Cable News Network, Inc. v. Central Intelligence Agency

• Court: District Court, District of Columbia
• Decided: September 19, 2023
• Docket: Civil Action No. 2021-0733
• Status: Published

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

CABLE NEWS NETWORK, INC.,

Plaintiff,

v. Civil Action No. 21-00733 (TSC)

CENTRAL INTELLIGENCE AGENCY,

Defendant.

MEMORANDUM OPINION

Plaintiff Cable News Network (“CNN”) has sued Defendant the Central Intelligence

Agency (“CIA” or “Agency”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

CNN seeks to obtain the CIA’s records relating to James Joseph Brown. Compl., ECF No. 1.

The CIA has moved for summary judgment. Mot. for Summ. J., ECF No. 14. CNN opposed

and cross-moved for summary judgment. Cross-Mot. for Summ. J., ECF No. 15. For the

reasons stated below, the court will GRANT Defendant’s Motion for Summary Judgment and

DENY Plaintiff’s Cross-Motion for Summary Judgment.

I. BACKGROUND

The following facts are undisputed. On December 6, 2019, CNN submitted a FOIA

request “seeking all records in the CIA’s files that relate to Brown.” Compl. ¶ 23, ECF No. 1.

On March 19, 2021, CNN filed a complaint against the CIA, alleging that the CIA violated FOIA

by failing to respond to CNN’s request within the statutory deadline of 20 working days after

receiving the request. Compl. ¶¶ 34-39; see 5 U.S.C. § 552(a)(6)(A)(i). The CIA issued its final

response to CNN’s FOIA request on July 16, 2021, including a Glomar response indicating that

1 “the CIA could neither confirm nor deny the existence or nonexistence of records responsive to

the request, as the fact of the existence or nonexistence of records was properly classified and

protected from disclosure under FOIA Exemptions (b)(1) and (b)(3).” Statement of Material

Facts (SOMF), ECF No. 14-2 at ¶ 9.

II. LEGAL STANDARD

Summary judgment should be granted if the movant successfully 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 fact is material if it “might affect the outcome of the suit,” and a

dispute is “genuine” 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).

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009). If an agency

claims that the responsive records are exempted from FOIA disclosure, that agency “bears the

burden of proving the applicability of claimed exemptions.” Am. Civil Liberties Union v. U.S.

Dept. of Defense, 628 F.3d 612, 619 (D.C. Cir. 2011). Agencies can establish the applicability of

the FOIA exemptions by affidavit, and the court must grant summary judgment in favor of the

agency if the affidavits “describe 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.” Larson v. Dept. of State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting Miller v. Casey,

730 F.2d 773, 776 (D.C. Cir. 1984)).

An agency “may refuse to confirm or deny the existence of records where to answer the

FOIA inquiry would cause harm cognizable under an FOIA exception.” Gardels v. CIA, 689

2 F.2d 1100, 1103 (D.C. Cir. 1982). Such an agency response is known as a Glomar response and

an agency seeking to justify a Glomar response to a FOIA request must “demonstrate that

acknowledging the mere existence of responsive records would disclose exempt information.”

Electronic Privacy Information Center v. Nat’l Sec. Agency, 678 F.3d 926, 931 (D.C. Cir. 2012).

In FOIA cases involving national security, the court “accord[s] substantial weight to an agency’s

affidavit concerning the details of the classified status of the disputed record.” Larson, 565 F.3d

at 864 (citation omitted).

III. ANALYSIS

In its final response letter, the CIA stated that it did not locate any responsive records that

“would reveal an openly acknowledged CIA affiliation with the subject” and issued a Glomar

response refusing to confirm or deny the existence of any responsive records that “would reveal

a classified association between the CIA and the subject.” CIA Final Response Letter – Exhibit

E, ECF No. 14-3. CNN did not challenge the adequacy of the CIA’s response in the first part, so

the court treats this argument as conceded and will address only whether the Agency’s Glomar

response is justified. See Wannall v. Honeywell, Inc., 775 F.3d 425, 428 (D.C. Cir. 2014) (“if a

party files an opposition to a motion and therein addresses only some of the movant’s arguments,

the court may treat the unaddressed arguments as conceded.”).

