Connell v. CIA, No. 23-5118, 2024 WL 3659323 (D.C. Cir. Aug. 6, 2024) (Garcia, J.)

Connell v. CIA, No. 23-5118, 2024 WL 3659323 (D.C. Cir. Aug. 6, 2024) (Garcia, J.)

Re:  Request for records concerning “CIA’s ‘operational control’ over Guantanamo Bay detainees”

Disposition:  Affirming district court’s grant of government’s motion for summary judgment

• Exemption 1, Waiver of Exemption 1 Protection:  The Court of Appeals for the District of Columbia Circuit relates that “[the requester] argues that the CIA waived its ability to assert a Glomar response here based on the [Senate Select Committee on Intelligence (“SSCI”)] executive summary that gave rise to his request and the documents the CIA produced in this litigation – the itinerary and background memo and the CIA-DOD [Memorandum of Agreement (“MOA”)].”  “[The requester] argues that these documents officially confirm the existence of responsive records showing a classified or otherwise unacknowledged connection between the CIA and the subject of his FOIA request.”  “[The court is] not persuaded.”  “Start with the SSCI executive summary and its reference to CIA ‘operational control.’”  “The SSCI executive summary’s reference to CIA ‘operational control’ is not an ‘official’ acknowledgment:  It was made by a congressional committee, not by the CIA or an authorized representative of the agency’s parent, and thus cannot be attributed to the CIA for purposes of waiver under our case law.”  “[The requester] argues that [the court] can nonetheless consider the SSCI executive summary an ‘official’ acknowledgement by the CIA because the summary would be seen as ‘similarly credible’ in the eyes of ‘the public and U.S. adversaries,’ . . . in part because the CIA ‘submitted . . . comments’ and participated in the report’s declassification review . . . .”  “That approach would create a new exception to our well-established and ‘“strict”’ insistence that an ‘official’ statement must be made by the agency itself; that rule has never turned on the perceived credibility of the other speaker.”  “Nor does the CIA’s submission of comments and participation in the declassification review transmute the congressional report into a CIA one.”
  
  “[The court] turn[s] next to the CIA-produced documents.”  “As an initial matter, the CIA’s production of some documents in response to [the requester’s] FOIA request does not foreclose its ability to assert a Glomar response as to others.”  “Here, the CIA explained that it identified three documents, two of which it produced, from a database of records ‘that have been previously disclosed to the public.’”  “That limited disclosure does not categorically prevent the CIA from invoking a Glomar response as to records showing a classified or otherwise unacknowledged connection between the CIA and the subject of [the requester’s] FOIA request.”  “And [the court is] not persuaded that either of the two CIA-produced documents specifically matches the information protected by the CIA’s Glomar response.”  “Neither document reveals the existence or nonexistence of records about a classified or otherwise unacknowledged connection between the CIA and the subject of [the requester’s] FOIA request, namely, the CIA’s ‘operational control’ over Camp 7 from September 1, 2006 to January 31, 2007.”
  
  “Perhaps recognizing the problem, [the requester] seeks to reshape his FOIA request to fit what the CIA-disclosed documents show.”  “Specifically, [the requester] argues that his FOIA request sought records showing any CIA ‘connection to, relationship with, and authority (or partial authority) over’ Camp 7 in the specified time period.”  “Because the CIA-produced records do show some connection between the CIA and Camp 7 in the specified time period, [the requester] argues, they officially acknowledged the existence of such records.”  “But [the requester’s] request did not seek records of ‘any connection’ between the CIA and Camp 7 in the specified time period.”  “It sought records about, in the SSCI’s words, the CIA’s ‘operational control’ of Camp 7 during that period.”  “As explained, nothing in the documents the CIA produced discloses that the CIA had such control, much less discloses whether the CIA has other, previously undisclosed documents related to that request.”
  
  “Finally, [the requester] argues that because the CIA identified the itinerary and background memo and CIA-DOD MOA as responsive, the CIA did, in fact, confirm that the documents show ‘operational control.’”  “But [the requester’s] request specifically referenced the SSCI executive summary and its footnote citations.”  “That the CIA produced these as responsive documents indicates only that the SSCI report cited them, not that the CIA was confirming that they showed ‘operational control’ on any independent understanding of the term by the CIA.”
  
