UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
AMERICAN CIVIL LIBERTIES UNION, et al.,
Plaintiffs,
v. Civil Action No. 1:18-cv-2784 (CJN)
CENTRAL INTELLIGENCE AGENCY,
Defendant.
MEMORANDUM OPINION
The American Civil Liberties Union has sued to enforce a request under the Freedom of
Information Act, 5 U.S.C. § 552, seeking documents relating to the nomination of Gina Haspel to
serve as Director of the Central Intelligence Agency. See generally Compl., ECF No. 1. The CIA
withheld in full or in part hundreds of responsive records, id. ¶ 14, and now moves for summary
judgment on the grounds that Exemptions 1, 3, 5, and 6 justify the withholdings. See generally
Def.’s Mot. for Summary Judgment (“Def.’s Mot.”), ECF No. 25. For the reasons discussed
below, the Court grants the CIA’s motion for summary judgment.
I. Legal Standards Applicable to FOIA
FOIA “requir[es] federal agencies to make their records available to the public upon
request.” DiBacco v. U.S. Army, 795 F.3d 178, 183 (D.C. Cir. 2015); see 5 U.S.C. § 552(a)(3).
But FOIA also provides that agencies may withhold from disclosure information that falls within
one of nine enumerated exemptions. See United States Fish & Wildlife Serv. v. Sierra Club, Inc.,
141 S. Ct. 777, 785 (2021); see 5 U.S.C. § 552(b). Those nine “exemptions are explicitly made
exclusive and must be narrowly construed.” Milner v. Dep’t of Navy, 562 U.S. 562, 565 (2011).
1 Furthermore, as of 2016, an agency may only withhold information under an exemption if the
agency “reasonably foresees that disclosure would harm an interest protected by [the] exemption”
or if “disclosure is prohibited by law.” Reps. Comm. for Freedom of the Press v. Fed. Bureau of
Investigation, 3 F.4th 350, 357–58 (D.C. Cir. 2021) (quoting 5 U.S.C. § 552(a)(8)(A)(i)). The
agency carries the burden of proving the applicability of an exemption and showing either a
foreseeable risk of harm or that the law prohibits disclosure. See Petroleum Info. Corp. v.
Department of the Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992); Elec. Privacy Info. Ctr. v. U.S.
Dep’t of Homeland Sec., 777 F.3d 518, 522 (D.C. Cir. 2015) (quotation omitted) (noting that
district courts must review de novo the agency’s justification for non-disclosure).
“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). Summary judgment
is appropriate when “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 dispute is
“genuine” only if “the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). An agency may
attempt to meet its summary judgment burden through a declaration or an affidavit, but conclusory
declarations or affidavits “that merely recite statutory standards or are overly vague or sweeping”
will not suffice. Larson v. Dep’t of State, 565 F.3d 857, 864 (D.C. Cir. 2009).
In cases involving significant withholdings, agencies often provide a so-called Vaughn
index “to enable the court and the opposing party to understand the withheld information” and to
“address the merits of the claimed exemptions.” Jud. Watch, Inc. v. Food & Drug Admin., 449
F.3d 141, 150 (D.C. Cir. 2006); see also Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973)
(originating the term “Vaughn index”). An adequate Vaughn index “provide[s] a relatively
2 detailed justification, specifically identifying the reasons why a particular exemption is relevant
and correlating those claims with the particular part of a withheld document to which they apply.”
Mead Data Cent., Inc. v. U.S. Dep’t of Air Force, 566 F.2d 242, 251 (D.C. Cir. 1977). The Vaughn
index, in other words, must “state the exemption claimed for each deletion or withheld document,
and explain why the exemption is relevant.” Founding Church of Scientology of Wash., D.C. v.
Bell, 603 F.2d 945, 949 (D.C. Cir. 1979).
FOIA requires that even where a record contains information exempt from disclosure, any
“reasonably segregable,” non-exempt information must be disclosed. 5 U.S.C. § 552(b); see Porup
v. Cent. Intel. Agency, 997 F.3d 1224, 1238 (D.C. Cir. 2021) (quotation omitted) (“FOIA provides
that any reasonably segregable portion of a record shall be provided to any person requesting such
record after deletion of the portions which are exempt.”); see also Porup, 997 F.3d at 1238 (“We
have held that a trial court must make a segregability finding if a federal agency has redacted or
withheld documents pursuant to FOIA exemptions.”). An “agency must provide a detailed
justification” for its determination that non-exempt materials cannot be segregated from exempt
materials, but the agency need not “provide so much detail that the exempt material would be
effectively disclosed.” Johnson v. Exec. Office for U.S. Attys., 310 F.3d 771, 776 (D.C. Cir. 2002)
(quotation omitted); Mead Data Cent., Inc., 566 F.2d at 260 (noting that a “document must be
disclosed unless they are inextricably intertwined with exempt portions”). “Agencies are entitled
to a presumption that they complied with the obligation to disclose reasonably segregable
material.” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir. 2007).
FOIA also permits a district court to “examine the contents of such agency records in
camera to determine whether such records or any part thereof shall be withheld under any of the
exemptions.” 5 U.S.C. § 552(A)(4)(B). Courts engage in such inspection when doing so would
3 assist with evaluating an agency’s invocation of an exemption or a claim of nonsegregability. See
Tax Analysts v. I.R.S., 414 F. Supp. 2d 1, 5 (D.D.C. 2006). “A representative document,” rather
than all the requested and responsive documents, “may be selected for in camera inspection.”
