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Smith v. Central Intelligence Agency

United States District Court, District of Columbia

March 30, 2017

GRANT F. SMITH, Plaintiff,


          TANYA S. CHUTKAN United States District Judge

         Plaintiff 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.

         I. BACKGROUND

         Plaintiff 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[1] 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).


         Summary 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. Circuit wrote:

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)).

         III. ANALYSIS

         A 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.

         A 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).

         In 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.

         Plaintiff 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.

         Second, 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).[2] 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) ...

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