Government Accountability Project v. U.S. Department of State ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
GOVERNMENT ACCOUNTABILITY
PROJECT,
Plaintiff,
v. Civil Action No. 19-449 (RDM)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION AND ORDER
In this Freedom of Information Act case, 5 U.S.C. § 552 (“FOIA”), the Plaintiff, a non-
profit public-interest law firm, requested that the Central Intelligence Agency (“CIA”)—as well
as the Departments of Commerce, Treasury, Defense, and Energy—produce records discussing
the provision of certain nuclear technologies to countries in the Middle East. Dkt. 1 at 28–30
(Compl. ¶¶ 85–95). The CIA demurred: It would not say whether it had the records or not.
Doing so, the agency claimed, would threaten national security.
The propriety of that response is at issue here, contested in cross-motions for summary
judgment filed by each party. Dkt. 24; Dkt. 26. Plaintiff, the Government Accountability
Project (“GAP”), wants the CIA to acknowledge and to disclose the records that it has. The CIA,
meanwhile, stands by the non-response response it provided. For the reasons that follow, the
Court will GRANT in part and DENY in part the CIA’s motion, and will DENY GAP’s cross-
motion.
1
I. BACKGROUND
“In extending abroad, under proper security safeguards, the evolving technology of
atomic energy for peaceful purposes, we shall tighten the bonds that tie our friends abroad to us,
we shall assure material resources that we need, and we shall maintain world leadership in
atomic energy—leadership which today is such a large element of our national prestige.” S. Rep.
No. 83-1699, at 101 (1954). These were the lofty goals of the Atomic Energy Act of 1954,
enacted just shy of nine years after World War II concluded. To meet its ends, the Act governs
how the United States may cooperate with other countries on the subject of nuclear material.
The Act requires, for example, that nuclear cooperation agreements contain certain terms, like a
guarantee by the cooperating party that it will protect any nuclear material the United States
provides. 42 U.S.C. § 2153(a)(1). The Act also establishes certain processes that the executive
branch must follow before cooperation is permitted—mandating, for instance, the submission of
proposed cooperation agreements to Congress for review and approval. Id. § 2153(c). The
rationale for these rules was simple: “Almost any cooperation with any foreign country can be
said to involve some risk to the common defense and security of the United States. The
provisions are designed to permit cooperation where, upon weighing those risks (of proliferation)
in the light of the safeguards provided, there is found to be no unreasonable risk to the common
defense and security.” S. Rep. No. 83-1699, at 22.
At issue here, according to GAP, is the fidelity of certain officials in the Trump
Administration to the Atomic Energy Act’s safeguards. In April 2015, Retired Lieutenant
General Michael Flynn (“Flynn”), while acting as an advisor to a private firm, ACU Strategic
Partners (“ACU”), allegedly began developing “the Middle East Marshall Plan”—an ambitious
effort to “work with Russia to build nuclear reactors in the Middle East.” Dkt. 1 at 5 (Compl.
2
¶ 18); see also Dkt. 26-2 at 2 (Pl.’s SUMF ¶ 4). 1 The following year Flynn became an advisor to
another private firm, International Peace Power & Prosperity (“IP3”), which, GAP alleges, was
itself promoting a plan to build nuclear reactors in the Middle East. Dkt. 1 at 7 (Compl. ¶ 25).
In January 2017, Flynn joined the Trump administration as National Security Advisor. Dkt. 26-2
at 2 (Pl.’s SUMF ¶ 4). Thereafter, “Flynn ‘talked favorably’ about the nuclear proposal with
Thomas Barrack, Jr., a businessman and long-time Trump confidante who was heading up the
Trump Inauguration Committee,” id. at 3 (Pl.’s SUMF ¶ 5), and who “also was considering
buying a stake in Westinghouse Electric Company, a producer of nuclear reactors,” id. (Pl.’s
SUMF ¶ 6).
Shortly after Flynn joined the National Security Council (“NSC”), “IP3’s co-founder
Robert McFarlane emailed documents to Flynn, which included an outline of the Middle East
nuclear plan and ‘a draft memo for the president to sign authorizing the project’ and instructing
cabinet secretaries to implement it.” Id. (Pl.’s SUMF ¶ 8) (quoting Dkt. 1 at 13 (Compl. ¶ 42)).
NSC staff raised concerns with Derek Harvey, a retired Army colonel that Flynn had installed on
the NSC, “that any plan to transfer nuclear technology must comply with Section 123 of the
1
Under Local Civil Rule 7(h)(1), any opposition to a motion for summary judgment “shall be
accompanied by a separate concise statement of genuine issues setting forth all material facts as
to which it is contended there exists a genuine issue necessary to be litigated.” The Rule further
explains that “[i]n determining a motion for summary judgment, the Court may assume that facts
identified by the moving party in its statement of material facts are admitted, unless such a fact is
controverted in the statement of genuine issues filed in opposition to the motion.” Id. Here, the
CIA’s opposition to GAP’s motion for summary judgment was not accompanied by any
counterstatement of material facts. See Dkt. 46. Accordingly, for purposes of the reciting the
relevant background, the Court will assume that the facts identified by GAP in its statement of
material facts, Dkt. 26-2, are admitted. That does not mean, however, that the Court lends its
imprimatur to, or endorses as true, GAP’s account of the pertinent events.
3
Atomic Energy Act, which requires consultation with experts at the NSC, Department of State,
Department of Defense, and Department of Energy.” Id. at 4 (Pl.’s SUMF ¶ 9). 2
Later that year, after the murder of journalist Jamal Khashoggi, “it was reported that
Energy Secretary Rick Perry was ‘pressing ahead with efforts to strike a deal that would allow
U.S. companies such as Westinghouse Electric Co. [to] build . . . nuclear reactors in Saudi
Arabia,’” id. (Pl.’s SUMF ¶¶ 10–11) (quoting Dkt. 1 at 20 (Compl. ¶ 65)), despite opposition
from bipartisan groups in Congress, id. (Pl.’s SUMF ¶ 10). Then, in February 2019, at the behest
of IP3’s co-founder, Jack Keane, “U.S. nuclear energy developers, including Westinghouse, met
with President Trump to seek assistance in winning contracts to build power plants in the Middle
East and other countries.” Id. (Pl.’s SUMF ¶ 12). According to GAP, the “[d]iscussions
included efforts to secure Section 123 Agreements with Saudi Arabia and Jordan that would
allow U.S. nuclear power companies to share their technology with those countries and others in
the Middle East.” Id. (Pl.’s SUMF ¶ 13).
