INSTITUTE FOR POLICY STUDIES v. UNITED STATES CENTRAL INTELLIGENCE AGENCY
Filing
226
MEMORANDUM AND OPINION. Signed by Judge Royce C. Lamberth on January 28, 2016. (lcrcl2)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
______________________________________
)
INSTITUTE FOR POLICY STUDIES,
)
Plaintiff,
)
)
v.
)
Civil Action No. 06-960 (RCL)
)
UNITED STATES CENTRAL
)
INTELLIGENCE AGENCY,
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Defendant.
)
______________________________________ )
MEMORANDUM OPINION
This case comes before the Court on defendant’s Motion [187] for Reconsideration of
the Court’s August 19, 2015 Order, and the opposition and reply thereto. Upon consideration of
these filings, the applicable law, and the entire record in this case, the Court will GRANT
Defendant’s Motion [187] for Reconsideration for the reasons provided below.
I.
ANALYSIS
The Court’s August 19, 2015 Order relied on the Court’s conclusion that defendant had
not properly invoked the “operational files exemption,” and that even if it had, the “special
activity exception” to the Freedom of Information Act (“FOIA”), 5 U.S.C. §§ 552 et seq.,
applied. Both of these conclusions were erroneous.
A. The Special Activities Exception
As to the special activities exception, the Court had consulted Sullivan v. CIA, 992 F.2d
1249 (1st Cir. 1993), and concluded both (1) that plaintiff had identified a sufficiently specific
CIA activity in connection with its request, namely, an alleged CIA-linked effort to catch Pablo
Escobar, and (2) that the government had declassified the requested material when it disclosed in
its Vaughn Indices that the material contained discussion of “special activities.” The Court now
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realizes that it made an impermissible inference in its August 19, 2015 Opinion. Specifically, the
Court improperly reasoned that the concession that there were special activities, when taken in
conjunction with the unredacted text of the Los Pepes Panel documents demonstrating CIA
involvement, meant that the CIA had effectively disclosed the existence of the specific special
activities plaintiff had alleged.
As the government correctly notes, however, this conclusion was unfounded. Because
the relevant Vaughn Indices say that mention of special activities has been redacted but do not
describe those activities, it is possible that there are special activities discussed in the redacted
portions of those documents that do not relate to Pablo Escobar at all. The Vaughn Indices’
disclosure of special activities, whether or not those activities relate to Pablo Escobar, at most
declassifies the mere existence of discussion of some sort of special activity in the Los Pepes
Panel documents. And where nothing more has been declassified than the mere existence of
some sort of special activity, the Court’s rationale—that “[special] activities (1) did exist, (2)
were CIA-linked, and (3) have been declassified”—does not apply.
The Sullivan court
recognized as much when it noted that “declassification occurs only when ‘an authorized
Executive Branch official has officially and publicly acknowledged the existence . . . of a
specific special activity.’” Sullivan, 992 F.2d at 1254 (quoting S. REP. No. 98-305, at 24 (1983)).
To proceed otherwise would, in addition to violating the law, allow FOIA plaintiffs to
bootstrap themselves into the exception using the very transparency they crave. This is precisely
what government officials dread: Each new speck of disclosure making it easier for plaintiffs to
argue that the government has already disclosed so much that it has effectively declassified the
matter. This might sound like a dream to some FOIA plaintiffs, but in practice it would be a
nightmare, discouraging disclosure for fear that every trickle would become a flood.
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To
illustrate the potential problem, one need look no further than this case. Plaintiff’s argument
takes the government’s decision to explain in the Vaughn Indices its redaction of material from
the Los Peopes Panel Reports, adds to that the government’s decision to unredact portions of
those reports, and infers that a special activity targeting Pablo Escobar has been disclosed and
thus declassified. But if such an argument prevails in court, the government will be far more
tempted to simply redact even more material, or provide even less detail in future Vaughn
Indices.
And who could blame it?
Plaintiff’s argument would, if accepted, punish the
government for doing precisely what FOIA requires—providing what disclosure it safely can,
and where it cannot safely disclose, explaining why—by creating a constant risk of inadvertent
declassification. The caselaw shows that FOIA does not command such a result.
B. The Operational File Exemption
When a complainant alleges that the CIA has improperly withheld requested records due
to improper exemption of operational files, the CIA must “demonstrate[e] to the court by sworn
written submission that exempted operational files likely to contain responsive records currently
perform the functions set forth in subsection (b) of this section.” 50 U.S.C. § 3141(f)(4)(A). The
Court previously rejected the government’s attempt to invoke the exemption because the
declarations it offered in support thereof were conclusory, and gave the Court no independent
way to evaluate the government’s claim. See August 19, 2015 Mem. Op. 3–4. To address the
Court’s concerns on this and other points, the government has submitted further briefing as well
as a declaration by a more senior CIA official. See Def.’s Mot. for Reconsideration Ex. A.
The new declaration does not bolster the government’s invocation of the operational files
exemption. As the government points out in its Motion to reconsider, however, the nature of
plaintiff’s request—for files relating to supposed covert action operations to apprehend Pablo
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Escobar—would
necessarily
“document
the
conduct
of
foreign
intelligence
or
counterintelligence operations.” 50 U.S.C. § 3141(b)(1). In short, by providing the specificity
needed to claim the “special activities” exception, plaintiff has enabled the government to
logically demonstrate that the exempted operational files likely to contain responsive records in
fact perform the statutorily protected function described in (b)(1). Compare Plaintiff’s Opp. To
Def.’s Supp. Summ. J. 20 (alleging that the government took part in a “Colombian Task Force, []
designed to assist in the apprehension of Escobar”), with H.R. REP. NO. 98-726(I), at 21 (1984)
(“foreign intelligence operations consist of . . . special activities (also called covert actions)
conducted in support of United States foreign policy objectives in which the role of the U.S.
Government is not apparent or acknowledged publicly.”). The Court therefore concludes that the
government did in fact properly invoke the operational file exemption in this case.
CONCLUSION
For the foregoing reasons, defendant’s Motion for reconsideration will be GRANTED in
a separate Order issued this date. Defendant need not search its operational files in response to
plaintiff’s request.
Signed by Royce C. Lamberth, Judge, on January 28, 2016.
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