Berman v. Central Intelligence Agency

378 F. Supp. 2d 1209, 2005 U.S. Dist. LEXIS 15258, 2005 WL 1683740
CourtDistrict Court, E.D. California
DecidedJuly 11, 2005
DocketCIV-S-04-2699DFL-DAD
StatusPublished
Cited by7 cases

This text of 378 F. Supp. 2d 1209 (Berman v. Central Intelligence Agency) is published on Counsel Stack Legal Research, covering District Court, E.D. California primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Berman v. Central Intelligence Agency, 378 F. Supp. 2d 1209, 2005 U.S. Dist. LEXIS 15258, 2005 WL 1683740 (E.D. Cal. 2005).

Opinion

MEMORANDUM OF OPINION AND ORDER

LEVI, Chief Judge.

Plaintiff Larry Berman (“Berman”) brings this suit to challenge defendant Central Intelligence Agency’s (“CIA”) denial of his request under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552, for two editions of the President’s Daily Briefs (“PDB”). The parties have filed cross-motions for summary judgment. For the reasons given below, the court GRANTS summary judgment in favor of the CIA.

I.

Berman is a professor of political science at the University of California, Davis and a historian of the American presidency and the Vietnam war. (PL’s Mot. at 2.) On March 2, 2004, Berman requested disclosure of four PDBs from President Lyndon B. Johnson’s term of office. (Id.) By letter dated April 15, 2004, the CIA denied the request based on FOIA Exemptions 1, 3, and 5. (Id.) After exhausting available administrative appeals, Berman brings this suit seeking disclosure of two of the PDBs, dated August 6, 1965 and April 2, 1968. 1 (Id. at 3.)

The PDB is a “unique intelligence document prepared specifically for the President of the United States and his most senior advisors.” (Buroker Deck ¶ 16.) Although its format has changed slightly since its inception during the Kennedy Administration, its general purpose has always been to “to select the most sensitive data and provide the best intelligence judgments available in order to give the President and his top advisors the most accurate, comprehensive, and timely information needed to make national defense and foreign policy decisions for the country.” 2 (Id. ¶ 17.)

The contents of the PDB are determined by the leadership of the CIA and reflect an ongoing dialogue between the President and the CIA concerning national security. (Id. ¶¶ 18, 19.) The PDB prompts the President and his senior advisors to ask *1213 for further information, and these inquiries in turn affect the content of future PDBs as well as the CIA’s conduct of intelligence “on a daily and long-term basis.” 3 (Id ¶¶ 19, 35-37.)

Because of its limited distribution, the PDB contains more immediate and restricted information than is included in other national security documents. (Id. ¶21.) For instance, PDBs include: (1) “raw operational information, sometimes including true names of sources” that has not been disseminated to other intelligence agencies; (2) sensitive information that is restricted at the “very highest levels of human and technical source intelligence gathering”; (3) information from covert operations; and (4) information derived from CIA-only methods. (Id.)

Although the vast majority of the PDBs have not been released by the CIA, several sanitized PDBs, or portions thereof, have been released to the public in various forms. (Buroker Decl. Ex. ¶ 14.) Specifically, twelve PDBs were released either at the direction of an Executive Order (in the case of the two PDBs released at the request of the 9/11 Commission) or pursuant to the John F. Kennedy Assassination Records Collection Act of 1992. (Id. ¶ 30 n. 4.) Additionally, at least six other PDBs have been released by mistake. (Id.) Ber-man asserts that the number of released PDBs is somewhat higher, at about 35. (Pl.’s Mot. at 4.) He includes as exhibits copies of 16 PDBs from the Johnson Administration that have been released, including the PDBs dated a day after (August 7, 1965) and a day before (April 1, 1968) the two PDBs requested in this case. (Id.; Blanton Decl. Exs. 4-5.)

In addition to the PDBs, the CIA also prepares a daily Central Intelligence Bulletin (“CIB”). (Buroker Supp. Decl. ¶ 4.) Unlike the PDB, the CIB is prepared for senior policy and security officials throughout the government and is not necessarily directed to the President’s current priorities. (Id.) Several thousand CIBs have been released by the CIA in redacted form. (PL’s Mot. at 5.)

II.

The FOIA requires disclosure of government records unless the requested information falls within one of nine enumerated exemptions. 5 U.S.C. § 552(b). As to its decision to withhold the two PDBs, the CIA relies principally on the interaction between the National Security Act and Exemption 3 which exempts information “specifically exempted from disclosure by statute” if the statute “leave[s] no discretion on the issue,” “establishes particular criteria for withholding” the information, or “refers to particular types of matters to be withheld.” 5 U.S.C. § 552(b)(3). 4 Under the National Security Act, the Director of Central Intelligence is responsible for “protecting intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. §§ 403 — 3(c)(7),' 403g (2004). 5 In *1214 CIA v. Sims, 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985), the Court held that this statutory language “clearly ‘refers to particular types of matters,’ ... and thus qualifies as a withholding statute under Exemption 3.” The CIA contends that because the release of the requested PDBs would reveal information about intelligence sources and methods, the release is prohibited by the National Security Act and hence covered by Exemption 3 of the FOIA. (Def.’s Mot. at 8.)

The CIA bears the burden of proving that the withheld information falls within the Exemption. Minier v. CIA, 88 F.3d 796, 800 (9th Cir.1996). However, the CIA’s judgment that the disclosure of certain information could reveal intelligence sources and methods is entitled to great deference. The National Security Act in tandem with Exemption 3 .of the FOIA provide “very broad authority to protect all sources of information from disclosure.” Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir.1992). Indeed, the authority to protect sources and methods is so broad that it amounts to a “ ‘near-blanket FOIA exemption [for the CIA],’ which is ‘only a short step [from] exempting all CIA records from FOIA.” Minier, 88 F.3d at 801 (quoting Hunt, 981 F.2d at 1119-20).

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Bluebook (online)
378 F. Supp. 2d 1209, 2005 U.S. Dist. LEXIS 15258, 2005 WL 1683740, Counsel Stack Legal Research, https://law.counselstack.com/opinion/berman-v-central-intelligence-agency-caed-2005.