N.Y. Times Co. v. Cent. Intelligence Agency

314 F.Supp.3d 519

NEW YORK TIMES COMPANY, Matthew Rosenberg, Plaintiffs,

v.CENTRAL INTELLIGENCE AGENCY, Defendant.

1:17–cv–06354 (ALC)

United States District Court, S.D. New York.

Signed June 29, 2018

David Edward McCraw, The New York Times Company, New York, NY, for Plaintiffs.

Stephen Seungkun Cha–Kim, United States Attorney's Office, Southern District of New York, New York, NY, for Defendant.

OPINION AND ORDER

ANDREW L. CARTER, JR., United States District Judge:

Plaintiffs, the New York Times Company and Matthew Rosenberg, bring this action challenging Defendant Central Intelligence Agency's Glomar response to Plaintiffs' request pursuant to the Freedom of Information Act, 5 U.S.C. § 552 ("FOIA") for any records related to an alleged covert CIA operation to arm and train Syrian rebels. The parties cross-move for summary judgment. For the reasons outlined below, Defendant's motion is GRANTED , and Plaintiffs' motion is DENIED .

BACKGROUND

On July 24, 2017, President Donald Trump, using his Twitter handle @realdonaldtrump, "tweeted": "The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad." Decl. of David E. McCraw ("McGraw Decl."), Ex. 3, July 24, 2017 Tweet. Though the President's tweet does not reference any particular article published by the Post, the paper ran an article on July 19, 2017 reporting that "President Trump has decided to end the CIA's covert program to arm and train moderate Syrian rebels battling the government of Bashar al-Assad, a move long sought by Russia, according to U.S. officials." Greg Jaffe & Adam Entous, Trump ends covert CIA program to arm anti-Assad rebels in Syria, a move sought by Moscow , Wash. Post, July 19, 2017, https://wapo.st/2IB0Pi2.

The following day, President Trump appeared to reference the Post article again during an interview with the Wall Street Journal. In response to a question regarding President Trump's disappointment with the Justice Department and Attorney General Jeff Sessions, President Trump responded:

Number one, they should go after the leakers in intelligence.... I'm talking about intelligence leaks. I'm talking like the story about Syria that was in The New York Times the other day. I'm—which by the way, was a decision made by people, not me. But, you know, they wrote it 100—it was in the—... It was in The Washington Post. That was not something that I was involved in, other than they did come and they suggested. It turns out it's—a lot of al-Qaeda we're giving these weapons to. You know, they didn't write the truthful story, which they never do. So all of those things are very important. But, no, I'm very disappointed in the fact that the Justice Department has not gone after the leakers. And they're the ones that have the great power to go after the leakers, you understand. So—and I'm very disappointed in Jeff Sessions.

McGraw Decl., Ex. 4, at 5, "Excerpts: Donald Trump's Interview with the Wall Street Journal," Wall St. J., July 25, 2017, ECF No. 14.

Prior to President Trump's tweet and statements, the alleged covert program was also referenced by General Raymond "Tony" Thomas, U.S. Special Operations Commander, during a talk at the 2017 Aspen Security Forum in response to a question from Catherine Herridge, Chief Intelligence Correspondent for the Fox News Channel:

Ms. Herridge: It's now out in the public reporting that these anti-Assad rebels are very unhappy that this covert program to arm them has been rolled up. Is it your assessment that this was done to create favor with Russia, or that it was not an effective program?

General Thomas: Absolutely—absolutely not in my—at least from what I know about that program and the decision to end it. Absolutely not a sop to the Russians. It was I think based on assessment of the nature of the program, what we're trying to accomplish, the viability of it going forward, and a tough, tough decision. I mean we're all reading the editorials now of are we leaving people at the altar, you know, people have we manned and equipped, but they're—it is so much more complex than even I can describe, and again that's not necessarily an organization that I've been affiliated with, but a sister—a parallel activity that was—that had a tough, you know, some would argue impossible mission based on the approach we took. It might have been scoped too narrowly or not empowered sufficiently. I don't know enough about it to criticize it in that direction, but it had a tough [row] to [hoe].

McCraw Decl., Ex. 5, Excerpts from General Tony Thomas's Statements at the 2017 Aspen Security Forum, July 21, 2017, ECF No. 12.