That same month, “the House Committee on Oversight and Reform released
its first interim staff report about ‘efforts inside the White House to rush the transfer of highly
2
What GAP refers to as “Section 123 of the Atomic Energy Act” is codified at 42 U.S.C.
§ 2153(a), which provides in pertinent part:
[A]ny proposed agreement for cooperation shall be negotiated by the Secretary
of State, with the technical assistance and concurrence of the Secretary of
Energy; and after consultation with the Commission shall be submitted to the
President jointly by the Secretary of State and the Secretary of Energy
accompanied by the views and recommendations of the Secretary of State, the
Secretary of Energy, and the Nuclear Regulatory Commission. The Secretary
of State shall also provide to the President an unclassified Nuclear Proliferation
Assessment Statement . . . [which] shall be accompanied by a classified annex,
prepared in consultation with the Director of Central Intelligence, summarizing
relevant classified information. In [certain cases,] . . . any proposed agreement
for cooperation shall be submitted to the President by the Secretary of Energy
or, in [other cases,] . . . by the Department [or Secretary ] of Defense . . . .
4
sensitive U.S. nuclear technology to Saudi Arabia in potential violation of the Atomic Energy
Act and without review by Congress as required by law—efforts that may be ongoing to this
day.’” Id. at 5 (Pl.’s SUMF ¶ 14) (quoting First Interim Staff Report, Whistleblowers Raise
Grave Concerns with Trump Administration’s Efforts to Transfer Sensitive Nuclear Technology
to Saudi Arabia, at 2, Comm. on Oversight and Reform U.S. House of Representatives,
https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Trump%20Saudi%20Nucle
ar%20Report%20-%XXX-XX-XXXX.pdf). “The report states that multiple whistleblowers came
forward to express ‘significant concerns about the potential procedural and legal violations
connected with rushing through a plan to transfer nuclear technology to Saudi Arabia.’” Id.
(Pl.’s SUMF ¶ 15) (quoting same).
Several months later, “[i]n July 2019, the House Oversight Committee, based on a review
of more than 60,000 pages of documents obtained since February 2019, released a second
interim report, which concluded that ‘contacts between private and commercial interests and
high-level Trump Administration officials were more frequent, wide-ranging, and influential
than previously known—and continue to the present day.’” Id. (Pl.’s SUMF ¶ 16) (quoting
Second Interim Staff Report, Corporate and Foreign Interests Behind White House Push to
Transfer U.S. Nuclear Technology to Saudi Arabia, Comm. on Oversight and Reform U.S.
House of Representatives, https://oversight.house.gov/sites/democrats.oversight.house.gov/files
/Trump%20Saudi%20Nuclear%20Report%20July%202019.pdf). The report included three
references to then-CIA Director Mike Pompeo and recounted two correspondences from IP3 to
certain members of the intelligence community. Id. at 5–6 (Pl.’s SUMF ¶ 18). Although the
references to Pompeo are opaque, they suggest (at least) that IP3 attempted “to promote [its] plan
with high-level stakeholders[,] including . . . Pompeo” among others. Id.
5
On August 29, 2018, GAP submitted a FOIA request to the CIA seeking records “from
January 20, 2017 to the present regarding: (1) civil nuclear cooperation with Middle Eastern
countries, most notably Saudi Arabia; (2) the Middle East Marshall Plan; (3) negotiation of a
U.S.-Saudi ‘123’ Civil Nuclear Cooperation Agreement; (4) the IP3 Corporation and its proposal
for nuclear and cyber cooperation with various Middle Eastern countries; and (5) Westinghouse,
including its March 2017 bankruptcy and the subsequent policy response of the U.S.
Government.” Id. at 6 (Pl.’s SUMF ¶ 19); see also Dkt. 1 at 28 (Compl. ¶ 85); Dkt. 24-2 at 1
(Def.’s SUMF ¶ 1). “To help focus the CIA’s search for responsive records, GAP provided [the
CIA] four categories of additional information,” Dkt. 26-2 at 6 (Pl.’s SUMF ¶ 20); “identified 18
White House staff likely to have been referenced in the requested documents and
communications,” id. at 7 (Pl.’s SUMF ¶ 21); “identified [six] individuals at the IP3 Corporation
for which the CIA would have correspondence,” id. (Pl.’s SUMF ¶ 22); and “identified [groups
of] individuals at the CIA . . . most likely to have responsive information in their emails,
archived documents, or other stored files,” id. (Pl.’s SUMF ¶ 23); see also Dkt. 24-2 at 1 (Def.’s
SUMF ¶ 1).
On December 4, 2018, “the CIA requested further clarity from [GAP] with respect to the
first category of information [] requested in order to allow the CIA to conduct a reasonable
search.” Dkt. 24-2 at 2 (Def.’s SUMF ¶ 3); see also Dkt. 26-2 at 8 (Pl.’s SUMF ¶ 24). “GAP
responded by letter dated January 8, 2019, clarifying that its request for records regarding civil
nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia, should be
interpreted to mean records regarding cooperation between the United States and one or more of
the following: Egypt, Jordan, and Saudi Arabia. GAP further clarified that the term ‘civil
nuclear cooperation’ should be interpreted to mean any form of assistance regarding the
6
acquisition of nuclear material, equipment, or technology by foreign countries; funds or
financing to acquire nuclear material, equipment, or technology; and efforts by U.S. entities and
persons to promote the acquisition of civilian nuclear reactors and related services by foreign
countries.” Dkt. 26-2 at 8 (Pl.’s SUMF ¶ 25); see also Dkt. 24-2 at 2 (Def.’s SUMF ¶ 4).
Six weeks later, and “[b]efore the CIA provided a substantive response to [GAP’s] FOIA
request,” Dkt. 24-2 at 2 (Def.’s SUMF ¶ 5), GAP brought this FOIA action. While the litigation
was ongoing, “the CIA completed its review of [GAP’s] FOIA request and determined that, in
accordance with section 3.6(a) of Executive Order 13,526, it could neither confirm nor deny the
existence or nonexistence of records responsive to [GAP’s] FOIA request.” Dkt. 24-2 at 2–3
(Def.’s SUMF ¶ 5). 3 That was because “confirming or denying the existence or nonexistence of
the requested records would reveal classified information that is protected from disclosure by
executive order and federal statute.” Id. at 3 (Def.’s SUMF ¶ 6). In particular, the CIA averred,
“[c]onfirming or denying whether the CIA has information responsive to the requests at issue
would cause harm to national security.” Id.
