Leopold v. Central Intelligence Agency

Opinion

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JASON LEOPOLD, et al.,

Plaintiffs, Case No. 16-cv-1833 (JMC)

v.

CENTRAL INTELLIGENCE AGENCY,

Defendant.

MEMORANDUM OPINION AND ORDER

Plaintiffs Jason Leopold and Ryan Noah Shapiro sue the Central Intelligence Agency

(CIA) under the Freedom of Information Act (FOIA). Plaintiffs seek documents that were cited in

the publicly-released Executive Summary of the Senate Select Committee on Intelligence report

on the CIA’s rendition, interrogation, and detention program. The CIA produced hundreds of

documents responsive to this request, but withheld or redacted others. Both sides now move for

summary judgment. The Parties disagree over the adequacy of the CIA’s search for records and

the propriety of its withholding of certain records under Exemption 5 of the Act.

The Court GRANTS the CIA’s motion in part and DENIES it in part. While the CIA has

adequately described the searches that it conducted of the primary database at issue in the case, it

has failed to adequately describe the searches it performed of other locations that documents were

likely to be found and must come forward with additional information about those searches.

Additionally, the Court cannot determine on this record whether the CIA had an unredacted version

of the Executive Summary available to it during the search, so cannot grant summary judgment

for the Agency on the issue of whether the search was inadequate for failure to consult this

document. As for the CIA’s Exemption 5 withholdings, the CIA has properly withheld the majority

1 of the records in dispute in this lawsuit. However, there remain a number of records for which the

Court needs more details from the agency before it can decide one way or the other. As a result,

the Court will DENY Plaintiffs’ cross-motion for summary judgment, albeit without prejudice as

to the searches and withholdings the Court cannot rule on at this juncture. 1

I. BACKGROUND

In 2009, the Senate Select Committee on Intelligence (SSCI) began to investigate the CIA’s

post-9/11 detention and interrogation program. See S. Rep. No. 113-288, at iv (2014); see also

Connell v. CIA, 110 F.4th 256, 261 (D.C. Cir. 2024). The program is now notorious—thanks in

large part to the SSCI report—for its use of so-called “enhanced interrogation techniques,”

including treatment of detainees that the “Government has since concluded . . . constituted

torture.” United States v. Zubaydah, 595 U.S. 195, 200 (2022). The SSCI investigation lasted for

multiple years, involved review of millions of CIA records, and resulted in the preparation of a

committee report on the program (the “Full Report”), as well as an executive summary (the

“Executive Summary”). S. Rep. No. 113-288, at viii. In 2012, the SSCI sent drafts of the Full

Report and the Executive Summary to the Executive Branch for comment. Id.; Connell, 110 F.4th

at 261. Following additional revisions, the SSCI sent a version of the Executive Summary to the

President for declassification. S. Rep. No. 113-288, at iv. The declassified Executive Summary

was released by the SSCI in December 2014. See generally id. The nearly 500-page document

contains 2,725 footnotes, some of which are heavily redacted, which refer to various operational

cables, intelligence reports, internal memoranda and emails, briefing materials, and other records

that the SSCI reviewed in compiling the Executive Summary. Id. at 1–499.

1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion and order, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page.

2 Plaintiffs submitted a FOIA request to the CIA seeking specific records that were

“discussed in the Executive Summary” and were “identified in the footnotes of the SSCI Report.”

ECF 25-1 at 36. An attached index listed over 800 specific citations, organized by the footnote of

the Executive Summary in which they appeared. ECF 25 at 2; ECF 26-1 ¶ 1. After the CIA failed

to make a determination on the request by the statutory deadline, Plaintiffs brought suit, alleging

violations of FOIA. ECF 25 at 3; see generally ECF 1. According to a schedule proposed by the

Parties and approved by the Court, the CIA eventually produced 378 documents in whole or in

part and withheld 225 documents in full. ECF 25 at 3; ECF 26-1 ¶ 2. However, the CIA stated that

it was unable to locate 19 of the documents cited in SSCI Report. ECF 25 at 3.

At that point, the CIA moved for summary judgment. ECF 25. The CIA asserted that its

search was adequate, and its withholdings and redactions were proper under the statute. Plaintiffs

cross-moved for summary judgment and challenged the adequacy of the CIA’s search and the

propriety of its withholdings. ECF 27. While the CIA withheld and redacted documents under

various exemptions, Plaintiffs only challenged the withholdings and redactions that are based

solely on Exemption 5 of the Act, which leaves only 65 records in dispute. ECF 25 at 3; ECF 26-

1 ¶ 3. During summary judgment briefing, the CIA provided additional documents, bringing the

number of purportedly unlocatable records down to 11. ECF 27-4 ¶ 5; ECF 26-1 ¶ 2. The CIA also

produced declarations regarding the CIA’s search and a Vaughn index. See, e.g., ECF 25-1 at 1–

33; ECF 27-4. Following developments in the D.C. Circuit’s FOIA caselaw, the Court ordered

additional briefing from the Parties. ECF 33; ECF 34. During that briefing, the CIA filed an

additional declaration. ECF 33-1.

The Court now proceeds to resolve the motions.

3 II. LEGAL STANDARD

“[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v.

Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). “The agency is entitled

to summary judgment only if it shows beyond material doubt that it has conducted a search

reasonably calculated to uncover all relevant documents.” Aguiar v. DEA, 865 F.3d 730, 738 (D.C.

Cir. 2017). Likewise, an “agency withholding responsive documents from a FOIA release bears

the burden of proving the applicability of claimed exemptions.” ACLU v. U.S. Dep’t of Def.,

628 F.3d 612, 619 (D.C. Cir. 2011). “Summary judgment is warranted on the basis of agency

affidavits when 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. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009). “If the agency fails to provide a

sufficiently detailed explanation to enable the district court to make a de novo determination of

the agency’s claims of exemption, the district court then has several options, including inspecting

the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.” Spirko

v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998).

III. ANALYSIS

The Court first considers whether the agency conducted an adequate search for responsive

records and determines that the CIA’s declarations lack sufficient detail to establish that it has

conducted an adequate search. Next, the Court reviews the CIA’s withholdings and finds that it

has adequately justified holding the majority of the disputed records. As for the remainder,

summary judgment is premature.

4 A. Adequacy of the CIA’s Search

Under FOIA, agencies have “an obligation . . . to conduct an adequate search for responsive

records,” Edelman v. SEC, 172 F. Supp. 3d 133, 144 (D.D.C. 2016), and “[a]n inadequate search

for records constitutes an improper withholding” under the statute, Schoenman v. FBI, 764 F. Supp.

2d 40, 45 (D.D.C. 2011). A search is adequate if it is “reasonably calculated to uncover all relevant

documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). Whether

a search is adequate is not determined by its results, but by the means used to conduct it. Iturralde

v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). For example, “[t]here is no

requirement that an agency search every record system.” Oglesby v. U.S. Dep’t of the Army,

920 F.2d 57, 68 (D.C. Cir. 1990). “However, the agency cannot limit its search to only one record

system if there are others that are likely to turn up the information requested.” Id.; see also DiBacco

v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015).

To prove its search was adequate, the agency may rely on a “reasonably detailed affidavit,

setting forth the search terms and the type of search performed, and averring that all files likely to

contain responsive materials . . . were searched.” Oglesby, 920 F.2d at 68. Such affidavits 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). At minimum, the affidavit must describe “what records

were searched, by whom, and through what process.” Steinberg v. U.S. Dep’t of Just., 23 F.3d 548,

552 (D.C. Cir. 1994). “Furthermore, the affidavit must explain the scope and method of the

agency’s search in a non-conclusory fashion.” Nat’l Sec. Couns. v. CIA, 849 F. Supp. 2d 6, 11

(D.D.C. 2012). If an affidavit “lacks sufficient detail for the Court to determine whether the search

was adequate,” the Court must “deny the [agency’s] motion for summary judgment.” Id.

5 Following various rounds of searches, the CIA located over 600 documents responsive to

Plaintiffs’ request but was unable to locate eleven documents cited by the SSCI in the footnotes to

the Executive Summary. ECF 25 at 3; ECF 27-4 ¶¶ 4–5. The CIA submitted declarations which

describe the process used to identify responsive documents. First, according to Antoinette Shiner,

an Information Review Officer at the CIA, the Agency first identified a database known as the

“Rendition, Detention, and Interrogation Network,” or “RDINet,” as “the location that was

reasonably likely to contain responsive records.” ECF 25-1 at 4. This was because RDINet is “a

central repository containing materials gathered from across the Agency detailing the former

detention and interrogation program,” and is also “the repository of information that was relied

upon by SSCI staffers in drafting their study of the former detention and interrogation program.”

Id. To identify responsive materials, “[a]gency search experts” focused on the language in each

footnote and used search “terms appearing in the document title,” or “in the case of cables,” used

“the cable citations.” ECF 25-1 at 4–5.

If the CIA’s reviewers were not able to find the information in RDINet, they “conducted

supplemental searches in the directorates or offices” where the document “likely originated,”

including the Office of Congressional Affairs, the Center for the Study of Intelligence, the Office

of the Inspector General, and the Office of General Counsel. ECF 25-1 at 5; see ECF 26-4 at 2.

These additional searches are described as “[t]argeted searches led by knowledgeable personnel in

these offices.” ECF 26-4 at 2–3. During the pendency of this litigation, the CIA conducted an

additional search of its Counterterrorism Center and found one additional document, which the

CIA provided to Plaintiffs. ECF 31 at 14.

The fact that the CIA’s search failed to turn up ten documents out of the hundreds requested

is not, on its own, enough to find that the search was inadequate. See Wilbur v. CIA, 355 F.3d 675,

6 678 (D.C. Cir. 2004) (“[T]he agency’s failure to turn up a particular document, or mere speculation

that as yet uncovered documents might exist, does not undermine the determination that the agency

conducted an adequate search for the requested records.”). Again, the adequacy of a search is not

determined by its results, but by the means used to conduct it. Iturralde, 315 F.3d at 315.

But Plaintiffs do more than just point to missing documents. First, they challenge the CIA’s

declarations as insufficiently detailed in describing the methodology underlying its searches. To

make out a prima facie showing of adequacy, an agency’s affidavits or declarations must “specify

what records were searched, by whom, and through what process.” Rodriguez v. Dep’t of Def.,

236 F. Supp. 3d 26, 35 (D.D.C. 2017). Plaintiffs’ most persuasive challenge focuses on the CIA’s

description of its purported searches of locations outside of RDINet. Plaintiffs identify documents

referred to in footnotes 28, 719, 904 and 2461, as documents that are likely to have been located

in the records of the Office of Congressional Affairs and the Office of General Counsel. See

ECF 26 at 8–10, 11–13; see also ECF 31 at 10–11, 13–14. The CIA appears to agree that these

locations were likely to contain those, and other documents not found in RDINet, given that when

the CIA was unable to find documents in RDINet, the Agency claims to have searched additional

offices in which the document “likely originated,” including the Office of Congressional Affairs

and the Office of General Counsel. ECF 25-1 at 5. The CIA also conducted supplemental searches

of the “Office of the General Counsel, Office of the Inspector General, and Office of Congressional

Affairs” during the pendency of this litigation. ECF 26-4 at 2.

Plaintiffs argue that to the extent that the CIA searched other offices or directorates for

missing documents, the CIA’s description of the searches of these offices’ records is insufficient

to support summary judgment in the CIA’s favor. The Court agrees. While the CIA’s declarations

describe the search terms used by the agency, namely the “terms appearing in the document title”

7 or the “cable citations,” with respect to the searches of the other “offices in which the document

likely originated, including” the Office of the General Counsel, Office of the Inspector General,

and the Office of Congressional Affairs, ECF 25-1 at 5, the declarations fail to articulate any

additional detail about the “type of search performed,” DeBrew v. Atwood, 792 F.3d 118, 122

(D.C. Cir. 2015) (requiring that a declaration sufficiently describe “the type of search performed”);

Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (finding CIA declaration insufficient that

“merely identifie[d] the three directorates that were responsible for finding responsive documents

without,” among other defects, “explaining how the search was conducted in each component”).

