Open Soc'y Justice Initiative v. Dep't of Def.

MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, United States District Judge

In this case, the Open Society Justice Initiative (“OSJI”) seeks records from fourteen federal agencies regarding the Executive Branch's earliest responses to the COVID-19 pandemic. Thirteen of the agencies are in the process of producing responsive records. The fourteenth, the Central Intelligence Agency (“CIA”), has - “pursuant to its customary practice, ” ACLU v. Dep't of Def., 322 F.Supp.3d 464, 468 (S.D.N.Y. 2018) (“ACLU III”) - refused to either confirm or deny the existence of documents responsive to OSJI's requests. In a prior Opinion and Order entered on July 15, 2021, familiarity with which is assumed, the Court upheld the CIA's response - known as a “Glomar response” - as to several of OSJI's requests. See Open Soc'y Just. Initiative v. Dep't of Def., No. 20-CV-5096 (JMF), 2021 WL 3038528, at *6-7 (S.D.N.Y. July 15, 2021) (“OSJI”) (ECF No. 90). The Court reserved judgment as to the rest, concluding that the CIA had failed to adequately justify its Glomar response but should be given another opportunity to do so. See Id. at *7. Thereafter, the CIA filed a supplemental memorandum of law, see ECF No. 96, and a sixteen-page supplemental declaration from Vanna Blaine, a CIA Information Review Officer, see ECF No. 97 (“Supp. Blaine Decl.”); OSJI filed a supplemental memorandum of law, see ECF No. 99 (“OSJI Supp. Mem.”); and the CIA filed a

supplemental reply, see ECF No. 104 (“Supp. Reply”), along with a three-page second supplemental declaration from Officer Blaine, see ECF No. 104-1 (“2d Supp. Blaine Decl.”). Upon review of the parties' supplemental submissions, the Court upholds the CIA's Glomar response pursuant to FOIA Exemptions 1 and 3. Whereas Officer Blaine's initial declaration was “conclusory, vague, and sweeping” in its “assertions about the sensitivities of the CIA's activities and records generally, ” OSJI, 2021 WL 3038528, at *7 (internal quotation marks omitted), her supplemental declaration explains with adequate specificity why compelled responses to each of the remaining requests would reveal information that is both properly classified and protected from disclosure by the National Security Act and thus exempt. See Supp. Blaine Decl. ¶¶ 6-19. More generally, Officer Blaine explains that

[t]aken together, substantive responses confirming or denying the existence of nonexistence of records related to each of [OSJI's] twenty-one specific topics would provide significant insight into the CIA's role, or lack thereof in the Executive Branch's pandemic response. . . . Were the CIA to issue substantive responses to Plaintiff's request, each confirmation or denial of the existence or nonexistence of records . . . would define the