Env’t Prot. Agency v. Mink, 410 U.S. 73, 93 (1973). The district court has “broad discretion” to
decide whether conducting in camera inspection would be helpful. Am. C.L. Union v. U.S. Dep’t
of Def., 628 F.3d 612, 626 (D.C. Cir. 2011) (quotation omitted). And, as a general rule, a court
need not conduct in camera review where the agency has provided sufficient, noncontradictory
information for the court to conclude an exemption applies or that segregability is not an option.
See Mobley v. C.I.A., 806 F.3d 568, 588 (D.C. Cir. 2015).
II. Factual and Procedural Background
Gina Haspel joined the CIA in 1985 and was employed at the agency for several decades.
See Compl. ¶ 2. The ACLU asserts that, as a senior CIA employee during President George H.W.
Bush’s administration, Haspel oversaw the alleged torture of detainees at CIA black sites. See
Pls.’s Mem. in Opp’n to Def.’s Mot. for Sum. J. (“Pls.’s Opp’n”), ECF No. 27 at 10. And the
ACLU asserts that she later played a role in destroying evidence of the alleged torture. Id.
In March 2018, President Donald Trump nominated Haspel for the position of Director of
the CIA. See Compl. ¶ 2. The CIA, as the ACLU sees it, undertook an “overt public campaign to
influence the legislative branch’s consideration of Haspel.” Id. ¶ 3.1 To do so, the ACLU alleges,
the CIA declassified “select information perceived as favorable to Haspel,” disseminated to the
media “carefully selected facts” about the nominee, and leveraged its press office to spin a
charitable narrative. Id. The positive spin, according to the ACLU, did not go unnoticed. Id. ¶ 5.
1 The American Civil Liberties Union and the American Civil Liberties Union Foundation brought this lawsuit. See Compl. ¶¶ 17–18. The Court refers to both as the American Civil Liberties Union or the ACLU throughout the opinion.
4 Several Senators voiced concerns to the CIA about the Agency withholding classified
material that could prove harmful to Haspel’s nomination. Id. In response, the CIA promised to
share additional declassified information with the public about the nominee. Id. The CIA
declassified additional information a week later. Id. ¶ 8. But that declassified information, in the
ACLU’s view, once again portrayed Haspel in a positive light and misled the public about Haspel’s
past actions and her potential conflict of interest. Id.
In May 2018, while Haspel’s nomination was still pending, the ACLU submitted a FOIA
request to the CIA for records “related to the CIA’s influence campaign to support Haspel’s
nomination, and to Haspel’s potential conflict of interest in serving as the classification authority
over her own actions in the CIA’s program of prisoner torture and abuse.” Id. ¶ 11.2 The Senate
confirmed Haspel as Director of the CIA two weeks later. Id. ¶ 13.
The ACLU filed this lawsuit in November 2018. See generally id. About fifteen months
later, the CIA issued its final response to the FOIA request. See Declaration of Vanna Blaine
(“First Blaine Decl.”), ECF No. 25-2 at ¶ 8. The CIA identified hundreds of records responsive to
the ACLU’s request, releasing some in redacted form and withholding many in full pursuant to a
variety of exemptions under FOIA. Id. ¶ 14.
Thereafter, the CIA moved for summary judgment. See Def.’s Mot. The CIA supported
its motion with both a declaration prepared by CIA official Vanna Blaine, who holds the authority
2 Specifically, the ACLU seeks records related to “(1) the selective declassification of information concerning Haspel; (2) whether Haspel serves as the original classification authority over information concerning her own participation in abuse, torture, rendition, and detention, and any consideration of possible conflict of interest in this position; (3) communications between CIA personnel and journalists; (4) communications between current CIA personnel and former CIA employees; (5) CIA decisions to promote coverage deemed favorable of Ms. Haspel; (6) CIA resources expended to support Haspel’s nomination; (7) actions undertaken by career, nonpolitical CIA employees; (8) coordination with nongovernmental actors including public relations firms; (9) CIA guidance on use of Agency resources to promote nominees; and (10) communications from CIA staff to the White House.” Compl. ¶ 20.
5 to determine whether records should be classified, and with a Vaughn index.3 See First Blaine
Decl.; see also CIA’s First Vaughn index (“First Vaughn index”), ECF No. 25-4. The ACLU
opposed the motion, contending that the Agency failed to meet the requirements of the invoked
exemptions and that the Agency provided inadequate explanations for why it could not segregate
disclosable, non-exempt information from the non-disclosable, exempt information. See generally
Pls.’s Opp’n. The ACLU did not and has not challenged the adequacy of the Agency’s search.
See Def.’s Reply to the Pls.’s Mot. in Opp’n, (“Def.’s Reply”), ECF No. 29 at 7. With its reply in
support of its motion, the CIA submitted a second declaration and a revised Vaughn index. Id.;
see also Second Declaration of Vanna Blaine (“Second Blaine Decl.”), ECF No. 29-1; CIA’s
Second Vaughn index (“Second Vaughn index”), ECF No. 29-2.
The Court held a hearing on the motion in July 2021. See Minute Order, July 8, 2021.
Following the hearing, the CIA again revised its Vaughn index and submitted a third declaration.
