behalf of all 25 of the remaining convicted CIA officers;” and (6) “[c]onstituting or reflecting communications between the U.S. Embassy and Avv. Cagnola which mention, discuss, or refer to obtaining approval to proceed on the convicted CIA officers' behalf, payment of Avv. Cagnola's fees, or which CIA officers' behalf clemency will be sought.” Id. ¶ 14. The State Department acknowledged the request by letter, dated April 13, 2015. Id. ¶ 15.

         C. The Plaintiff's FOIA Requests to the Department of Defense

         The plaintiff submitted a FOIA request to the Department of Defense, also on May 8, 2014, id. ¶ 7, seeking records “discussing whether or not to assert the Status of Forces Agreement for any individual charged with participation in the rendition/kidnapping of Abu Omar” and records “discussing pardons or potential pardons for individuals convicted of participation in the rendition/kidnapping of Abu Omar, for the period of 2009-2013, ” id. ¶ 8. The Department of Defense notified the plaintiff that it had received this request by email on May 29, 2014. Id. ¶ 9. On June 4, 2014, the plaintiff filed an identical request with the United States Air Force, a component of the Department of Defense, which acknowledged the request by letter, dated June 9, 2014. Id. ¶¶ 10-11.

         D. The Plaintiff's Instant Claims, and the Government's Document Production

         Unsatisfied by the responses to her FOIA requests, the plaintiff filed this lawsuit on November 19, 2014. Id. ¶ 16. While the CIA indicated an intent to assert a Glomar response to the plaintiff's requests, see Explanation for Parties' Failure to Comply with Standing Order and Joint Status Report at 3, ECF No. 13, the State Department advised that it planned to assert a partial Glomar response and was otherwise searching for responsive records. Id. at 2-3. The Department of Defense likewise undertook searches for responsive records. Id. at 2. The State Department ultimately released 18 documents in full and 61 documents in part, and withheld 17 documents in full. See Decl. of Eric F. Stein, Acting Co-Director of the Office of Information Programs and Services, Department of State (“First Stein Decl.”) ¶ 75, ECF No. 23-1. The Department of Defense produced 74 documents totaling 286 pages. Decl. of Mark H. Herrington, Associate Deputy General Counsel, Department of Defense (“First Herrington Decl.”) ¶¶ 4-5, ECF No. 22-3.

         II. LEGAL STANDARD

         Federal Rule of Civil Procedure 56 provides that summary judgment shall 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). “In FOIA cases, ‘summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.'” Judicial Watch, Inc.v. U.S. Secret Serv., 726 F.3d 208, 215 (D.C. Cir. 2013) (quoting Consumer Fed'n of Am. v. U.S. Dep't of Agric., 455 F.3d 283, 287 (D.C. Cir. 2006)). Indeed, the D.C. Circuit has observed that “the vast majority of FOIA cases can be resolved on summary judgment, ” Brayton v. Office of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011).

         The FOIA was enacted “to promote the ‘broad disclosure of Government records' by generally requiring federal agencies to make their records available to the public on request, ” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (citing U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8 (1988)). Reflecting the necessary balance between the public's interest in governmental transparency and “legitimate governmental and private interests that could be harmed by release of certain types of information, ” United Techs. Corp. v. U.S. Dep't of Def., 601 F.3d 557, 559 (D.C. Cir. 2010), the FOIA contains nine exemptions, set forth in 5 U.S.C. § 552(b), which “are explicitly made exclusive and must be narrowly construed, ” Milner v. U.S. Dep't of Navy, 562 U.S. 562, 565 (2011) (internal quotation marks and citations omitted); see also Murphy v. Exec. Office for U.S. Attys., 789 F.3d 204, 206 (D.C. Cir. 2015); Citizens for Responsibility & Ethics in Wash. v. U.S. Dep't of Justice (CREW), 746 F.3d 1082, 1088 (D.C. Cir. 2014); Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865, 869 (D.C. Cir. 2010). “[T]hese limited exemptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep't of Air Force v. Rose, 425 U.S. 352, 361 (1976).

         In litigation challenging the sufficiency of “the release of information under the FOIA, ‘the agency has the burden of showing that requested information comes within a FOIA exemption.'” Pub. Citizen Health Research Grp. v. Food & Drug Admin., 185 F.3d 898, 904 (D.C. Cir. 1999) (quoting Niagra Mohawk Power Corp. v. U.S. Dep't of Energy, 169 F.3d 16, 18 (D.C. Cir. 1999)); see also U.S. Dep't of Justice v. Landano, 508 U.S. 165, 171 (1993) (noting that “[t]he Government bears the burden of establishing that the exemption applies”); Fed. Open Mkt. Comm. of Fed. Reserve Sys. v. Merrill, 443 U.S. 340, 352 (1979) (holding that the agency invoking an exemption bears the burden “to establish that the requested information is exempt”); Elec. Frontier Found. v. U.S. Dep't of Justice, 739 F.3d 1, 7 (D.C. Cir. 2014). This burden does not shift even when the requester files a cross-motion for summary judgment because “the Government ‘ultimately [has] the onus of proving that the [documents] are exempt from disclosure, '” while the “burden upon the requester is merely ‘to establish the absence of material factual issues before a summary disposition of the case could permissibly occur.'” Pub. Citizen Health Research Grp. v. FDA, 185 F.3d 898, 904-05 (D.C. Cir. 1999) (quoting Nat'l Ass'n of Gov't Emps. v. Campbell, 593 F.2d 1023, 1027 (D.C. Cir. 1978)).