The instant cross-motions for summary judgment followed. Dkt. 24; Dkt. 26; Dkt. 46;
Dkt. 48. Meanwhile, the Departments of Commerce, Treasury, Defense, and Energy have
embarked on the task of processing and releasing non-exempt, responsive records. That process
is underway but is far from complete at this time.
3
Section 3.6(a) of Executive Order 13526 provides: “[I]n response to a request for information
under the Freedom of Information Act, the Presidential Records Act, the Privacy Act of 1974, or
the mandatory review provisions of this order: (a) [a]n agency may refuse to confirm or deny the
existence or nonexistence of requested records whenever the fact of their existence or
nonexistence is itself classified under this order or its predecessors.” Executive Order No. 13526
(“Exec. Order 13526”), 75 Fed. Reg. 707 (Dec. 29, 2009).
7
II. LEGAL STANDARD
Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.” Bartko v. Dep’t of Just., 898 F.3d 51, 61 (D.C. Cir. 2018)
(internal quotation marks omitted). The Act is premised on the notion that “an informed
citizenry [is] vital to the functioning of a democratic society . . . [and] needed to check against
corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire &
Rubber Co., 437 U.S. 214, 242 (1978). FOIA thus “protects the basic right of the public ‘to be
informed about what their government is up to,’” Hall & Assocs. v. EPA, 956 F.3d 621, 624
(D.C. Cir. 2020) (quoting Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 827 F.3d 145,
150 (D.C. Cir. 2016)), and embraces “‘a general philosophy of full agency disclosure,’” U.S.
Dep’t of Def. v. FLRA, 510 U.S. 487, 494 (1994) (citation omitted).
“FOIA does not pursue transparency at all costs,” however. Hall, 956 F.3d at 624.
Instead, Congress recognized that “legitimate governmental and private interests could be
harmed by release of certain types of information.” AquAlliance v. U.S. Bureau of Reclamation,
856 F.3d 101, 102 (D.C. Cir. 2017). Congress thus exempted nine categories of records from
FOIA’s disclosure requirements. 5 U.S.C. § 552(b)(1)–(9). In light of FOIA’s preference for
disclosure, however, these exemptions are to be “narrowly construed.” FBI v. Abramson, 456
U.S. 615, 630 (1982).
Under limited circumstances, an agency “may refuse to confirm or deny the existence of
records” in response to a FOIA request. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)
(quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). “Such an agency response is
known as a Glomar response,” id., and presents “an exception to the general rule that agencies
must acknowledge the existence of information responsive to a FOIA request,” Roth v. U.S.
8
Dep’t of Just., 642 F.3d 1161, 1178 (D.C. Cir. 2011). 4 A Glomar response, the D.C. Circuit has
explained, is proper if “the fact of the existence or nonexistence of agency records falls within a
FOIA exemption,”—or, in other words, if the very act of answering “the FOIA inquiry would
cause harm cognizable under an FOIA exception,” Wolf, 473 F.3d at 374 (quoting Gardels, 689
F.2d at 1103). For that reason, “[i]n determining whether the existence of agency records vel
non fits a FOIA exemption, courts apply the general exemption review standards established in
non-Glomar cases.” Id.; see also Gardels, 689 F.2d at 1103–07. Thus, like an agency that
refuses to produce records, an agency that refuses to acknowledge them bears the burden of
justifying its decision. 5 U.S.C. § 552(a)(4)(B); Fed. Open Mkt. Comm. of the Fed. Rsrv. Sys. v.
Merrill, 443 U.S. 340, 352 (1979); Loving v. Dep’t of Def., 550 F.3d 32, 37 (D.C. Cir. 2008).
To meet that burden, an agency must submit “relatively detailed and non-conclusory”
affidavits or declarations explaining why its Glomar response was merited. SafeCard Servs.,
Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks and citation omitted); see
also Phillippi, 546 F.2d at 1013. The Court is obligated to review an agency’s affidavits or
declarations de novo, 5 U.S.C. § 552(a)(4)(B), but, as the D.C. Circuit has cautioned, “de novo
review in FOIA cases is not everywhere alike,” Ass’n of Retired R.R. Workers, Inc. v. U.S. R.R.
Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). That is especially so in the face “of national
security concerns,” where “courts must accord substantial weight to an agency’s affidavit
4
‘“The term Glomar comes from [the D.C. Circuit’s] opinion in Phillippi v. CIA, 546 F.2d 1009(D.C. Cir. 1976), which involved a FOIA request for information regarding’ a ship named the
‘Hughes Glomar Explorer.’” Klayman v. CIA, 170 F. Supp. 3d 114, 117 n.1 (D.D.C. 2016)
(quoting Moore v. CIA, 666 F.3d 1330, 1331 n.1 (D.C. Cir. 2011)); see also Elec. Priv. Info. Ctr.
v. NSA, 678 F.3d 926, 931 n.4 (D.C. Cir. 2012) (“The Glomar response takes its name from the
Hughes Glomar Explorer, a ship built (we now know) to recover a sunken Soviet submarine[]
but disguised as a private vessel for mining manganese nodules from the ocean floor.” (internal
quotation marks and citation omitted)).
9
concerning the details of the classified status of the disputed record.” Wolf, 473 F.3d at 374(citations and internal quotation marks omitted); see also Mil. Audit Project v. Casey, 656 F.2d
724, 738 (D.C. Cir. 1981); Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978) (“[T]he
executive ha[s] unique insights into what adverse [e]ffects might occur as a result of public
disclosure of a particular classified record.” (internal quotation marks omitted)); Ctr. for Nat.
Sec. Stud. v. U.S. Dep’t of Just., 331 F.3d 918, 927 (D.C. Cir. 2003) (“[B]oth the Supreme Court
and this Court have expressly recognized the propriety of deference to the executive in the
context of FOIA claims which implicate national security.”).
FOIA cases are typically resolved on motions for summary judgment under Federal Rule
of Civil Procedure 56. See, e.g., Beltranena v. U.S. Dep’t of State, 821 F. Supp. 2d 167, 175
(D.D.C. 2011). To prevail on a summary judgment motion, the moving party must demonstrate
that there are no genuine issues of material fact and that he or she is entitled to judgment as a
matter of law. See Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). A
fact is “material” if it is capable of affecting the outcome of a dispute, see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986), and a dispute is “genuine” if the evidence is such that a
reasonable factfinder—here, the Court—could find in favor of the nonmoving party, see Scott v.
