Lynn v. National Archives and Record Administration ( 2019 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
KATALIN KADAR LYNN,
Plaintiff
v.
Civil Action No. 18-587 (CKK)
NATIONAL ARCHIVES AND RECORDS
ADMINISTRATION,
Defendant
Memorandum Opinion
(February 7, 2019)
This lawsuit arises from a Freedom of Information Act (“FOIA”) request that Plaintiff
Katalin Lynn made to Defendant National Archives and Records Administration (“NARA”).
Plaintiff requested ten classified documents, totaling 733 pages, relating to the so-called
Grombach Organization, a secret American intelligence operation which functioned between
1942 and 1955. Plaintiff requested these documents for a biography that she is writing on Tibor
Eckhardt, a Hungarian diplomat who provided the United States with intelligence in coordination
with Army Captain John Grombach, leader of the Grombach Organization.
In response to Plaintiff’s FOIA request, Defendant located the ten requested documents.
As the documents were designated restricted status, Defendant sought direction from the Central
Intelligence Agency (“CIA”) as to whether or not access could be provided to the documents.
The CIA informed Defendant that access to the ten documents must be denied in their entirety on
the basis of FOIA Exemptions 1 and 3 as the records concern intelligence activities, sources, and
methods the disclosure of which would risk damaging national security. Defendant in turn
withheld in full the ten documents from Plaintiff.
Subsequently, Plaintiff filed this suit claiming that Defendant failed to establish that the
documents are being rightfully withheld in full under FOIA Exemptions 1 and 3. Defendant has
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filed for summary judgment contending that FOIA Exemptions 1 and 3 prevent disclosure of the
requested documents.
Upon consideration of the pleadings,1 the relevant legal authorities, and the record as it
currently stands, the Court GRANTS Defendant’s motion for summary judgment. The Court
concludes that the documents are exempt from FOIA based on Exemptions 1 and 3.
I. BACKGROUND
In her FOIA request, Plaintiff seeks ten classified documents found in the “Central
Intelligence Agency: Group 263: Records of the Grombach Organization” for use in connection
with a biography on Tibor Eckhardt. Def.’s Statement of Material Facts, ECF No. 11, ¶ 1. The
record group in which the ten requested documents are located consists of records accessioned to
Defendant from the CIA. Id. at ¶ 3. Due to their classification status, the requested documents are
designated as restricted access and are not available to the public. Id.
Defendant consulted with the CIA, the agency with declassification authority, to
determine whether or not the documents could be declassified and access could be provided to
Plaintiff. Id. at ¶ 4. The CIA informed Defendant that the release of the ten documents should be
denied in their entirety based on FOIA Exemptions 1 and 3. Id. at ¶ 6. Defendant, in turn,
informed Plaintiff that the documents relating to Plaintiff’s FOIA request would be withheld in
their entirety pursuant to FOIA Exemptions 1 and 3. Id. at ¶ 7.
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The Court’s consideration has focused on the following documents:
• Def.’s Mot. for Summary Judgment, ECF No. [11] (“Def.’s Mot.”);
• Pl.’s Mem. Of Points and Authorities in Opp’n to Def.’s Mot. for Summary Judgment,
ECF No. [12] (“Pl.’s Opp’n”);
• Reply Mem. In Support of Def.’s Mot. for Summary Judgment, ECF No. [14] (“Def.’s
Reply”);
In an exercise of its discretion, the Court finds that holding oral argument in this action would
not be of assistance in rendering a decision. See LCvR 7(f).
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After being informed that her requested documents would not be disclosed, Plaintiff
appealed the decision to withhold the ten documents in their entirety. Id. at ¶ 10. Following
receipt of the appeal, Defendant re-consulted with the CIA regarding the exemptions to FOIA.
But, prior to Defendant’s response to Plaintiff’s appeal, Plaintiff filed this lawsuit asking the
Court to review the withholding and to compel Defendant to release at least some of the ten
requested documents. Declaration of David J. Mengel, ECF No. 11-1, ¶¶ 18-19. Subsequently,
Defendant moved for summary judgment.
II. LEGAL STANDARD
Congress enacted FOIA to “pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Dep't of the Air Force v. Rose, 425 U.S. 352, 361 (1976)
(internal quotation marks omitted). Congress remained sensitive to the need to achieve balance
between these objectives and the potential that “legitimate governmental and private interests
could be harmed by release of certain types of information.” Fed. Bureau of Investigation v.
