Johnson v. CIA, No. 17-1928, 2018 WL 2085655 (S.D.N.Y. Apr. 26, 2018) (McMahon, J.)

Johnson v. CIA, No. 17-1928, 2018 WL 2085655 (S.D.N.Y. Apr. 26, 2018) (McMahon, J.)

Re:  Request for certain email chains

Disposition:  Granting defendant's motion for summary judgment; denying plaintiff's motion for summary judgment

• Waiver:  The court issues the instant opinion to further the court's opinion dated January 19, 2018, in which the court held in abeyance the parties' motions for summary judgment and ordered defendant to further address plaintiff's "argu[ment] that CIA has, by disclosing to reporters not authorized to have access to [certain] classified information, waived its right to rely on the relevant exemptions."  The court now "conclude[s] that Plaintiff has not satisfied the virtually insuperable burden of demonstrating the existence of a permanent public record that the case law imposes on him."  The court explains that "selective disclosure of protectable information to an organ of the press, which guards the privacy of its own sources and methods as zealously as does the CIA, in circumstances like the circumstances of this case, and for the reasons offered by the Director in camera to this court, does not create a 'truly public' record of that information."  "Despite the CIA's carelessness in not ensuring that every copy of the information it disclosed remained within its custody – thereby giving it the benefit of a carefully crafted 'safe harbor' that has long been recognized by the courts – the plaintiff in this case and the Amici that support his quest have not proven that there exists a permanent public record of the information they are requesting."