United States District Court, District of Columbia
GRANT F. SMITH, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.
MEMORANDUM OPINION
TANYA
S. CHUTKAN UNITED STATES DISTRICT JUDGE
Plaintiff
Grant F. Smith, proceeding pro se, challenged the
Central Intelligence Agency's (the “CIA”)
refusal to confirm or deny records responsive to his request
under the Freedom of Information Act (“FOIA”). By
Order dated March 30, 2017, the court denied the CIA's
motion for summary judgment and ordered the CIA to process
the FOIA request. (ECF No. 17.) The CIA subsequently moved
for reconsideration, and by Order dated August 23, 2017, the
court denied the motion, denied the motion for summary
judgment on modified grounds, and granted the CIA leave to
supplement the record and again move for summary judgment.
(ECF No. 24.)
The CIA
has again moved, pursuant to Federal Rule of Civil Procedure
56, for summary judgment. For the reasons set forth below,
the CIA's motion will be GRANTED.
I.
BACKGROUND
Smith
is a public interest researcher and founder of the Institute
for Research: Middle Eastern Policy, Inc. (ECF No. 1
(“Compl.”) at ¶ 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. (Id., Ex. 1.) Smith
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, 2015, Smith filed an administrative appeal of
the denial. (Id., Ex. 3.) The CIA received the
appeal on May 12, 2015 and sent a letter dated May 15, 2015
stating that due to the large number of requests, it was
“unlikely” that the CIA would be able to respond
within 20 working days, but that it would make “every
reasonable effort” to respond as soon as possible.
(Id., Ex. 4.) The CIA eventually failed to respond
within 20 working days. (Id. ¶¶ 27-32.)
Then, on September 2, 2015, before the administrative appeal
process was complete, Smith filed suit in this court.
As set
forth in the court's March 30, 2017 Memorandum Opinion
(ECF No. 16 (“Mem. Op.”)), the court initially
denied the CIA's motion for summary judgment (ECF No. 12)
because the court determined that President Obama's
statement in an address at American University on August 15,
2015 was an official acknowledgment of the line item sought.
(Mem. Op. at 5-8.) In his address, President Obama stated
that, “partly due to American military and intelligence
assistance, which my administration has provided at
unprecedented levels, Israel can defend itself against any
conventional danger.” (Compl. ¶ 26.) Based on the
information available to the court at the time, President
Obama's statement implied that the United States provided
aid to Israel, which requires financial support and thus
would be reflected in an intelligence budget. (Mem. Op. at
5-6.) The court inferred that the CIA retained this budgetary
information because the court was not aware of, and the CIA
had not identified, any other agencies which provide
intelligence assistance to other countries. (Id. at
6.) The court also relied on the CIA's reference to
“the intelligence budget” to mean that there is
such a budget and that it is the CIA's. (Id.)
Because the court determined that President Obama's
statement was an official acknowledgment of the information
sought, it could not accept the CIA's Glomar
response, and thus did not assess the CIA's invocation of
Exemptions 1 and 3 in support of its Glomar
response. (Id. at 8.) Instead, the court ordered the
CIA to process the FOIA request, inform Smith of the number
of records responsive to the request, and either release the
records or identify exemptions that form the basis of
withholding. (ECF No. 17 (“March 30, 2017
Order”).)
On
April 21, 2017, the CIA moved for reconsideration of the
March 30, 2017 ruling because of “several factual
misimpressions” that resulted in the court relying on
the wrong precedent. (ECF No. 18-1 (“Def.'s Mot.
Recons.”) at 1-2.) The CIA refuted two inferences the
court drew from President Obama's statement: (1) that the
CIA provides intelligence support to Israel, and (2) that it
therefore must have some means of appropriating funds to do
so, meaning that the budget line items must exist.
(Id.) The CIA corrected these “factual
misimpressions” by pointing out that there are
seventeen intelligence agencies able to provide intelligence
assistance, and therefore it does not necessarily follow from
President Obama's statement that the CIA provides
intelligence assistance to Israel (id. at 4-6); and
that because the intelligence community does not have a
single intelligence budget, the CIA cannot be assumed to have
budget line items pertaining to support for Israel,
(id. at 6-7). In response, the court found that
while President Obama's statement is not an official
acknowledgment that the CIA is the actual intelligence agency
that provides support to Israel, it is an acknowledgment that
some intelligence agency does provide support, and therefore
would have budget line items. (ECF No. 24 (“August 23,
2017 Order”) at 7-8.) Thus, the court declined to grant
summary judgment to the CIA because it was unclear whether
the CIA either creates or obtains and retains under its
control other intelligence agencies' budget line items.
(Id.) The court invited the CIA to supplement the
record with additional information addressing the court's
concerns and move again for summary judgment. (Id.
at 8.) In its latest filings, the CIA has attempted to do so.
II.
LEGAL STANDARD
Summary
judgment is proper 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). Courts must view “the evidence in
the light most favorable to the non-movant[] and draw[] all
reasonable inferences accordingly, ” and determine
whether a “reasonable jury could reach a verdict”
in the non-movant's favor. Lopez v. Council on Am.-
Islamic Relations Action Network, Inc., 826 F.3d 492,
496 (D.C. Cir. 2016). “Where the nonmoving party is
proceeding pro se, courts in this jurisdiction will
construe the non-moving party's filings liberally.”
