WP Co. LLC v. CIA, No. 22-01138, 2024 WL 983328 (D.D.C. Mar. 7, 2024) (Contreras, J.)

WP Co. LLC v. CIA, No. 22-01138, 2024 WL 983328 (D.D.C. Mar. 7, 2024) (Contreras, J.)

Re:  Request for 56 documents known as “CIA Histories,” records that examine a range of subjects related to U.S. foreign relations and intelligence operations from 1940s through 1970s

Disposition:  Granting in part and denying in part defendant’s motion for summary judgment; granting in part and denying in part plaintiff’s cross-motion for summary judgment

• Litigation Considerations, Adequacy of Search:  The court holds that “[b]ecause the CIA has not demonstrated that it conducted a supplemental search for records as it initially stated it would and because the CIA has not explained the manner in which it searched the record systems it did search, the Court concludes that the CIA failed to conduct an adequate search.”  The court relates that “[h]ere, the CIA represents that it searched for records responsive to [plaintiff’s] request in ‘three different records systems.’”  “Those record systems include ‘(1) indices of all archived hardcopy Agency records; (2) electronic versions of all Agency records that have been reviewed and/or compiled for potential public release; and (3) multiple repositories of intelligence reporting from various sources.’”  “Additionally, the CIA explained that ‘[w]here hard-copy files were identified as possibly containing relevant records, CIA information management professionals hand-searched those records in their entirety without the use of terms or other filtering mechanisms.’”  “[Plaintiff] argues that the CIA has not shown that it performed an adequate search because, [plaintiff] says, the CIA previously stated that it only conducted a search that ‘overlapped’ with the search requested by [plaintiff].”  “[Plaintiff] infers that the CIA did not search for other records that did not overlap.”  “The Court agrees with [plaintiff].”  “The CIA has had the opportunity to specify that it conducted a supplemental search either in its initial declaration or in a supplemental declaration after [plaintiff’s] briefing, but instead only provided an argument pointing to a conclusory and vague declaration that it performed an adequate search.”  “Furthermore, while it is true that the CIA’s declaration states that the CIA ‘conducted thorough and diligent searches’ in three different record systems that were likely to turn up documents of ‘the age and type’ requested by [plaintiff] . . . the CIA does not explain how it searched the electronic records systems.”  “First, the CIA has not indicated what search terms it used – if any – when searching the electronic versions of agency records or intelligence repositories; while the CIA states that it did not use search terms when searching hard copy records, it says nothing with respect to its search of digital records.”  “Nor does the CIA explain which employees searched for the records; the CIA merely states that the employees who performed the search were qualified to search those records and have searched the records in the past.”  “The Court is aware that the CIA has agency historians, . . . yet the CIA does not mention whether it consulted with its historians to determine the whereabouts of these important historical records.”  Finally, the court finds that “[a]lthough ‘the reasonableness of a FOIA search does not turn on whether it actually uncovered every document extant, and the failure of an agency to turn up a specific document does not alone render a search inadequate,’ . . . the CIA’s failure to locate a large percentage of the historically significant records that the [plaintiff] seeks raises serious concerns that the CIA did not perform an adequate search.”

• Exemption 1:  The court holds that “the CIA has not satisfied its burden justifying its withholdings pursuant to Exemption 1.”  First, the court finds that “[t]here is no question that the CIA’s declarant is an original classification authority who classified the information, and that the information is owned by the United States Government.”  “Furthermore, the CIA’s declarant averred that the information falls within section 1.4 because it concerns (1) ‘intelligence activities (including covert action),’ (2) ‘intelligence sources or methods,’ and/or (3) ‘foreign relations or foreign activities of the United States.’”  “Specifically, the CIA explains that the records ‘contain information that would reveal specific intelligence targets, the locations of CIA activities – historically and presently, and the targets of specific CIA operations.’”  “The records ‘contain specific types of intelligence methods, as well as policies and procedures for implementing and utilizing those intelligence methods, and a historical accounting of the application of those methods.’”  “And the records ‘discuss, and in some cases extensively detail, the process and policies for working with foreign services, foreign individuals, and clandestine assets who aid the CIA in its intelligence operations.’”
  