  Separately, the court also finds that “the non-CIA statements on which [the requester] seeks to rely could not render illogical or implausible the CIA’s assertion that it would reveal protected intelligence information to confirm or deny the existence or nonexistence of records showing a classified or unacknowledged connection between the CIA and the subject of [the requester’s] request.”  The court notes that plaintiff relies on ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) to make this argument.  The court finds that “[t]he problem for the CIA there was that repeated official statements – from the President, his counterterrorism advisor, and the CIA Director – revealed that the United States used drone strikes.”  “As a result of those official statements, [the court] held that it ‘strains credulity’ for the CIA – ‘an agency charged with gathering intelligence affecting the national security’ – to maintain that it did not at least have an ‘intelligence interest’ in that subject.”  “ACLU indicates that even when official statements do not precisely match the secret protected by the Glomar response as required for waiver through official acknowledgment, such statements can render a Glomar response insufficiently logical or plausible if they directly undermine the justification given for that response.”  “But the statements in ACLU were, crucially, official.”  “Everything our cases have said about the special import of official statements (those from the agency or an authorized representative of the agency’s parent) was therefore not in tension with our rationale there.”  “ACLU did not turn in any respect on the type of nonofficial statements [the requester] asks [the court] to consider here.”  “And, unlike in ACLU, the official statements [the requester] identifies here do not undermine the CIA’s justification for its Glomar response.”
  
  Senior Circuit Judge Ginsberg writes separately to state that “a litigant that challenges an agency’s justification for a Glomar response by pointing to publicly available information related to the subject of the documents it seeks would do well to remember that the touchstone of FOIA Exemption 1 is whether the document in question ‘“pertains to” either “intelligence activities” or “intelligence sources or methods”’ and ‘“could reasonably be expected to cause identifiable or describable damage to the national security” if disclosed.’”  “It is for this very reason that our past decisions ‘have unequivocally recognized that the fact that information resides in the public domain does not eliminate the possibility that further disclosures can cause harm to intelligence sources, methods[,] and operations.’”  “[The court] give[s] substantial weight to the CIA’s judgment regarding that possibility, for as [the court has] often repeated, ‘[t]he assessment of harm to intelligence sources, methods[,] and operations is entrusted to the Director of Central Intelligence, not to the courts.’”
   
• Exemption 3:  The Court of Appeals for the District of Columbia Circuit notes that “[e]ven though the CIA has not waived its Glomar response, it must still show that it properly issued that response to be entitled to summary judgment.”  “Recall that the CIA’s Glomar response asserted that the existence or nonexistence of records reflecting a classified or otherwise unacknowledged connection between the CIA and the subject of [the requester’s] FOIA request was protected from disclosure by Exemptions 1 and 3.”  “Because our analysis of Exemption 3 is dispositive on the issue, [the court does] not discuss or reach Exemption 1.”  “In invoking Exemption 3 here, the CIA relied on the National Security Act, which commands the Director of National Intelligence to ‘protect . . . intelligence sources and methods from unauthorized disclosure.’”  “As [the requester] does not dispute, the National Security Act is a qualifying ‘withholding statute under Exemption 3.’”  The court notes that “[the government’s] declaration states that ‘acknowledging the existence or nonexistence of records reflecting a classified or otherwise unacknowledged connection to the CIA in this matter would reveal information that concerns intelligence sources and methods, which the National Security Act is designed to protect.’”  “The declaration also states that ‘confirmation or denial of the existence or nonexistence of such records would reveal sensitive information about the CIA’s intelligence interests, personnel, capabilities, authorities, and resources.’”  “A Glomar response was further needed to avoid ‘reveal[ing] sensitive details about CIA’s intelligence sources and methods and jeopardiz[ing] the safety of the CIA employees and the employees of other agencies’ and to avoid ‘provid[ing] adversaries with insight into the CIA’s priorities, resources, capabilities, and relationships with other agencies.’”  The court finds that “[t]hough the CIA could arguably have provided additional detail as to what intelligence sources and methods would be revealed here, the CIA met its burden of justifying its Glomar response.”  “It is plausible that revealing the existence or nonexistence of records of a classified or otherwise unacknowledged connection between the CIA and the subject of [the requester’s] FOIA request could reveal intelligence sources and methods information.”  “It is also plausible that stating whether the CIA has records about its operational control (or partial control or utter lack thereof) over Camp 7 would reveal information about the CIA’s ‘relationships with other agencies,’ including DOD, or information about the CIA’s ‘priorities,’ ‘capabilities,’ and ‘resources.’”