Harris, 550 U.S. 372, 380 (2007). In a FOIA case, “[s]ummary judgment is warranted on the
basis of agency affidavits when the affidavits describe ‘the justifications for nondisclosure with
reasonably specific detail . . . and are not controverted by either contrary evidence in the record
nor by evidence of agency bad faith.’” Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984)
(quoting Mil. Audit Project, 656 F.2d at 738). In the Glomar context, however, a reviewing
court must “take into account . . . that any affidavit or other agency statement of threatened harm
10
to national security will always be speculative to some extent, in the sense that it describes a
potential future harm.” Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir. 1980).
III. ANALYSIS
The CIA argues that its Glomar response was proper because acknowledgment that the
records do or do not exist would cause cognizable harm under FOIA Exemptions 1 and 3. Dkt.
24-1 at 1. In support of that argument, the CIA has submitted the declaration of Antoinette B.
Shiner, the Information Review Officer (“IRO”) for the Litigation Information Review Office at
the CIA. Dkt. 24-3 at 1 (Shiner Decl.). Before addressing the sufficiency of Shiner’s
declaration, a brief overview of the relevant Exemptions is in order.
A. Asserted FOIA Exemptions
1. Exemption 1
FOIA Exemption 1 permits an agency to withhold “matters that are . . . specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and [that] are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1); see also Salisbury v. United States, 690 F.2d 966, 971–
72 (D.C. Cir. 1982). Here, the applicable order is Executive Order 13526, which authorizes the
classification of information pertaining to any of the following topics, so long as “unauthorized
disclosure” of such information “could reasonably be expected to cause identifiable or
describable damage to the national security”:
(a) military plans, weapons systems, or operations;
(b) foreign government information;
(c) intelligence activities (including covert action), intelligence sources or
methods, or cryptology;
11
(d) foreign relations or foreign activities of the United States, including
confidential sources;
(e) scientific, technological, or economic matters relating to the national
security;
(f) United States Government programs for safeguarding nuclear materials or
facilities;
(g) vulnerabilities or capabilities of systems, installations, infrastructures,
projects, plans, or protection services relating to the national security; or
(h) the development, production, or use of weapons of mass destruction.
Exec. Order 13526 § 1.4; see also id. § 1.2; Dkt. 24-3 at 10 (Shiner Decl. ¶ 19). 5
2. Exemption 3
FOIA Exemption 3 permits an agency to withhold information “specifically exempted
from disclosure by statute,” if such statute either “requires that the matters be withheld from the
public in such a manner as to leave no discretion on the issue” or “establishes particular criteria
for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3).
“Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the
detailed factual contents of specific documents; the sole issue for decision is the existence of a
relevant statute and the inclusion of withheld material within the statute’s coverage.” DiBacco v.
5
Executive Order 13526 also requires that “the original classification authority [has]
determine[d] that the unauthorized disclosure of the information reasonably could be expected to
result in damage to the national security . . . and the original classification authority is able to
identify or describe the damage.” Exec. Order 13526 § 1.1(4). On that score, neither party
contests that Shiner qualifies as an original classification authority because she is the current IRO
in the Litigation Information Review Office at the CIA. Cf. Int’l Counsel Bureau v. CIA, 774 F.
Supp. 2d 262, 276–77 (D.D.C. 2011) (IRO of the National Clandestine Service of the CIA is
proper classification authority to invoke exemptions supporting Glomar response).
12
U.S. Army, 795 F.3d 178, 197 (D.C. Cir. 2015) (quoting Morley v. CIA, 508 F.3d 1108, 1126
(D.C. Cir. 2007)).
Here, the Department invokes the National Security Act of 1947, § 102A(i), as amended
by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024(i)(1)
(collectively, the “National Security Act”). See Dkt. 24-3 at 16–17 (Shiner Decl. ¶¶ 28–29). The
National Security Act requires the Director of National Intelligence (“DNI”) to protect
“intelligence sources and methods from unauthorized disclosure,” 50 U.S.C. § 3024(i)(1), and
authorizes the DNI to promulgate guidelines for the intelligence community regarding “[a]ccess
to and dissemination of intelligence, both in final form and in the form when initially gathered,”
id. § 3024(i)(2)(B). Consistent with his duties and powers, the DNI has promulgated Intelligence
Community Directive 700, which directs elements of the intelligence community to “[p]rotect[ ]
national intelligence and intelligence sources, methods, and activities from unauthorized
disclosure[.]” Intelligence Community Directive (ICD)700, at 3 (June 7, 2012), available at
https://www.dni.gov/files/documents/ICD/ICD_700.pdf.
That directive binds the CIA and, according to the agency, further justifies its Glomar
response here. Dkt. 24-3 at 16–17 (Shiner Decl. ¶¶ 28–29); see also DiBacco, 795 F.3d at 197–
200 (explaining that, under the National Security Act, the DNI has “authority to assign
responsibility to intelligence agency heads to protect intelligence sources and methods”); Exec.
Order 12333, 46 Fed. Reg. 59,941 (Dec. 4, 1981), amended by Exec. Order 13470, § 1.6(d), 73
Fed. Reg. 45,325, 45,332 (July 30, 2008) (“The heads of elements of the Intelligence Community
shall . . . Protect intelligence and intelligence sources, methods, and activities from unauthorized
disclosure in accordance with guidance from the [DNI].”). For its part, GAP does not dispute
that the National Security Act falls within Exemption 3—nor could it. The D.C. Circuit has
13
repeatedly held that the National Security Act “is a valid Exemption 3 statute.” DiBacco, 795
F.3d at 183; see also Krikorian v. Dep’t of State, 984 F.2d 461, 465 (D.C. Cir. 1993). Nor does
GAP dispute that the National Security Act gives the DNI, and by delegation other elements of
the intelligence community, see DiBacco, 795 F.3d at 197–198, “wide-ranging authority to
protect intelligence sources and methods from unauthorized disclosure,” CIA v. Sims, 471 U.S.
159, 177 (1985) (internal quotation marks omitted); see also Whitaker v. CIA, 64 F. Supp. 3d 55,
63–64 (D.D.C. 2014) (‘[C]ourts are required to give ‘great deference’ to the . . . assertion that a
particular disclosure could reveal intelligence sources or methods.”) (quoting Berman v. CIA,
501 F.3d 1136, 1140 (9th Cir. 2007)). Instead, GAP disputes only whether the CIA’s Glomar
response in this case is consistent with the National Security Act’s coverage.