A. Exemption 1

Exemption 1 authorizes agencies to withhold responsive records that are “(A) specifically

authorized under criteria established by an Executive order to be kept secret in the interest of

national defense or foreign policy and (B) are in fact properly classified pursuant to such

Executive order.” 5 U.S.C. § 552(b)(1). Here the CIA invokes Executive Order No. 13526,

Mot. for Summ. J. at 9, which provides that information is properly classified if “(1) an original

3 classification authority is classifying the information; (2) the information is owned by, produced

by or for, or is under the control of the United States Government; (3) the information falls

within one or more of the categories of information listed in section 1.4 of this order; and (4) the

original classification authority determines that the unauthorized disclosure of the information

reasonably could be expected to result in damage to the national security.” Executive Order No.

13526 § 1.1(a).

The parties do not dispute that the information was classified by an original classification

authority or that it is under the control of the United States government. The CIA claimed that

the existence or nonexistence of responsive records concerning Brown falls within two

categories listed in section 1.4: “intelligence activities (including covert action), intelligence

sources or methods, or cryptology” (id. § 1.4(c)) and “foreign relations or foreign activities of the

United States” (id. § 1.4(d)). Blaine Decl. ¶ 22, ECF No. 14-3. And as the original classification

authority, the CIA contends that disclosing or even acknowledging the existence of the

information CNN seeks could jeopardize national security. Id.

An agency’s justification for invoking a Glomar response is sufficient if it appears

“logical” or “plausible.” See Gardels, 689 F.2d at 1105. In Wolf v. CIA, 473 F.3d 370 (D.C. Cir.

2007), the CIA refused to disclose whether it had records regarding an assassinated Colombian

presidential candidate. Id. at 372-73. The CIA submitted an affidavit explaining that confirming

or denying such records would “seriously damage this nation’s credibility with all other current

intelligence sources” and “signal to a foreign intelligence service the specific persons and areas

in which the CIA is interested and upon which it focuses its methods and resources.” Id. at 376

(citation omitted). The D.C. Circuit found this explanation logical and plausible. Id. at 377; cf.

CNN v. FBI, 384 F. Supp. 3d 19, 35 (D.D.C. 2019) (rejecting “[a] mere assertion that the harm is

4 ‘logical’ or ‘plausible’” as “the type of ‘conclusory’ statement that falls short of the FBI’s

minimal burden” of justifying its exemption claim).

Unlike the affidavit in CNN v. FBI, the CIA’s affidavit did not merely repeat the

language in the statute and the executive order. As in Wolf, the CIA explained in sufficient detail

the potential damage to its use and maintenance of human intelligence sources if it does not issue

a Glomar response. The CIA stated that disclosing whether it maintained a classified association

with Brown would “jeopardize the clandestine nature of the Agency’s intelligence activities or

otherwise reveal previously undisclosed information about CIA sources, capabilities, authorities,

interests, relationships with domestic or foreign entities, strengths, weaknesses, and/or

resources.” Blaine Decl. ¶ 23. The Agency explained that its intelligence activities “must

remain secret in order to be effective.” Id. Specifically, if Brown were a “confidential source or

a target of collection,” disclosing that information would “expose Agency tradecraft, other

human sources, and specific intelligence interests and activities.” Id. ¶ 24. Such a disclosure

would not only “place[] in jeopardy every individual with whom [Brown] has had contact,” but

would also undermine other human sources’ confidence in the Agency’s promise of

confidentiality. Id. The Agency further explained that even if it had no association with Brown,

it would still have to issue a Glomar response, because if “the CIA were to invoke a [Glomar]

response only when it actually possessed responsive records, the [Glomar] response would be

interpreted as an admission that responsive records exist” and therefore become meaningless. Id.

¶ 25. CNN characterizes the CIA’s justification of the Glomar response as “speculative and

boilerplate assertions.” Cross-Mot. for Summ. J. at 12, ECF No. 15. The court disagrees.