In describing these searches, the declarations merely state that CIA staff “conducted supplemental

searches in the[se] directorates or offices,” and that these searches were “diligent.” ECF 25-1 at

4–5. A declaration describing supplemental searches of these offices made during the pendency of

litigation states that they were “[t]argeted searches led by knowledgeable personnel in these

offices . . . for each of the remaining documents.” ECF 26-4 at 2–3. Unlike with the search of

RDINet, which was described as a specific, unique database queried by the CIA’s search staff—a

“central repository containing materials gathered from across the Agency” regarding the detention

and interrogation program, ECF 25-1 at 4—these declarations “do not denote which files were

searched, or by whom, do not reflect any systematic approach to document location, and do not

provide information specific enough to enable the requester to challenge the procedures utilized,”

Steinberg, 23 F.3d at 552 (quoting Weisberg v. Dep’t. of Just., 627 F.2d 365, 371 (D.C. Cir. 1980)).

As a result, this case resembles National Security Counselors v. CIA, where the Agency’s

declarations were insufficient to make a showing of an adequate search. 849 F. Supp. 2d at 11.

There, the CIA submitted affidavits describing the searches conducted of one “directorate likely

to contain responsive materials,” but stated only that within that directorate, Agency staff

8 “conducted a thorough and diligent search of relevant . . . records systems for responsive

documents,” and “searched a records system that contain[ed] CIA regulations as well as other IMS

records systems.” Id. The searches of the Office of Congressional Affairs and the Office of General

Counsel described in this case contain less detail than those in National Security Counselors, in

that the declarations here do not even describe what records systems existed in these offices or

how they were searched. See id. (finding declaration inadequate for failure to identify what the

“other IMS records systems were that were searched”); see also Am. Immigr. Council v. U.S. Dep’t

of Homeland Sec., 950 F. Supp. 2d 221, 231–32 (D.D.C. 2013) (finding description of search

insufficient when affidavits “describe[d] searches of particular databases without explaining what

those databases [we]re and the documents they contain[ed]”); Spannaus v. CIA, 841 F. Supp. 14,

17 (D.D.C. 1993) (finding search adequate where the “affidavits describe[d] in detail the

information storage and retrieval system, the searches conducted, and why further searches would

be difficult”). The lack of detail manifests in other ways. Plaintiffs posit that some of the missing

documents cited were likely to exist in paper or archival form, or likely existed in the personal

files of retired employees. The CIA responds to these objections by claiming that its searches of

these additional offices were in fact “inclusive of the archives,” and “inclusive of [the former

employee’s] files.” ECF 29 at 9, 11. But these facts are stated in the CIA’s summary judgment

briefs without citation to the record, and support for these details appear nowhere in the CIA’s

declarations. This attempt to backfill detail through the summary judgment briefs about the nature

of the searches of these offices and the types of records systems involved further highlights the

deficiencies in the initial description of its search.

Because the submitted declarations do not describe, with respect to the “supplemental

searches” of the “directorates or offices” outside of RDINet, ECF 25-1 at 5, “the systems of

9 records” those offices “maintain[], [or] detail[] the method of retrieving records” from those

offices, “[t]he Court . . . cannot evaluate the adequacy and reasonableness of the searches,”

Jefferson v. Bureau of Prisons, No. 05-cv-848, 2006 WL 3208666, at *7 (D.D.C. Nov. 7, 2006).

The Court therefore denies the CIA’s motion for summary judgment on the adequacy of its search

of locations outside of RDINet. See Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990)

(“If . . . the record leaves substantial doubt as to the sufficiency of the search, summary judgment

for the agency is not proper.”). The Government “might resolve those issues either by filing a more

detailed declaration or conducting a supplemental search.” 2 Nat’l Ass’n of Crim. Def. Laws. v. Fed.

Bureau of Prisons, No. 18-cv-2399, 2025 WL 3240789, at *4 n.3 (D.D.C. Nov. 20, 2025); Aguiar,

865 F.3d at 739. Given this disposition, Plaintiffs are also not entitled to summary judgment at this

time. See NYC Apparel FZE v. U.S. Customs & Border Prot., No. 04-cv-2105, 2006 WL 167833,

at *8 (D.D.C. Jan. 23, 2006).

Plaintiffs raise several other arguments as to why, separate from the lack of detail for

searches of non-RDINet locations, the CIA has performed an inadequate search. As a threshold

matter, while Court finds the CIA’s declarations insufficient as to the searches of the other offices,

it finds them to be “reasonably detailed” with respect to the searches made of RDINet such that

they afford a presumption of adequacy to the search of this database. Riccardi v. U.S. Dep’t of

Just., 32 F. Supp. 3d 59, 63 (D.D.C. 2014). This is because they identify the location searched (the

RDINet database) and the search terms used for documents (terms appearing in the document title

or, in the case of cables, the cable citations). See id. Plaintiffs do not appear to challenge the CIA’s

2 Because the Court is requiring the CIA to provide more documentation regarding its searches, or alternatively, conduct a supplemental search, the Court need not address at this time Plaintiffs’ contention that the CIA failed to search in all locations reasonably likely to identify the paper sought in footnote 131. The CIA’s declaration stated that when a document was not found in RDINet, the Agency searched in “other appropriate offices,” ECF 25-1 at 5, and it is possible that additional detail regarding exactly which offices were searched will resolve whether the Agency reviewed documents in any of the locations that Plaintiffs suggest should have been searched, see ECF 31 at 11–13. Plaintiffs may reiterate their arguments following the CIA’s updated submissions, should they remain relevant.

10 details regarding “by whom” RDINet was searched, Steinberg, 23 F.3d at 552, and the Court thus

finds the CIA’s description adequate under “the circumstances of the case,” Weisberg v. U.S. Dep’t

of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983); see also ECF 25-1 at 4 (noting that CIA “search

experts” conducted the searches of RDINet).

Most of Plaintiffs’ objections do not raise the “substantial doubt” required to undermine

this presumption that the searches of RDINet were adequate. Valencia-Lucena, 180 F.3d at 326.

Plaintiffs seize on the CIA’s statement that it was unable to find one document listed in footnote

131 because the scant details included in the citation left “the Agency with little to no information

upon which to search.” ECF 26-4 at 3. They read this statement as an admission that “no search

was performed for this specific document.” ECF 31 at 11. But Plaintiffs misconstrue this statement,

which is not a concession that the CIA did not look for the document in RDINet or elsewhere.

Rather, the quoted language is the CIA’s proffered explanation for why its searches may not have

yielded any results given the limited data the Agency’s searchers had to work with. See ECF 26-4

at 2–3. The statement does not contradict the other statements in the declaration that the Agency

conducted searches for all documents in RDINet using the search terms available to them. As for

Plaintiffs’ contention that the CIA should have used more targeted search terms to identify the

document, described in the Executive Summary and Plaintiffs’ request as “CIA paper entitled ‘Abu

Zubaydah,’ dated March 2005,” ECF 25-1 at 60; ECF 26-3 at 17, the Court disagrees. Searching

with the “terms appearing in the document title,” which included Abu Zubaydah’s name, ECF 25-

1 at 5, was “reasonably calculated to uncover” the paper regarding Abu Zubaydah. Weisberg,

705 F.2d at 1351. 3

3 The same goes for the document described in footnote 1943, which is titled in the footnote text as “CIA Notes (DTS #2009-2024),” and was also not found by the CIA. ECF 25-1 at 100. Plaintiffs argue that the CIA’s method of searching by terms in the document’s title would not be reasonably calculated to produce or identify this document,

11 Finally, the CIA’s search failed to find documents listed in footnotes 45, 722, 1746. The

CIA suggested that this failure was due to the fact that the descriptions in these footnotes of the

Executive Summary were “heavily redacted.” ECF 26-4 at 3. Plaintiffs argue that in the face of

these redactions, the CIA was obligated to consult an unredacted copy of the Executive Summary

or even the Full Report in order to identify more information about the underlying documents

cited. ECF 26 at 7; ECF 31 at 8–9. In essence, Plaintiffs argue that when applied to these specific

footnotes, the CIA’s method of searching by the document title as described in the redacted

footnote was not “reasonably calculated to uncover all relevant documents.” Aguiar, 865 F.3d at

738.

The Court disagrees in part with the Plaintiffs. The CIA’s search is not inadequate because

it failed to consult the Full Report or any draft copies of the Executive Summary. As to the draft

or final versions of the Full Report, Plaintiffs offer only mere speculation that these documents—

which are not the same as the Executive Summary—would provide additional search term

information regarding the specific footnotes in question. Further, a declaration submitted by

Plaintiffs regarding the CIA’s treatment of the Full Report indicates that the CIA was limited by

agreement with the Committee as to the proper uses of the report and its drafts, and that internal

use of the Full Report was “tightly controlled by [the] CIA” for specific internal reference

purposes, including for “review[ing] the document and provid[ing] comments” during the SSCI’s

given the generic nature of the footnote text, and argue that the CIA should have instead conducted a search by date. ECF 31 at 14. “In general, a FOIA petitioner cannot dictate the search terms for his or her FOIA request,” Bigwood v. U.S. Dep’t of Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015), and where the “agency’s search terms are reasonable, the Court will not second guess the agency regarding whether other search terms might have been superior,” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 146–47 (D.D.C. 2015). If anything, using the terms in the footnote would have resulted in an overinclusive search, which is not in itself an indication of an inadequate search. See Young v. U.S. Dep’t of Just., No. 21-cv-739, 2022 WL 17668806, at *2 (D.D.C. Dec. 14, 2022) (“[B]road, overinclusive search terms would not limit the responsive records produced by the agency; indeed, they would only generate more of them.”).

12 drafting process. ECF 26-3 at 13. 4 Given the limitations on the Full Report’s use, the failure to

consult the Full Report does not undermine the adequacy of the CIA’s search. The same goes for

the 2012 draft version of the Executive Summary, which was provided for the “limited purpose of

providing comments in response to the Study.” ECF 26-3 at 10.

But the case is different for the unredacted version of the Executive Summary. Recall that

Plaintiffs’ FOIA request sought the “specific records identified and discussed in the Executive

Summary.” ECF 25-1 at 36. Given the CIA’s stated belief that redactions in the public Executive

Summary “le[ft] the Agency few leads” regarding certain footnotes, ECF 26-4 at 3, if the Agency

did have access to an unredacted version of the Executive Summary, it stands to reason that review

of that version would have provided those leads, see Kowalczyk v. Dep’t of Just., 73 F.3d 386, 389

(D.C. Cir. 1996) (requiring an agency to follow “a lead that is both clear and certain”). In response,

the CIA appears to dispute that it had access to an unredacted version of the Executive Summary

to cross-reference. It claims that when it responded to Plaintiffs’ FOIA request, it “consulted the

version of the Executive Summary that it has”—implying that the CIA had access to only one

version, the redacted document. ECF 29 at 9; see also ECF 26-4 at 3 (discussing only the redacted

footnotes). However, the CIA cites to no record evidence for the claim that it had access to only

the redacted version of the Executive Summary. On the other side of the ledger, Plaintiffs argue

that the Court should infer that the CIA had access to this document. The declaration submitted by

Plaintiffs from a CIA employee states that the document was sent to the President and subsequently

declassified by the “Director of National Intelligence,” but does not mention any role of the CIA

4 Although not discussed in the record in this litigation, it appears that in early 2015, the SSCI revoked use of the Final Report entirely and sought return of the document from the Executive Branch. Musgrave v. Warner, No. 21-cv-2198, 2022 WL 4245489, at *2 (D.D.C. Sep. 15, 2022) (noting that, by 2022, only limited copies of the Full Report existed within the Executive Branch, with none of the locations being the CIA), aff’d on other grounds, 104 F.4th 355 (D.C. Cir. 2024).