         An agency may carry its burden of showing an exemption was properly invoked by submitting sufficiently detailed affidavits or declarations, a Vaughn index of the withheld documents, or both, to demonstrate that the government has analyzed carefully any material withheld, to enable the court to fulfill its duty of ruling on the applicability of the exemption, and to enable the adversary system to operate by giving the requester as much information as possible, on the basis of which the requester's case may be presented to the trial court.[3] See Judicial Watch, Inc. v. U.S. Secret Serv., 726 F.3d at 215 (noting that “summary judgment may be granted on the basis of agency affidavits if they contain reasonable specificity of detail rather than merely conclusory statements, and if they are not called into question by contradictory evidence in the record or by evidence of agency bad faith.” (internal quotation marks and alteration omitted)); Oglesby v. U.S. Dep't of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996) (instructing that an agency's description “should reveal as much detail as possible as to the nature of the document, without actually disclosing information that deserves protection[, ] . . . [which] serves the purpose of providing the requestor with a realistic opportunity to challenge the agency's decision.”); CREW, 746 F.3d at 1088 (noting that an agency's burden is sustained by submitting an affidavit that “‘describe[s] the justifications for nondisclosure with reasonably specific detail, demonstrate[s] that the information withheld logically falls within the claimed exemption, and [is] not controverted by either contrary evidence in the record nor by evidence of agency bad faith'” (quoting Larson v. U.S. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009))). While “an agency's task is not herculean[ ]” it must “‘describe the justifications for nondisclosure with reasonably specific detail' and ‘demonstrate that the information withheld logically falls within the claimed exemption.'” Murphy, 789 F.3d at 209 (quoting Larson, 565 F.3d at 862). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Judicial Watch, Inc. v. U.S. Dep't of Defense, 715 F.3d 937, 941 (D.C. Cir. 2013) (quoting ACLU v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011)); Larson, 565 F.3d at 862.

         The FOIA provides federal courts with the power to “enjoin the agency from withholding agency records and to order the production of any agency records improperly withheld from the complainant, ” 5 U.S.C. § 552(a)(4)(B), and “directs district courts to determine de novo whether non-disclosure was permissible, ” Elec. Privacy Info. Ctr. v. U.S. Dep't of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015), by reviewing the Vaughn index and any supporting declarations “to verify the validity of each claimed exemption, ” Summers v. U.S. Dep't of Justice, 140 F.3d 1077, 1080 (D.C. Cir. 1998).

         Moreover, district courts also have an “affirmative duty” to consider whether the agency has produced all segregable, non-exempt information. Elliott v. U.S. Dep't of Agric., 596 F.3d 842, 851 (D.C. Cir. 2010) (referring to court's “affirmative duty to consider the segregability issue sua sponte”) (quoting Morley v. CIA, 508 F.3d 1108, 1123 (D.C. Cir. 2007)); Stolt-Nielsen Transp. Grp. Ltd. v. United States, 534 F.3d 728, 734 (D.C. Cir. 2008) (“[B]efore approving the application of a FOIA exemption, the district court must make specific findings of segregability regarding the documents to be withheld.”) (quoting Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1116 (D.C. Cir. 2007))); Trans-Pac. Policing Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1028 (D.C. Cir. 1999) (“[W]e believe that the District Court had an affirmative duty to consider the segregability issue sua sponte . . . even if the issue has not been specifically raised by the FOIA plaintiff.”); see also 5 U.S.C. § 552(b) (“Any reasonably segregable portion of a record shall be provided to any person requesting such record after deletion of the portions which are exempt under this subsection.”).

         III. DISCUSSION

         The plaintiff challenges four aspects of the defendants' production: (1) the CIA's comprehensive Glomar response, (2) the State Department's partial Glomar response, (3) the Department of Defense's decision to withhold a record titled Cole 61-62, and (4) the State Department and Department of Defense's release of all segregable non-exempt material. See generally Pl.'s Reply Supp. Pl.'s Cross-MSJ (“Pl.'s Reply”), ECF No. 29. The parties have cross-moved for summary judgment as ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.