5 CNN points out that Wolf concerned a foreign national, while this case involves the

CIA’s records about a U.S. citizen. Pl. Reply at 6, ECF No. 20. CNN, however, fails to identify

any authority setting a different standard for Glomar responses concerning foreign nationals than

those concerning U.S. citizens. To the contrary, the D.C. Circuit has repeatedly held that the

CIA’s domestic intelligence activities are entitled to the same level of protection as its foreign

ones. See Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990) (holding that “the protection

of [the National Security Act of 1947] and Exemption 3 [of the FOIA] extends to all intelligence

sources, domestic and as well as foreign”); see also Gardels, 689 F.2d at 1105 (finding that

revealing or acknowledging the CIA’s covert contacts with the University of California “might

very well disclose some sources or methods of foreign intelligence” and accepting the agency’s

judgment). Consequently, the court declines to scrutinize the CIA’s Glomar response more

strictly simply because the subject is a U.S. citizen.

Lastly, CNN contends that the CIA has waived its right to issue a Glomar response

because its intelligence interest in Brown has already been officially acknowledged. Cross-Mot.

for Summ. J. at 13 (“it strain[s] credulity here for the CIA to suggest that it never had so much as

an “interest in” James Brown” (citing Am. Civil Liberties Union v. CIA, 710 F.3d 422, 430 (D.C.

Cir. 2012))). For an item of information to be officially acknowledged, “it must satisfy three

criteria: (1) the information requested must be as specific as the information previously released;

(2) the information requested must match the information previously disclosed; and (3) the

information requested must already have been made public through an official and documented

disclosure.” Am. Civil Liberties Union, 628 F.3d at 620-21.

CNN points to various sources suggesting that the U.S. intelligence community

maintained a mass surveillance program over prominent African-American leaders, and that

6 Brown was a leading figure in the civil rights movement. Cross-Mot. for Summ. J. at 13. But

CNN cites no source directly establishing that the CIA has surveilled or otherwise maintained an

intelligence interest in Brown, so the court cannot conclude that the specific information sought

has been disclosed. Furthermore, while CNN points to court opinions, Congressional reports,

FBI activities and commentaries, it cites no statement made by the CIA or its officers disclosing

or acknowledging its activities regarding Brown. Id. Because “only the CIA can waive its right

to assert an exemption to the FOIA,” Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999), the

court concludes that the CIA’s right to issue a Glomar response here has not been waived.

Accordingly, the CIA’s Glomar response is justified under FOIA Exemption 1.

B. Exemption 3

Exemption 3 protects information that is specifically exempted from disclosure by

statute. 5 U.S.C. § 552(b)(3). Under that exemption, the CIA 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. Fitzgibbon, 911 F.2d at 761–62. Here, the CIA invokes the National Security

Act of 1947, which requires the Director of National Intelligence to “protect intelligence sources

and methods from unauthorized disclosure.” Mot. for Summ. J. at 12 (citing 50 U.S.C. §

3024(i)(1)). In ACLU v. U.S. Dep't of Def., 628 F.3d at 619 (D.C. Cir. 2011) the D.C. Circuit

“held that the National Security Act, which also authorizes the Executive to withhold

‘intelligence sources and methods’ from public disclosure, [] qualifies as an exemption statute

under [E]xemption 3.” Thus, the only remaining inquiry is whether the withheld material relates

to intelligence sources and methods. Fitzgibbon, 911 F.2d at 762. “The Supreme Court gives

even greater deference to CIA assertions of harm to intelligence sources and methods under the

National Security Act.” Wolf, 473 F.3d at 377 (finding that the CIA properly invoked Exemption

7 3 in support of its Glomar response where the Agency maintained that the existence or

nonexistence of records about a foreign national was protected from disclosure under the

National Security Act).

As previously discussed, the CIA’s affidavit details how disclosing or acknowledging the

existence of the information CNN seeks could reveal “clandestine CIA intelligence activities,

sources, and methods.” Blaine Decl. ¶ 18. And considering that the withheld information is

covered by Exemption 1, the court need not go into greater detail here. Vento v. I.R.S., 714 F.

Supp. 2d 137, 155 (D.D.C. 2010) (finding no need to consider the agency’s Exemption 3

analysis, having found that “each of the documents in question are properly withheld under other

exemptions”). In short, the CIA’s Glomar response is also justified under FOIA Exemption 3.

IV. CONCLUSION

For the reasons set forth above, the court will GRANT Defendant’s Motion for Summary

Judgment, ECF No. 14, and DENY Plaintiff’s Cross-Motion for Summary Judgment, ECF No. 15.

Date: September 19, 2023

Tanya S. Chutkan TANYA S. CHUTKAN United States District Judge