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Electronic Privacy Information Center v. Office of Director of National Intelligence

United States District Court, District of Columbia

December 18, 2017

ELECTRONIC PRIVACY INFORMATION CENTER, Plaintiff,
v.
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE, Defendant.

          MEMORANDUM OPINION GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF'S CROSS-MOTION FOR SUMMARY JUDGMENT

          RUDOLPH CONTRERAS UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         The single document at issue in this Freedom of Information Act (“FOIA”) suit is of interest to a great many people, both in the United States and abroad. That is the reason that the Electronic Privacy Information Center (“EPIC”) seeks it. That is also why the Office of the Director of National Intelligence (“ODNI”) asserts that it must be withheld in full.

         The document EPIC seeks is the classified assessment of the U.S. Intelligence Community (“IC”) compiled by ODNI regarding Russia's attempts to influence the 2016 U.S. presidential election. While this document remains highly classified, ODNI has also published a declassified version of the assessment, which contains some of the classified report's conclusions regarding Russian activities and intentions during the election, without any description of the intelligence sources or methods used to reach those conclusions.

         EPIC originally sought the entire classified report, but now appears to concede that there are portions of the report that properly fall within FOIA Exemptions 1 and 3, exemptions which ODNI claims justify the withholding of the entire document. It is this blanket withholding that EPIC now challenges, and which the Court now affirms.

         For the reasons set forth below, the Court finds that ODNI sufficiently demonstrated that the classified report is subject to withholding under FOIA Exemption 1, which protects classified documents, and FOIA Exemption 3, which protects documents exempted from disclosure by statute. Because the entire report, including information about its length, falls within Exemption 3, there are no reasonably segregable portions of the report that the agency must release. The Court further finds that ODNI's release of a declassified version of the classified report does not entitle EPIC to any portion of the classified report, even a fully redacted version. Because the Court has determined that the entire document was properly withheld under these FOIA exemptions, it declines EPIC's request that it review the document in camera.

         II. FACTUAL BACKGROUND

         The subject of this FOIA request is a single document of great public interest, but also with severe national security implications if released to the public. On January 6, 2017, ODNI published an official assessment of the U.S. Intelligence Community-in this case consisting of the Central Intelligence Agency, the Federal Bureau of Investigation, and the National Security Agency-concluding that not only did “Russian efforts to influence the 2016 U.S. presidential election represent the most recent expression of Moscow's longstanding desire to undermine the US-led liberal democratic order, ” but also that “these activities demonstrated a significant escalation in directness, level of activity, and scope of effort compared to previous operations.” Pl.'s Cross-Mot. Summ. J. (“Pl.'s Mot.”), Ex. 1 at ii, ECF No. 18-3. This public report, titled Assessing Russian Activities and Intentions in Recent U.S. Elections, “[was] a declassified version of a highly classified assessment. [The] document's conclusions [were] identical to the highly classified assessment ['s], but [the] document [did] not include the full supporting information, including specific intelligence on key elements of the influence campaign.” Id. at i. The “declassified version was prepared so that the IC could share with the public all information contained in the classified report that could be safely released without jeopardizing intelligence sources, methods, and activities.” Def.'s Mot. Summ. J. (“Def's Mot.”) at 1, ECF No. 17. Both the classified and declassified versions of the report were compiled by the National Intelligence Officers within the National Intelligence Council (“NIC”), which “is a key ODNI component responsible for leading analysis across the IC to inform immediate and long-term policy deliberations.” Decl. Edward Gistaro (“Gistaro Decl.”) ¶¶ 9-12, ECF No. 17-1.

         Soon after ODNI published the declassified version of the report, EPIC submitted a FOIA request to ODNI seeking a copy of the “unredacted ODNI 2017 report ‘Assessing Russian Activities and Intentions in Recent U.S. Elections.'” Def.'s Mot., Ex. 1 at 1, ECF No. 17-1. Upon receipt of EPIC's FOIA request, “NIC subject matter experts . . . based on their experience with classification standards, their direct and comprehensive knowledge of the sensitive information contained in the classified report, and their understanding of the capabilities of foreign intelligence service operations to uncover classified information by pairing the declassified report with a partially, or even fully, redacted version of the classified report, concluded that release of a redacted version of the classified report would assist foreign intelligence operations with developing and enhancing their understanding of U.S. intelligence sources, methods, and activities.” Gistaro Decl. ¶ 26. The NIC subject matter experts “further concluded that release of a redacted report would be of particular assistance to Russian intelligence, which, armed with both the declassified report and a redacted copy of the classified report, would be able to discern the volume of intelligence the U.S. currently possesses with respect to Russian attempts to influence the 2016 election. This would reveal the maturity of the U.S.'s intelligence efforts and expose information about the IC's capabilities (including sources and methods) that could reasonably be expected to cause serious or exceptionally grave danger to U.S. national security.” Id.