13 specifically in that process. ECF 26-3 at 12. But the declaration also notes that when the SSCI sent

the final version of the Executive Summary to the Executive Branch for declassification in 2014,

the Executive Branch and the SSCI “had many discussions.” Id. at 11. Although the CIA is not

mentioned as part of these discussions, one inference from the declarations is that the CIA, the

subject of the Report, would have received a copy of the final Executive Summary in order to

provide input as it did for the draft version. 5 However, even if the CIA did have a version of the

unredacted final Executive Summary, the declarations also do not make clear whether the

document was available to be used for these purposes. And a countervailing inference to be drawn

from the statements regarding the strict limitations on the draft Executive Summary is that the

copy shared for declassification was also subject to similar limitations.

The present record lacks sufficient detail to resolve the factual dispute of whether the CIA

received a version of the unredacted Executive Summary and whether it was available for the CIA

to use in responding to this FOIA request. As a result, the Court will deny both sides’ motions for

summary judgment on the issue of whether the CIA’s search was rendered inadequate by a failure

to consult an unredacted version of the Executive Summary in locating the remaining documents.

Here too, the CIA “might resolve those issues either by filing a more detailed declaration”

regarding the availability of the unredacted Executive Summary for purposes of responding to

FOIA requests “or conducting a supplemental search.” Nat’l Ass’n of Crim. Def. Laws, 2025 WL

3240789, at *4 n.3. 6

5 The Court notes, although does not weigh as evidence in making its determination on this factual dispute, that the D.C. Circuit in a separate FOIA case regarding the Executive Summary stated that the process of declassification of the Executive Summary “involv[ed] a review by the Director of National Intelligence and the CIA.” Connell, 110 F.4th at 261–62 (emphasis added). 6 Plaintiffs also argue that the CIA’s search was inadequate because it has failed to produce a signed version of document 25. ECF 26 at 34. They point to the fact that the SSCI report refers to a signed version of this document, while the version produced to Plaintiffs lacks any signatures. See ECF 26-3 at 25, 122. The CIA states, albeit without

14 B. Records Withheld or Redacted Under FOIA Exemption 5

Separate from the adequacy of the search, the Parties also challenge the propriety of certain

CIA withholdings and redactions. “In responding to a FOIA request, an agency may withhold

information that falls into any of the statute’s enumerated exemptions.” Hettena v. CIA, 145 F.4th

1354, 1356 (D.C. Cir. 2025). The Parties’ summary judgment motions regard 65 documents which

the CIA withheld or redacted on the basis of Exemption 5, which protects from disclosure “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). This exemption “incorporates

the privileges that the Government may claim when litigating against a private party, including the

governmental attorney-client and attorney work product privileges, . . . and the deliberative

process privilege.” Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015).

To withhold a responsive record, an agency must show both that the record falls within a

FOIA exemption, 5 U.S.C. § 552(b), and that the agency “reasonably foresees that disclosure

would harm an interest protected by [the] exemption,” id. § 552(a)(8)(A)(i)(I). The D.C. Circuit

has emphasized that “whether a requested record falls within an exemption and whether the

disclosure of that record would foreseeably harm an interest protected by the exemption are

distinct, consecutive inquiries.” Leopold v. U.S. Dep’t of Just., 94 F.4th 33, 37 (D.C. Cir. 2024).7

citation to the record, that “Document 25 was the only version of this document located.” ECF 29 at 33. Given that the Court is requiring the CIA to either supplement the record or perform an additional search, the Court will not address this argument on the present record and will consider this issue in light of the CIA’s renewed submissions. 7 Leopold was decided after the briefing in this case was completed, but the Court is bound to apply it and other recent precedents in deciding the current dispute. See, e.g., Rudometkin v. United States, 140 F.4th 480 (D.C. Cir. 2025). Although the Court acknowledges that the foreseeable harm doctrine has been further explained by the D.C. Circuit since the briefing in this case was completed, the CIA has had the opportunity to try to meet the legal standard set by the D.C. Circuit in Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021). That case was decided before the Parties submitted a supplemental round of briefs specifically addressing the foreseeable harm requirement, and the Parties in fact addressed Reporters Committee in their supplemental memoranda. See ECF 33; ECF 34. Moreover, the Parties’ approach to the foreseeable harm analysis was consistent with the instruction in Reporters Committee, as reiterated in Leopold, that the foreseeable harm requirement is an “independent and

15 An agency “must specifically and thoughtfully consider foreseeable harm from disclosure of

otherwise-exempt information, including whether partial disclosure of information is possible.”

Id. at 38. The CIA has claimed the deliberative process, attorney-client, and attorney work product

privileges over these records, withholding them either in full or in part. Plaintiffs contest many of

the withholdings as insufficiently supported.

The CIA has justified withholding the majority of the documents in question. However,

there are a substantial number of documents for which the Court lacks sufficient detail to determine

the applicability of each privilege or the existence of foreseeable harm. The Court will thus deny

both Parties’ summary judgment motions with respect to those records and require the CIA to

provide further justifications regarding its withholdings. Should the CIA believe that it can still

support Exemption 5 withholdings, it must provide supplemental declarations or Vaughn indices.

The Parties may then move once more for summary judgment.

1. Deliberative Process Privilege

The deliberative process privilege protects from disclosure “documents reflecting advisory

opinions, recommendations, and deliberations that are part of a process by which government

decisions and policies are formulated.” Reps. Comm., 3 F.4th at 361. To invoke the privilege, the

CIA must show that the documents are both “predecisional and deliberative.” Id. at 362. “A

document is predecisional if it was generated before the agency’s final decision on the matter,”

and it is “deliberative” if it was “prepared to help the agency formulate its position” and “reflects

the give-and-take of the consultative process.” Id. The privilege thus protects records that contain

information that comprises “part of a process by which governmental decisions and policies are

formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975).

meaningful burden” considered separately from and sequentially to the issue of whether an exemption applies. Leopold, 94 F.4th at 38 (citing Reps. Comm., 3 F.4th at 369)).

16 “[T]he foreseeable harm requirement applies with particular force in the context of the

deliberative process privilege.” Friends of the River v. U.S. Army Corps of Eng’rs, No. 16-cv-

2327, 2023 WL 4105168, at *4 (D.D.C. June 21, 2023). It is not enough for an agency to provide

a “perfunctory statement that disclosure of all the withheld information—regardless of category or

substance—would jeopardize the free exchange of information.” Reps. Comm., 3 F.4th at 370. The

agency must provide “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. But an agency need not provide a separate

explanation for each individual record; it may take a “categorical approach,” so long as the

categories it defines are specific enough so that the explanation provided would

“characteristically” apply to each document therein. Rosenberg v. U.S. Dep’t of Def., 342 F. Supp.

3d 62, 78–79 (D.D.C. 2018); see also Reps. Comm., 3 F.4th at 369. Second, in the absence of a

focused and concrete agency explanation, the Court may nonetheless find that the foreseeable harm

requirement is satisfied based on the “context and purpose” of the withheld information. Reps.

Comm., 3 F.4th at 372; see also Reps. Comm. for Freedom of the Press v. U.S. Customs & Border

Prot., 567 F. Supp. 3d 97, 110 (D.D.C. 2021).

The CIA has submitted declarations and a Vaughn index to substantiate its claims of the

deliberative process privilege. ECF 25-1; ECF 33-1. In doing so, the Agency has divided the

documents in question into the following broad categories: (a) Drafts, (b) Talking Points,

(c) Cables, (d) Memoranda for the Record, (e) Other Internal Memoranda and Emails, and

(f) Office of Inspector General Reports. Plaintiffs raise objections to the CIA’s categorical

approach and to the treatment of specific documents within those categories. The Court will

address each in turn.

17 (a) Drafts

The CIA has sought to withhold documents 2, 4, 18, 20, 27, 35, 36, 44, and 55 on the

grounds that they are draft documents which “reflect information at the interim stages and are

associated with a given deliberation concerning how to handle different policies and/or procedures

related to the former detention and interrogation program.” ECF 25-1 at 7; see ECF 33-1 ¶ 7 (listing

these documents within the draft document category). 8

While a document’s labeling as a draft may be a good indicator that the document is

deliberative and predecisional, see ACLU v. DOJ, 655 F.3d 1, 18 (D.C. Cir. 2011), not every

document “identified as a ‘draft’ is per se exempt,” particularly where the record does not indicate

the document is deliberative in nature, or if the document has been “adopted, formally or

informally, as the agency position on an issue,” Arthur Andersen & Co. v. IRS, 679 F.2d 254, 257–

58 (D.C. Cir. 1982).

The CIA has adequately justified withholding documents 2, 4, 18, 20, 35, 44, and 55.

Review of the Vaughn index and declarations indicates that these draft documents were involved

in predecisional deliberations regarding specific, identifiable decisionmaking processes, including

regarding the use of certain interrogation techniques, phases of review of the detention program,

and incarceration decisions regarding specific prisoners. ECF 25-1 at 20–21, 26, 28, 30, 32.

Further, Plaintiffs do not contest the CIA’s declarant’s statement that each document is “a draft

[that] does not reflect a final agency position.” ECF 33-1 ¶ 7. Finally, Defendants have also shown

that “harm is reasonably foreseeable if agency employees expect that their deliberations about” the

subjects of these documents “will be publicly disclosed.” ACLU v. CIA, No. 18-cv-2784, 2022 WL

306360, at *9 (D.D.C. Feb. 2, 2022). The CIA’s declarant avers that the draft documents in this

8 The CIA has also sought to withhold documents 12, 24 and 28 under this category. Because the Court finds these documents subject to withholding on other grounds, it need not address their withholding here.

18 set involve discussions about “intelligence techniques that inform the underlying decisions and

deliberations of intelligence collection,” such that “[d]isclosure of [these] drafts would quiet

candid, robust discussion of future intelligence techniques and methodologies, thereby adversely

impacting intelligence collection.” ECF 33-1 ¶ 7. Given that the record supports the CIA’s

description of these documents as “draft documents that lay out various recommendations and

proposals” regarding intelligence techniques, the Court agrees that disclosure of these documents

“‘would discourage candid discussion within the agency’” about this subject and that the CIA has

properly applied Exemption 5 to these documents. Arab Am. Inst. v. Off. of Mgmt. & Budget, No.

18-cv-0871, 2020 WL 4698098, at *7 (D.D.C. Aug. 13, 2020) (quoting Access Reports v. U.S.

Dep’t of Justice, 926 F.2d 1192, 1195 (D.C. Cir. 1991)).

However, the CIA’s Vaughn index and declarations do not provide enough information to

determine whether documents 27 and 36 are predecisional or deliberative. As for document 36,

which is described merely as a “draft document to be used as an outline for potential briefing,”

ECF 25-1 at 28, the index or supporting declaration provides no further details as to the subject of

that briefing—the “specific deliberative process”—nor does it articulate the “function and

significance of the document in that process.” Hunton & Williams LLP v. U.S. Env’t Prot. Agency,

248 F. Supp. 3d 220, 241 (D.D.C. 2017). While it is true that “[a]ll drafts are in some sense

deliberative; there must be more detail provided regarding the actual decisionmaking process and

authority.” Stonehill v. U.S. Dep’t of Just. Tax Div., No. 19-cv-3770, 2022 WL 407145, at *21

(D.D.C. Feb. 10, 2022). The record lacks sufficient detail regarding this document, so the Court

cannot determine “what the deliberative process[]” at issue was, “much less whether the privilege

applies.” Id. For example, the Court cannot determine whether the draft briefing notes were

prepared to “assist an agency decisionmaker in arriving at [a] decision,” in which case they would

19 be covered by the privilege, or if the purpose of the briefing was to “explain decisions already

made.” Advancement Project v. U.S. Dep’t of Homeland Sec., 549 F. Supp. 3d 128, 141 (D.D.C.

