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Judicial Watch, Inc. v. Central Intelligence Agency

United States District Court, District of Columbia

April 19, 2018




         On May 1, 2011, President Barack Obama announced that American forces had killed Osama bin Laden, the leader of the notorious al-Qaeda terrorist network, during an operation launched against bin Laden's residential compound in Abbottabad, Pakistan.[1] Over the following days and weeks, the United States government reviewed the digital and hardcopy materials that had been retrieved from the compound, and approximately two weeks after the raid, the press reported that an extensive collection of pornography was among the seized materials.[2] The instant case concerns a request that Plaintiff Judicial Watch-“a not-for-profit, educational organization incorporated under the laws of the District of Columbia” (Compl., ECF No. 1, ¶ 3)-submitted to the Central Intelligence Agency (“CIA” or “the agency”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552 et seq., seeking disclosure of those pornographic materials (see Compl. ¶ 5).

         In response to Judicial Watch's FOIA request, the CIA informed Judicial Watch that no responsive documents had been located in the agency's non-exempt records repositories, and that, to the extent that any responsive records exist, such records likely would be contained in the agency's “operational files, ” which are exempted from the FOIA's search, review, publication, and disclosure requirements under the CIA Information Act, 50 U.S.C. § 3141 (formerly codified at 50 U.S.C. § 431). (See Def.'s Statement of Material Facts (“Def.'s Statement”), ECF No. 9, ¶¶ 3, 8-11.) Judicial Watch has pursued the instant action based on its contention that the CIA has misclassified the requested materials as exempted “operational files, ” and thus, has improperly withheld them. (See Pl.'s Cross-Mot. for Summ. J. (“Pl.'s Cross-Mot.”), ECF No. 11, at 2 (“The only issue before the Court is whether Defendant is properly withholding pornographic material collected during a U.S. military operation or an index of that material pursuant to the ‘operational files exemption.'”).)[3] Judicial Watch also argues that, even if the operational files exemption applies, the records fit into the “special activity” exception to the exemption, such that the records are not protected and this Court must order them produced. (See id. at 7-10.)

         Before this Court at present are the parties' cross-motions for summary judgment. (See Def.'s Mot. for Summ. J. (“Def.'s Mot.”), ECF No. 9; Pl.'s Cross-Mot.) On March 31, 2018, this Court issued an Order that GRANTED the CIA's motion for summary judgment and DENIED Judicial Watch's cross-motion for summary judgment. (See Order, ECF No. 22.) This Memorandum Opinion explains the reasons for that Order. In short, the Court has concluded that the CIA adequately “demonstrat[ed] . . . by sworn written submission that” the files at issue in this case have been properly designated as “exempted operational files[, ]” 50 U.S.C. § 3141(f)(4)(A), and that even if the bin Laden raid qualifies as a “special activity” for the purpose of the CIA Information Act, id. § 3141(c)(2), the special activity exception to the operational files exemption is inapposite, because the requested pornographic materials do not constitute “information concerning” that special activity, id. § 3141(c), as the special activity exception requires.

         I. BACKGROUND

         A. The Operational Files Exemption To The CIA's FOIA Responsibilities

         First enacted in 1966, “[the] FOIA is often explained as a means for citizens to know what their Government is up to.” Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 171 (2004) (internal quotation marks and citation omitted). Congress drastically altered the manner in which the FOIA applies to the CIA in 1984, when it enacted the CIA Information Act, 50 U.S.C. § 3141, which authorizes “[t]he Director of the [CIA], with the coordination of the Director of National Intelligence, [to] exempt operational files of the [CIA] from the provisions of [the FOIA] which require publication or disclosure, or search or review in connection therewith.” Id. § 3141(a). The exemptible “operational files” are specifically defined categories of sensitive information within the possession of certain sub-agencies of the CIA; namely, the National Clandestine Service, the Directorate for Science and Technology, and the Office of Personnel Security. See Id. § 3141(b); see also Morley v. CIA, 508 F.3d 1108, 1116 (D.C. Cir. 2007) (“Operational files are exempt from FOIA disclosure under the CIA Act, and generally include records which document the conduct of foreign intelligence or counterintelligence operations[.]” (internal quotation marks and citation omitted)); Sullivan v. CIA, 992 F.2d 1249, 1251 (1st Cir. 1993) (“Operational files [are] files that memorialize the conduct and means of the government's foreign intelligence and counterintelligence efforts[.]”). According to the CIA, the operational files at issue here are “files of the National Clandestine Service which document the conduct of foreign intelligence or counterintelligence operations or intelligence or security liaison arrangements or information exchanges with foreign governments or their intelligence or security services[.]” 50 U.S.C. § 3141(b)(1).[4]