See Supplemental Material, (“Def.’s Supp. Mat.”), ECF No. 40; see also Third Declaration of
Vanna Blaine (“Third Blaine Decl.”), ECF No. 40-1; CIA’s Third Vaughn index (“Third Vaughn
index”), ECF No. 40-2. During this period, the Agency re-reviewed all 129 entries, ultimately
disclosing some additional information to the ACLU. See Def.’s Consent Motion, ECF No. 38 at
1. The Court also conducted an in camera review of twelve documents on the Vaughn index. See
Notice of Submission of Material for In Camera Review, ECF No. 37.4
3 The Parties have agreed that the Vaughn index need not contain an entry for every responsive record, but that it may instead describe a representative sample of the responsive records. See Pls.’s Opp’n at 16. The third Vaughn index contains a total of 129 Entries. See ECF No. 29-2. Entries 1–16 represent a sample of the documents the agency released in redacted form (10% of the 160 redacted documents). See First Blaine Decl. ¶ 14. Entries 17–129 represent a subset of the documents the CIA withheld in full (50% of 225, which represents a subset of the 473 redacted documents). Id. 4 The Court reviewed in camera the material underlying Entries 35, 36, 45, 66, 77, 85, 105, 106, 119, 124, 126, and 129. See Minute Order, July 8, 2021.
6 III. The CIA’s Withholdings under Exemption 1
Exemption 1 permits an agency to withhold information “specifically authorized under
criteria established by an Executive order to be kept secret in the interest of national defense or
foreign policy” so long as that information has been “properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). To rely on Exemption 1, an agency has the burden of
showing that it has complied with the “classification procedures established by the relevant
executive order” and has withheld “only such material as conforms to the order’s substantive
criteria for classification.” King v. Dep’t of Justice, 830 F.2d 210, 214 (D.C. Cir. 1987); see also
Lesar v. Dep’t of Justice, 636 F.2d 472, 483 (D.C. Cir. 1980) (“To be classified properly, a
document must be classified in accordance with the procedural criteria of the governing Executive
Order as well as its substantive terms.”). Courts tend to defer to an agency’s invocation of
Exemption 1 because “the Executive departments responsible for national defense and foreign
policy matters have unique insights into what adverse [e]ffects might occur as a result of public
disclosure of a particular classified record.” Larson, 565 F.3d at 864.
Here, the CIA invokes Executive Order 13526 as the basis for its Exemption 1 withholdings
of portions of 46 entries on the Vaughn index.5 That Executive Order, among other things, governs
the classification of national security information and permits information to be classified “only if
. . . the unauthorized disclosure of the information reasonably could be expected to result in damage
to the national security,” and “the original classification authority is able to identify or describe
the damage.” E.O. 13526 §§ 1.1(a)(4), 1.4. It also provides that when an agency receives a FOIA
request, the agency may “classif[y] or reclassif[y]” information responsive to the request “only if
such classification . . . is accomplished on a document-by-document basis with the personal
5 Entries 17, 18, 20, 28, 29, 30, 31, 32, 34, 35, 38, 42, 47, 48, 51, 52, 64, 65, 66, 68, 70, 71, 75, 76, 77, 78, 79, 80, 81, 82, 85, 86, 91, 93, 94, 95, 96, 98, 99, 104, 108, 110, 114, 117, and 127. See Third Vaughn Index.
7 participation or under the direction of the agency head, the deputy agency head, or the senior
agency official designated under section 5.4 of this order.” E.O. 13526 § 1.7(d). According to
Executive Order 13526, then, information is shielded from a FOIA request under Exemption 1: if
(1) an original classification authority classified the information; (2) the federal government owns,
produces, or controls the information; (3) the information pertains to one of eight categories listed
in § 1.4 of the Executive Order; and (4) the original classification authority determines that “the
unauthorized disclosure of the information reasonably could be expected to result in a specified
level of damage to the national security, and the original classification authority is able to identify
or describe the damages.” See James Madison Project v. U.S. Dep’t of Just., 436 F. Supp. 3d 195,
201 (D.D.C. 2020). In evaluating whether the agency has satisfied the criteria, courts “afford
substantial weight to an agency’s affidavit concerning the details of the classified status of the
disputed record, and little proof or explanation is required beyond a plausible assertion that
information is properly classified.” Shapiro v. Dep’t of Justice, 239 F. Supp. 3d 100, 121 (D.D.C.
2017) (quotation omitted).
Relying on the declarations of Vanna Blaine, who holds the authority to determine whether
documents are properly classified, the CIA has established that each of the Executive Order’s four
requirements are met here. First, an original classification authority properly classified the
information at issue. Second, the records in question were produced by, and remain under the
control of, the federal government. Third, the withheld information falls under classification
category § 1.4(c) of Executive Order 13526 (which allows the agency to classify information
concerning “intelligence activities (including covert action), intelligence sources or methods, or
cryptology”).6 And fourth, the withheld information remains classified because the disclosure of
6 Blaine declares that the information withheld information pursuant to § 1.4(c) consists of (i) identifying information regarding covert personnel; (ii) codewords; (iii) covert CIA locations; (iv) information that would tend to reveal
8 this information could reasonably be expected to result in damage to national security. See First
Blaine Decl. ¶ 16.7
The Court’s in camera review of the material underlying Entries 35, 66, 77, and 85, which
all involve withholdings under Exemption 1, supports this conclusion. See Minute Order, July 8,
2021. As a result, the Court concludes that the CIA has put forth plausible assertions that its
Exemption 1 withholdings conform to FOIA and the applicable executive order.
The ACLU challenges the CIA’s withholdings “insofar as the CIA argues that those
withholdings are not segregable from other, non-exempt information.” Pls.’s Opp’n at 38 n.26.
But the CIA is “entitled to a presumption that [it] complied with the obligation to disclose
reasonably segregable material,” Sussman v. U.S. Marshals Serv., 494 F.3d 1106, 1117 (D.C. Cir.
2007); it has engaged in multiple segregability reviews; and the Court’s in camera review of the
material underlying Entries 35, 66, 77, and 85, together with Blaine’s declarations, support the
CIA’s position on segregability.