Abramson, 456 U.S. 615, 621 (1982). To that end, FOIA “requires federal agencies to make
Government records available to the public, subject to nine exemptions.” Milner v. Dep't of the
Navy, 562 U.S. 562, 562 (2011). Ultimately, “disclosure, not secrecy, is the dominant objective
of the Act.” Rose, 425 U.S. at 361. For this reason, the “exemptions are explicitly made
exclusive, and must be narrowly construed.” Milner, 562 U.S. at 565 (internal quotation marks
and citations omitted).
When presented with a motion for summary judgment in this context, the district court
must conduct a “de novo” review of the record, which requires the court to “ascertain whether
the agency has sustained its burden of demonstrating the documents requested are ... exempt
from disclosure under the FOIA.” Multi Ag Media LLC v. Dep't of Agriculture, 515 F.3d 1224,
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1227 (D.C. Cir. 2008) (internal quotation marks omitted). The burden is on the agency to justify
its response to the plaintiff's request. 5 U.S.C. § 552(a)(4)(B). “An agency may sustain its burden
by means of affidavits, but only if they contain reasonable specificity of detail rather than merely
conclusory statements, and if they are not called into question by contradictory evidence in the
record or by evidence of agency bad faith.” Multi Ag Media, 515 F.3d at 1227 (internal quotation
marks omitted). “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.” Am. Civil Liberties Union v. U.S. Dep't of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011).
“Uncontradicted, plausible affidavits showing reasonable specificity and a logical relation to the
exemption are likely to prevail.” Ancient Coin Collectors Guild v. U.S. Dep't of State, 641 F.3d
504, 509 (D.C. Cir. 2011). Summary judgment is proper when the pleadings, the discovery
materials on file, and any affidavits or declarations “show[ ] that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
56(a).
III. DISCUSSION
Plaintiff does not challenge the adequacy of Defendant’s search for responsive records to
Plaintiff’s FOIA request. As such, the sole issue before the Court is whether or not the ten
undisclosed documents regarding the Grombach Organization fall under FOIA Exemptions 1 and
3. Considering the arguments of the parties, the Court concludes that the documents fall under
FOIA Exemptions 1 and 3 and were rightfully withheld.
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Exemption 1 provides that agencies may withhold records that are “(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) are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). The parties agree that the relevant Executive Order for
the purposes of Defendant’s Exemption 1 withholding is Executive Order 13,526. Pl.’s Opp’n,
ECF No. 12, 6; Def.’s Mot., ECF No. 11, 14. Under Executive Order 13,526, information is
considered for classification if it falls within one or more of eight enumerated categories. As is
relevant here, information can be considered for classification if its “disclosure could reasonably
be expected to cause identifiable or describable damage to the national security” and it pertains
to “intelligence activities (including covert action), [or] intelligence sources or methods.” 75 FR
707, 1.4(c).
To support its withholding, Defendant submitted the Declaration of Antoinette B. Shiner,
the Information Review Officer for the CIA. See King v. U.S. Dep’t of Justice, 830 F.2d 210, 218
(D.C. Cir. 1987) (explaining that “[t]he significant of agency affidavits in a FOIA case cannot be
underestimated”). In her Declaration, Ms. Shiner explained that the documents in their entirety
should be exempt under this section of the Executive Order because “[n]ine of the ten records
referred by NARA contain detailed information about human sources, which could clearly and
demonstrably reveal their identities; and all of the documents contain information that could
reveal an intelligence method in active use.” Declaration of Antoinette B. Shiner, ECF No. 11-3,
¶ 11. According to Ms. Shiner, the release of the documents concerning human sources risks
damage to national security because the documents “contain lists of intelligence sources, which
include sufficient identifying information to compromise the sources and their sub-sources,
including nationalities, professions, reporting specialties, locations, and activities they engaged
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in on behalf of the CIA.” Id. at ¶ 12. Not only could the release of this information risk “[t]he
safety and welfare of the [named] source[s],” but disclosure could also “hamper the cooperation
of other sources, which can have a serious effect on the CIA’s ability to continue to recruit and
run sources.” Id. at ¶¶ 12-13. Ms. Shiner further explained that the release of information about
intelligence methods risks damage to national security because the documents “contain
information about intelligence methods currently used to recruit, vet, handle, train, and assess
intelligence sources; as well as detailed information about a cover mechanism currently used by
the CIA to protect the identities of covert officers.” Id. at ¶ 14. The disclosure of this information
“would likely impair the CIA’s ability to continue to collect intelligence and conduct
operations.” Id. Disclosure could also allow foreign adversaries to learn how the CIA operates
and “take measures to hide their activities from the CIA.” Id. Accordingly, these records
concerning intelligence sources and methods are of a nature to qualify for protection under FOIA
Exemption 1 through Executive Order 13,526.