         Prior to the passage of the CIA Information Act, the FOIA's search, review, publication, and disclosure requirements applied to the CIA in the same way as other federal agencies. But the “time-consuming process of reviewing sensitive CIA operational records” had “create[d] a bottleneck” and “caus[ed] a two-to-three year delay in CIA responses to many FOIA requests.” H.R. Rep. No. 98-726, pt. 1, at 5 (1984) (hereinafter “H.R. Rep.”). As a result, Congress sought to tailor the application of the FOIA to the CIA in a way that substantially reduced the “expenditure of time and money on fruitless search and review of sensitive operational records [which] contribute[d] nothing to the FOIA goal of releasing non-exempt information to the public[.]” Id.; see also Id. at 4 (recognizing that the purpose of the exemption was “to relieve the [CIA] from an unproductive [FOIA] requirement to search and review certain CIA operational files consisting of research and . . . records which, after line-by-line security review, almost invariably prove not to be releasable under the FOIA”); S. Rep. No. 98-305, at 1 (1983) (hereinafter “S. Rep.”) (“The purpose of [the Act] is to relieve the [CIA] from undue burdens of searching and reviewing certain operational files for information in response to [FOIA] requests and thereby enable the Agency to respond to other requests under [FOIA] in a more timely and efficient manner.”).

         Consistent with this goal, the CIA Information Act makes clear that the agency need not even search its exempted operational files for requested information. See 50 U.S.C. § 3141(a). This sets the operational files exemption apart from the other FOIA exemptions, see, e.g., 5 U.S.C. § 552(b)(1)-(9), which generally require agencies to, first, search their records in order to locate responsive documents, then make a determination as to whether an exemption applies, and ultimately produce “[a]ny reasonably segregable portion of a [requested] record . . . after deletion of the portions which are exempt[, ]” id. § 552(b). And not only does the operational files exemption “eliminat[e] the waste of CIA human and fiscal resources” required to search for and examine sensitive materials, it also “reduc[es] the possibility of accidental administrative disclosure of sensitive CIA operational secrets[, ]” and “provid[es] additional assurance to CIA intelligence sources that public access to government files under [the FOIA] poses no risk to the confidentiality of their relationship with the United States government.” H.R. Rep. at 5-6.

         Notably, although Congress has exempted all of the CIA's operational files from the requirements of the FOIA on a categorical basis, it also “recognized that, within the spirit of what Congress intended [the] FOIA to do for the American people, the Agency does possess information which the public may legitimately inquire about.” S. Rep. at 12. To this end, three categories of information that involve a particularly heightened public interest are expressly carved out as exceptions to the operational files exemption. See H.R. Rep. at 23 (explaining Congress's belief that certain types of information “deserve special treatment because of the important interests they involve”); see also Sullivan, 992 F.2d at 1251-52 (noting that “Congress carefully carved out [these] three areas” in recognition of the potentially “highly informative” nature of certain operational files). Section 3141(c) of Title 50, which is entitled “Search and review for information[, ]” states:

         Notwithstanding subsection (a) of this section, exempted operational files shall continue to be subject to search and review for information concerning-

(1) United States citizens or aliens lawfully admitted for permanent residence who have requested information on themselves pursuant to the provisions of section 552 of Title 5 (Freedom of Information Act) or section 552a of Title 5 (Privacy Act of 1974);
(2) any special activity the existence of which is not exempt from disclosure under the provisions of section 552 of Title 5 (Freedom of Information Act); or
(3) the specific subject matter of an investigation by [specified legislative or executive agency bodies] for any impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity.

50 U.S.C. § 3141(c)(1)-(3). Procedurally, requests for these three categories of information are “processed in accordance with [the FOIA] in the same manner as if [the operational files exemption] were never enacted.” H.R. Rep. at 23.

         B. Underlying Facts

         The following facts are not in dispute. On June 15, 2015, Judicial Watch submitted the FOIA request that is the subject of this case to the CIA. (See Def.'s Statement ¶ 1.) The FOIA request specifically sought:

(1) All pornographic material collected during and/or after the U.S. military operation in Abbottabad, Pakistan on or about May 1, 2011[, ...

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