United States District Court, District of Columbia
GRANT F. SMITH, Plaintiff,
CENTRAL INTELLIGENCE AGENCY, Defendant.
S. CHUTKAN United States District Judge
Grant F. Smith, proceeding pro se, challenges the
withholding by Defendant Central Intelligence Agency
(“CIA”) of certain information in response to
Plaintiff's Freedom of Information Act
(“FOIA”) request. The CIA issued a
Glomar response and withheld the documents under
FOIA Exemptions 1 and 3, 5 U.S.C. § 552(b), and then
moved for summary judgment. For the reasons set forth below,
Defendant's motion will be DENIED.
is a public interest researcher and founder of the Institute
for Research: Middle Eastern Policy, Inc. (Compl. ¶ 4).
On March 19, 2015, he filed a FOIA request with the CIA for a
copy of its intelligence budget, specifically, line items
supporting Israel from 1990 through 2015. (Ex. 1; Compl.
¶ 1). Smith originally sought the information “for
use in vital public interest research into how nuclear
weapons related know-how, material and technology have been
unlawfully diverted into Israeli entities conducting
clandestine nuclear weapons-related research and
development.” (Compl. ¶ 4). On April 15, 2015, the
CIA issued a Glomar response that it could neither
confirm nor deny the existence or nonexistence of any
responsive documents, pursuant to FOIA Exemptions 1 and 3.
(Id. ¶ 24). On May 5, Smith filed an
administrative appeal of the denial but the CIA failed to
respond within 20 working days. (Ex. 3; Compl. ¶¶
27, 31). Smith ultimately filed a complaint in this court on
September 2, 2015. (Compl. ¶ 1).
judgment is appropriate where the record shows there is no
genuine issue of material fact and the movant is entitled to
judgment as a matter of law. See Fed. R. Civ. P.
56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Waterhouse v. District of Columbia, 298 F.3d
989, 991 (D.C. Cir. 2002). “FOIA cases typically and
appropriately are decided on motions for summary
judgment.” Georgacarakos v. FBI, 908 F.Supp.2d
176, 180 (D.D.C. 2012) (citation omitted). The district court
conducts a de novo review of the government's
decision to withhold requested documents under any of
FOIA's specific statutory exemptions. See 5
U.S.C. § 552(a)(4)(B). The burden is on the government
agency to show that nondisclosed, requested material falls
within a stated exemption. See Petroleum Info. Corp. v.
U.S. Dep't of Interior, 976 F.2d 1429, 1433 (D.C.
Cir. 1992) (citing 5 U.S.C. § 552(a)(4)(B)). In cases
concerning the applicability of exemptions and the adequacy
of an agency's search efforts, summary judgment may be
based solely on information provided in the agency's
supporting declarations. See, e.g., ACLU v. U.S.
Dep't of Def., 628 F.3d 612, 619 (D.C. Cir. 2011);
Students Against Genocide v. Dep't of State, 257
F.3d 828, 838 (D.C. Cir. 2001). In ACLU, the D.C.
If an agency's affidavit describes the justifications for
withholding the information with specific detail,
demonstrates that the information withheld logically falls
within the claimed exemption, and is not contradicted by
contrary evidence in the record or by evidence of the
agency's bad faith, then summary judgment is warranted on
the basis of the affidavit alone.
ACLU, 628 F.3d at 619. “Ultimately, an
agency's justification for invoking a FOIA exemption is
sufficient if it appears ‘logical' or
‘plausible.'” Id. (quoting
Larson v. Dep't of State, 565 F.3d 857, 862
(D.C. Cir. 2009)) (internal quotation marks omitted).
However, a motion for summary judgment should be granted in
favor of the FOIA requester where “an agency seeks to
protect material which, even on the agency's version of
the facts, falls outside the proffered exemption.”
Coldiron v. U.S. Dep't of Justice, 310 F.Supp.2d
44, 48 (D.D.C. 2004) (internal quotation marks omitted)
(quoting Petroleum Info. Corp. v. U.S. Dep't of
Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992)).
