Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 1 of 9 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA NATIONAL SECURITY ARCHIVE Plaintiff v Civil Action No 21-2857 JEB CENTRAL INTELLIGENCE AGENCY Defendant MEMORANDUM OPINION In 1989 as he retired as Director of the Defense Intelligence Agency Lieutenant General Leonard Perroots wrote a Memo documenting an unaddressed “analytical problem” for the U S Intelligence Community Now over three decades later Plaintiff National Security Archive NSA would like a copy of that Memo and it has deployed the Freedom of Information Act in its suit to obtain it The CIA produced the document a cover letter and accompanying Memo in response to NSA’s FOIA request but it redacted the full text of the Memo citing nationalsecurity and intelligence concerns It now moves for summary judgment NSA rejoins that notwithstanding the validity of the CIA’s interests in secrecy the Agency may not continue to withhold the Perroots Memo because according to NSA the Memo’s text was already made public with CIA permission in a Department of State publication Any interests in secrecy are thus moot The Court disagrees and will accordingly grant summary judgment to the CIA I Background On August 2 2021 NSA a non-governmental organization that promotes research about U S national-security decisionmaking processes submitted a FOIA request to the CIA for a 1 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 2 of 9 single document the so-called “January 9 1989 ‘End of Tour Report Addendum General Perroots ’” ECF No 21-2 Def Statement of Undisputed Material Facts ¶ 1 citing ECF 21-3 Decl of Lauren Holm ¶ 6 After being met with silence from the CIA Plaintiff filed this suit against the Agency in October of that year See ECF No 1 Compl ¶ 33 The CIA located the document in December 2021 see Holm Decl ¶ 8 and sent a letter in April 2022 telling Plaintiff that the Agency could release the document in segregable form with redactions as appropriate under FOIA Exemptions 1 and 3 See SUMF ¶ 5 citing Holm Decl ¶ 9 The CIA accordingly released the cover letter to the Memorandum with minor redactions but redacted the substance of the Memo in full See SUMF ¶ 5 citing ECF No 21-4 Redacted Perroots Memo and Cover Letter The Agency concluded that the redacted information needed to be withheld because it could “reveal specific intelligence activities sources and methods that are either still actively in use or which remain viable for use today ” Holm Decl ¶ 12 see also id ¶ 19 “The Agency protects intelligence methods that may be unclassified but nevertheless if disclosed would reveal sensitive intelligence sources and methods ” Based on its “line-by-line review of the record at issue ” the CIA also determined that it had segregated “all non-exempt reasonably segregable material ” Id ¶¶ 21–22 Plaintiff objects to the scope of the redactions — but not because the CIA’s nationalsecurity concerns are illegitimate Rather NSA maintains that the CIA may no longer plausibly assert an interest in keeping the document under wraps because the Agency already disclosed albeit in a different form and with some redactions the same document it is now seeking to conceal According to NSA the Department of State previously published with CIA sign-off the transcribed text of the Perroots Memo with very minor redactions in Volume IV of the DOS Series “Foreign Relations of the United States” FRUS See ECF No 13 Joint Status Report 2 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 3 of 9 April 29 2022 ¶¶ 6–7 ECF 1-2 FOIA Request at 28–31 FRUS Perroots Transcript The FRUS series “presents the official documentary historical record of major U S foreign policy decisions and significant diplomatic activity ” Dep’t of State Off of the Historian “Historical Documents ” Plaintiff’s position is thus that “any reasons for withholding parts of the Perroots Memo that are public have been mooted by its release” in the FRUS See Apr JSR ¶ 12 The CIA of course disagrees Following several procedural developments not relevant here Defendant now moves for summary judgment II Legal Standard Summary judgment must be granted if “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law ” Fed R Civ P 56 a see also Anderson v Liberty Lobby Inc 477 U S 242 247–48 1986 Holcomb v Powell 433 F 3d 889 895 D C Cir 2006 A fact is “material” if it can affect the substantive outcome of the litigation See Liberty Lobby 477 U S at 248 Holcomb 433 F 3d at 895 A dispute is “genuine” “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party ” Liberty Lobby 477 U S at 248 see also Scott v Harris 550 U S 372 380 2007 Holcomb 433 F 3d at 895 “A party asserting that a fact cannot be or is genuinely disputed must support the assertion” by “citing to particular parts of materials in the record” or “showing that the materials cited do not establish the absence or presence of a genuine dispute or that an adverse party cannot produce admissible evidence to support the fact ” Fed R Civ P 56 c 1 FOIA cases typically and appropriately are decided on motions for summary judgment See Brayton v Off of the U S Trade Representative 641 F 3d 521 527 D C Cir 2011 In a 3 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 4 of 9 FOIA case a court may grant summary judgment