2021). The same holds for document 27, which is described as a “draft document requesting

comments/edits pursuant to the attorney-client privilege and the deliberative process privilege for

deliberations regarding a draft document.” ECF 25-1 at 27. To the extent that the CIA seeks to

protect this document under the deliberative process privilege independent of the attorney-client

privilege, the information provided in the Vaughn index is insufficient as to the specific

decisionmaking process to which the document pertained. See Heartland All. for Hum. Needs &

Hum. Rts. v. U.S. Dep’t of Homeland Sec., 291 F. Supp. 3d 69, 80 (D.D.C. 2018) (“The fact that

the documents are drafts and contain edits does not, alone, qualify them for protection under the

deliberative process privilege: they must be part of an articulated decision-making process.”). The

CIA must therefore provide additional detail regarding these documents.

(b) Talking Points

The CIA has also withheld documents 20, 26, 35, 48, 49, 51, 58, 62, and 65 as “write-ups

of talking points or draft talkers to be used in meetings with senior U.S. officials, including the

White House.” ECF 25-1 at 9; see ECF 33-1 ¶ 9 (listing these documents). The Court has already

found that documents 20 and 35 were properly withheld in its discussion of draft documents and

will not discuss them here. As for the others, the CIA has met its burden to invoke the deliberative

process privilege.

The Vaughn index and declarations establish that all these talking point documents “make

recommendations or express opinions on legal or policy matters” and, contrary to Plaintiffs’ views,

do not merely regard “transmitting information between and among agencies.” Mayer, Brown,

Rowe & Maw LLP v. IRS, 537 F. Supp. 2d 128, 139 (D.D.C. 2008), aff’d sub nom., Mayer Brown

20 LLP v. IRS, 562 F.3d 1190 (D.C. Cir. 2009); see, e.g., ECF 33-1 ¶ 9 (declarant describing

document 26 as talking points prepared “for the Deputy Director of the CIA in response to a

briefing request from the Assistant to the President for National Security Affairs on the future of

the program”). The documents were “pre-decisional, inasmuch as they preceded . . . meetings with

President” Bush and other senior administration officials, and they were “deliberative because they

reflect consultative processes” and the “drafter’s opinions on” subjects that were to be presented

to those officials. Advancement Project v. U.S. Dep’t of Homeland Sec., No. 19-cv-52, 2022 WL

4094061, at *5 (D.D.C. Sep. 7, 2022); see Khatchadourian v. Def. Intel. Agency, 597 F. Supp. 3d

96, 118 (D.D.C. 2022) (finding that “talking points created for internal briefing meetings, not

public adoption,” were “predecisional and deliberative”).

The CIA also identifies harms that would result from the release of these documents, in

that the talking points “are an important part of preparation and conduct of the interagency

meetings in which important policies are discussed,” and disclosure “would make it less likely that

future preparers of talking points for sensitive intelligence matters will be as candid and

forthcoming in making assessments and recommendations.” ECF 33-1 ¶ 9. Plaintiffs concede that

these harms are sufficient to justify withholding, ECF 34 at 2, and the Court agrees, see Campaign

Legal Ctr. v. U.S. Dep’t of Just., 34 F.4th 14, 23 (D.C. Cir. 2022) (“[T]he privilege is designed to

improve governmental decisionmaking by encouraging public servants to speak candidly with one

another and to fully flesh out the reasons for and against potential agency actions before they are

taken.”). 9

The Court grants summary judgment to the CIA regarding these withholdings.

9 The Court notes that document 65 was not included in the Vaughn index. See ECF 25-1 at 33. However, it was described in the CIA’s declarations, and the Court has found these descriptions sufficient to support withholding. See ECF 33-1 ¶ 9.

21 (c) Cables

The CIA has also withheld documents 3, 19, 29, 34, 37, 38, and 57 on the grounds that they

are cables either written by “field-based Agency employees seeking Headquarters approval for

particular proposed actions[] or from Headquarters to field-based employees providing

suggestions and assessments to be used in a subsequent final decision.” ECF 33-1 ¶ 10. The

Agency avers that “[n]one of these documents reflect a final Agency position and all contain

internal suggestions and recommendations.” Id.

To start, the record does not contain enough information to determine whether summary

judgment can be granted as to document 38, given that the only individualized description of the

document in the record is the Vaughn index’s vague statement that it is a “[d]raft seeking

headquarters concurrence before final approval.” ECF 25-1 at 28. This lack of detail leaves the

Court unable to evaluate whether the document is truly predecisional and deliberative or the CIA’s

claim of foreseeable harm with respect to the release of this document.

As for the other documents, the Vaughn index, declarations, and review of unredacted

versions of the documents indicate that, on first blush, they all regard detainee interrogations in

ways that indicate they are predecisional and deliberative. Documents 19, 29, and 37 involve

requests from subordinates for headquarters feedback regarding issues or next steps in the

interrogations. See ECF 25-1 at 26–27 (index entries); id. at 10 (declarant describing document

37); ECF 26-3 at 113 (redacted version of document 19, which indicates it was sent to the

“immediate ALEC info director”); S. Rep. No. 113-288, at 17, 21 (describing ALEC Station as

“the office within the CIA with specific responsibility for al-Qa’ida,” located at CIA

Headquarters); ECF 28-2 at 1 (redacted version of document 29, which “request[s] HQS

concurrence with” an interrogation-specific “program plan”). Document 34 is a cable which

22 includes “recommendations for a proposed interrogation plan pending final approval.” ECF 25-1

at 28. Document 57, dated to September 10, 2002, and withheld in full, regards a “meeting with

HPSCI” 10 regarding “the status of the Abu Zubaydah Interrogations,” where Exemption 5 was

applied to protect “details of the meeting, . . . which reflect the decision making process, legal

advice, and analysis of matters under consideration.” Id. at 32. Plaintiffs’ specific objections to the

application of the privilege to document 19, on the ground that some of the unredacted language

in the document speaks in authoritative language, and their claim that document 29 was over-

redacted are based on mere speculation and contrary to record evidence. See ECF 26 at 18.

Document 3 is a closer call. The Vaughn index describes this document, which was

produced with redactions, and reprocessed and produced with remaining redactions during the

pendency of this litigation, see ECF 28-1, as one which contains “pre-decisional intra-agency

deliberations and withholds in full . . . assessments regarding the RDI program that, at the time,

were still being considered by the Agency in anticipation of a final policy[]. . . regarding ongoing

interrogations,” ECF 25-1 at 21. Unlike several of the other cables, this one was sent from “Agency

employees at Headquarters to personnel in the field.” Id. at 10. Plaintiffs argue that the authorship

of the cable (superior to subordinate) indicates that the document is not predecisional or

deliberative. It is true that “a document from a subordinate to a superior official is more likely to

be predecisional, while a document moving in the opposite direction is more likely to contain

instructions to staff explaining the reasons for a decision already made.” Coastal States Gas Corp.

v. Dep’t of Energy, 617 F.2d 854, 868 (D.C. Cir. 1980). But “more likely,” id., does not mean

always. The key question is whether the document was “prepared in order to assist an agency

10 Presumably the House Permanent Select Committee on Intelligence. See S. Rep. No. 113-288, at 438 (noting that “[i]n early September 2002, the CIA briefed the House Permanent Select Committee on Intelligence (HPSCI) leadership about the CIA’s enhanced interrogation techniques”).

23 decisionmaker in arriving at [a] decision” and “reflects the give-and-take of the consultative

process.” Petroleum Info. Corp. v. U.S. Dep’t of Interior, 976 F.2d 1429, 1434 (D.C. Cir. 1992).

Here, the CIA’s declarant asserts that despite the fact that this cable was sent from superior to

subordinate, it is predecisional and deliberative because the cable “provides preliminary input in

advance of a final decision from Headquarters as to how to conduct the next phase of an

interrogation and requests additional information from employees in the field for the purpose of

making a final decision.” ECF 25-1 at 10. A document from a superior which requests more

information and feedback from a subordinate in order to inform the decisionmaking process falls

within this category, given that it reflects the “give-and-take of the consultative process.”

Petroleum Info. Corp., 976 F.2d at 1434. Plaintiffs also argue that the unredacted text in the

document speaks authoritatively and does not indicate that the cable is seeking feedback or

information from the recipients to inform decisionmaking. But this again assumes that the

unredacted content and the redacted content are necessarily of the same character. The fact that

the CIA has left certain segregable material unredacted supports its claim that it has sought to

withhold only those portions of the document which are deliberative and predecisional. See

ECF 28-1 at 4.

Finally, Plaintiffs argue that the cables should be reviewed in camera because there are

indications that portions of the cables “embody the agency’s effective law and policy” and are

therefore not subject to withholding under the deliberative process privilege. ECF 26 at 18–19.

Plaintiffs cite to a decision from the Southern District of New York (SDNY) which reviewed a

cable similar to document 3 in camera and found that portions of the cable “provide[d] directions

to employees in the field,” which was intended to have “operative effect.” ACLU v. Dep’t of Def.,

No. 15-cv-9317, 2017 WL 4326524, at *9 (S.D.N.Y. Sep. 27, 2017). The SDNY court ordered

24 specific redactions removed based on those determinations. Id. Following that decision, the CIA

produced a version of document 3 in this litigation consistent with those redactions. See ECF 28

at 17, 18 n.3. Plaintiffs do not challenge the present version of document 3 on these grounds but

argue that the CIA “has not disclosed similar material from document 19 or any other cable.”

ECF 31 at 22. They argue that this Court should either review the cables in camera, or that the

CIA should “review[] all similar documents at issue in this case in light of the court’s rationale for

ordering disclosure in the ACLU case.” Id.

The Court will choose the latter, but only for specific documents. The ACLU v. Dep’t of

Defense case found the CIA’s original redactions improper because the passages represented

guidance from headquarters to subordinates “intended to have operative effect.” 2017 WL

4326524 at *9. Here, the only document that is clearly sent from CIA headquarters to agents in the

field is document 3. Other documents, such as documents 19, 29, and 37, bear indicia of being sent

from employees to headquarters, and it is thus unlikely that they contain guidance intended to have

operative effect. However, the record is not clear whether documents 34 or 57 were sent from

headquarters to employees in the field, or vice versa. The Court thus lacks sufficient information

to determine whether these cables have improperly withheld the agency’s “effective law and

policy” and cannot decide the issue of their withholding. Elec. Frontier Found. v. U.S. Dep’t of

Just., 739 F.3d 1, 7 (D.C. Cir. 2014). In providing additional information regarding these

documents, the CIA shall review the cables to determine whether they contain any authoritative,

binding instructions and represent guidance intended to have operative effect or represent the

agency’s effective law and policy, and if so, produce relevant portions.

As for documents 3, 19, 29, and 37, for which the CIA has successfully invoked the

deliberative process privilege, the Agency has also met the foreseeable harm requirement. The

25 CIA’s declarant states that production of the withheld or redacted material would “chill the future

use of such cables to make suggestions and recommendations regarding sensitive intelligence

techniques,” which would “thus inhibit candid discussion among Agency officers on future

intelligence techniques, methodologies, and use cases.” ECF 33-1 ¶ 10. All these documents regard

decisionmaking about pending interrogations, which even Plaintiffs agree are “intelligence-

gathering technique[s].” ECF 34 at 5. On this record, the CIA has established a “reasonably

foreseeable link between these harms and the specific information contained in the withheld

records.” Ctr. for Investigative Reporting v. U.S. Dep’t of the Interior, 613 F. Supp. 3d 327, 335

(D.D.C. 2020).

