Smith v. Central Intelligence Agency

          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, ...