Glomar response permits an agency to “refuse
to confirm the existence of records where to answer the FOIA
inquiry would cause harm cognizable under a FOIA
exemption.” Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d
1100, 1103 (D.C. Cir. 1982)). Nevertheless, a
“plaintiff can overcome a Glomar response by
showing that the agency has already disclosed the fact of the
existence (or nonexistence) of responsive records”
within the public domain. ACLU v. CIA, 710 F.3d 422,
427 (D.C. Cir. 2013). If an agency has “officially
acknowledged the existence of the record, the agency can no
longer use a Glomar response.” Moore v.
CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011). This Circuit
has clarified that in the Glomar context, it is the
“existence vel non of any records responsive
to a FOIA request, ” rather than the content of the
records, that is the focus of the inquiry. ACLU, 710
F.3d at 427.
court's rejection of an agency's Glomar
response does not mandate subsequent disclosure of the
records themselves, but requires the agency to process the
records in the usual manner required by FOIA; the agency must
inform the requester of the number of records and either
release the records or justify its withholding pursuant to
FOIA's exemptions. See ACLU v. CIA, 109
F.Supp.3d 220, 225 (D.D.C. 2015) (after remand in which D.C.
Circuit held Glomar response inappropriate, district
court upheld CIA's release of one redacted memorandum,
withholding of eleven other memoranda, and withholding of
thousands of classified intelligence products that
constituted records responsive to ACLU's request).
order to rebut a Glomar response, the requester must
point to an official prior disclosure that “establishes
the existence (or not) of records responsive to the
FOIA request.” Wolf, 473 F.3d at 379. The law
concerning how to overcome an agency Glomar response
arose out of the “official acknowledgment”
exception to FOIA's exemptions, which required the
requester to meet three stringent criteria: (1) “the
information requested must be as specific as the information
previously released, ” (2) “the information
requested must match the information previously disclosed,
” and (3) “the information requested must already
have been made public through an official and documented
disclosure.” Id. at 378 (quoting
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.
1990)). However, the inquiry is not identical. The
Wolf court, which addressed the official
acknowledgment standard in the Glomar context for
the first time, explained that where the official
acknowledgment or prior disclosure demonstrates the existence
of the records the requester seeks, “the prior
disclosure necessarily matches both the information at
issue-the existence of records-and the specific request for
that information.” Id. at 379.
Fitzgibbon's matching and specificity criteria,
then, are not applicable in the Glomar context; in
such cases, the court must analyze only whether the prior
disclosure acknowledges the existence of the records sought.
contends a Glomar response is inappropriate here,
since two public statements concerning intelligence budgets
constitute public acknowledgment of the existence of the
records he seeks. First, he points to former Director of
Central Intelligence John Deutch's 1996 Congressional
testimony that “disclosure of the annual amount
appropriated for intelligence purposes will inform the public
and not, in itself, harm intelligence activities.”
(Compl. ¶ 5). Although Plaintiff has not provided any
citation for the quotation, the court will assume its truth
for purposes of summary judgment. Even assuming the purported
testimony exists, the court finds it does not
“match” the information Plaintiff seeks; Deutch
did not refer to Israel or confirm the existence of CIA
budget line items supporting Israel or general CIA support
for Israel. Deutch's statement, assuming he made it, does
not meet the public-acknowledgement criteria necessary to
overcome the CIA's Glomar response.
Plaintiff points to a statement by former President Barack
Obama during an address to American University in August
2015, in which he said, “the fact is, partly due to
American military and intelligence assistance, which my
administration has provided at unprecedented levels, Israel
can defend itself against any conventional danger.”
(Id. ¶ 26). The CIA contends that President
Obama's statement does not reveal whether there are
budget line items reflecting intelligence support to Israel,
or which agency provided such support. The court disagrees,
finding that the inferences available from President
Obama's statement are (1) ...