While the Court determines that it lacks, at present, sufficient information to decide the

withholding status of documents 34, 38, and 57, the CIA has properly met its burden to withhold

or redact documents 3, 19, 29, and 37, and accordingly will grant summary judgment to the CIA

on these documents and deny it to Plaintiffs.

(d) Memoranda for the Record

The CIA has also withheld documents 11, 39–43, 45–47, 50, 52–54, 56, and 60 on the

grounds that they are “responsive memoranda for the record (MFR) describing discussions of

policy options during Congressional briefings and meetings with the National Security Council.”

ECF 33-1 ¶ 8. According to the CIA’s declarant, “[e]ach MFR reflects CIA impressions, analysis,

and opinions; and memorializes discussions and interactions with key U.S. policy makers,

including the selection and arrangement of factual material relevant to the Agency’s decision-

making processes.” Id.

The Court agrees with CIA’s withholding decisions in part. Documents 11, 43, 47, 52–54,

and 60, have properly been withheld under the deliberative process privilege. Plaintiffs do not raise

26 specific objections to the application of the deliberative process privilege to these documents,

while they have done so for other memoranda for the record in this category. The Vaughn index,

along with the CIA’s declarations, indicate that these memoranda contain descriptions of internal

meetings at the CIA or with National Security Counsel or White House officials, as well as CIA

analysis or impressions of those meetings. “Purely factual material usually cannot be withheld

under Exemption 5 unless it reflects an exercise of discretion and judgment calls.” Ancient Coin

Collectors Guild v. U.S. Dep’t of State, 641 F.3d 504, 513 (D.C. Cir. 2011). “Thus the legitimacy

of withholding does not turn on whether the material is purely factual in nature or whether it is

already in the public domain, but rather on whether the selection or organization of facts is part of

an agency’s deliberative process.” Id. Here, the descriptions in the Vaughn index support the

finding that these memoranda were produced to “promote deliberation” as to specific, identifiable

agency decisions under consideration, Elec. Priv. Info. Ctr. v. Transp. Sec. Admin., 928 F. Supp.

2d 156, 167 (D.D.C. 2013), and reflected the selection of factual material “for the benefit

of . . . official[s] called upon to take discretionary action,” Mapother v. Dep’t of Just., 3 F.3d 1533,

1539 (D.C. Cir. 1993). Plaintiffs also do not dispute that, in the case that the Court finds any of the

memoranda in this category to be subject to the deliberative process privilege, the CIA has met is

burden for showing foreseeable harm. The Court agrees, given that disclosure of these documents

would harm future discussions “between senior policy makers on national security issues of critical

importance.” ECF 34 at 2–3 (admitting that if Defendant’s memoranda for the record are “subject

to the deliberative process privilege, the CIA has shown foreseeable harm”).

On the other hand, Plaintiffs challenge the application of the deliberative process privilege

to documents 39–42, 45–46, 50, and 56. The Vaughn index describes these documents—in near

identical language—as “internal memorand[a]” created to “memorialize discussions and

27 interactions with Congress, where those discussions could serve as a basis for future Agency

decision making.” ECF 25-1 at 29–32. With one exception, the Court is unable to decide at this

stage whether these documents have been properly withheld under the deliberative process

privilege.

Unlike the prior set of memoranda, which the Vaughn index states contained analysis,

opinions, or contributed to specific decisionmaking processes, the descriptions of the memoranda

indicate that they are primarily factual, in that they “memorialize discussions and interactions with

Congress.” ECF 25-1 at 29–32. Again, material that is “purely factual in nature” could nevertheless

be subject to withholding when the record demonstrates that the “selection or organization of facts

is part of an agency’s deliberative process.” Ancient Coin Collectors Guild, 641 F.3d at 513. But

here, the CIA has not explained what “definable decision-making process[es]” were underway

when these memoranda were compiled or to what processes they were intended to contribute.

100Reporters LLC v. U.S. Dep’t of Just., 248 F. Supp. 3d 115, 151 (D.D.C. 2017). The sole

exception is document 39, which is titled “Destruction of Detainee Videotapes,” and which the

CIA’s supplemental declaration states “summarizes a briefing regarding the destruction of certain

videos” and reflects CIA employees’ “internal impressions and the selection of facts they thought

potentially relevant to future similar decision-making and future interactions with Congress.”

ECF 25-1 at 29; ECF 33-1 ¶ 8. The deliberative process privilege has been held to cover agency

determinations about “how to respond to Congress,” Bloche v. Dep’t of Def., 370 F. Supp. 3d 40,

52 (D.D.C. 2019), and with respect to document 39, the Vaughn index and declarations provides

some indication about the subject of the briefing to Congress—the ongoing public controversy

over the CIA’s destruction of videotapes of detainee interrogations. ECF 25-1 at 29; ECF 33-1 ¶ 8;

see also S. Rep. No. 113-288, at 451–52 (describing the controversy and noting that a briefing on

28 the subject occurred on December 11, 2007, also the date of this memorandum). This controversy

continued and was in part the inspiration for the SSCI review of the CIA’s detention program.

S. Rep. No. 113-288, at 8. The context provided regarding this document is sufficient to support

the CIA’s withholding, given that the CIA reasonably anticipated further “determinations about

how to respond to . . . Congress” regarding that subject. Bloche, 370 F. Supp. 3d at 52. The same

is not true for the other documents in this subset, which lack any additional details about the subject

of the briefing, and for which the Court cannot “make a de novo determination” either way of

whether they are covered by the deliberative process privilege. 100Reporters LLC, 248 F. Supp.

3d at 154. Because the Court is already giving the CIA an additional opportunity to supplement

the record in this case, it will afford the Government an opportunity to “supplement[]” the record

with respect to documents 40–42, 45–46, 50, and 56, rather than compelling production at this

time. Id.

(e) Other Internal Memoranda and Emails

The CIA describes documents 5–6, 9–10, 13–17, 21–23, 25, 31–33, 59, 63, and 64 as

“internal memoranda and emails” that contain “descriptions of potential plans, recommendations,

operational proposals, and assessments on aspects of the RDI program.” 11 ECF 25-1 at 10, 12.

Plaintiffs raise specific objections to the application of the deliberative process privilege to

documents 5, 6, and 10. See ECF 26 at 20–30; ECF 31 at 24–29.

Document 5, which has been released in redacted form, is a memorandum from the Chief

of the CIA’s Information Operations Center to the Deputy Director for Operations which provides

an “informal operation assessment of the CIA Detainee program.” ECF 26-3 at 83–84. The CIA

11 The CIA also includes the withholdings or redactions of Documents 4, 11, 18, 20, 28, 43, 52, 58, and 65 in this category. ECF 33-1 ¶ 11. These withholdings are justified on other grounds and therefore need not be addressed in this section.

29 states that redactions have been made to preserve “internal recommendations and opinions” related

to the review. ECF 25-1 at 22; see also ECF 33-1 ¶ 11. Plaintiffs claim that these redactions are

suspect and insufficiently supported, particularly given that the agency has left unredacted parts of

the memorandum that offer recommendations and opinions. See ECF 26-3 at 84 (recommending

that “[t]he Directorate of Operations (DO) should not be in the business of running prisons or

temporary detention facilities”). But the agency “does not forfeit the benefit of a FOIA exemption

simply because” it has decided “to voluntarily release other similar information.” Nat’l Sec.

Archive v. CIA, 752 F.3d 460, 464 (D.C. Cir. 2014) (“Indeed, penalizing agencies in that way

would discourage them from voluntarily releasing information, which would thwart the broader

objective of transparent and open government.”), abrogated by statute on other grounds by

5 U.S.C. § 552(b)(5). The Vaughn index, the declarations, and review of the redacted copy of the

document all supports the CIA’s claims that the redactions were for predecisional and deliberative

content.

The CIA has also shown foreseeable harm for the release of the redacted portions of the

document, given that its declarant specifically discusses the content of this document and the

related deliberations, and states that “[d]isclosure of such deliberations would quiet robust

discussion on future intelligence techniques, methodologies, and use cases.” ECF 33-1 ¶; see also

Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020) (finding foreseeable

harm shown when agency “specifically focused on the information at issue” in the record and

“concluded that disclosure of that information would chill future internal discussions”). Plaintiffs

argue that the CIA’s claims of foreseeable harm are undercut by the fact that the redacted version

of the document has revealed certain predecisional deliberative content. But this assumes—resting

on mere speculation—that the withheld predecisional content is similar in nature to the content

30 that has been released. The very fact that some deliberative content was produced while some was

redacted supports the CIA’s claim that the Agency considered the relative harmfulness of releasing

the information when making redactions. The withholding of document 5 is sufficiently justified.

Document 6, which has been produced with redactions, is a memorandum from the

Director of Central Intelligence to the National Security Advisor regarding the effectiveness of

interrogation techniques. ECF 26-3 at 86–90. The Vaughn index states that Exemption 5 redactions

have been made to sections containing “assessments and recommendations for the National

Security Advisor to assist in determining the effectiveness of the interrogation techniques” used in

the RDI program. ECF 25-1 at 22. 12 None of Plaintiffs’ objections to the withholding of this

document are persuasive. First, the Court rejects Plaintiffs’ claim that the deliberative process

privilege cannot apply to a memoranda from agency officials to White House officials because the

document concerned “White House deliberations” rather than “CIA deliberations.” ECF 31 at 27.

Exemption 5 protects “inter-agency memoranda or letters that were used in the decisionmaking

processes of the Executive Branch,” and applies to “documents prepared by agency officials to

advise the President,” as well as documents “shared with or received from” Executive Branch

officials whose role it is to “advise” the President, like the National Security Advisor. Jud. Watch,

Inc. v. Dep’t of Energy, 412 F.3d 125, 129–31 (D.C. Cir. 2005). Second, the Court is unpersuaded

that the CIA’s disclosure of a different memorandum with similar language, including unredacted

language that does not appear in document 6, indicates that document 6 has been improperly

redacted. Compare ECF 26-3 at 86–90, with id. at 143–47. While the structure of the memoranda

and the unredacted content are strikingly similar, these documents were written by different

authors and sent to different recipients, for different purposes, and do not necessarily undermine

12 Document 6 also contains redactions made on the basis of the attorney work product privilege, which the Court addresses separately below. See infra Section III.B.3.

31 the CIA’s claim that the redacted content in these documents is different. Compare id. at 26-3 at

87 (responding to request “for an independent study of the foreign intelligence efficacy of using

enhanced interrogation techniques”), with id. at 143 (responding to request “for the intelligence

the Agency obtained from detainees”).

The CIA has demonstrated foreseeable harm as to document 6, given that it involves

discussions of “intelligence techniques” between a “senior Agency leader[]” and another high-up

Executive branch official. ECF 33-1 ¶ 11. Like with document 5, the CIA asserts that disclosure

of such deliberations would quiet robust discussion on this specific subject. See Machado Amadis,

971 F.3d at 371 (by “specifically focus[ing] on the information at issue” in the documents and the

“chill[ed] future internal discussions” that would result, the agency “correctly understood the

governing legal requirement”). Again, the fact that the CIA has released a similar (but not

identical) document does not undercut the claim that foreseeable harm would result from the

release of document 6, given that this rests on speculation that the unredacted sections of document

6 are similar or identical to those previously released.

As for document 10, it is a heavily-redacted memorandum from the General Counsel of

the CIA to the Deputy Director of Central Intelligence regarding a proposed response to a letter

received by the Agency from Human Rights Watch. See ECF 26-3 at 109–11. According to the

CIA’s declarant, the document is “pre-decisional and deliberative because it is a recommendation

from the General Counsel to a senior Agency official . . . which shows the author’s initial thought

processes.” ECF 25-1 at 11. The Court finds that this record, described as an “unfinished[] draft

of a letter,” id., falls under the deliberative process privilege, see Am. Ctr. for L. & Just. v. U.S.