However, under the applicable Executive Order, all records are automatically declassified
after 50 years, and the records at issue in this case are all more than 50 years old. 75 FR 707,
3.3(h). Despite the 50-year declassification requirement, the CIA has determined that these
records should remain classified based on two exceptions to the 50-year declassification
requirement, both relating to national security.
First, documents are exempted from the 50-year declassification requirement if the
records would “clearly and demonstrably” reveal the identify of a confidential human source or
intelligence source. 75 FR 707, 3.3(h)(1). Based on Ms. Shiner’s Declaration, at least some of
the documents would fall under this exception to the 50-year declassification requirement as at
least nine of the requested documents contain detailed and identifying information about human
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sources. See Declaration of Antoinette B. Shiner, ECF No. 11-3, ¶ 11 (“[n]ine of the ten records
referred by NARA contain detailed information about human sources, which could clearly and
demonstrably reveal their identities”).
Second, under Section 3.3(h)(2) of the Executive Order, “in extraordinary cases” agency
heads may “propose to exempt additional specific information from declassification at 50 years.”
75 FR 707, 3.3(h)(2). The CIA has exempted specific information from the 50-year
declassification requirement through its 2012 Declassification Guide which was approved by the
Interagency Security Classification Appeals Plan as required. Id. at 3.3(j) (requiring approval
before agency heads exempt specific information from the 50-year declassification requirement).
The CIA Guide “exempts select sensitive information that could reveal, among other things, an
intelligence method in active use, including the methods used for intelligence source recruitment,
vetting, handling, training, and assessing; and the details of the cover mechanisms used by the
CIA to protect the identities of covert officers.” Declaration of Antoinette B. Shiner, ECF No.
11-3, ¶ 10. Accordingly, even those documents which may not fall under the first exception to
the 50-year declassification requirement would fall under this exception as all of the requested
documents contain information with the potential to reveal an intelligence method actively used.
See Declaration of Antoinette B. Shiner, ECF No. 11-3, ¶ 11(“all of the documents contain
information that could reveal an intelligence method in active use”).
In addition to FOIA Exemption 1, Defendant claims that the documents are rightfully
withheld under FOIA Exemption 3. Exemption 3 applies to matters that are “specifically
exempted from disclosure by [another] statute” if that statute “requires that the matters be
withheld from the public in such a manner as to leave no discretion on the issue” or “establishes
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particular criteria for withholding or refers to particular types of matters to be withheld.” 5
U.S.C. § 552(b)(3).
Here, Plaintiff’s requested documents were withheld pursuant to the National Security
Act which provides that the Director of National Intelligence “shall protect intelligence sources
and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). The National Security Act
qualifies as an Exemption 3 statute. See Cent. Intelligence Agency v. Sims, 471 U.S. 159, 180
(1985); see also Am. Civil Liberties Union, 628 F.3d at 619. And, as has already been explained,
disclosure of the information in Plaintiff’s requested documents “would reveal specific sources
and methods of intelligence collection … [such as] specific sources of foreign intelligence and/or
certain intelligence techniques that are still in use by the Agency.” Declaration of Antoinette B.
Shiner, ECF No. 11-3, ¶ 18. Accordingly, the documents withheld from release also qualify for
withholding under Exemption 3.
Despite the above discussion, Plaintiff argues that Defendant has not satisfied its burden
for withholding the requested documents under Exemptions 1 or 3. Plaintiff contends that,
because Ms. Shiner’s Declaration lacks detail and specificity as to how broadly Defendant is
defining “human source” and “intelligence method,” the Court should deny Defendant’s motion
for summary judgment. See Pl.’s Opp’n, ECF No. 12, 7-9. Plaintiff urges the Court to “exercise a
reasonable degree of caution and skepticism in the CIA’s assessment of what qualifies as a
human source or intelligence method.” Id. at 7.
Plaintiff cites two out-of-circuit district court opinions in support of her argument that the
Court should deny Defendant’s motion due to a lack of specificity as to the breadth of
Defendant’s definitions of “human source” and “intelligence method.” First, in Navasky v.
Central Intelligence Agency, 499 F. Supp. 269 (S.D.N.Y. 1980), the court rejected the CIA’s
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argument that information regarding authors, publishers, and books involved in clandestine
propaganda activities constituted intelligence sources and methods. 499 F. Supp. at 275. And, in
American Civil Liberties Union v. Department of Defense, No. 04-4151, 2009 U.S. Dist. LEXIS
128728 (S.D.N.Y. Dec. 29, 2009), the court concluded that two Office of Legal Counsel
memoranda regarding CIA activities should not be withheld as they constituted a “source of
authority” rather than an “intelligence method.” 2009 U.S. Dist. LEXIS 128728, at *4.