based solely on information provided in an agency’s affidavits or declarations when they “describe the justifications for nondisclosure with reasonably specific detail demonstrate that the information withheld logically falls within the claimed exemption and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith ” Larson v Dep’t of State 565 F 3d 857 862 D C Cir 2009 citation omitted Such affidavits or declarations “are accorded a presumption of good faith which cannot be rebutted by ‘purely speculative claims about the existence and discoverability of other documents ’” SafeCard Servs Inc v SEC 926 F 2d 1197 1200 D C Cir 1991 quoting Ground Saucer Watch Inc v CIA 692 F 2d 770 771 D C Cir 1981 “FOIA expressly places the burden ‘on the agency to sustain its action’ and directs the district courts to ‘determine the matter de novo ’” Dep’t of Justice v Reporters Comm for Freedom of Press 489 U S 749 755 1989 quoting 5 U S C § 552 a 4 B III Analysis Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny ” Dep’t of Air Force v Rose 425 U S 352 361 1976 citation omitted The statute promotes these aims by providing that “each agency upon any compliant request for records shall make the records promptly available to any person ” 5 U S C § 552 a 3 A The Government need not however turn over requested information that falls into one of nine statutorily created exemptions from FOIA’s broad directive Id § 552 b 1 – 9 The CIA here invokes Exemptions 1 and 3 which respectively exempt materials “authorized by an Executive order to be kept secret in the interest of national defense or foreign policy” and materials “specifically exempted from disclosure by statute ” Id § 552 b 1 3 4 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 5 of 9 This Court has spilled much ink in prior Opinions over the scope of those exemptions Unlike in many FOIA cases however the exemptions play but a supporting role here Plaintiff concedes that “in an alternate universe” — that is one where the text of the Perroots Memo has not purportedly been released into the public domain — the exemptions that the CIA “claims protect the disputed document could arguably have been properly applied ” ECF No 25 Plaintiff Opposition to MSJ at 1 But NSA contends we are not in such a universe On our planet “CIA has signed off on the declassification and release of the disputed document” in a DOS publication and has thus “waived the right to claim any exemption over at least the published portions of the document ” Id The focus of this dispute is therefore the effect of the FRUS publication on the CIA’s ability to invoke any FOIA exemptions Plaintiff puts forth two reasons why the CIA may not rely on those exemptions here first under Circuit precedent the disclosure of information that an agency has “officially acknowledged” may be compelled over objection see Opp at 6–10 second and relatedly even in the absence of any official acknowledgment the CIA must explain with far more specificity than it has why the already-public portions of the Perroots Memo should continue to be withheld Id at 10–12 The Court will take each theory in turn A Official Acknowledgment The official-acknowledgment doctrine provides that “when an agency has officially acknowledged otherwise exempt information through prior disclosure the agency has waived its right to claim an exemption with respect to that information ” ACLU v CIA 710 F 3d 422 426 D C Cir 2013 “To establish official acknowledgment a plaintiff must identify information in the public domain that 1 matches the information requested 2 is as specific and 3 has been 5 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 6 of 9 made public through an official and documented disclosure by the Agency from which the information is being sought ” Knight First Amend Inst v CIA 11 F 4th 810 815–16 D C Cir 2021 internal quotations omitted According to NSA the so-called transcript of the Perroots Memo in Volume IV of the FRUS satisfies all three criteria Plaintiff asserts that information in the DOS publication both matches and is as specific as the requested information See Opp at 7 It submits moreover that the CIA must have formally “signed off on the declassification of the text of the Perroots Memo” for it to appear in the FRUS Id at 8 This is so because DOS is required by statute to submit any records selected for inclusion in the FRUS series “to the respective originating agency for declassification review in accordance with that agency’s procedures for such review ” 22 U S C § 4353 b 1 Opp at 8 That agency here was the CIA id at 8 which has a “Historical Programs Staff specifically tasked with coordinating FRUS Series reviews ” Opp at 3 Plaintiff also points out that “the preface to Volume IV thanks CIA staff for ‘arranging full access to CIA records ’” Id citing FOIA Request at 15–18 Preface to FRUS Vol IV at 17 In sum all signs suggest that “the text of the Perroots Memo could not have made it into Volume IV without CIA’s cooperation and involvement ” Id And that Plaintiff submits must mean that the CIA officially acknowledged the portion of the Perroots Memo that was published in the FRUS Id at 9 While NSA recognizes that courts “do not deem official a disclosure made by someone other than the agency from which the information is