Dep’t of Just., 325 F. Supp. 3d 162, 171–72 (D.D.C. 2018) (“[T]he overwhelming consensus

among judges in this District is that the privilege protects agency deliberations about public

32 statements.”); see also Judge Rotenberg Educ. Ctr., Inc. v. U.S. Food & Drug Admin., 376 F. Supp.

3d 47, 70 (D.D.C. 2019) (finding “draft letters to the United Nations” to be predecisional and

deliberative where the drafts “contain[ed] comments from government employees suggesting

certain changes to the draft letter before it [was] finalized” and the Vaughn index “explain[ed] that

the letter was subsequently finalized”). The CIA has also demonstrated foreseeable harm as to its

disclosure, because it reflects “agency deliberations about public statements,” the disclosure of

which “would frustrate an agency’s ability to prepare the way it presents information to the public.”

Avila v. U.S. Dep’t of State, No. 17-cv-2685, 2022 WL 2104483, at *12 (D.D.C. June 10, 2022).

Finally, the Court rejects Plaintiffs’ claim that the CIA has withheld segregable information. See

Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol’y, 161 F. Supp. 3d 120, 132 (D.D.C.) (declining

to order defendant to “segregate the factual portions of [letter] drafts, as distinct from their

deliberative portions,” because doing so would “run the risk of revealing editorial judgments—for

example, decisions to insert or delete material or to change a draft’s focus or emphasis”), modified

on other grounds, 185 F. Supp. 3d 26 (D.D.C. 2016).

As for documents 9, 13–17, 21–23, 25, 31–33, 59, and 63–64, Plaintiffs do not raise any

specific objections about whether these documents are predecisional or deliberative. However,

Plaintiffs do object in general to the CIA’s use of “conclusory” descriptions in the Vaughn index

and declarations, and argue that in many cases, the CIA has failed to provide sufficient information

for the Court to determine the applicability of the privilege. ECF 26 at 14–15. The Court agrees

with Plaintiffs that mere reference to ongoing review of the RDI program is not necessarily a

sufficient basis, alone, to withhold a given document as predecisional and deliberative. While the

agency “is not required to link each document to a specific action, it must . . . tie the materials to

some definable process.” 100Reporters LLC, 248 F. Supp. 3d at 153. And courts have rejected

33 vague and overbroad definitions of the relevant decisional process when accepting the agency’s

“view of the deliberative process at issue would create a [multi]-year umbrella effectively shielding

all agency action from review without accounting for any subsidiary agency decisions.” Id. But

having reviewed the descriptions provided in the Vaughn index and declarations, the Court

determines that for almost all of the documents in this set, the CIA has done enough “to tie the

materials to some definable decision-making processes such that the Court can be confident the

records are predecisional and deliberative,” Nat’l Ass’n of Crim. Def. Laws., 2025 WL 3240789,

at *14, and that the records contributed to “subsidiary agency decisions” regarding specific aspects

of the RDI program, such as the use of interrogation techniques, disciplinary decisions, interstitial

phases of review of the RDI program, and incarceration decisions regarding specific prisoners,

100Reporters LLC, 248 F. Supp. 3d at 153.

There are several exceptions. The descriptions of documents 21, 22, and 23, which have

been withheld in full, are short, vague, and provide insufficient detail as to what deliberative

process is at stake and what role the document played in that process. See ECF 25-1 at 26–27. The

same goes for document 64, which does not appear in the Vaughn index provided to the Court. See

ECF 25-1 at 33 (Vaughn index ending with entry for document 63). The description of the email

in the CIA’s declaration, which describes it merely as an email that “reflects inter-agency

deliberations concerning information sharing,” ECF 33-1 ¶ 11, also provides insufficient detail to

understand whether the privilege applies.

But even for the documents that are protected by the deliberative process privilege, the CIA

must still demonstrate foreseeable harm. The entries in the Vaughn index are somewhat thin on

the subject. Instead, the CIA relies on declarations which purport to address the harms applicable

to all the documents in the category of “internal memoranda and emails.” ECF 33-1 ¶ 11. The CIA

34 claims that all the documents in this set “contain[] descriptions of potential plans,

recommendations, operational proposals, and deliberative assessments pertaining to aspects of the

former program, including the methods employed,” which were “communicated to senior Agency

leaders to help inform their decision-making process.” ECF 33-1 ¶ 11. In the CIA’s view, the

disclosure of these documents would “quiet robust discussion on future intelligence techniques,

methodologies, and use cases, therefore directly impacting intelligence collection.” Id.

The CIA’s categorical approach can justify some but not all of the withholdings here.

Again, an agency is “permitted to group documents and address foreseeable harm ‘on a category-

by-category basis rather than a document-by-document basis,’” as the CIA has done here. Levin v.

Nat’l Highway Traffic Safety Admin., No. 20-cv-3236, 2026 WL 523017, at *5 (D.D.C. Feb. 25,

2026) (quoting Reps. Comm., 3 F.4th at 369). Even in situations where the declarations are

insufficient, the “context and purpose” of the records, “their subject matter,” and the “sensitivity

of the context in which [the documents] arose” can make the “foreseeability of harm manifest.”

Reps. Comm., 3 F.4th at 372; Rudometkin v. United States, 140 F.4th 480, 493 (D.C. Cir. 2025).

Based on the descriptions in the Vaughn index, documents 9, 13–15, 25, and 32–33 appear to

discuss specific intelligence techniques, methodologies, and use cases, such as detention and

interrogation methods, and specific intelligence-gathering operations. As a result, the CIA has

done more than make “generalized assertions that disclosure could chill deliberations” with regard

to these documents, but instead has “focused on the information at issue” in this subset of

documents and “concluded that disclosure of that information would chill future internal

discussions.” Machado Amadis, 971 F.3d at 371. This is sufficient to meet the governing legal

requirement and justify withholding of these documents. See id.

35 As for documents 16–17, 31, 59, and 63, the descriptions provided in the Vaughn index are

insufficient for the Court to determine whether they, too, fall into the category of documents for

which the CIA has articulated a specific enough foreseeable harm. For example, it is not clear that

document 16, which is described as the “Report and Recommendations of the Special

Accountability Board Regarding the Death of Afghan Detainee Gul Rahman,” and regarded

“recommendations and opinions . . . to be used in making a final decision regarding disciplinary

actions,” ECF 25-1 at 25, is a document which regards “intelligence techniques, methodologies,

and use cases,” such that the disclosure of the document would chill future discussion of these

subjects, ECF 33-1 ¶ 11. And the descriptions of documents 17, 31, 59, and 63 are either so vague

or described at such a high level of generality that it is difficult for the Court to see how the CIA

has made a “link between the specified harm” articulated in the declaration “and the specific

information contained in the material withheld.” Reps. Comm., 3 F.4th at 371. Nor, given the lack

of detail, can the Court determine that the material is of such “unique sensitivity” that “the

foreseeability of harm [is] manifest.” Id. at 372.

The Court thus determines that it lacks sufficient detail to rule on the withholdings of

documents 16–17, 21–23, 31, 59, 63, and 64. Again, where, as here, “the record includes deficient

declarations,” the Court will “request that the agency supplement its supporting declarations

instead of ordering discovery or the submission of documents for in camera review.” Isiwele v.

U.S. Dep’t of Health & Hum. Servs., 85 F. Supp. 3d 337, 344 (D.D.C. 2015).

(f) Office of Inspector General Reports

The CIA’s final category of withholdings under the deliberate process privilege refer to the

redactions and withholdings of various CIA Office of Inspector General (OIG) reports. Document

1 is an OIG report on “Counterterrorism Detention and Interrogation Activities” from September

36 2001 to October 2003. ECF 25-1 at 20. The Vaughn index notes that certain redactions have been

made pursuant to Exemption 5 in order to protect “considerations and recommendations for

improving the detention and interrogations activities/policies,” including “various options for the

disposition of detainees.” Id. Per the CIA, “these options were in the deliberation phase working

toward a final solution.” Id. Document 7 is an OIG report regarding the death of a detainee, which

contains redactions based on “proposed recommendations made to OGC attorneys” and

“redactions of recommendations that were deliberative and provided to form a final policy.” 13 Id.

at 23. Document 12, which was withheld in full, is described as a “draft memorandum of OIG

special review containing handwritten notes, to incorporate edits and ideas into a final version” Id.

at 24.

Plaintiffs do not challenge the deliberative or predecisional nature of these documents (or

the deliberative redactions within them). The Court determines that they are indeed deliberative

and predecisional, given that “[e]ach of the documents reports on the findings of some

investigation or analysis, and” according to the Vaughn index and declarations, “contains

evaluations, opinions, and recommendations from one set of CIA officers to another.” ACLU v.

CIA, 892 F. Supp. 2d 234, 250 (D.D.C. 2012) (finding similar OIG reports predecisional and

deliberative, “even though [the CIA’s declarant] d[id] not pinpoint any particular decision or

policy the reports contributed to,” because the declarant “indicate[d] that they were part of an intra-

agency-evaluation process[] and that they were used to determine whether or not the agency should

take some administrative action”).

However, with respect to document 1, Plaintiffs argue that certain redacted

recommendations in the report, even if deliberative and predecisional, should be released because

13 Documents 1 and 7 also have specific redactions made on the basis of the attorney-client privilege which the Court addresses separately below. See infra Section III.B.2.

37 they have likely been adopted by the CIA “as a result of the OIG report.” ECF 26 at 20. Indeed,

“a document can lose its predecisional character—and the protections of the privilege—if an

agency adopts the document as its own” by “mak[ing] an ‘express’ choice to use a deliberative

document as a source of agency guidance.” Jud. Watch, Inc. v. U.S. Dep’t of Def., 847 F.3d 735,

739 (D.C. Cir. 2017) (quoting Sears, 421 U.S. at 161). But Plaintiffs have not presented sufficient

evidence that this has happened here. For support, they point to a statement made by the CIA in a

2014 response to the SSCI report that the CIA made various “significant improvements” to the

RDI program following the “2004 IG Special Review.” ECF 26-3 at 141. Plaintiffs also highlight

the CIA’s failure at summary judgment to dispute the statement that it “adopted several

recommendations in the OIG report ‘in response to’ the report.” ECF 27-1 ¶ 3; ECF 29-3 ¶ 3. But

acknowledging that specific improvements were adopted in response to a deliberative document

is not the same as saying that the agency adopted the position and reasoning in the document as its

own. “[V]ague or equivocal statements implying that position presented in a deliberative document

has merit,” such as those in the response to the SSCI report, are not sufficient to demonstrate

adoption. Jud. Watch, Inc., 847 F.3d at 739; see also Nat’l Council of La Raza v. Dep’t of Just.,

411 F.3d 350, 358 (2d Cir. 2005) (“Mere reliance on a document’s conclusions does not necessarily

involve reliance on a document’s analysis; both will ordinarily be needed before a court may

properly find adoption or incorporation by reference.”). The record does not reflect that the CIA

has expressly adopted the recommendations in the report such that they are no longer subject to

the privilege.

Finally, the CIA has demonstrated foreseeable harm from the release of the full

documents. 14 The CIA’s declarant asserts that the OIG reports discuss “recommendations the OIG

14 Plaintiffs do not challenge the existence of foreseeable harm as to document 12. ECF 34 at 7.

38 made in connection with the former program, as well as some deliberative information that the

OIG considered in developing the report,” and states that “[d]isclosure of such internal

deliberations would quiet frank discussion on future intelligence program audits and reviews,

therefore impacting intelligence collection and methodology.” ECF 33-1 ¶ 12. The declarant

focuses on the role of the OIG specifically, noting that the “effectiveness of the OIG’s oversight

depends on the very types of rigorous and candid discussion protected by the privilege.” Id. More

generally, the declarant asserts that revealing the “withheld information in” all the documents

subject to the deliberative process privilege—which includes these OIG materials—“would reveal

the nature of the preliminary recommendations,” would chill internal agency deliberations, and

“mislead or confuse the public by disclosing rationales that were not the basis for the Agency’s

final decisions.” Id. ¶ 13.

