Bonner v. FBI, No. 21-2166, 2023 WL 5098503 (S.D.N.Y. Aug. 9, 2023) (Engelmayer, J.)

Bonner v. FBI, No. 21-2166, 2023 WL 5098503 (S.D.N.Y. Aug. 9, 2023) (Engelmayer, J.)

Re:  Request for records concerning Palestinian citizen detained in wake of the September 11, 2001 terrorist attacks and held by United States in Guantanamo Bay detention camp in Cuba

Disposition:  Granting defendant’s motion for summary judgment; denying plaintiff’s cross-motion for summary judgment

• Exemption 3:  “[T]he Court finds that the Government has justifiably claimed privilege on the ground that the information withheld would reasonably be expected to disclose, or lead to the disclosure of, intelligence sources and methods.”  “Here, the agencies identify as the relevant withholding statute the statutory protection, under the National Security Act (the ‘NSA’), of ‘intelligence sources and methods from unauthorized disclosure.’”  The court relates that “[defendant] does not dispute that the NSA is an exemption statute.”  “Here, the agencies attest that the redacted portions of the notebook and summaries contain information that would, if disclosed, reveal intelligence sources and methods.”  “These portions, they attest, ‘consist of raw intelligence collected from . . . [the subject of the request] regarding his knowledge of the terrorist organization al Qaeda and its affiliates,’ and ‘contain numerous details about [the subject’s] knowledge of and interaction with al Qaeda members and other individuals associated with that group or other terrorist organizations over a years-long period.’”  “Some portions they seek to withhold would ‘reveal the location of CIA detention facilities overseas,’ . . . .”  “Others would reveal ‘certain names and other identifying details, dates, locations, details about meetings and operations, and operational and security techniques employed by terrorist entities.’”  “Others concern ‘locations at which [the subject] was held and treated after he was detained,’ or ‘related information, such as time and dates, [which] could, in combination with other information, be revealing of detention locations.’”  “Exemption 3 also applies here, the agencies assert, to ‘protect unclassified intelligence sources and methods that were employed as law enforcement techniques or procedures’ . . . .”  “The Court has carefully reviewed the CIA’s classified declarations on these points.”  “These declarations develop the above points in far greater detail.”  “In numerous instances, these identify the exact information redacted.”  “And they concretely and coherently explain why such information would reveal, or would reasonably be expected to reveal, intelligence sources and methods.”  “In the Court’s experience, these classified declarations reflect an unusual and commendable degree of care in the Government’s approach to classification and redactions.”  “They reflect, as well, that the redactions to the materials in this case were made judiciously, not excessively, and based on a sophisticated and informed understanding of the ongoing national security threats posed by al Qaeda and its affiliates.”  “The classified declarations, in sum, do far more than simply state ‘ipse dixit.’”  “‘Accord[ing] substantial weight and due consideration to the [agencies’] affidavits,’ . . . the Court finds that the FBI and CIA have set forth a sufficiently detailed and supported account of why the redactions protect information reasonably expected to lead to the disclosure of intelligence sources and methods.”
  
  The court relates that “[plaintiff[ argues that, even if the agencies otherwise could have properly invoked Exemption 3, they have foregone the right do so here by officially acknowledging the information they seek to withhold.”  “After reviewing the disputed redactions and the parties’ submissions addressing them, both unclassified and classified, the Court rejects [plaintiff’s] claim of an official acknowledgment of the withheld information.”  “The Government has not withheld information that is as specific as, or that matches, information made public through an official, documented disclosure.”  Additionally, the court relates that “[plaintiff] points largely to books by former CIA and FBI officials.”  The court finds that “[t]hese books undoubtedly offer the public insights into subjects including the ones at issue.”  “However, these sources do not qualify . . . as ‘official and documented disclosure[s].’”  “None, even those authored by former employees . . . was issued by either agency.”  “And contrary to [plaintiff’s] argument, an agency’s prepublication review, and publication approval, of a former employee’s book does not constitute official disclosure by that agency.”  Finally, “[t]o the extent that [plaintiff] faults the agencies for initially withholding such information, this Court will not ‘hold against [the agencies] the fact that [they] revisited records [they] had already reviewed and reconsidered earlier exemption determinations in the face of continued challenges from’ the applicant.”  “On the contrary, such thoughtful reconsideration, and an iterative review, is ‘the way the FOIA process should work’ – and ‘a contrary holding would disincentivize reconsiderations by agencies, thereby undermining the ultimate goal of promoting the disclosure of records where an exemption does not apply.’”