B. The Glomar Response
In assessing the propriety of the CIA’s Glomar response, the Court begins with the
agency’s first claimed exemption—Exemption 1. To justify its invocation of that exemption, the
CIA must explain (1) how the subject matter of GAP’s FOIA request pertains to a type of
information enumerated in Executive Order 13526, and (2) whether “unauthorized disclosure” of
information pertaining to that topic “could reasonably be expected to cause identifiable or
describable damage to the national security.” Exec. Order 13526 § 1.4. “[A]n agency’s
justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Wolf,
473 F.3d at 374–75 (citations and internal quotation marks omitted). As explained below, the
CIA has, with one exception, carried this burden.
1. Executive Order 13526
To start, the subject matter of GAP’s request falls within the coverage of Executive Order
13526. GAP’s FOIA request, recall, sought records related to the following five topics: (1) civil
14
nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia; (2) the Middle
East Marshall Plan; (3) negotiation of a U.S.-Saudi ‘123’ Civil Nuclear Cooperation Agreement;
(4) the IP3 Corporation and its proposal for nuclear and cyber cooperation with various Middle
Eastern countries; and (5) Westinghouse, including its March 2017 bankruptcy and the
subsequent policy response of the U.S. Government.” Dkt. 26-2 at 6 (Pl.’s SUMF ¶ 19); see also
Dkt. 1 at 28 (Compl. ¶ 85); Dkt. 24-2 at 1 (Def.’s SUMF ¶ 1). Each of these topics, as GAP
itself admits, pertains directly to the interest of the United States in the provision of nuclear
technologies to countries in the Middle East. GAP explains its requests as follows:
Request 1: “[T]he term ‘civil nuclear cooperation’ should be interpreted to
mean any form of assistance regarding the acquisition of nuclear material,
equipment, or technology by foreign countries; funds or financing to acquire
nuclear material, equipment, or technology; and efforts by U.S. entities and
persons to promote the acquisition of civilian nuclear reactors and related
services by foreign countries.” Dkt. 26-2 at 8 (Pl.’s SUMF ¶ 25); see also
Dkt. 24-2 at 2 (Def.’s SUMF ¶ 4). 6
Request 2: The Middle East Marshall Plan relates to an alleged effort
between “private entities and individuals, acting in concert with the Trump
administration, . . . to bypass protocols intended to protect United States
interests in order to provide Saudi Arabia with nuclear technology.” Dkt.
26-1 at 4 (emphasis added).
Request 3: The U.S.-Saudi 123 Civil Nuclear Cooperation Agreement
relates to an alleged effort by the United States government to enter into an
agreement with Saudi Arabia and Jordan to “allow U.S. nuclear power
companies to share their technology with those countries and others in the
Middle East.” Id. at 10.
Request 4: GAP’s fourth request asks for materials related to IP3’s
“proposal for nuclear and cyber cooperation with various Middle Eastern
countries,” Dkt. 26-2 at 6 (Pl.’s SUMF ¶ 19)—a proposal which, GAP
claims, was discussed by members of the NSC and related to efforts made to
cajole former-President Trump to “work[]with Russia on a nuclear reactor
project,” Dkt. 26-1 at 8.
6
GAP later narrowed this request to seek records related to “cooperation between the United
States and . . . Egypt, Jordan, and Saudi Arabia.” Dkt. 26-2 at 8 (Pl.’s SUMF ¶ 25).
15
Request 5: The company Westinghouse was at the heart of then-Energy
Secretary Rick Perry’s “efforts to strike a deal that would allow [certain U.S.
companies to] . . . build nuclear reactors in Saudi Arabia[.]” Id. at 10(internal quotation marks, alteration, and citation omitted).
Section 1.4 of Executive Order 13526, however, prevents the unauthorized disclosure of
precisely the types of information that GAP requests. That portion of the Executive Order twice
affirms that classification of information pertaining to foreign relations is proper; see Exec.
Order 13526 § 1.4(b) (“foreign government information”); (d) (“foreign relations or foreign
activities of the United States”), and it curtails, in three separate subsections, disclosure of
information related to the U.S. government’s interests in nuclear material, see id. § 1.4(e)
(“scientific, technological, or economic matters relating to the national security”); (f) (“United
States Government programs for safeguarding nuclear materials or facilities”); (h) (“the
development, production, or use of weapons of mass destruction”). It is hard to square these
classification categories with GAP’s FOIA request, which on its face seeks records related to
efforts of the Trump administration to provide, or to aid and assist in the provision of, nuclear
technology to foreign countries. The disclosure of information of this type—or the absence of
any such information—is precisely what subsections (b), (d), (e), (f), and (h) of Executive Order
13526 safeguards against.
2. National Security
The remaining question, then, is whether “unauthorized disclosure” of the information
sought—or, more to the point, unauthorized disclosure of whether the CIA has the records that
GAP seeks—“could reasonably be expected to cause identifiable or describable damage to the
national security.” Exec. Order 13526 § 1.4. In making that assessment, the Court is mindful
that “an agency’s justification for invoking a FOIA exemption is sufficient if it appears logical or
plausible,” Wolf, 473 F.3d at 374–75 (citations and internal quotation marks omitted), and that it
16
is not the Court’s role to second-guess the reasonable judgment of executive branch officials
when national security interests are plausibly at stake, see Mil. Audit Project, 656 F.2d at 738;
Turner, 587 F.2d at 1194; Ctr. for Nat. Sec. Stud., 331 F.3d at 927; Frugone v. CIA, 169 F.3d
772, 775 (D.C. Cir. 1999); Ullah v. CIA, 435 F. Supp. 3d 177, 184 (D.D.C. 2020) (“[T]his
Circuit’s FOIA caselaw cautions strongly against second-guessing the Government’s
discretionary decisions in matters of national security.”). In view of the deference that the
executive is owed in this context, the Court concludes that the CIA has adequately shown that
“unauthorized disclosure” vel non of the type of information sought “could reasonably be
expected to cause identifiable or describable damage to the national security.” Exec. Order
13526 § 1.4.
The Shiner declaration explains that a non-Glomar response in this case would give rise
to a cognizable threat to national security in three ways. First, and most directly, it would
provide U.S. adversaries “insight into the scope and nature of CIA’s intelligence activities and
interests.” Dkt. 24-3 at 13 (Shiner Decl. ¶ 23). Shiner avers:
It would be alerting and possibly alarming for foreign countries to learn that CIA
was somehow involved or interested in specific . . . policy proposals, signaling
to both the diplomats and the world that there was something about the
[proposals] that warranted CIA involvement. Here, for example, acknowledging
the existence of records responsive to Plaintiff’s FOIA request would tend to
reveal that CIA may have an intelligence interest in or information about . . . [the
requested subject matter]. On the other hand, if it were disclosed that CIA was
not . . . interested in these topics, then it would signal to foreign governments
and intelligence services that these were not of interest to CIA or that
intelligence had not been gathered on these topics. This disclosure would give
other countries insight into the scope and nature of CIA’s intelligence activities
and interests . . . .