  “The rub starts with whether disclosure of the records reasonably could be expected to result in damage to the national security.”  “The CIA says that releasing the records would damage national security because disclosure ‘could significantly impair the CIA’s ability to carry out its core mission of gathering and analyzing foreign intelligence and counter intelligence and conducting intelligence operations, thereby damaging the national security.’”  “While it is true that the records the CIA has withheld are old, ‘this Court is not in a position to second-guess an agency’s classification decisions absent a contradiction on the record or evidence of bad faith.’”  “While some of the CIA’s intelligence sources, methods, and international relationships have surely become outdated since these records were created, it is possible that the sources, methods, and relationships that the CIA has withheld from disclosure remain part of the CIA’s arsenal to protect the national security.”  “Moreover, the fact that the withheld information appears innocuous to [plaintiff] does not necessarily undermine the CIA’s explanation in this case because the Court must ‘accord[s] substantial weight to an agency’s affidavit concerning the details of the classified status of the disputed record.’”  “Nevertheless, [plaintiff] has identified several examples of redacted information that appear in context to be completely innocuous – and which the CIA does not specifically address.”  “The Court is hard pressed to understand how redaction of these seemingly innocuous pieces of information serves to protect the national security.”  “Although the Court ‘accord[s] substantial weight to [the CIA’s] affidavit concerning the details of the classified status of the disputed record,’ . . . the CIA’s declarations must at least ‘afford the FOIA requester a meaningful opportunity to contest, and the district court an adequate foundation to review, the soundness of the withholding,’ . . . .”  “The CIA’s mosaic argument – that every small piece of information can be used to harm national security – has no limit and could theoretically apply to all information no matter how innocuous.”  “Court concludes, therefore, that the CIA’s declaration has not sufficiently explained how release of this information could harm the national security.”  “Be that as it may, the Court understands that a more detailed explanation of how disclosure would affect the national security comes with its own risks.”  “Accordingly, the Court denies the CIA’s motion without prejudice and orders the CIA to provide a declaration ex parte in camera (and classified if necessary) that explains how the apparently innocuous information that [plaintiff] has identified could cause the harms that the CIA asserts.”
  
  “The Court continues briefly to address [plaintiff’s] additional arguments.”  “Contrary to [plaintiff’s] assertion, . . . the CIA has not improperly classified these records ‘indefinitely.’”  “It is true that the records have been classified for many years, but the CIA has continued their classification using the proper classification procedures authorized by Executive Order 13526.”  “Nor does the CIA’s failure to explicitly address the public interest undermine its withholdings here.”  “As courts in this District have explained, the decision to declassify a document pursuant to the public interest ‘is discretionary’ and reserved for ‘exceptional’ cases.”  “If the CIA determines that classification is appropriate under Executive Order 13526, that is sufficient.”
   