being sought ” Knight First Amend Inst 11 F 4th at 816 internal quotations omitted it also points out that “a disclosure by one component of an executive department may bind another component within the same department ” Id at 817 internal quotations omitted Plaintiff here maintains that the decision of the “CIA’s 6 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 7 of 9 dedicated FRUS Series declassification staff” to permit publication of the Memo in the FRUS was a decision on behalf of the entire agency See Opp at 9 The CIA has a rebuttal In response to NSA’s arguments the Agency submitted supplemental classified ex parte in camera declarations including one from Vanna Blaine an officer in the Litigation Information Review Office and one from Donald J Blersch the Senior Coordinator of the Diplomatic Security Service for Security Infrastructure in the Bureau of Diplomatic Security from the State Department Blaine’s declaration for instance “elaborat es the CIA’s role in the classification review process” for Volume IV of the FRUS See ECF No 27 Defendant Reply at 2–3 “The declaration also explains why the CIA cannot further address this issue on the public record ” Id at 3 The Court has reviewed the Government’s classified ex parte declarations along with a copy of the requested Memo Having done so it concludes that the transcript contained in Volume IV was not made public through an “official and documented disclosure” by the CIA The Government’s declarations confirm that the CIA — and this includes the agency and its “components” — was not properly involved in the document’s disclosure Plaintiff’s failure to show that the third precondition of the official-acknowledgment doctrine was satisfied is enough to render the doctrine inapplicable here The Court therefore need not address whether the first two requirements of sameness and specificity are satisfied The Court is acutely aware of the frustration its admittedly cryptic analysis may engender But FOIA requires it to remain parsimonious in its explanation lest it “pry loose from the government even the smallest bit of information that is properly classified or would disclose intelligence sources or methods ” Afshar v Dep’t of State 702 F 2d 1125 1130 D C Cir 1983 The Court assures NSA however that the CIA has sufficiently shown its lack of 7 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 8 of 9 involvement in the FRUS publication and supported that position with declarations that must be accorded “a presumption of good faith ” SafeCard 926 F 2d at 1200 B Public Domain Plaintiff next contends that notwithstanding who disclosed the material that ended up in the FRUS the CIA must still explain why it continues to withhold information that is already public See Opp at 11 Defendant for its part submits that not just any public disclosure suffices to waive a FOIA exemption or weaken its applicability rather as the officialacknowledgment doctrine provides only those public disclosures that are “officially” made public affect an agency’s ability to invoke an exemption See Reply at 3 In other words Defendant’s position is that there is no “public disclosure” exception that exists separate from the “official acknowledgment” exception This Court need not resolve whether public disclosure of a document via unofficial channels could ever suffice to waive an agency’s ability to invoke a FOIA exemption All NSA requests in this case is a “‘specific explanation for continued withholding of information’ that has been made public even when the public information was released unofficially ” Opp at 11 quoting Washington Post v Dep’t of Def 766 F Supp 1 10 D D C 1991 emphasis added The CIA has provided that to the Court here Once again the Court begs Plaintiff’s indulgence as it must be vague It assures NSA based on its review in camera of the documents that the Agency has diligently explained in those declarations why it must continue to withhold the contents of the Perroots Memo despite the FRUS publication and it has done so with specific reasons and support The Court’s confidence is buttressed by the fact that it must give “substantial weight” to the CIA’s declarations “concerning the details of the classified status of the disputed record because the 8 Case 1 21-cv-02857-JEB Document 30 Filed 10 04 22 Page 9 of 9 Executive departments responsible for national defense and foreign policy matters have unique insights into what adverse effects might occur as a result of a particular classified record ” Larson 565 F 3d at 864 quoting Ctr for Nat’l Sec Studs v Dep’t of Just 331 F 3d 918 927 D C Cir 2003 The CIA has sufficiently explained why classification of the information is still warranted to protect “intelligence activities” or “intelligence sources or methods ” MSJ at 6 Having dispensed with Plaintiff’s general objections to withholding here the Court is left with the CIA’s reliance on Exemptions 1 and 3 As Plaintiff does not contest the applicability of those exemptions on their merits summary judgment for Defendant is appropriate IV Conclusion For the foregoing reasons the Court will grant Defendant’s Motion for Summary Judgment A separate Order so stating shall issue this day s James E Boasberg JAMES E BOASBERG United States District Judge Date October 4 2022 9