Id. at 12–13 (Shiner Decl. ¶ 23). Second, Shiner explains that acknowledgment vel non of the
requested records would impinge on the CIA’s ability “to operate as an effective clandestine
intelligence agency.” Id. at 13 (Shiner Decl. ¶ 24). She attests:
17
For the CIA to operate as an effective clandestine intelligence agency, it must
be able to conceal its own involvement, or noninvolvement, in meetings or
discussions with, among others, U.S. Government officials or foreign
governments related to specific policy proposals. . . . Forcing the CIA to
disclose whether or not it has documents responsive to Plaintiff’s FOIA request
would reveal whether or not the CIA may have collected pertinent intelligence
that could have been provided to U.S. Government officials.
Id. at 14–15 (Shiner Decl. ¶¶ 24–25). Finally, Shiner explains that, in light of the CIA’s
clandestine nature and given that a non-Glomar response would elucidate the agency’s
intelligence interests, public revelation of the information GAP seeks would enable foreign
organizations to counter the CIA’s efforts and to threaten the United States. That is:
Although it is widely known that the CIA is responsible for performing activities
in support of foreign intelligence collection and analysis for the United States,
the CIA generally does not confirm or deny the existence or nonexistence of, or
disclose the target of, specific intelligence activities. Foreign intelligence
services, terrorist organizations, and other hostile groups seek to obtain and use
this type of information to defeat, undermine, and avoid CIA activities and to
attack the United States and its interests.
Id. at 11–12 (Shiner Decl. ¶ 22).
Based on the Shiner declaration, it is not particularly challenging to see how disclosure of
whether the CIA possesses records responsive to GAP’s FOIA request “could reasonably be
expected to cause identifiable or describable damage to the national security.” 7 Exec. Order
7
FOIA Exemption 1 permits an agency to withhold “matters that are . . . specifically authorized
under criteria established by an Executive order to be kept secret in the interest of national
defense or foreign policy and [that] are in fact properly classified pursuant to such Executive
order.” 5 U.S.C. § 552(b)(1). It is not clear whether the CIA’s Glomar response complies, in all
respects, with Executive Order 13526. For instance, the Executive Order requires that “[a]t the
time of original classification, the original classification authority shall establish a specific date
or event for declassification based on the duration of the national security sensitivity of the
information.” Exec. Order 13526 § 1.5. No such declassification timeline was provided here.
Nevertheless, GAP has not raised this argument and it is, accordingly, forfeited. The Court
notes, moreover, that “[s]o long as procedural violations [of Executive Order 13526] do not
undermine the agency’s decision to classify—as when, for example, a procedural violation
suggests that, contrary to the [Executive Order], classification was undertaken in order to conceal
18
13526 § 1.4. The United States depends on its intelligence agencies to carry out their missions,
Dkt. 24-3 at 6–7 (Shiner Decl. ¶ 13), and the CIA depends on secrecy to do so, id. at 11 (Shiner
Decl. ¶ 22) (“Clandestine intelligence activities lie at the heart of the CIA’s mission.”). Shiner
attests that compelling a non-Glomar response here would imperil the CIA’s ability to carry out
its mission, Dkt. 24-3 at 6 (Shiner Decl. ¶ 12) (“[T]he requests at issue in this case seek precisely
those types of information regarding the CIA’s role or interest in sensitive foreign activities.”);
see also ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 625 (D.C. Cir. 2011) (finding Glomar
response proper where disclosure “would degrade the CIA’s ability to carry out its mission”); cf.
Morley, 508 F.3d at 1124 (“[T]he text of Exemption 1 itself suggests that little proof or
explanation is required beyond a plausible assertion that information is properly classified.”).
And it is certainly “logical” or “plausible” to view the risks that Shiner identifies as presenting a
legitimate threat to national security. Wolf, 473 F.3d at 375.
3. Counterarguments
GAP lodges several counterarguments in response to the CIA’s reliance on Exemption 1.
See Dkt. 26-1. With one, limited exception, none persuade.
First, GAP contends that “[f]ar from seeking ‘intelligence information,’ [it] seeks
information about the extent to which private interests corrupted the process the United States is
statutorily required to use in reaching civil nuclear agreements.” Id. at 16. But even accepting
that construction of GAP’s request, whether the CIA retains records about “civil nuclear
a violation of law—the Court will not order documents to be released on that ground.” Jud.
Watch, Inc. v. U.S. Dep’t of Def., 857 F. Supp. 2d 44, 59 (D.D.C. 2012), aff’d 715 F.3d 937(D.C. Cir. 2013); see also Lesar v. U.S. Dep’t of Just., 636 F.2d 472, 483 (D.C. Cir. 1980). And
indeed, one Judge in this district has concluded “that the CIA is not required to establish a
declassification timeline in order to properly classify a Glomar fact under Executive Order
13,526.” Mobley v. CIA, 924 F. Supp. 2d 24, 50 (D.D.C. 2013) (internal quotation marks,
alteration, and citation omitted).
19
agreements” between the United States and the three countries in the Middle East that GAP
identified—Egypt, Jordan, and Saudi Arabia, Dkt. 26-2 at 8 (Pl.’s SUMF ¶ 25)—would itself
reveal the presence or absence of a particular CIA intelligence interest that is protected from
disclosure by Executive Order 13526. The question is not, then, whether GAP seeks intelligence
information—it is whether a non-Glomar response would reveal it. And, for the reasons
explained above, it would.
Second, GAP argues that the CIA’s assertions of national-security risk “are overblown at
best.” Dkt. 26-1 at 17. The Court, once again, is unpersuaded. The Shiner declaration draws a
“logical” and “plausible” connection between the revelation that a non-Glomar response in this
case would yield and the attendant risk to national security that it would create. Wolf, 473 F.3d
at 375. Once that threshold is reached, as it is here, the Court must respect the executive’s
expertise and discretion in matters of national security. See Weissman v. CIA, 565 F.2d 692, 697
(D.C. Cir. 1977) (“Few judges have the skill or experience to weigh the repercussions of
disclosure of intelligence information.”); see also Mil. Audit Project, 656 F.2d at 738; Turner,
587 F.2d at 1194; Ullah, 435 F. Supp. 3d at 184.
GAP’s next argument is more substantial: it contends that the CIA’s Glomar response is
overly broad and insufficiently detailed under the D.C. Circuit’s decision in ACLU v. CIA, 710
F.3d 422, 425 (D.C. Cir. 2013). Dkt. 26-1 at 18–19. In that case, plaintiffs filed a FOIA request
with the CIA seeking records pertaining to the use of drones to carry out targeted killings.