The CIA has provided “specific explanations for how releasing this withheld information

would harm future open discussions.” Energy Pol’y Advocs. v. SEC, No. 23-cv-507, 2024 WL

4512386, at *8 (D.D.C. Oct. 17, 2024). The D.C. Circuit has “long recognized that the risk of

public confusion has a special force with respect to disclosures of agency positions or reasoning

concerning proposed policies.” Reps. Comm., 567 F. Supp. 3d at 122; see Citizens for Resp. &

Ethics in Wash. v. Gen. Servs. Admin., No. 18-cv-2071, 2021 WL 1177797, at *11 (D.D.C. Mar.

29, 2021) (accepting agency’s claim that release of draft OIG report would “lead to confusion

regarding [the agency’s] position on the investigation and . . . undermine the deliberative nature of

OIG’s work”). And while documents 1 and 7 were not themselves drafts, the Vaughn indices for

both documents note that the redactions relate to recommendations about decisions relating to

detainee detention which were “in the deliberation phase” by the CIA and were “provided to form

a final policy,” supporting the Agency’s claim that the release of the redacted portions would lead

39 to confusion about the Agency’s position and undermine candid discussion regarding the subjects

of the reports. ECF 25-1 at 20, 23; see also Am. Fed’n of Gov’t Emps., AFL-CIO v. Dep’t of Army,

441 F. Supp. 1308, 1311 (D.D.C. 1977) (allowing the withholding of predecisional Army OIG

report that was “prepared for the review of the Commander, who was the final decisionmaking

authority in regard to the matters investigated,” because “full disclosure of this and future Inspector

General [r]eports . . . will deny investigating officers the confidentiality necessary to ensure their

candid and comprehensive expression of opinions, conclusions, and recommendations”).

Plaintiffs object that the CIA’s claim of foreseeable harm is undercut by the fact that the

CIA OIG is obligated by statute to provide reports to Congress regarding various subjects,

including “particularly serious or flagrant problems, abuses, or deficiencies relating to the

administration of programs or operations.” 50 U.S.C. § 3517(d)(2). In Plaintiffs’ view, that

statutory requirement “represent[s] a congressional determination that secrecy is not necessary” to

ensure that the OIG can “mak[e] candid recommendations.” ECF 34 at 8. But release of an OIG

report to the SSCI is not necessarily the same as release to the general public through a FOIA

request. For one, Plaintiffs have not presented evidence or authority which shows that the

production of these kinds of OIG reports to Congress does not come with similar redactions to

those made when producing the report via FOIA. And even if the reports are produced to the SSCI

unredacted, the disclosure of documents to Congress does not necessarily result in waiver of the

“privileges and exemptions . . . under the FOIA with respect to the public at large.” Murphy v.

Dep’t of Army, 613 F.2d 1151, 1156 (D.C. Cir. 1979). 15 Thus the release of certain OIG reports to

Congress does not undermine the CIA’s concerns about foreseeable harm.

15 Nor do the OIG reports appear to be “documents created specifically to assist Congress,” in which case they might not “enjoy Exemption 5 protection.” Rockwell Int’l Corp. v. U.S. Dep’t of Just., 235 F.3d 598, 604 (D.C. Cir. 2001).

40 Accordingly, the CIA has justified withholding document 12 and redacting the relevant

portions of documents 1 and 7 under Exemption 5.

2. Attorney-Client Privilege

The CIA has also withheld or redacted documents 1, 7, 8, 24, 27, 28, 30, and 61 on attorney-

client privilege grounds. 16 See ECF 25-1 at 15.

This privilege “protects confidential communications from client to attorney, and from

attorney to client.” Pub. Emps. for Env’t Resp. v. EPA, 211 F. Supp. 3d 227, 230–31 (D.D.C.

2016). In the context of an agency like the CIA, “the ‘client’ may be the agency and the attorney

may be an agency lawyer.” Tax Analysts v. IRS, 117 F.3d 607, 618 (D.C. Cir. 1997). But the

privilege only covers those communications “made for the purpose of securing legal advice or

services” and those that “rest on confidential information obtained from the client.” Id. It is the

CIA’s burden “to present to the court sufficient facts to establish . . . with reasonable certainty that

the lawyer’s communication rested in significant and inseparable part on the client’s confidential

disclosure.” In re Sealed Case, 737 F.2d 94, 99 (D.C. Cir. 1984).

Plaintiffs argue that the CIA has generally failed to meet the standard for withholding under

the attorney-client privilege, and objects specifically to the withholdings and redactions of 7, 8,

and 61. Plaintiffs do not make any specific objections to documents 1, 27, 28, and 30. But given

that it is the agency’s burden to prove the applicability of an exemption, the Court has reviewed

the record as to all of the documents in this set. ACLU, 628 F.3d at 619.

Rather, they are “memoranda and correspondence created as part of the [Agency’s] deliberative processes—precisely the kind of inter-and intra-agency memoranda Exemption 5 protects.” Id. 16 The CIA has also sought to withhold or redact documents 2, 10, 11, and 52 on attorney-client privilege grounds. See ECF 25-1 at 15. However, the Court has found that these documents are properly subject to withholding on other grounds, and therefore need not address the applicability of the attorney-client privilege. See, e.g., Jud. Watch, Inc. v. U.S. Dep’t of Just., 20 F. Supp. 3d 260, 276 (D.D.C. 2014).

41 The Court finds that the attorney-client privilege has been properly invoked over

documents 8, 24, 28, and 30. Document 30 is described by the CIA’s declarant as a letter from the

CIA to “Dan Levin, Acting Assistant Attorney General” at the Department of Justice’s Office of

Legal Counsel (OLC), providing background on various detainees to be used “in preparation for a

future request for a legal opinion” regarding their interrogation. ECF 25-1 at 14. 17 This qualifies

as a communication between the client agency and its lawyers regarding “securing legal advice or

services” and was premised on confidential information provided by the CIA to OLC. Hunton &

Williams LLP, 248 F. Supp. 3d at 253; see N.Y. Times Co. v. U.S. Dep’t of Just., 282 F. Supp. 3d

234, 239 (D.D.C. 2017) (finding that attorney-client privilege applied to communications

facilitating an agency “s[eeking] and ultimately receiv[ing] OLC’s legal advice regarding its

proposed activities” because the agency was “a client of the Department of Justice”). Similarly,

document 8 has been properly withheld pursuant to the attorney-client privilege. The document

contains a memorandum sent by John Rizzo, who was the Acting General Counsel of the CIA, 18

to various other CIA officials, along with redacted communications from a redacted set of CIA

officials to Rizzo. See ECF 26-3 at 99–107. The Vaughn index and redacted copy of the document

indicate that the communications regarded “obtaining legal advice based on impressions,

deliberations, and advice from [a] meeting with” the International Committee of the Red Cross

regarding detainee treatment. See id.; ECF 25-1 at 23. Document 24 is also privileged. It is a

17 The CIA’s declarant describes this document as “[d]ocument 40,” but the Court suspects this is an error, given that document 30, rather than document 40, is claimed in the same section of the declaration as subject to the attorney- client privilege. This description of “document 40” in the declaration also more accurately matches document 30 in the Vaughn index, which is described as a “letter to Acting Assistant AG” regarding “attorney-client communications and the author’s comments to be used in preparation for a future legal opinion,” ECF 25-1 at 14, 27, whereas document 40 in the index describes a memoranda for the record regarding discussions with Congress. The Court thus determines that the document described as “document 40” in the declaration is indeed document 30 in the Vaughn index. 18 Both Plaintiffs and Defendant appear to agree that Rizzo served as Acting General Counsel of the CIA at the time. See ECF 26 at 12; ECF 29 at 11.

42 document “prepared by” an “OGC attorney,” 19 and the Vaughn index indicates that it was a “legal

appendix,” which incorporated “legal analysis and client communications.” ECF 25-1 at 15, 27.

The Court finds this level of detail regarding these documents and the involvement of agency

attorneys in providing legal advice and analysis sufficient to uphold the privilege. Finally,

document 28 has also been properly withheld in full, given that this document is a “memorandum

from the [CIA’s] General Counsel providing comments and recommendations to OIG regarding”

a “draft version of the OIG’s” Special Review on the Counterterrorism and Detention Program.

ECF 25-1 at 11; see also id. at 27.

On the other hand, the CIA does not provide sufficient information to determine whether

the attorney-client privilege applies to documents 1, 7, and 27. The CIA seeks to redact a section

of document 1—specifically, page 43—to “protect legal advice pursuant to the attorney-client

privilege,” ECF 25-1 at 20, which the Court views as a separate redaction than the deliberative

process redactions discussed and upheld above. See supra Section III.B.1.(f). It is not obvious to

the Court that this section of the report was, as the CIA claims, a “communication[] between

Agency employees and attorneys within the CIA . . . made for the purpose of obtaining legal

advice.” ECF 25-1 at 13–14. Review of the redacted page 43 shows an Exemption 5 redaction

appearing after a mention of legal advice that was at one point given to CIA interrogators by

“CTC/Legal.” ECF 26-3 at 35. But it is not clear that this information was included in the OIG

report in order to seek advice “on the legal ramifications of its actions.” Vento v. IRS, 714 F. Supp.

2d 137, 151 (D.D.C. 2010). Rather, as the description in the Vaughn index states, this section of

the OIG report appears to discuss advice given by agency attorneys previously to interrogators.

19 While this description of document 24 (also describing documents 6, 52, and 61) is drawn from the section of the CIA’s declaration discussing the work product privilege, the Court finds this description relevant to the applicability of the attorney-client privilege to document 24.

43 See ECF 25-1 at 20 (noting that the redaction was made to “protect legal advice”). It is true that in

some contexts, “communications among employees of a client are still afforded the protection of

the privilege, so long as the communications concern legal advice sought or received that was

intended to be confidential.” FTC v. Boehringer Ingelheim Pharms., Inc., 286 F.R.D. 101, 111

(D.D.C. 2012), aff’d in part, vacated on other grounds, and remanded, 778 F.3d 142 (D.C. Cir.

2015); see also Alexander v. FBI, 186 F.R.D. 154, 161 (D.D.C. 1999) (finding attorney-client

privilege applicable to client’s date book entries, “which reflect conversations between the client

and the attorney,” when they “describe communications from attorneys or are based on such

communications”). However, it is not clear that the redaction on page 43 contains such material.

For example, the unredacted part of the page appears to share legal advice from CIA attorneys,

along with the confidential factual material underlying that advice, without any redaction. ECF 26-

3 at 35 (describing activities during interrogation and stating that “CTC/Legal had advised that

threats are permissible so long as they are ‘conditional’”). The Court needs more detail regarding

the context and content of the redacted portions of the document to determine whether previously-

relayed legal advice embedded and subsequently discussed in the OIG report qualifies under the

attorney-client privilege.

The same is true for the portions of document 7 which the CIA purports to redact under the

attorney-client privilege. Document 7 is the OIG’s report regarding the death of detainee Gul

Rahman in CIA custody. As for the portions of page 16 which the Vaughn index claims are

withheld “based on the attorney-client privilege,” the Court cannot determine the applicability of

the privilege without more detail. ECF 25-1 at 23. As Plaintiffs note, this section of the document

is prefaced by a statement that, among other offices, the Office of General Counsel “disseminated

policy guidance, via cables, email, or orally, . . . to address requests to use specific interrogation

44 techniques.” ECF 31-1 at 5. But a “government attorney’s advice on political, strategic, or policy

issues is not shielded from disclosure by the attorney-client privilege.” Jud. Watch, Inc. v. U.S.