The ACLU also argues that “[i]f the CIA has indeed withheld information on Haspel’s
classification authority and conflict of interest under Exemption 1, it has not sufficiently justified
its withholdings.” Pls.’s Opp’n at 40. The ACLU might have a point if the CIA did in fact withhold
under Exemption 1 information regarding Haspel’s classification authority and alleged conflict of
interest. But the Second Blaine declaration states that the CIA has not withheld any information
under Exemption 1 on the ground that it related to Haspel’s original classification or any potential
specific intelligence sources, methods, and/or activities; and (v) classification and dissemination control markings. See First Blaine Decl. ¶¶ 17-22. 7 Take, for example, the description in the Vaughn index corresponding to Entry 17. That entry consists of information about CIA personnel, intelligence sources, and secretive activities that would likely jeopardize national security interests if disclosed. See Third Vaughn Index at 9. The other entries involving Exemption 1 withholdings include similar descriptions.
9 conflict of interest, see Second Blaine Decl. ¶ 10, and the ACLU has provided no reason to second-
guess this representation.
IV. The CIA’s Withholdings under Exemption 3
Exemption 3 allows an agency to withhold material if authorized by federal statute. See
Yunes v. United States Dep’t of Just., 263 F. Supp. 3d 82, 86 (D.D.C. 2017). The statute’s
nondisclosure provision must either (1) require that the relevant “matters be withheld from the
public in such a manner as to leave no discretion on the issue;” or (2) establish “particular criteria
for withholding or refer to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3)(A).
Exemption 3 differs from other FOIA exemptions in that it “depends less on the detailed factual
contents of specific documents; the sole issue for decision is the existence of a relevant statute and
the inclusion of withheld material within that statute’s coverage.” James Madison Project v. Dep’t
of Just., 208 F. Supp. 3d 265, 289 (D.D.C. 2016) (quotation omitted). To withhold records under
Exemption 3, then, the agency need only show that “the statute claimed is one of exemption as
contemplated by Exemption 3” and that “the withheld material falls within the statute.” Larson,
565 F.3d at 865.
A. The National Security Act
The National Security Act represents an exempting statute for purposes of FOIA
Exemption 3. See ACLU v. Dep’t of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). Section
102(A)(i)(1) of the Act provides that the “Director of National Intelligence shall protect
intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). The
Director of the CIA also possesses authorization under the National Security Act to protect CIA
sources and methods from unauthorized disclosure. See Fitzgibbon v. C.I.A., 911 F.2d 755, 760
(D.C. Cir. 1990). When the CIA invokes the National Security Act in relation to Exemption 3, the
key question becomes “whether the withheld material relates to intelligence sources and methods.”
10 Larson, 565 F.3d at 865; Lindsey v. Fed. Bureau of Investigation, 490 F. Supp. 3d 1, 15 (D.D.C.
2020).
The CIA has invoked the National Security Act to withhold portions of 78 of the entries
on the Vaughn index that if disclosed, the Agency contends, would reveal intelligence sources and
methods.8 In her first declaration, Blaine states that the information withheld pursuant to the
National Security Act includes the identities of covert personnel, code words, covert CIA
locations, clandestine intelligence methods and activities, and classification and dissemination
control markings. First Blaine Decl. ¶ 17. Though some of the material withheld under Exemption
3 overlaps with material withheld under Exemption 1, the CIA posits that Exemption 3 also shields
additional material not covered under Exemption 1, such as “unclassified intelligence methods
pertaining to the Agency’s manner in which it protects its intelligence,” disclosure of which “could
significantly impair the CIA’s ability to carry out its core mission of gathering and analyzing
foreign intelligence.” Def.’s Mot. at 18.
The Court concludes that the CIA has satisfied its burden of showing that the material
withheld pursuant to the National Security Act relates to intelligence sources and methods. The
Court also concludes that the material withheld under Exemption 3 pursuant to the National
Security Act falls within that statute’s coverage. The Court’s in camera review of the material
underlying Entries 35, 66, and 85, which all involve withholdings pursuant to the National Security
Act under Exemption 3, supports this conclusion. See Minute Order, July 8, 2021.
The ACLU does not attack this conclusion head on, but instead argues that the description
of intelligence sources and methods in the Blaine declaration is so vague that it is impossible to
8 Entries 9, 13, 15, 17, 18, 19, 20, 21, 22, 23, 24, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 46, 47, 48, 49, 50, 51, 52, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 104, 108, 110, 114, 117, and 127. See Third Vaughn Index.
11 tell whether the CIA agency has invoked Exemption 3 over unclassified information or both
classified and unclassified information. See Pls.’s Opp’n at 50. In her first supplemental
declaration, however, Blaine declared that the CIA did not withhold any information on the ground
that it related to Haspel’s classification authority or any potential conflicts of interest as a result of
such authority. See Second Blaine Decl. ¶ 10. Instead, where the CIA withheld responsive
information under Exemption 3, it did so because the records were otherwise exempt for reasons
unrelated to her classification authority or possible conflict of interest. Id. Not only has the ACLU
failed to overcome the presumption of good faith afforded to a government official’s detailed and
non-conclusory declaration, see Freedom Watch v. Bureau of Land Mgmt., 220 F. Supp. 3d 65, 70
(D.D.C. 2016), but the Court’s in camera review of certain material underlying specific
withholdings pursuant to the National Security Act under Exemption 3 buttresses the declarant’s
representations.