On July 25, 2017, the Times submitted a FOIA request to the CIA seeking "[a]ll records and documents, including Inspector General reports, related to the program to which President Trump referred in a July 24, 2017 post on Twitter in which he stated: ‘The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.’ " Compl. 2, ECF No. 1. On August 22, 2017, after 20 business days had elapsed without a response from the CIA, Plaintiffs filed the instant action requesting that the Court, inter alia , declare that the documents sought by the FOIA request are public and must be disclosed, and to order the CIA to provide said documents. Id. at 3. The following day, the CIA issued a "Glomar response"¹ to the Times's FOIA request, informing the Times that "in accordance with section 3.6(a) of Executive Order 13526, the CIA can neither confirm nor deny the existence or nonexistence of records responsive to this request" because the existence or nonexistence of such records was properly classified and because the information is related to intelligence sources and methods, which are exempt from disclosure by statute. Def.'s Mem. Supp. Mot. Summ. J. 2, ECF No. 10. Parties have now cross-moved for summary judgment.

STANDARD OF REVIEW

Actions brought under FOIA are typically resolved by summary judgment. See Bloomberg L.P. v. Bd. of Governors of Fed. Reserve Sys. , 649 F.Supp.2d 262, 271 (S.D.N.Y. 2009), aff'd sub nom. Bloomberg, L.P. v. Bd. of Governors of the Fed. Reserve Sys. , 601 F.3d 143 (2d Cir. 2010) (citing Amnesty Int'l USA v. C.I.A. , No. 07 CIV. 5435 (LAP), 2008 WL 2519908, at *8 (S.D.N.Y. June 19, 2008) ). 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 Celotex Corp. v. Catrett , 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). There is no issue of material fact where the facts are irrelevant to the disposition of the matter. Chartis Seguros Mexico, S.A. de C.V. v. HLI Rail & Rigging, LLC , 967 F.Supp.2d 756, 761 (S.D.N.Y. 2013) ; see also Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (holding that a fact is material if it would "affect the outcome of the suit under governing law"). An issue is genuine "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson , 477 U.S. at 248, 106 S.Ct. 2505. Where parties file cross-motions for summary judgment, " ‘each party's motion must be examined on its own merits, and in each case all reasonable inferences must be drawn against the party whose motion is under consideration.’ " New York Times Co. v. U.S. Dep't of Def. , 499 F.Supp.2d 501, 509 (S.D.N.Y. 2007) (citing Morales v. Quintel Entm't, Inc. , 249 F.3d 115, 121 (2d Cir. 2001) ).

"To prevail on motion for summary judgment in a FOIA case, the defending agency has the burden of showing that [1] its search was adequate and [2] that any withheld documents fall within an exemption to the FOIA." Carney v. U.S. Dep't of Justice , 19 F.3d 807, 812 (2d Cir. 1994) (citing 5 U.S.C. § 552(a)(4)(B) ) (citing EPA v. Mink , 410 U.S. 73, 93 S.Ct. 827, 35 L.Ed.2d 119 (1973) ). Affidavits or declarations providing "reasonably detailed explanations why any withheld documents fall within an exemption are sufficient to sustain the agency's burden" and are "accorded a presumption of good faith." Id. (citing Safecard Servs., Inc. v. SEC , 926 F.2d 1197, 1200 (D.C. Cir. 1991) ). Furthermore, in the national security context, courts " ‘must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.’ " Am. Civil Liberties Union v. Dep't of Justice , 681 F.3d 61, 69 (2d Cir. 2012) (citing Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007) ).

Agency affidavits, however, must describe with reasonable specificity the nature of the documents at issue and the justification for nondisclosure—conclusory assertions are insufficient. Bloomberg , 649 F.Supp.2d at 271 (citing Halpern v. F.B.I. , 181 F.3d 279, 291 (2d Cir. 1999) ). Where, as in here, an agency has invoked a Glomar response, the agency must "tether its refusal, to one of the nine FOIA exemptions," i.e., "a government agency may refuse to confirm or deny the existence of certain records if the FOIA exemption would itself preclude the acknowledgment of such documents." Wilner v. Nat'l Sec. Agency , 592 F.3d 60, 71 (2d Cir. 2009) (internal citation and quotations omitted). Moreover, "all doubts as to the applicability of an exemption must be resolved in favor of disclosure." New York Times Co. v. U.S. Dep't of Justice , 756 F.3d 100, 112 (2d Cir.), opinion amended on denial of reh'g , 758 F.3d 436 (2d Cir. 2014), supplemented , 762 F.3d 233 (2d Cir. 2014) (citing Wilner , 592 F.3d at 69 ).

In sum, the district court can award summary judgment on the basis of agency affidavits, Carney , 19 F.3d at 812 (citing Goland v. CIA , 607 F.2d 339, 352 (D.C. Cir. 1978), cert. denied , 445 U.S. 927, 100 S.Ct. 1312, 63 L.Ed.2d 759 (1980) ), so long as the affidavits "[1] describe the justifications for nondisclosure with reasonably specific detail, [2]...