ACLU, 710 F.3d at 425. In response, the CIA invoked Glomar, arguing “that it was necessary to
keep secret whether the CIA itself was involved in, or interested in, such strikes.” Id. at 428. Up
to this point, the D.C. agreed, noting that “[t]here is no doubt [that] . . . disclosure would reveal
whether the Agency ‘at least has an intelligence interest in drone strikes.’” Id. at 428–29. But,
20
the D.C. Circuit was unpersuaded that it was either “logical or plausible[] for the CIA to contend
that” revealing whether it had “an intelligence interest in such strikes” would jeopardize national
security, “[g]iven the extent of the official statements on the subject.” Id. at 429. In other words,
the D.C. Circuit recognized that revelation of the CIA’s intelligence interests was a basis upon
which a Glomar response could be invoked, but only if that intelligence interest was not
something “already officially acknowledged.” Id.
GAP misreads ACLU to stand for a different proposition altogether—namely, that the
CIA may not invoke Glomar when the acknowledgement vel non of records would reveal the
“intelligence role” of another agency instead of the CIA’s. In support of that reading, GAP
points to the following passage in ACLU:
[T]he CIA did not justify its Glomar response by contending that it was
necessary to prevent disclosing whether or not the United States engages in
drone strikes. Rather, as we have noted, the response was justified on the ground
that it was necessary to keep secret whether the CIA itself was involved in, or
interested in, such strikes. Although the Agency’s brief repeatedly emphasizes
the first prong of this justification—protecting whether the CIA operates
drones—that is not the issue before us on this appeal. The plaintiffs requested
the release of ten categories of documents pertaining to drone strikes, each of
which sought documents about drones, but none of which was limited to drones
operated by the CIA. . . . Nor was the CIA’s Glomar response limited to
documents about drones operated by the Agency. Rather, the CIA asserted and
the district court upheld a sweeping Glomar response that ended the plaintiffs’
lawsuit by permitting the Agency to refuse to say whether it had any documents
at all about drone strikes.
The CIA has proffered no reason to believe that disclosing whether it has any
documents at all about drone strikes will reveal whether the Agency itself—as
opposed to some other U.S. entity such as the Defense Department—operates
drones.
Id. at 428. From this passage, GAP draws the following syllogism: the CIA in ACLU justified its
Glomar response based on agency-specific considerations; the CIA did the same thing here; in
ACLU, the FOIA request at issue sought records about the United States government writ large,
21
not about the CIA specifically; GAP’s FOIA request does the same thing here; in ACLU, the CIA
had its Glomar response rejected; and thus the CIA’s invocation of Glomar should fail here as
well.
The difficulty with this approach is that it misunderstands what ACLU was actually
about. The decision did not concern whether a Glomar response by one agency was improper
merely because it might shield records that disclosed the activities of other agencies. Instead, the
D.C. Circuit assumed that a Glomar response could be proper on that basis and then addressed
“[t]he question . . . whether it is ‘logical or plausible[]’ for the CIA to contend that it would
reveal something not already officially acknowledged to say that the Agency ‘at least has an
intelligence interest’ in such strikes.” Id. at 429.
Properly understood, ACLU’s only aid to GAP can come in the form of the official
acknowledgement doctrine. But GAP makes no effort to explain how that doctrine applies here.
And to the extent GAP’s isolated reliance on the House Oversight Reports can be construed as
making such a claim, see, e.g., Dkt. 26-1 at 10–12, 17–18, that claim would fail. “To find
official acknowledgment, . . . three prerequisites must be met: ‘the information requested must be
as specific as the information previously released,’ ‘match the information previously disclosed,’
and ‘already have been made public through an official and documented disclosure.’” Leopold v.
CIA, 987 F.3d 163, 170 (D.C. Cir. 2021) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 76 (D.C. Cir.
1990)). “In the Glomar context, then, if the prior disclosure establishes the existence (or not) of
records responsive to the [information] request, the prior disclosure necessarily matches both the
information at issue . . . and the specific request for that information.” Id. (quoting Wolf, 473
F.3d at 379). “This test is ‘strict,’” id. (quoting Moore, 666 F.3d at 1333), and “[t]he initial
22
burden rests with the requester, who must ‘point[ ] to specific information in the public domain
that appears to duplicate that being withheld,” id. (quoting ACLU, 710 F.3d at 427).
GAP points to only three statements contained in the House Oversight Reports that, in its
view, show a connection between the CIA and the records sought: (1) “[a] March 14, 2017
[meeting] between President Trump, Kushner, and Saudi Deputy Crown Prince Mohammed Bin
Salman, [where] officials from IP3 continued to promote their plan with high-level
stakeholders—including . . . CIA Director Mike Pompeo,” Dkt. 26-2 at 5 (Pl.’s SUMF ¶ 18)
(quotation marks omitted); (2) “[a]n April 23, 2017 email from IP3 CEO Hewitt to an employee
of Barrack’s company, Colony NorthStar, [that] included a two[-]pager summary that has been
used by many of the Cabinet Secretaries, Pompeo, others,” id. at 6 (Pl.’s SUMF ¶ 18) (emphasis
and quotation marks omitted); and (3) “[a]n August 4, 2017 email from Hewitt to a Defense
Department official attaching a presentation IP3 gave Kushner in August about IP3’s
plan[, which] notes [that] [o]ther Cabinet officials briefed [included] Rick Perry, Wilbur Ross
and Mike Pompeo,” id. (emphasis and quotation marks omitted).
This is a far cry from “official acknowledgment.” In ACLU, the CIA’s Glomar response
was defeated on the basis of detailed public statements from the President, the President’s
counterterrorism advisor, and the Director of the CIA. Here, by contrast, there exists only a
congressional report recounting a private businessman’s two emails and a reference to efforts
made by IP3 “to promote their plan with high-level stakeholders—including . . . Pompeo.” Dkt.