B. The CIA Act
The Central Intelligence Act is also an exempting statute for purposes of FOIA Exemption
3. See Am. C.L. Union v. Cent. Intel. Agency, No. CV 16-1256 (EGS), 2021 WL 5505448, at *4
(D.D.C. Nov. 24, 2021). Section 6 of the CIA Act provides that “the Agency shall be exempted
from . . . the provisions of any other law which require[s] the publication or disclosure of the
organization, functions, names, official titles, salaries, or numbers of personnel employed by the
Agency.” 50 U.S.C. § 3507. To invoke the CIA Act, the agency “need only show . . . that the
withheld material falls within a statute meeting the exemption’s conditions.” See DiBacco v. Dep’t
of the Army, 926 F.3d 827, 835 (D.C. Cir. 2019) (quotation omitted).
The CIA has invoked the Act to redact under Exemption 3 portions of over 100 of the
entries on the Vaughn index on the basis that if disclosed, CIA employees’ names and personal
12 identifiers would come to light.9 Def.’s Mot. at 24. The Agency, in other words, withheld “names
and other personally-identifying information consisting of email addresses, Agency identification
numbers, telephone numbers, locations, official titles, and core functions of CIA employees.” Id.
at 19. The Court finds that the Agency’s withholdings fall within the scope of the CIA Act.
The ACLU does not oppose this conclusion in general, but questions whether disclosable
information relating to Haspel’s classification authority was swept up with non-disclosable
material withheld under Exemption 3. See Pls.’s Opp’n at 50. Again, however, in her first
supplemental declaration, Blaine declared that the Agency did not “withhold any information on
the ground that it related to Haspel’s original classification or any potential conflict of interest as
a result of such authority.” Second Blaine Decl. ¶ 10. Instead, the Agency withheld portions of
certain responsive records for other reasons covered by the CIA Act. Id. The ACLU has not
provided a sound basis for overcoming the presumption that Blaine’s declarations were made in
anything but good faith. And the Court’s in camera review of the material underlying Entries 35,
36, 45, 66, 77, 85, 105, 106, and 129 supports the declarant’s representations. See Minute Order,
July 8, 2021.
V. The CIA’s Withholdings under Exemption 5
FOIA’s Exemption 5 protects “inter-agency or intra-agency memorandums or letters that
would not be available by law to a party other than an agency in litigation with the agency.” 5
U.S.C. § 552(b)(5). That Exemption “incorporates the privileges available to Government
agencies in civil litigation,” including, as relevant here, the deliberative process privilege and the
attorney-client privilege. See United States Fish & Wildlife Serv., 141 S. Ct. at 785.
9 Entries 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 110, 114, 117, 126, 127, 128, and 129. See Third Vaughn Index.
13 A. The Deliberative Process Privilege
The deliberative process privilege “shields from disclosure documents reflecting advisory
opinions, recommendations, and deliberations comprising part of a process by which governmental
decisions and policies are formulated.” Id. (quotation omitted). The privilege seeks to facilitate
candid communication among public officials, as it “blunts the chilling effect that accompanies
the prospect of disclosure.” Id.; see also Department of the Interior v. Klamath Water Users
Protective Association, 532 U.S. 1, 8–9 (2001) (noting that the “privilege rests on the obvious
realization that officials will not communicate candidly among themselves if each remark is a
potential item of discovery and front page news”).
To qualify for the deliberative process privilege, the agency must demonstrate the material
is (1) pre-decisional, (2) deliberative, and (3) that it is reasonably foreseeable that release of the
material would cause harm to an interest protected by that privilege. See Reps. Comm. for Freedom
of the Press, 3 F.4th at 361; Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir.
2015) (Kavanaugh, J.). A document counts as pre-decisional when it was “generated before the
agency’s final decision on the matter,” “as opposed to documents that embody or explain a policy
that the agency adopts.” United States Fish & Wildlife Serv., 141 S. Ct. at 786 (noting that the key
“is not whether a document is last in line, but whether it communicates a policy on which the
agency has settled”). A document counts as “deliberative” when it was “prepared to help the
agency formulate its position.” Id.; Reps. Comm. for Freedom of the Press, 3 F.4th at 364
(describing deliberative documents as those involving the “type of back-and-forth exchange of
ideas, constructive feedback, and internal debate over how best to promote and to preserve the
undercover policy that sits at the heart of the deliberative process privilege”). And it is reasonably
foreseeable that the release of the material would cause harm to an interest protected by that
14 privilege when the agency “concretely explains how disclosure would—not could—adversely
impair internal deliberations.” Reps. Comm. for Freedom of the Press, 3 F.4th at 369–70. That
showing turns on “a focused and concrete demonstration of why disclosure of the particular type
of material at issue will, in the specific context of the agency action at issue, actually impede those
same agency deliberations going forward.” Id.
The CIA has invoked the deliberative process privilege to withhold under Exemption 5
portions of over 100 of the entries on the Vaughn index.10 The descriptions accompanying each
entry invoking this privilege vary, sometimes significantly. The description accompanying Entry
19, for instance, states that the withheld document “consists of an email exchange between a Senior
Agency official and Agency personnel discussing whether to conduct news media engagement and
intra-agency outreach regarding a response from a U.S. Senator on Haspel’s nomination,” which
if disclosed would “reveal [pre-decisional] internal agency deliberations on this subject.” See
Third Vaughn Index at 10–11. Entry 26, as another example, states that the withheld document
“consists of an email between Agency personnel forwarding draft talking points to address Senate
inquiries addressed to Haspel as the nominee for CIA Director with an attachment of the draft
language,” which if disclosed would “reveal [pre-decisional] internal agency deliberations on the
draft talking points.” Id. at 18. And Entry 126 states that the withheld document “consists of an
email exchange between Agency personnel discussing a specific issue regarding whether to
include particular information in a publication about Haspel’s career,” the disclosure of which
10 Entries 2, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 96, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, and 128. See Third Vaughn Index.