         On May 2, 2017, ODNI informed EPIC that it had located the document responsive to its FOIA request, but had determined that the request must be denied in full pursuant to FOIA Exemption 1, 5 U.S.C. § 552(b)(1) (information that is “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) [is] in fact properly classified pursuant to such Executive order), and FOIA Exemption 3, 5 U.S.C. § 552(b)(3) (information that is “specifically exempted from disclosure by statute (other than section 552b of this title), if that statute (A)(i) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of matters to be withheld”). In particular, ODNI claimed that the document was properly withheld pursuant to Exemption 1 because it contained “information that is currently and properly classified pursuant to Executive Order 13526, Section 1.4 (c), (d)” and that it was properly withheld under Exemption 3 because it contained “information exempt from disclosure by . . . the National Security Act of 1947, as amended, 50 U.S.C. § 3024(i)(1), which protects information pertaining to intelligence methods and sources.” Def.'s Mot., Ex. 3 at 1, ECF No. 17-1.

         Following its final response to EPIC's FOIA request, which was delivered several months after EPIC had filed suit with this Court, ODNI moved for summary judgment on the ground that it had properly withheld the responsive record pursuant to the applicable FOIA exemptions and that it had demonstrated that it was necessary to withhold the entire responsive record in full. Def.'s Mot. at 2, 16. In support of its motion, ODNI submitted the declarations of Edward Gistaro, Deputy Director of National Intelligence for Intelligence Integration, see Gistaro Decl., and Dustin Razsi, Vice Chairman of the National Intelligence Council at ODNI, see Decl. Dustin Razsi (“Razsi Decl.”), ECF No. 22-1. EPIC cross-moved for summary judgment on the ground that ODNI has not sufficiently justified its withholding of the entire report because the classified report includes unclassified and declassified materials that have already been released to the public. Pl.'s Mot. at 12, ECF No. 18-1. The parties' cross-motions for summary judgment are now ripe for decision.

         III. LEGAL STANDARDS

         A court must grant a motion for summary judgment when there is “no genuine issue of material fact” and the “moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). In order to succeed on the motion, the moving party must demonstrate the absence of a genuine issue of material fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A genuine issue of fact is one that “might affect the outcome of the suit under the governing law.” Id. at 248. Once the moving party has demonstrated the absence of a dispute of material fact, the non-moving party may not simply rely on the allegations in its pleadings, and must establish that there remains a dispute beyond more than the “mere existence of a scintilla of evidence.” Id. at 252.

         In reviewing a motion for summary judgment under FOIA, the district court conducts a de novo review of the record, see 5 U.S.C. § 552(a)(4)(B), and the defendant agency carries the burden of demonstrating that any responsive records that were not provided were properly withheld pursuant to one of the nine express statutory exemptions. Citizens for Responsibility and Ethics in Washington v. U.S. Dep't of Justice, 746 F.3d 1082, 1088 (D.C. Cir. 2014). The agency may carry its burden by submitting affidavits that “describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep't of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)). “Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical' or ‘plausible.'” Wolf v. CIA, 473 F.3d 370, 374-75 (D.C. Cir. 2007).

         IV. ANALYSIS

         Although EPIC's original FOIA request sought a full copy of the classified report, see Def.'s Mot., Ex. 1 at 1, ECF No. 17-1, it now appears that EPIC only seeks reasonably segregable portions of the report that do not fall under either Exemption 1 or Exemption 3. See Pl.'s Mot. at 2 (EPIC “challenges the ODNI's withholding of the Complete Assessment in full based on Exemptions 1 and 3, contends that the ODNI has ‘officially acknowledged' portions of the Complete Assessment, and challenges the ODNI's failure [to] release reasonably segregable portions of the report.”). ODNI, for its part, claims that the entirety of the classified report falls under Exemptions 1 and 3, and that even if it did not, there are no reasonably segregable portions of the report that it could safely release to EPIC. Therefore, the Court must determine whether the agency has sufficiently demonstrated that the entire classified report falls within Exemptions 1 and 3, and if not, whether it has sufficiently demonstrated that there exists no segregable portion of the report that can be released without revealing classified or sensitive national security information.[1]

         The Court first finds that ODNI sufficiently justified its withholding of the document pursuant to FOIA Exemptions 1 and 3. Because the entire document is exempt, there is no non-exempt reasonably segregable portion of the report that must be released. Finally, the Court finds that even though there are portions of the classified report that have already been released to the public, those lines, when placed within the classified report itself, have not been “officially acknowledged” in full, and therefore need not be ordered released. Because ...


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