26-2 at 5 (Pl.’s SUMF ¶ 18) (quotation marks omitted). The “strict” official acknowledgement
doctrine requires more. Leopold, 987 F.3d at 170; see also James Madison Project v. CIA, 344
F. Supp. 3d 380, 394 (D.D.C. 2018) (“The Court cannot speculate that specific documents exist
within individual agencies based on general pronouncements in the public domain . . . . To do so
23
would violate the strict requirements of the official acknowledgment doctrine which demands
‘exactitude,’ particularly in cases like this one where national security and foreign affairs are
involved.”).
Beyond this difficulty, the D.C. Circuit has cautioned courts “not [to] deem ‘official’ a
disclosure made by someone other than the agency from which the information is being sought.”
Frugone, 169 F.3d at 774; see also Fitzgibbon, 911 F.2d at 765–766 (CIA could refuse to
disclose classified information even if allegedly referenced in congressional committee report);
Afshar v. Dep’t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (same, regarding information
allegedly reported in book by former CIA official); Phillippi v. CIA, 655 F.2d 1325, 1330–311
(D.C. Cir. 1981) (same, regarding information allegedly reported in book by former Director of
Central Intelligence); Salisbury, 690 F.2d at 971 (“[B]are discussions by this court and the
Congress of [the National Security Agency’s] methods generally cannot be equated with
disclosure by the agency itself of its methods of information gathering.”). GAP has adduced no
evidence that the CIA itself—or any other executive agency or department for that matter—has
ever acknowledged vel non the records that GAP now seeks. That, too, vitiates GAP’s reliance
on the official acknowledgement doctrine.
Finally, GAP argues that the records it seeks shed light on “embarrassing or possibly
illegal conduct” and thus fall outside Executive Order 13526’s coverage. Dkt. 26-1 at 19–21; see
also Exec. Order 13526 § 1.7(a) (“In no case shall information be classified, continue to be
maintained as classified, or fail to be declassified in order to: (1) conceal violations of law,
inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or
agency . . . .”). “A plaintiff alleging that an agency has classified information to conceal a
violation of law ‘must provide something more than conjecture to show that the agency’s
24
withholding decision violates Executive Order 13,526.’” Smith v. U.S. Nat’l Archives & Recs.
Admin., 415 F. Supp. 3d 85, 97 (D.D.C. 2019) (quoting Associated Press v. FBI, 265 F. Supp. 3d
82, 96–97 (D.D.C. 2017)). Instead, the Court must find “credible evidence that the agency’s
motives for its withholding decisions were improper.” Canning v. U.S. Dep’t of Just., 848 F.
Supp. 1037, 1047 (D.D.C. 1994); see also Smith, 415 F. Supp. 3d at 97.
That evidence is missing here. The Shiner declaration avers that the CIA’s
“determination that the existence or nonexistence of the requested records is classified and has
not been made to conceal violations of law, inefficiency, or administrative error; to prevent
embarrassment to a person, organization, or agency; to restrain competition; or to prevent or
delay the release of information that does not require protection in the interests of national
security.” Dkt. 24-3 at 11 n.2 (Shiner Decl. ¶ 21). The Court has no reason to doubt that
averment at this juncture, conclusory as it may be. Cf. SafeCard Servs, 926 F.2d at 1200(“Agency affidavits are accorded a presumption of good faith . . . .”). Indeed, even accepting
GAP’s telling of the pertinent events, GAP has provided no evidence that the CIA’s Glomar
response was motivated by, or for the purpose of, concealing any malfeasance. Exec. Order
13526 § 1.7(a).
This conclusion could change, of course, if the records that are eventually released by the
other defendants in this case (or any other evidence) call the CIA’s motives into question. For
now, however, that prospect is entirely speculative; but if GAP can eventually prove that it is
right, it may renew its motion for summary judgment. On the present record, and in light of the
plausible national security justifications proffered in favor of the CIA’s Glomar response, the
Court concludes that GAP has not satisfied its burden under § 1.7.
25
4. Exception
There is one category of records that neither party has addressed in detail and that might
not, necessarily, reveal the CIA’s intelligence interests (or non-interests): unsolicited
communications from third parties that, for whatever reason, are responsive to GAP’s FOIA
request. One can imagine, for instance, that a lobbyist or business might send the Director of the
CIA a briefing paper that is also sent to dozens of other executive branch officials, which the
CIA merely receives and sticks in a file. The Director’s purely passive receipt of a copy of that
hypothetical paper would, in all likelihood, say nothing about the CIA’s interests or activities;
the submission might say something about the sender’s interests and activities, but that is beside
the point.
It is hard to see how revealing whether such unsolicited records exist would expose the
agency’s intelligence interests, methods, or sources in a manner that could imperil national
security. At least in passing, the CIA suggests otherwise, asserting that “the majority of CIA
relationships with outside entities are, in fact, classified.” Dkt. 46 at 8. But that statement is
unsupported by any citation to the record (and the factual record does not support the assertion in
any event). Nor is the logic or plausibility of the CIA’s position self-evident. The Court can, of
course, imagine circumstances in which an unsolicited communication might reveal a classified
or secret relationship, just as the Court can imagine unsolicited communications that would
reveal nothing about the CIA’s interests, methods, or sources. Reliance on the Court’s
imagination, however, is not how this works. The CIA carries the burden, 5 U.S.C.
§ 552(a)(4)(B), and it must offer a reasoned explanation in a declaration or affidavit that supports
its position, SafeCard, 926 F.2d at 1200. Here, the CIA has done neither—it has offered no
26
reason nor any evidence to support its suggestion that the identity of virtually any private party
that might contact the Agency about a matter of policy is classified.
Accordingly, as to such unsolicited communications, if any, the Court must deny the
CIA’s motion for summary judgment. But because GAP only alludes to this argument, and
because neither party has developed the issue, the Court is not prepared—at least on the present
record—to grant summary judgment in GAP’s favor on this issue. For present purposes, the
Court will merely reserve judgment on the question and will permit both parties to renew their
respective motions as appropriate.
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that GAP’s motion for summary
judgment, Dkt. 26, is DENIED without prejudice; it is further
ORDERED that the CIA’s motion for summary judgment, Dkt. 24, is GRANTED in
part, as to all aspects of its Glomar response with the exception of any unsolicited records, as
discussed in section III.B.4 above; it is further
ORDERED that the CIA’s motion for summary judgment is DENIED in part without
prejudice, as to any such unsolicited records; and it is further
ORDERED that GAP and the CIA shall, on or before August 20, 2021, file a joint status
report with the Court proposing a schedule for further proceedings in this matter.
SO ORDERED.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: July 7, 2021
27