Leopold v. Cent. Intelligence Agency, Civil Action No. 13–1324 (JEB)

106 F.Supp.3d 51

Jason Leopold, Plaintiff,

v.Central Intelligence Agency, Defendant.

Civil Action No. 13–1324 (JEB)

United States District Court, District of Columbia.

Signed May 14, 2015

Jeffrey Louis Light, Law Offices of Jeffrey Light, Washington, DC, for Plaintiff.

Elizabeth J. Shapiro, Vesper Mei, U.S. Department of Justice, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge

They say the devil is in the details, and that apparently is where Plaintiff Jason Leopold hopes to find him. In this Freedom of Information Act suit, he challenges a number of redactions from the Senate Select Committee on Intelligence's report regarding the CIA's former detention and interrogation program. More particularly, he seeks to uncover the specific amounts that the Agency spent on certain activities related to the program. The CIA has thus far refused to disclose these sums, contending that they are protected under FOIA Exemptions 1 and 3. The government and Leopold have now cross-moved for summary judgment. Because the Court finds that the Agency's invocation of both exemptions is sound, it will grant Defendant's Motion and deny Plaintiff's.

I. Background

A. The SSCI Study and Executive Summary

In 2009, the Senate Select Committee on Intelligence began studying the CIA's highly controversial detention and interrogation program. See Def. Mot., Exh. 1 (Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, CIA), ¶ 5. Three years later, in December 2012, it approved a draft of its "Committee Study of the CIA's Detention and Interrogation Program" and provided it to the Executive Branch for review and comment. See id. After incorporating feedback from the CIA and the Committee's Minority Staff, the SSCI sent a revised Executive Summary of the report to the President in April 2014 for declassification review. See id. The letter that accompanied the document requested that the President declassify it "quickly and with minimal redactions." Def. Mot., Exh. B (Letter from Sen. Feinstein to President Obama, April 7, 2014).

The Director of National Intelligence, the CIA, and other Executive Branch agencies conducted a declassification review, and on August 1, 2014, the DNI provided the President with a declassified and redacted version, which was delivered to the Committee the same day. See Lutz Decl., ¶ 6. The SSCI and the Executive Branch thereafter "engaged in extensive discussions" about additional information that the Committee wished to see released. Id. The Committee subsequently provided the Executive Branch with an updated draft of the Executive Summary for further review.See id. In December 2014, a declassified version was provided to the SSCI "for its unrestricted disposition," and the Committee promptly released it to the public. See id.

This final version of the Executive Summary was 499 pages, only about 7% of which was redacted. See id., ¶ 8. Most of the redactions were made at the behest of the CIA, although some were performed at the request of the State Department, the National Security Agency, the Department of Defense, and the Federal Bureau of Investigation. See id.

B. Plaintiff's Request

In the midst of this back-and-forth, Plaintiff caught wind that the Department of Justice might have a copy of the Committee's Study. He thus sent a FOIA request to DOJ on August 16, 2013, seeking the Executive Summary. See Compl., ¶ 11. When Justice did not respond within the timeframe he believed permissible, Plaintiff filed this suit against the Department on September 2, 2013. See id., ¶ 15. Later, as litigation was underway, he sent a second request for the Executive Summary to the CIA. See Def.'s Statement of Facts, ¶ 1. After that agency failed to timely respond, he filed a Second Amended Complaint that substituted the CIA as Defendant. See ECF No. 24.

Plaintiff, of course, now has access to the document he originally sought. As just mentioned, a minimally redacted version of the Executive Summary was made public in December 2014. His curiosity, however, has not been satisfied. He continues to challenge twenty-eight specific redactions from the document, all of which relate to the CIA's proposed and actual expenditures on the detention and interrogation program. More specifically, he lists the redactions he challenges as follows:

• The amount of money provided to Bismullah upon his release ( [page] 16)

• The amount of money the CIA provided to an unknown country (74 & n.383)

• The dollar value of the "wish list" (97)

• The amount of money provided above and beyond the requested subsidy (97)

• The amount of money offered to "show appreciation" for support of a program (99, two redactions)

• The amount of payments to Habib, Mohammed, and Awadh (111 n.643, three redactions)

• The amount of money the CIA set aside for a facility's construction (139)

• The amount of money offered to an unknown country for hosting a CIA detention facility, and the amount actually made available (139 n.842, two redactions)

• The values of the proposed subsidies (140, two redactions)

• The amount of money given by the CIA (140 n.843, two redactions)

• The cost of the CIA detention facility (142)

• The amount provided by the CIA to an unknown country (154)

• The amount of compensation to a liaison for medical treatment (154 n.934)

• The amount the CIA previously invested in a new facility and its eventual cost (156)

• The amount of reduction to CIA/CTC's Rendition and Detention Program (174 n.1050, 175 n.1054, 288 n.1622, 291 n.1638, 338 n.1904)

Pl.'s Opp. & Cross–Mot. at 2–3. These can be roughly categorized as: (1) the costs of CIA detention facilities abroad; (2) amounts paid to unknown countries; (3) the size of monetary cuts to CIA intelligence programs; (4) sums given to previously detained individuals; and (5) compensation for medical services. The CIA insists on the propriety of these redactions, claiming that the information is shielded from disclosure by FOIA Exemptions 1 and 3. Both parties now seek summary judgment.

II. Legal Standard

Summary judgment may 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ; Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006). A fact is "material" if it is capable of affecting the substantive outcome of the litigation. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; 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. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) ; Liberty Lobby, 477 U.S. at 248, 106 S.Ct. 2505 ; 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). The moving party bears the burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

FOIA cases typically and appropriately are decided on motions for summary judgment. See Brayton v. Office of U.S. Trade Rep., 641 F.3d 521, 527 (D.C.Cir.2011). In a FOIA case, a court may grant summary judgment based solely on 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." SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C.Cir.1991).

Further, "[b]ecause courts lack the expertise necessary to second-guess such agency opinions in the typical national security FOIA case, [they] must accord substantial weight to an agency's affidavit." ACLU v. Dep't of Defense, 628 F.3d 612, 619 (D.C.Cir.2011) (internal citation and quotation marks omitted). "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears ‘logical’ or ‘plausible.’ " Judicial Watch, Inc. v. Dep't of Defense (Judicial Watch I), 715 F.3d 937, 941 (D.C.Cir.2013) (quoting ACLU, 628 F.3d at 619 ).

III. Analysis

Congress enacted FOIA in order "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, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (citation omitted). "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (citation omitted). The FOIA statute, accordingly, provides that "each agency, upon any request for records which (i) reasonably describes such records and (ii) is made in accordance with published rules ... shall make the records promptly available to any person," 5 U.S.C. § 552(a)(3)(A), unless the records fall within one of nine narrowly construed exemptions. See 5 U.S.C. § 552(b) ; Rose, 425 U.S. at 361, 96 S.Ct. 1592. Consistent with this statutory mandate, federal courts have jurisdiction to order the production of records that an agency improperly withholds.See 5 U.S.C. § 552(a)(3) ; Dep't of Justice v. Reporters Comm. for Freedom of the Press, 489 U.S. 749, 755, 109 S.Ct. 1468, 103 L.Ed.2d 774 (1989).

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