Ullah v. Cent. Intelligence Agency

435 F.Supp.3d 177

Obaid ULLAH, et al., Plaintiffs,

v.CENTRAL INTELLIGENCE AGENCY, Defendant.

Civil Action No. 18-2785 (JEB)

United States District Court, District of Columbia.

Signed January 16, 2020

Arthur B. Spitzer, American Civil Liberties Union of the District of Columbia, Washington, DC, Dror Ladin, American Civil Liberties Union Foundation, New York, NY, for Plaintiffs.

Daniel Patrick Schaefer, U.S. Attorney's Office for the District of Columbia, Washington, DC, for Defendant.

MEMORANDUM OPINION

JAMES E. BOASBERG, United States District Judge This case, like many brought under the Freedom of Information Act, triggers a clash between personal and public concerns, between a family's interest in mourning one of its own and the Government's interest in protecting sensitive national-security information. In 2002, Afghan citizen Gul Rahman died in an overseas detention center at the hands of the Central Intelligence Agency. Almost two decades later, the whereabouts of his corpse remains unknown. Plaintiffs Obaid Ullah — the representative of Rahman's estate — and the American Civil Liberties Union now seek this Court's enforcement of their FOIA request for information about what happened after his death.

Although the Government has produced a fair number of documents detailing its treatment of Rahman, it has withheld others, relying heavily on FOIA exemptions that protect classified information from disclosure. While mindful that "[f]amily members have a personal stake in honoring and mourning their dead," Nat'l Archives & Records Admin. v. Favish, 541 U.S. 157, 168, 124 S.Ct. 1570, 158 L.Ed.2d 319 (2004), the Court finds that the Government has carried its burden of demonstrating the propriety of the relevant exemptions. It will therefore grant Defendant's Motion for Summary Judgment.

I. Background

A. Factual Background

As noted above, this FOIA case arises out of Rahman's death in 2002. When Rahman, who was allegedly residing in a Refugee Camp in Peshawar, Pakistan, traveled to Islamabad for a medical appointment, the CIA took custody of him and transported him to a facility in an unknown location. See ECF No. 1 (Complaint), ¶ 2. According to Plaintiffs, the CIA then "forcibly disappeared Mr. Rahman and tortured him to death." Id., ¶ 1.

The Agency has confirmed that Rahman died in its custody, releasing various reports that provide detailed information about his detention, treatment, and death. These materials, comprising hundreds of pages (albeit in redacted form), memorialize that Rahman died of hypothermia after being short-chained to a concrete floor in near-freezing temperatures. See Office of CIA Inspector General, Report of Investigation: Death of Detainee (April 27, 2005) at 3; Memorandum from John Brennan, CIA Director, to Sens. Feinstein & Chambliss, CIA Comments on the Senate Select Committee on Intelligence Report on the Rendition, Detention, and Interrogation Program 4, 9 (June 27, 2013). As of this date, the CIA has not officially informed Rahman's family of his death or returned his body to them. See Compl., ¶ 7.

B. Procedural History

Seeking primarily to discover the location of Rahman's remains, Plaintiffs filed a FOIA request on April 18, 2018, for records concerning:

(1) The United States' (or its agents') disposition of Mr. Rahman's body after his death in CIA custody in November 2002; (2) Any and all documents referencing the location of Mr. Rahman's body; and

(3) Procedures, protocols, or guidelines to be followed in the event of a CIA detainee's death while in United States' custody, including family notification, investigation and disposition of the body.

ECF No. 17-3 (Declaration of Antoinette B. Shiner), ¶ 6. After the CIA failed to immediately respond, Plaintiffs brought this suit in November 2018. See ECF No. 18 (Pl. Opp.) at 2.

On May 31, 2019, the CIA identified 38 responsive documents, producing 9 of those documents in part while withholding the remaining 29 in full. See ECF No. 17-2 (Def. Statement of Facts), ¶ 4. (The CIA later determined that three of the documents withheld in full were not responsive. Id. ) Defendant justified its withholdings by invoking FOIA Exemptions 1 (information classified to protect national security), 3 (information the disclosure of which is prohibited by another federal law), 5 (privileged communications), 6 (information that invades another individual's personal privacy), and 7(C) and (D) (information that was compiled for law-enforcement purposes and threatens to disclose personal information or the identity of a confidential source). See 5 U.S.C. § 552(b). The CIA acknowledges that the produced documents in their current redacted forms do not reveal the disposition or location of Rahman's body or any official policy the Agency has adopted with regard to the disposal of bodies. Frustrated in their pursuit of this specific information, Plaintiffs then informed Defendant of their intent to challenge the asserted withholdings. See ECF No. 15 (Joint Status Report of June 14, 2019) at 1.

The CIA countered with a Motion for Summary Judgment, contending that the agency had fulfilled its search obligations under FOIA and that any withholdings were justified by the above-mentioned exemptions. Plaintiffs opposed that Motion, challenging the CIA's withholdings and its assertion that none of the redacted information was segregable. The Court refrained from immediately deciding the Motion, instead ordering the Government to produce the contested documents for in camera review. It has since reviewed the redactions along with Defendant's various justifications. Armed with the parties' submissions and aided by its own independent analysis of the documents, the Court is ready to rule.

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). A genuine issue of material fact is one that would change the outcome of the litigation. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ("Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment."). In the event of conflicting evidence on a material issue, the Court is to construe that evidence in the light most favorable to the non-moving party. See Sample v. Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

"FOIA cases typically and appropriately are decided on motions for summary judgment." Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009) ; Brayton v. Office of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) (same). In these cases, the agency bears the ultimate burden of proof to demonstrate the adequacy of its search and that it properly withheld any records. See Defs. of Wildlife, 623 F. Supp. 2d at 88, 91 ; see also Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir. 2007) (same). The Court may grant summary judgment based solely on information provided in an agency's affidavits or declarations when they "describe the documents and 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." Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). 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) ).

III. Analysis

Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." U.S. Dep't of Air Force v. Rose, 425 U.S. 352, 361, 96 S.Ct. 1592, 48 L.Ed.2d 11 (1976) (internal quotation marks omitted). The Act promotes these aims by providing 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). Nine categories of information are exempt from FOIA's broad disclosure mandate, see 5 U.S.C. § 552(b), but the agency bears the burden of justifying any withholdings. See Defs. of Wildlife, 623 F. Supp. 2d at 88. "While those exemptions must be narrowly construed, they still must be given meaningful reach and application." DiBacco v. U.S. Dep't of Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (internal quotation marks and citations omitted). The Act thereby establishes a "workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy." John Doe Agency v. John Doe Corp., 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (quotation marks omitted).

In assessing whether the Government has carried its burden of establishing that a given exemption applies, the Court is guided by a veritable avalanche of FOIA-related precedent. It is well established that "[t]o show that unproduced documents are exempt from FOIA, an agency may file ‘affidavits describing the material withheld and the manner in which it falls within the exemption claimed.’ " Bin Ali Jaber v. U.S. Dep't of Def., 293 F. Supp. 3d 218, 224 (D.D.C. 2018) (quoting King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987) ). Ultimately, "when an agency seeks to withhold information, it must provide a relatively detailed justification, specifically identifying the reasons why a particular exemption is relevant." Morley, 508 F.3d at 1122 (quoting King, 830 F.2d at 219 ). Agencies often fulfill this obligation by filing "a...