Dep’t of Homeland Sec., 926 F. Supp. 2d 121, 146 (D.D.C. 2013) (emphasis added). Further, the

document’s table of contents describes the relevant subject of the report as describing the “Policy

for Custodial Interrogations at the time of Rahman’s Death,” which indicates, at least without any

more detail in the Vaughn index to the contrary, that this section involved policy directions from

counsel, rather than legal advice. ECF 31-1 at 3.

As for documents 27 and 61, there are even fewer details in the Vaughn index and

declarations. Document 27, which was withheld in full, is described as a “draft document

requesting comments/edits pursuant to attorney-client privilege,” which provides almost none of

the information necessary to know whether the privilege applies, such as to whom the document

was sent (i.e., to or from attorneys). ECF 25-1 at 27. While the CIA’s declarant broadly states that

all the documents withheld for attorney-client privilege reasons were made “between Agency

employees and attorneys within the CIA on issues related to the former detention and interrogation

program . . . for the purpose of obtaining legal advice,” id. at 13–14, this categorical statement

does not provide any insight into this specific document which would allow the Court to properly

evaluate the invocation of the privilege, see Bloche v. Dep’t of Def., 279 F. Supp. 3d 68, 88 (D.D.C.

2017) (rejecting more detailed description of documents on the ground that the defendant’s

description “insufficiently invoke[d] the attorney-client privilege,” including that the document

“fail[ed] to describe with any particularity . . . the purpose for which the clients sought the

attorney’s advice”). The same goes for document 61, which is described merely as an email which

was withheld in full to “protect the interagency discussion of the topic and attorney-client

communications.” ECF 25-1 at 33.

45 Finally, the CIA has demonstrated foreseeable harm as to documents 8, 24, 28, and 30.

“This Circuit lacks precedent in applying the foreseeable harm requirement to attorney-client

withholdings.” Am. First Legal Found. v. U.S. Dep’t of Just., 805 F. Supp. 3d 187, 214 (D.D.C.

2025). But the statute “unmistakably mandates that the foreseeable harm requirement extends to

all privileges under FOIA Exemption 5.” Id. That said, this Court and other courts in this

jurisdiction have previously found that, given the “prominent and sacrosanct nature of the attorney-

client relationship, . . . an agency may not need to provide as much information to satisfy the

foreseeable harm requirement.” Wilderness Workshop v. U.S. Dep’t of Agric., No. 21-cv-2108,

2023 WL 5672578, at *9 (D.D.C. Sep. 1, 2023); Am. First Legal Found., 805 F. Supp. 3d at 214.

Finally, as with the deliberative process privilege, the Court finds that it may find that the

foreseeable harm requirement is satisfied—even in the absence of an agency explanation—“based

on the ‘context and purpose’ of the withheld information.” Wilderness Workshop, 2023 WL

5672578, at *9 (quoting Reps. Comm., 3 F.4th at 372).

The CIA has met its burden with respect to these documents. First, the CIA’s successful

invocation of the attorney-client privilege goes “a long way” towards fulfilling the foreseeable

harm requirement. Am. First Legal Found., 805 F. Supp. 3d at 214. And the CIA has identified the

need to protect “open communication between CIA personnel and their attorneys,” and secure “full

and frank legal counsel” for the Agency. ECF 25-1 at 14. This Court has previously found similarly

detailed invocations of harm sufficient to meet the Government’s burden and does so again here.

Friends of the River, 2023 WL 4105168, at *8; see also Reps. Comm., 567 F. Supp. 3d at 120

(finding similar harms sufficient to justify withholding under attorney-client privilege).

46 3. Work Product Privilege

The CIA’s last basis for withholding under Exemption 5 is the attorney work product

privilege, which applies to documents which “can fairly be said to have been prepared or obtained”

by an attorney “because of the prospect of litigation.” Nat’l Ass’n of Crim. Def. Laws. v. Dep’t of

Just. Exec. Off. for U.S. Att’ys, 844 F.3d 246, 251 (D.C. Cir. 2016). There is “no requirement that

the anticipated litigation actually materializes.” Wilderness Workshop, 2023 WL 5672578, at *9.

The work-product privilege protects not only factual materials prepared in anticipation of

litigation, but also an attorney’s “mental impressions, conclusions, opinions, or legal theories.”

Tax Analysts, 117 F.3d at 620. “[A] document can contain protected work-product material even

though it serves multiple purposes, so long as the protected material was prepared because of the

prospect of litigation.” United States v. Deloitte LLP, 610 F.3d 129, 138 (D.C. Cir. 2010).

The CIA invokes the privilege over portions of documents 6 and 61. 20 See ECF 25-1 at 15.

As to both of these documents, the CIA’s declarant states that the privilege was invoked to protect

material that was “prepared by an OGC attorney in reasonable anticipation of litigation,” and that

the withheld material consisted of “attorney notes documenting a potential litigation risk and legal

considerations associated with that issue.” Id. The Court upholds the CIA’s withholdings. As for

document 6, the CIA memorandum to the National Security Advisor regarding the effectiveness

of the “CIA Counterterrorist Interrogation Techniques,” the Vaughn index states that several

portions of the document were redacted because they “reflect the work of an attorney in reasonable

anticipation of litigation.” Id. at 22. The document discusses, among other subjects, interrogations

of specific detainees and the information gained through those interrogations. See ECF 26-3 at 87–

90. The content of the document—the treatment and interrogation of specific detainees—is

20 The CIA also invokes the work product privilege over documents 24 and 52, but the Court has determined that these are subject to withholding on other grounds.

47 consistent with the statement in the in the Vaughn index that the work product redactions of

document 6 regarded “a potential litigation risk and legal considerations” regarding the

interrogation program. ECF 25-1 at 15. And indeed, the interrogation program has proven to be

deeply controversial and spawned years of litigation. See, e.g., Zubaydah, 595 U.S. at 198–99

(discussing litigation by detainee Abu Zubaydah in United States and other countries regarding his

detention). Plaintiffs argue that because the memorandum is titled as sent from the Director of the

CIA, and the memorandum contains unredacted, factual material regarding the effectiveness of the

interrogation program, the record does not support the claim that the redacted sections were made

because of the prospect of litigation. ECF 26 at 33–34; ECF 31 at 34. But again, a document may

contain a mixture of work product and non-work product. See Deloitte LLP, 610 F.3d at 138. Here,

the CIA has redacted only portions of the document based on the work-product privilege, which

lends credence to its claim that the document contained material prepared by OGC lawyers in

anticipation of litigation. As with the attorney-client privileged documents, the CIA has also shown

foreseeable harm as to the release of the work-product redacted portions of document 6. See

ECF 25-1 at 15 (stating that “[i]f this information were to be released, it would expose the

attorney’s work to scrutiny and reveal preliminary litigation risk analysis and strategy”); see also

Wilderness Workshop, 2023 WL 5672578, at *9–10 (noting that successful invocation of the work-

product privilege will “go a long way” towards satisfying that burden, and also finding that context

of ongoing litigation regarding the subject of the withheld materials provided grounds to find

foreseeable harm).

In contrast, the Court lacks sufficient information to rule on the application of the privilege

to document 61. As discussed above, the Vaughn index merely describes it as an email regarding

a “topic” to which the attorney client and attorney work product privileges apply. ECF 25-1 at 33.

48 The declaration fills out some more details by stating that all the documents in this set were drafted

by “an OGC attorney in reasonable anticipation of litigation.” Id. at 15. But the record is entirely

vague as to the topic of the email, or any other details that would allow the Court to evaluate

“whether, in light of the nature of the document and the factual situation in the particular case, the

document can fairly be said to have been prepared or obtained because of the prospect of

litigation.” Nat’l Sec. Couns. v. CIA, 960 F. Supp. 2d 101, 201 (D.D.C. 2013). The mere fact that

the document may have involved discussion by an agency attorney of “issues related to the former

detention and interrogation program,” as the CIA’s declarant categorically states, does not meet

the CIA’s burden. 21 ECF 25-1 at 13–14. The record provides few details as to what parts of the

RDI program the document related to, such that the Court could determine whether the attorney

anticipated litigation on that topic. The Court will require more information regarding this

document in order to rule on the application of this or any other privilege.

* * *

To summarize the holdings in this case: First, while the Court determines that the search

of the RDINet database for responsive documents was largely adequate, the Court determines that

it lacks sufficient detail regarding other aspects of the CIA’s search—including its search of other,

non-RDINet offices and its access to an unredacted version of the Executive Summary—such that

it is unable to determine on this record whether the CIA’s overall search was adequate under the

statute. The Court will permit the CIA to address those issues by filing a more detailed declaration

regarding the original search, or by conducting additional searches and providing the requisite

supporting materials. See, e.g., Roseberry-Andrews v. Dep’t of Homeland Sec., 299 F. Supp. 3d 9,

21 Although this description is drawn from the section of the CIA’s declaration discussing the attorney-client privilege, it describes document 61 (among others), and the Court finds this description relevant to the applicability of the work- product privilege to document 61.

49 34 (D.D.C. 2018) (permitting the defendant to “file a renewed motion for summary

judgment . . . explaining how it conducted an adequate search—whether by conducting additional

searches or providing additional information about the searches already conducted”). The Court

will accordingly deny both Parties’ motions for summary judgment without prejudice on that issue.

Second, the Court determines that the CIA has not provided sufficient detail to justify the

withholding or specific redactions of documents 1, 7, 16–17, 21–23, 27, 31, 34, 36, 38, 40–42, 45–

46, 50, 56–57, 59, 61, 63, and 64, on the ground that the CIA has not provided sufficient detail for

the Court to determine either that the document is subject to a relevant privilege, or that foreseeable

harm will come from the release of the documents. The Court thus denies both Parties’ motions

for summary judgment without prejudice with regard to the withholding of these documents.

Should the CIA continue to withhold or redact these documents, the agency is required to explain

clearly in a supplemental declaration and Vaughn index why these documents are permissibly

withheld under Exemption 5 in accordance with the principles discussed in this opinion. The Court

determines this to be the most appropriate way forward, “particularly since parts of the documents

at issue remain classified.” Bloche v. Dep’t of Def., 414 F. Supp. 3d 6, 60 (D.D.C. 2019). For those

documents for which the Court did not reach the issue of foreseeable harm because the Court was

unable to determine whether an Exemption 5 privilege applied, the CIA is encouraged to review

and supplement its foreseeable harm claims with adequate specificity in light of the discussion in

this opinion and governing caselaw regarding foreseeable harm. As for the remaining documents,

the CIA has justified its withholdings under Exemption 5. The Court grants the CIA’s motion and

denies Plaintiffs’ cross-motion as to these withholdings.

50 IV. Conclusion and Order

For the foregoing reasons, it is hereby ORDERED that Defendant’s motion for summary

judgment, ECF 25, is GRANTED in part and DENIED in part without prejudice, and Plaintiffs’

cross-motion for summary judgment, ECF 27, is DENIED, the denial being in part without

prejudice, as follows:

Both Parties’ motions are DENIED without prejudice as to the issue of the adequacy of

the CIA’s search.

Both Parties’ motions are DENIED without prejudice as to the withholding of documents

1, 7, 16–17, 21–23, 27, 31, 34, 36, 38, 40–42, 45–46, 50, 56–57, 59, 61, 63, and 64.

Defendant’s motion is GRANTED with respect to the withholding or redaction of all other

documents at issue in the case, and Plaintiffs’ motion is DENIED as to those documents.

SO ORDERED.

__________________________ JIA M. COBB United States District Judge

Date: July 21, 2026