Cunningham v. U.S. Dep't of Justice, 40
F.Supp.3d 71, 82 (D.D.C. 2014), aff'd, No.
14-5112, 2014 WL 5838164 (D.C. Cir. Oct. 21, 2014).
“However, a pro se litigant still has the
burden of establishing more than ‘[t]he mere existence
of a scintilla of evidence' in support of his
position.” Id. (alteration in original)
(quoting Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 252 (1986). “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).
“FOIA
provides a ‘statutory right of public access to
documents and records' held by federal government
agencies.” Citizens for Resp. & Ethics in Wash.
v. U.S. Dep't of Justice, 602 F.Supp.2d 121, 123
(D.D.C. 2009) (quoting Pratt v. Webster, 673 F.2d
408, 413 (D.C. Cir. 1982)). FOIA requires that federal
agencies comply with requests to make their records available
to the public, unless such “information is exempted
under [one of nine] clearly delineated statutory
[exemptions].” Citizens for Resp., 602
F.Supp.2d at 123 (internal quotation marks omitted); see
also 5 U.S.C. §§ 552(a)-(b).
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 FOIA
cases, including those where a Glomar response is
issued, summary judgment may be based solely on information
provided in the agency's supporting declarations. See
Wolf v. CIA, 473 F.3d 370, 375 (D.C. Cir. 2007)
(“Proper invocation of, and affidavit support for,
either Exemption, standing alone, may justify the CIA's
Glomar response.”); Am. Civ. Liberties
Union (ACLU) v. U.S. Dep't of Def., 628 F.3d 612,
619 (D.C. Cir. 2011) (“An agency withholding responsive
documents from a FOIA release bears the burden of proving the
applicability of claimed exemptions. Typically it does so by
affidavit.”). “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.”
Id. “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). “To successfully challenge an agency's
showing that it complied with the FOIA, the plaintiff must
come forward with ‘specific facts' demonstrating
that there is a genuine issue with respect to whether the
agency has improperly withheld extant agency records.”
Span v. U.S. Dep't of Justice, 696 F.Supp.2d
113, 119 (D.D.C. 2010) (citing Dep't of Justice v.
Tax Analysts, 492 U.S. 136, 142 (1989)).
III.
ANALYSIS
A.
The CIA's Response to Smith's FOIA
Request
The CIA
issued a Glomar response to Smith's FOIA request
for a copy of intelligence line-item budget information
reflecting U.S. aid to Israel. (Compl., Ex 2.) In the
CIA's most recent motion for summary judgment, it
contends that it is entitled to judgment as a matter of law
because: (1) it has adduced facts demonstrating that the CIA
is not the only intelligence agency to provide intelligence
support abroad and does not control or maintain a single
intelligence budget, thereby refuting this court's
earlier finding that President Obama's statement
constitutes an official acknowledgment; and (2) the
information Smith seeks falls under Exemptions 1 and 3. (ECF
No. 26 (“Def.'s Second Mot. Summ. J.”) at 5,
12.) In light of the representations made in the supplemental
declaration, the court agrees.
1.
The CIA's Glomar response was proper.
An
agency's Glomar response is proper if either
confirming or denying the existence of responsive records
“would itself ‘cause harm cognizable under a[]
FOIA exception.'” ACLU v. CIA, 710 F.3d
422, 426 (D.C. Cir. 2013) (quoting Roth v. U.S. Dep't
of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011)). A
plaintiff may overcome an otherwise valid Glomar
response, however, by showing that the sought-after records
have been officially acknowledged in the public domain.
See ACLU, 710 F.3d at 426-27.
As
detailed in the court's earlier opinion, an official
acknowledgment inquiry in the Glomar context is not
identical to a situation where an agency does
acknowledge the existence of a record and invokes a FOIA
exemption. (Mem. Op. at 4-5.) In those situations, the
information requested must: (1) “be as specific as the
information previously released, ” (2) “match the
information previously disclosed, ” and (3)
“already have been made public through an official and
documented disclosure.” Wolf, 473 F.3d at 378
(quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.
Cir. 1990)). However, in the Glomar context, where
the official acknowledgment 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.” Wolf, 473 F.3d at 379.
Accordingly, the court must analyze only whether the prior
disclosure acknowledges the existence of the records sought,
not whether the content of the records has been disclosed.
See Marino v. Drug Enf't Admin., 685 F.3d 1076,
1081 (D.C. Cir. 2012) (“[T]he public domain exception
is triggered when ‘the prior disclosure establishes the
existence (or not) of records responsive to the FOIA
request,' regardless whether the contents of the records
have been disclosed.”) (quoting Wolf, 473 F.3d
at 379) (emphasis in original).
Here,
having received additional information, the court must
re-examine its determination that President Obama's
statement is an official acknowledgment that the CIA
possesses the line-item budgetary information of United
States aid to Israel. As the court elaborated on in its
August 23, 2017 Order, because the National Intelligence
Program (NIP) develops the budget for all intelligence
agencies, if the CIA were to retain a copy of the NIP budget,
then it would also have access to the line item that supports
the “intelligence assistance” referenced by
President Obama. (August 23, ...