United States District Court, District of Columbia
A. HOWELL Chief Judge
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.
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.
The Plaintiff's FOIA Requests to the CIA
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.
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.
The Plaintiff's FOIA Requests to the State
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.
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.
The Plaintiff's FOIA Requests to the Department of
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.
The Plaintiff's Instant Claims, and the Government's
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.
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).
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).
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.
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. 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
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).
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.”).
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 ...