ACLU v. DOD, No. 17-3391, 2018 WL 3146720 (S.D.N.Y. June 27, 2018) (Engelmayer, J.)

ACLU v. DOD, No. 17-3391, 2018 WL 3146720 (S.D.N.Y. June 27, 2018) (Engelmayer, J.)

Re:  Request for records related to an intelligence-gathering raid in al Ghayil, Yemen

Disposition:  Denying CIA's motion for summary judgment; denying plaintiff's motion for summary judgment except granting as to FOIA request two

• Exemptions 1 & 3, Glomar:  In examining the CIA's use of a Glomar response to the request seeking information about an intelligence-gathering raid in Yemen, the court finds that the White House press secretary's public statements "clearly disclosed the CIA's intelligence interest in the Raid."  The court determines that the press secretary "explicitly acknowledged that the U.S. participated in the Yemen Raid; that the Raid was an 'intelligence-gathering raid'; and that the Director of the Central Intelligence Agency (explicitly referred to by his official title) was in the room when the Raid was 'laid out in great extent' and at a time when 'the indication . . . was to go ahead.'"  While the court holds that CIA's broad Glomar response is not justified, the court "give[s] the CIA an opportunity first to assess whether a more targeted Glomar submission may viably be made," because several of Plaintiff's requests "seek much more specific (and comprehensive) data and records than revealed by [the press secretary's] broad pronouncements."  As to the second ACLU request seeking in part "'which individuals possessed decision-making authority[,]'" the court "grant[s] summary judgment in favor of the [plaintiff] as to the application of the Glomar doctrine to FOIA request two" in light of the press secretary's statements that revealed the CIA Director's involvement.