Neither case is persuasive to the Court. This case does not involve information about
authors, publishers, and books involved in propaganda activities. Nor does this case involve
memoranda produced by the Office of Legal Counsel. Instead, this case involves ten classified
documents accessioned to Defendant from the CIA regarding a secret American intelligence
operation.
Defendant has produced evidence showing that disclosure of the requested documents
would reveal identifying information about human sources as well as information about
intelligence methods still in active use. Defendant detailed many ways that the disclosure of the
requested documents risks damage to national security. Declaration of Antoinette B. Shiner, ECF
No. 11-3, ¶¶ 12-18. For example, Defendant’s proffered Declaration explained that the requested
documents contain “sufficient identifying information to compromise the sources and their sub-
sources, including nationalities, professions, reporting specialties, locations, and the activities
they engaged in on behalf of the CIA.” Id. at ¶ 12. The disclosure of the documents “could reveal
the identity of the source and his or her affiliation with the CIA” which would place the sources
in danger and could make it more difficult for the CIA to retain sources in the future. Id. at ¶¶
12-13. The Declaration further explained that the documents at issue “contain information about
the intelligence methods currently used to recruit, vet, handle, train, and assess intelligence
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sources; … [and, d]isclosure of these details would likely impair the CIA’s ability to continue to
collect intelligence and conduct operations.” Id. at ¶ 14.
“[I]n the context of national security concerns, courts must accord substantial weight to
an agency's affidavit concerning the details of the classified status of the disputed record.” Wolf
v. Cent. Intelligence Agency, 473 F.3d 370, 374 (D.C. Cir. 2007) (internal quotations omitted).
Given “the special deference owed to agency affidavits on national security matters,” the Court
is not prepared to find that Defendant was wrong to withhold the requested documents based
solely on Plaintiff’s unsupported suspicions and vague challenges. Morley v. Cent. Intelligence
Agency, 508 F.3d 1108, 1126 (D.C. Cir. 2007). Accordingly, for the foregoing reasons, the Court
concludes that the documents which Plaintiff requested under FOIA were rightfully withheld
under FOIA Exemptions 1 and 3.
The Court must make a separate finding as to whether any portion of the ten documents
withheld in their entirety could have been segregated and released. Trans-Pac. Policing
Agreement v. U.S. Customs Serv., 177 F.3d 1022, 1027-28 (D.C. Cir. 1999). “[E]ven if the
agency establishes an exemption, it must nonetheless disclose all reasonably segregable,
nonexempt portions of the requested record[s].” Roth v. U.S. Dep’t of Justice, 643 F.3d 1161,
1167 (D.C. Cir. 2007) (internal quotation marks omitted). Having reviewed the Declaration by
Ms. Shiner, the Court is satisfied that no reasonably segregable non-exempt information has been
withheld. According to Ms. Shiner, the CIA conducted a “document-by-document and line-by-
line review and determined that no reasonably segregable non-exempt information [] could be
released … without jeopardizing classified and statutorily-protected material.” Declaration of
Antoinette B. Shiner, ECF No. 11-3, ¶ 19. In her Declaration, Ms. Shiner explained the method
why which the CIA determined that no non-exempt information was segregable and explained
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why the documents needed to be withheld in their entirety. Plaintiff provides the Court with no
reason to question the veracity of this Declaration. Accordingly, the Court is satisfied that no
segregable non-exempt information could be released from Plaintiff’s requested documents. See
Hodge v. Fed. Bureau of Investigation, 703 F.3d 575, 582 (D.C. Cir. 2013) (explaining that an
agency is entitled to a presumption that it complied with the requirement to release all segregable
information).2
IV. CONCLUSION
For the reasons stated above, the Court concludes that Plaintiff’s requested documents
were rightfully withheld under FOIA Exemptions 1 and 3. Accordingly, the Court GRANTS
Defendant’s motion for summary judgment. A separate order accompanies this Memorandum
Opinion.
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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Plaintiff alternatively requests that “this Court conduct an in camera review of at least a
random sampling (if not the entirety) of the 733 pages at issue to satisfy for itself that the
segregability requirements have been met as a matter of law.” Pl.’s Opp’n, ECF No. 12, 9. But,
in its discretion, the Court concludes that in camera review is unnecessary based on the record
before the Court and the specificity of Defendant’s Declaration. Larson v. Dep’t of State, 565
F.3d 857, 870 (D.C. Cir. 2009) (explaining that “[i]f the agency's affidavits provide specific
information sufficient to place the documents within the exemption category, if this information
is not contradicted in the record, and if there is no evidence in the record of agency bad faith,
then summary judgment is appropriate without in camera review of the documents” (internal
quotation marks omitted)).
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