15 would divulge “preliminary internal Agency deliberations on information included in a
publication.” Id. at 110.
Though the descriptions differ, the documents have a common thread: They are draft
documents, email exchanges, and preliminary communications in response to Senate, White
House, and media inquiries. Draft documents, emails providing input on draft documents, and
communications regarding how to respond to inquiries generally (but not always) constitute pre-
decisional and deliberative intra-agency correspondence. See Coastal States Gas Corp. v. Dep’t
of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980) (noting that Exemption 5 “covers recommendations,
draft documents, proposals, suggestions, and other subjective documents which reflect the
personal opinions of the writer rather than the policy of the agency”); Blank Rome LLP v. Dep’t
of the Air Force, No. 15-CV-1200-RCL, 2016 WL 5108016, at *5 (D.D.C. Sept. 20, 2016)
(quotation omitted) (“Draft documents, by their very nature, are typically pre-decisional and
deliberative.”); Reps. Comm. for Freedom of the Press, 3 F.4th at 364 (holding that emails that
document ongoing internal debates and contain back-and-forth and the exchange of ideas are pre-
decisional and deliberative); Am. Ctr. for L. & Just. v. United States Dep’t of State, 330 F. Supp.
3d 293, 302 (D.D.C. 2018) (“[T]he deliberative process privilege applies to documents generated
in the crafting of an agency’s public statements.”).
Here, the CIA has sufficiently demonstrated that the drafts it withheld are subject to the
deliberative process privilege. As reflected in the Blaine declarations, these draft documents
“reflect the CIA’s internal and confidential decision-making process during Haspel’s nomination
process for CIA Director.” First Blaine Decl. ¶ 31. Moreover, the descriptions accompanying the
relevant entries make clear that the Agency did not treat the documents as final, but rather as
preliminary versions subject to feedback and change. As Blaine stated in her declaration, the
16 documents “do not convey final Agency viewpoints on a particular matter, but rather reflect
different considerations, opinions, and approaches that preceded the Agency’s final decision
regarding the nomination process.” Id. The Court concludes that the draft documents withheld
pursuant to the deliberative process privilege were both pre-decisional and deliberative. And for
similar reasons, the same goes for the emails providing input on draft documents and the
communications regarding how to respond to inquiries.
The ACLU argues that, at least as to certain documents, the CIA has failed to provide
detailed and individualized descriptions of the nature of the specific deliberative process involved,
the significance of the document in that process, and the nature of the decisionmaking authority
vested in the document’s author and recipient of each record the Agency claims is pre-decisional
and deliberative. See Pls.’s Opp’n at 24–26. This argument, however, overlooks the revisions the
CIA made to the Vaughn index as well as the additional details provided in the revised declarations.
Both the revised Vaughn index and the second supplemental declaration provide additional detail
regarding the nature of the deliberative processes associated with several of the withheld
documents and further demonstrate the applicability of the deliberative process privilege. Plus,
the Court’s in camera review clarified who authored the documents, who received the documents,
as well as the significance of the documents, and further supports the CIA’s argument that these
documents are covered by the deliberative process privilege.
But that does not end the matter. In addition to having to show that the material is pre-
decisional and deliberative, the CIA must show that it is reasonably foreseeable that its release
would cause harm to an interest protected by the privilege. Reps. Comm. for Freedom of the Press,
3 F.4th at 369–70. To do so, the agency must explain “how disclosure would—not could—
adversely impair internal deliberations,” which turns on “a focused and concrete demonstration of
17 why disclosure of the particular type of material at issue will, in the specific context of the agency
action at issue, actually impede those same agency deliberations going forward.” Id.
The CIA has demonstrated that harm is reasonably foreseeable if agency employees expect
that their deliberations about efforts to support future nominations to high profile positions like the
Director of the CIA will be publicly disclosed. See Def.’s Supp. Mat. at 1. In particular, in her
second supplemental declaration, Blaine states that disclosure would “discourage” employees
“from providing particularly useful knowledge, perspectives, and opinions and prevent the Agency
from benefitting from their skill in Haspel’s nomination process and future nominations.” Third
Blaine Decl. ¶ 8. Such disclosures, according to Blaine, would also “inhibit open and candid
discussions that would provide pertinent information related to and about the nominee, Agency
policy, and Agency positions, that are necessary for accurate and complete responses” to inquiries.
Id. Put differently, disclosure would “chill the free flow of open discussions during a very high
profile nomination process.” Id. ¶ 9. Revealing the draft material would also “reveal Agency
considerations of material it . . . otherwise discarded.” Id. ¶ 10. And disclosure could also “mislead
or confuse the public by disclosing rationales that were not the basis for the Agency’s final
decision.” Id. The Court’s in camera review of the material underlying Entries 35, 36, 45, 66, 77,
85, 105, 106, 119, 124, and 126, which all involve withholdings pursuant to the deliberative
process privilege, supports the conclusion that disclosure of the material would harm and impede
the agency going forward. See Minute Order, July 8, 2021.
