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James Madison Project v. U.S. Department of Justice

United States District Court, District of Columbia

January 15, 2020

THE JAMES MADISON PROJECT, et at., Plaintiffs,
v.
U.S. DEPARTMENT OF JUSTICE, et al., Defendants.

          MEMORANDUM OPINION

          Royce C. Lamberth United States District Court Judge

         Plaintiffs James Madison Project and Ken Dilanian filed two Freedom of Information Act ("FOIA") requests with defendants U.S. Department of Justice ("DOJ") and Central Intelligence Agency ("CIA") in 2015. Defendants believe that they have met their FOIA obligations and thus request that this Court grant summary judgment in their favor. Plaintiffs believe that defendants have failed to satisfy their FOIA obligations. Upon consideration of the Motion for Summary Judgment (ECF No. 46), opposition (ECF No. 52), and reply (ECF No. 58), the Court will grant summary judgment in favor of defendants.

         BACKGROUND

         In 2012, former CIA officer John Kiriakou was indicted in the Eastern District of Virginia on five criminal counts. The indictment alleged that he repeatedly disclosed classified information (including the names of covert CIA officers and their roles in classified overseas operations) to journalists and in a book that he sought to publish. The government believed that he disclosed information regarding the CIA's counterterrorism program known as the Rendition, Detention, and Interrogation Program ("RDI Program"). In exchange for all other charges being dropped, Mr. Kiriakou ultimately pled guilty to violating the Intelligence Identities Protection Act by illegally disclosing the identity of a covert officer and the officer's participation in the RDI Program. On January 25, 2013, Mr. Kiriakou was sentenced to two-and-a-half years in federal prison followed by three years of supervised release.

         On December 31, 2015, plaintiffs submitted two FOIA requests to the DOJ Criminal Division, Executive Office of United States Attorneys ("EOUSA"), Federal Bureau of Investigation ("FBI"), and CIA. The first request sought the following categories of information:

• Records memorializing the entirety of the [addressee's] investigation into Mr. Kiriakou's actions, including but not limited to his disclosures of information during his December 10, 2007 interview, as well as his later alleged disclosures of classified information to unauthorized third parties regarding the identities of certain CIA officers and alleged false statements during the pre-publication review process;
• Any "damage" or "harm" assessments made regarding the impact that Mr. Kiriakou's allegedly unauthorized disclosures of allegedly classified information has had upon the national security of the United States;
• Any records memorializing the extent to which, if at all, Mr. Kiriakou lawfully raised concerns within the CIA and/or to Congress prior to December 10, 2007, regarding the CIA's past use of waterboarding;
• Any documentation memorializing the extent to which Mr. Kiriakou was deemed by [the addressee] to qualify as a "whistleblower" under then-existing laws, rules and regulations with respect to any lawful disclosures of classified information encompassed by line item (3);
• Any documentation memorializing legal analyses of the viability of [taking or recommending that DOJ take] legal action against Mr. Kiriakou as a result of his allegedly unauthorized disclosures of allegedly classified information and alleged false statements, including civil and/or criminal litigation; and
• Any documentation memorializing legal analyses of the viability of [taking or recommending that DOJ take] legal action against Mr. Kiriakou for any lawful disclosures of classified information encompassed within line item (3).

ECF No. 5-3. The second request sought records "memorializing 'crime reports'" filed or received by the recipient agency, seeking "potential criminal prosecution" of Mr. Kiriakou. ECF No. 5-4.

         In response to these requests, the agencies in question searched their records to find the Kiriakou investigative files in their respective systems. The government released 12 records in full or in part as well as an additional 133 pages. All other records were withheld in full, including 205 records located in CIA files, the entire FBT investigative file (except for the publicly filed complaint from the criminal case), and DOJ records of grand jury proceedings. The declarations that the government submitted articulate the bases for the agencies' decisions to withhold certain information that they believe is exempt from disclosure under FOIA Exemptions 1, 3, 5, 6, and 7(C)-(E). The government believes it fully complied with its FOIA obligations and is entitled to summary judgment. Plaintiffs concede that the agencies' searches were adequate and that Exemptions 7(D) and 7(E) were properly invoked. Plaintiffs, however, do challenge the agencies' use of Exemptions 1, 3, and 5 as grounds for withholding certain documents as well as the FBI's use of Exemptions 6 and 7(C) as grounds for categorically withholding the entire investigative file.

         LEGAL STANDARD

         FOIA requires disclosure of ail requested government records unless the information falls within one of FOIA's nine exemptions. 5 U.S.C. § 552; Milner v. Dep `t of the Navy,562 U.S. 562, 565 (2011). FOIA cases are typically resolved at the summary judgment stage, with the government bearing the burden to prove that its search for the requested information was adequate and that any information it is choosing to withhold falls within an enumerated exemption. 5 U.S.C. § 552(a)(4)(B); King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987). Summary judgment may be granted on the basis of government declarations, provided that those declarations are sufficiently detailed and are not undermined by contrary evidence or evidence of bad faith. See Military Audit Project v. Casey,656 F.2d 724, 738 (D.C. Cir. 1981). In the national security context, courts tend to afford the ...


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