• Exemption 3:  Regarding defendant’s use of the National Security Act, “the Court concludes that the CIA has failed its burden to show that the redactions protect against harms to national security.”  The court finds that “[t]he D.C. Circuit has recognized that the National Security Act is an exemption statute for purposes of Exemption 3.”  “And the D.C. Circuit has treated § 3024(i)(1) of the National Security Act broadly, ‘holding that material is properly withheld under the Act if it “relates to intelligence sources and methods,”’ . . . or if it ‘can reasonably be expected to lead to unauthorized disclosure of intelligence sources and methods[.]’”  “The CIA represents that the records it has withheld ‘contain classified information related to intelligence activities and targets, intelligence sources and methods of collection.’”  “For instance, the CIA’s Vaughn index explains that many of the withheld records involve ‘historical accounting’ or ‘historical analysis’ that could reveal ‘intelligence sources and methods, including classified relationships and information pertaining to foreign relations or foreign activities of the United States.’”  “The CIA also represents that the redacted material includes ‘certain techniques used to protect methods used to secure agency facilities, protect or support Agency officers, and control dissemination of information’ the disclosure of which ‘would reveal intelligence methods pertaining to dissemination controls and protection of information.’”  “Although the records at issue are old, it is possible that the intelligence methods and institutional relationships disclosed therein have not gone stale and that release of these records would harm intelligence sources and methods as contemplated by the statute.”  “And although it may be difficult to credit, access to such seemingly innocuous information could theoretically facilitate deductions that may reveal intelligence sources or methods.”  “The CIA, however, has not explained how release of the seemingly innocuous information identified by [plaintiff] could harm the national security.”  “Without additional detail explaining how release of this information could harm national security, the Court is hard pressed to determine whether the CIA’s assertion of harm should be credited.”  “The Court denies the CIA’s motion in this respect without prejudice and orders the CIA to explain how these withholdings would protect the national security in its ex parte in camera declaration.”
  
  “The CIA also argues that some of the information it has redacted is protected by the CIA Act and that the CIA Act is an exemption statute under FOIA Exemption 3.”  “The CIA Act exempts the CIA from ‘the provisions of any . . . law[s] which require the publication or disclosure of the organization or functions of the Agency, or of the names, official titles, salaries, or numbers of personnel employed by the Agency.’”  “This Circuit has recognized that the CIA Act is an exemption statute under FOIA Exemption 3.”  “The CIA represents that it ‘withheld identifying information such as names, titles, identification numbers, functions, and organizational information related to the Agency and its employees.’”  “The Court finds plausible the agency’s assertion that revealing the agency information sought to be withheld would constitute a ‘disclosure of the organization, functions, [or] names . . . of personnel employed by the Agency.’”  “Accordingly, the Court concludes that the CIA’s withholdings under Exemption 3 and pursuant to the CIA Act are justified.”
   
• Exemption 6:  “[T]he Court concludes that the CIA may properly withhold [certain] information under FOIA Exemption 6.”  The court finds that “[t]he balance weighs more heavily on the side of privacy interests than the interest in public disclosure.”  “Individuals, and family members of deceased individuals, who were associated with the CIA have a privacy interest in preventing the disclosure of those individuals’ association with the CIA . . . .”  “Although ‘the privacy interest in nondisclosure of identifying information may be diminished where the individual is deceased,’ . . . ‘the D.C. Circuit has repeatedly held that the close relatives of a deceased person retain a certain amount of privacy interests after the decedent has passed away[.]’”  “Here, the relatives of deceased individuals may have only a modest privacy interest in the withholding of information, but [plaintiff] has not put forth a countervailing public interest in the release of the information, . . . and ‘even a modest privacy interest, outweighs nothing every time[.]’”  “Nor does the Court perceive that release of the information would serve ‘FOIA’s central purpose – to ensure that the Government’s activities be opened to the sharp eye of public scrutiny,’ . . . because ‘information about private citizens . . . reveals little or nothing about an agency’s own conduct[.]’”  “Moreover, to the extent that the redacted information pertains to details other than whether a deceased individual was associated with the CIA, that information may constitute a greater than modest invasion of privacy.”  “This is so because if the individual associated with the CIA is still alive, or if the redacted information does more than reveal that individual’s association with the CIA, that information may cause the individual to be further harassed or may reveal personal details about the individual that would cause surviving relatives embarrassment or harassment.”
   
• Litigation Considerations, “Reasonably Segregable” Requirements:  “[T]he Court concludes that the CIA’s ‘sworn statements sufficiently establish that “no portions of the [fully] withheld documents may be segregated and released.”’”  “Accordingly, ‘[the Court] find[s] that the Agency has met its segregability obligations.’”