The ACLU argues that, in attempting to demonstrate foreseeable harm, the CIA has
improperly relied on “broad categorical justifications rather than evaluating the harm posed by
each disclosure, and their predictions of harm consist entirely of conclusory, boilerplate
generalities and speculation.” Pls.’s Response to Defendant’s Second Supplemental Declaration
18 And Vaughn Index (“Pls.’s Response”), ECF No. 41 at 2. Not so. In her first declaration, Blaine
discussed her familiarity “with all of the documents withheld in full and in part pursuant to the
deliberative process privilege,” and that “[d]isclosure of any of these documents would inhibit the
frank communications and free exchange of ideas that the privilege is designed to protect.” First
Blaine Decl. ¶ 34. “If the withheld information were released, CIA employees may hesitate to
offer their candid opinions to superiors or coworkers, and such self censorship would tend to
degrade the quality of Agency decisions.” Id. Blaine also explained that “revealing this
information could mislead or confuse the public by disclosing rationales that were not the basis
for the Agency’s final decisions.” Id. In her third declaration, and as already discussed, Blaine
provided further detail about the harm disclosure of the withheld material would cause the agency.
See Third Blaine Decl.
B. The Attorney-Client Privilege
The attorney-client privilege aims “to encourage full and frank communication between
attorneys and their clients and thereby promote broader public interests in the observance of law
and administration of justice.” United States v. Jicarilla Apache Nation, 564 U.S. 162, 169–170
(2011) (quotation omitted). To establish that the attorney-client privilege applies in the FOIA
context, an agency must show that (1) “the information in [the] documents was communicated to
or by an attorney as part of a professional relationship,” (2) “the information is confidential,” and
(3) the “communication is based on confidential information provided by the client.” Mead Data
Cent., Inc., 566 F.2d at 253–54; Pub. Citizen, Inc. v. United States Dep’t of Educ., 388 F. Supp.
3d 29, 40 (D.D.C. 2019) (noting that the privilege must also be claimed and not waived by the
client). “In the FOIA context, the agency is the ‘client’ and the agency’s lawyers are the ‘attorneys’
19 for the purposes of attorney-client privilege.” Judicial Watch, Inc. v. U.S. Dep’t of Treasury, 802
F.Supp.2d 185, 200 (D.D.C. 2011).
The CIA has invoked the attorney-client privilege to withhold portions of 25 of the entries
on the Vaughn Index.11 See Def.’s Mot. at 24. Though the descriptions of the material withheld
under the attorney-client privilege differ here and there, each includes reference to communication
between and among CIA attorneys and officials about legal positions. Take, as a representative
example, the description accompanying Entry 66. That description states that the withheld
document “consists of email communications from a CIA Attorney to a Senior Agency official
discussing a legal position on a particular Agency specific issue about Haspel as the CIA Director
nominee,” which constitutes “legal advice provided by OGC attorneys that was solicited by an
Agency component.” Third Vaughn Index at 55–56. That description, and others like it, describes
agency employees requesting legal advice in connection with confidential information. In her first
declaration, moreover, Blaine explains that the information CIA withheld as protected by the
attorney-client privilege consists of confidential communications between agency officials or
agency personnel and attorneys within the CIA’s Office of General Counsel. See First Blaine
Decl. ¶ 35. The Court’s in camera review of the material underlying Entries 36, 66, 85, 105, and
106, which all involve withholdings pursuant to the attorney-client privilege, supports Blaine’s
assertion. See Minute Order, July 8, 2021. The Court, in short, concludes that the CIA properly
invoked the attorney-client privilege to withhold material under Exemption 5.
The ACLU argues that the CIA has failed to offer sufficient facts establishing that the
assessment or advice contained in each record rests on confidential disclosures. See Pls.’s Opp’n
11 Entries 36, 44, 64, 66, 67, 72, 74, 80, 85, 87, 88, 93, 94, 95, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, and 127. See Third Vaughn Index.
20 at 36. Stated differently, the CIA, from the ACLU’s perspective, has not put forth facts
“establishing that the records for which the CIA asserts the attorney-client privilege contain
information that was, and remains, confidential, and that was communicated to CIA attorneys for
the primary purpose of seeking legal advice.” Id. at 41. The Court disagrees; the CIA has
established that the withheld records include attorney communications that are based upon
confidential communications. Indeed, Blaine has declared that the CIA withheld “confidential
communications between Agency officials or Agency personnel and attorneys within the CIA’s
Office of General Counsel.” First Blaine Decl. ¶ 35. And to reiterate, the Court’s in camera review
of the material underlying Entries 36, 66, 85, 105, and 106, which all involve withholdings
pursuant to the attorney-client privilege, supports Blaine’s assertion. See Minute Order, July 8,
2021. Plus, the ACLU has failed to explain what additional relevant information the CIA could
provide without disclosing the privileged contents of the communications.
The ACLU argues that the CIA has failed to explain how disclosing the information over
which it asserts the attorney-client privilege could harm an interest protected by the privilege. See
Pls.’s Opp’n at 46. Yet Blaine has declared that if the confidential attorney-client communications
were disclosed, “it would subject the legal guidance to scrutiny and reveal preliminary legal risk
analysis and strategy.” Blaine Decl. ¶ 35. And in her third declaration, Blaine provided further
detail about the harm disclosure of the withheld material would cause the agency. See Third Blaine
Decl. These assertions are supported by the Court’s in camera review of the material underlying
Entries 36, 66, 85, 105, and 106. See Minute Order, July 8, 2021.
VI. The CIA’s Withholdings under Exemption 6
Exemption 6 allows an agency to withhold “personnel and medical files and similar files
the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” 5
U.S.C. § 552(b)(6). “Similar files” include “detailed Government records on an individual which
21 can be identified as applying to that individual.” Prison Legal News v. Samuels, 787 F.3d 1142,
1146–47 (D.C. Cir. 2015) (quotation omitted). Exemption 6 also covers “bits of personal
information, such as names and addresses, the release of which would create a palpable threat to
privacy.” Judicial Watch, Inc., 449 F.3d at 152 (quotation omitted). For Exemption 6 to apply,
the disclosure must compromise a privacy interest. See Prison Legal News, 787 F.3d at 1147. The
agency may satisfy its burden of showing a substantial invasion of privacy through affidavits
containing “reasonable specificity of detail rather than merely conclusory statements.” Besson v.
United States Dep’t of Com., No. 18-CV-02527 (APM), 2020 WL 4500894 (D.D.C. Aug. 5, 2020)
(quotation omitted). If the information does implicate a significant privacy interest, the Court must
“balance the individual’s right of privacy against the public interest in disclosure.” See Prison
Legal News, 787 F.3d at 1147. The FOIA requester must satisfy its obligation to articulate a
significant public interest sufficient to outweigh the individual’s privacy interest. Pinson v. Dep’t
of Just., 236 F. Supp. 3d 338, 367 (D.D.C. 2017).
Here, the CIA has invoked Exemption 6 for portions of 115 of the entries on the Vaughn
index that if disclosed, the Agency contends, would reveal “identifying information of CIA
employees, non-agency government personnel, and other third-parties unaffiliated with the
Agency.”12 Def.’s Mot. at 24. In her first declaration, Blaine states that the information, if
released, could subject the identified persons to “to harassment, embarrassment, or unwanted
contact.” First Blaine Decl. ¶ 37. Blaine also states that our adversaries, if they got their hands on
the withheld information, “could use this information to target individuals overtly associated with
the intelligence agency and expose them to threats of violence or intimation in an effort to
unlawfully obtain access to national security information.” Id.
12 Entries 109, 111, 112, 113, 115, 116, 118, 119, 120, 121, 122, 123, 124, and 125 constitute the only documents with respect to which the CIA did not assert Exemption 6. See Third Vaughn Index.
22 The Court concludes that the CIA has satisfied its burden of showing through the Vaughn
index and the Blaine declarations—which contain reasonably specific details rather than merely
conclusory statements—that release of the withheld information would result in a substantial
invasion of privacy to CIA personnel. The Court also concludes that the ACLU has not set forth
a countervailing public interest that would outweigh these important privacy interests. What’s
more, the Court’s in camera review of the material underlying Entries 35, 36, 45, 66, 77, 85, 105,
106, 126, and 129, which all involve withholdings pursuant to Exemption 6, supports these
conclusions. See Minute Order, July 8, 2021.
VII. The CIA’s Segregability Analysis
FOIA requires that if a record contains information exempt from disclosure, any
“reasonably segregable,” non-exempt information must be disclosed after redaction of the exempt
information. 5 U.S.C. § 552(b). To establish that all such information has been disclosed, an
agency needs to show “with reasonable specificity” that the information it has withheld cannot be
further segregated. Armstrong v. Executive Office of the President, 97 F.3d 575, 578–79 (D.C.
Cir. 1996) (quotation omitted); Canning v. DOJ, 567 F. Supp. 2d 104, 110 (D.D.C. 2008).
“Agencies are entitled to a presumption that they complied with the obligation to disclose
reasonably segregable material,” which may be overcome by some “quantum of evidence” by the
FOIA requester. Sussman, 494 F.3d at 1117.
The CIA has taken multiple cracks at segregating non-exempt material from exempt
material. In her latest declaration, Blaine states that she has “again conducted a page-by-page,
line-by-line review and ha[s] determined that” “no reasonably segregable non-exempt and
meaningful information [is] left to disclose.” Third Blaine Decl. ¶ 14; see also First Blaine Decl.
¶ 39 (declaring that “no segregable, non-exempt portions of documents could be released without
potentially compromising classified or privileged information or other information protected under
23 the FOIA”); Second Blaine Decl. ¶ 11 (“I have again conducted a page-by-page, line by-line
review of the documents at issue in this case and have determined that there is no reasonably
segregable non-exempt and meaningful information left to disclose.”).
Yet Blaine concedes, in her latest declaration, that the two previous “page-by-page, line-
by-line” reviews missed some non-exempt material. Third Blaine Decl. ¶ 14. On the one hand,
that concession cuts against the CIA, as it casts doubt on the thoroughness of its original
segregability analysis. On the other hand, the CIA’s willingness to review the material yet again
and disclose more non-exempt material at this stage is commendable. The Court does not, of
course, wish to discourage agencies from disclosing material that earlier on had been erroneously
withheld. On the whole, the Court concludes that the CIA has satisfied its segregability
requirements. The Court’s in camera review also supports the conclusion that the CIA has
adequately segregated exempt from non-exempt material. See Minute Order, July 8, 2021.
The ACLU’s principal response is that the CIA has failed to explain “how or why it
previously failed to segregate the materials disclosed last month—which amount to more than 100
pages that were neither protected nor inextricably intertwined with exempt material.” Pls.’s
Response at 8. The ACLU has a point. After all, the CIA should not have had to conduct multiple
“line-by-line” reviews to locate all the segregable and non-exempt information (and the CIA’s
original position, of course, was that it had already done so). But the CIA did, to its credit, identify
additional material upon further review and has on multiple occasions segregated non-exempt
information and provided an accounting for its determinations. Based on the entire record, the
Court concludes that that the CIA has satisfied its segregability obligations.
VIII. Conclusion
For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED.
An Order will be entered contemporaneously with this Memorandum Opinion.
24 DATE: February 2, 2022 CARL J. NICHOLS United States District Judge