FREEDOM WATCH, INC. v. CENTRAL INTELLIGENCE AGENCY

Filing 23

MEMORANDUM AND OPINION: See document for details. Signed by Judge Randolph D. Moss on 3/22/2016. (lcrdm1, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

LARRY KLAYMAN,
Plaintiff,
v.

Civil Action No. 14-472 (RDM)

CENTRAL INTELLIGENCE AGENCY,
Defendant.

MEMORANDUM OPINION AND ORDER
This case arises under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.
Plaintiff Larry Klayman challenges the Central Intelligence Agency’s (“CIA” or “Agency”)
Glomar response to his request for records relating, among other things, to any communication
between the CIA and the District Attorney’s Office in Douglas County, Colorado, concerning
Raymond Allen Davis, who Plaintiff alleges is or was an agent of the CIA. 1 Plaintiff asserts that
the records he sought might expose CIA interference in a civil case brought by his client, Jeffrey
Maes, against Davis for an assault that occurred in Douglas County in 2011. Dkt. 20 at 7–8. In
its motion for summary judgment, the CIA contends that its Glomar response was proper under
FOIA Exemptions 1 and 3 because “the mere confirmation or denial of the existence of
responsive records would reveal a classified fact—namely, whether [the] CIA has a covert
relationship with Mr. Davis.” Dkt. 16-1 at 6 (Lutz Decl. ¶ 10); see also Dkt. 16 at 15–21.
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“A Glomar answer is one that . . . neither confirms nor denies the existence of certain
requested agency records. The term Glomar comes from [the D.C. Circuit’s] opinion in Phillippi
v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), which involved a FOIA request for information
regarding” a ship named the “Hughes Glomar Explorer.” Moore v. CIA, 666 F.3d 1330, 1331
n.1 (D.C. Cir. 2011).

Plaintiff asserts that the Glomar response was improper because (1) the subject matter of the
records sought is incapable of being classified; and (2) he seeks information that he claims was
previously disclosed to third parties. Dkt. 20 at 11–20. The Court holds that the CIA’s Glomar
response was proper and, accordingly, GRANTS Defendant’s motion for summary judgment.
Dkt. 16.
I. BACKGROUND
In February 2011, the Associated Press (“AP”) reported on the fatal shooting of two men
in Pakistan by Raymond Allen Davis and Davis’s subsequent detention by Pakistani authorities.
See Adam Goldman & Kimberly Dozier, Arrested U.S. Official Raymond Allen Davis Is Actually
CIA Contractor, Associated Press, Feb. 21, 2011; Dkt. 20-4 (Pl.’s Opp., Ex. 4). According to the
AP story, anonymous former and current U.S. officials stated that Davis was a CIA contractor.
See id. The article further stated, however, that the State Department identified Davis as a
diplomat who worked at the U.S. Embassy in Islamabad and who was thus entitled to diplomatic
immunity for the shooting. Id.
In March 2013, Davis pleaded guilty to third-degree assault in Douglas County,
Colorado. Dkt. 20-7 at 2 (Pl.’s Opp., Ex. 7). According to the complaint in a subsequent civil
lawsuit in which Plaintiff represented Jeffrey Maes, Davis severely assaulted Maes in the parking
lot of a Colorado bagel shop after Maes pulled into a parking spot that Davis wanted. See Dkt.
20-5 at 3–4, 6 (Pl.’s Opp., Ex. 5). When Plaintiff perceived that “strange things . . . started to
occur in the civil case,” he submitted a FOIA request to the CIA, which is the subject of the
instant litigation. Dkt. 20 at 7–8. By letter dated July 31, 2013, Plaintiff sought all records that
referred or related to any of the following: communications between the CIA and the Douglas
County District Attorney (“D.A.”) about Davis or Maes or litigation involving either man;

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information made available to the D.A. by the CIA; information regarding “government agencies
deciding to investigate Mr. Davis;” and any communications between the CIA and the civil court
or judge in Maes v. Davis, the state civil suit. 2 Dkt. 9 at 6–7 (Amend. Compl., Ex. 1). The letter
alleged:
On at least one occasion, the Douglas County, Colorado District
Attorney’s Office (“D.A.’s Office”) contacted and communicated with the Central
Intelligence Office (“CIA”), seeking information regarding Raymond Allen
Davis[,] a former and/or current CIA agent who was recently convicted of
assaulting an individual, Jeffrey Maes.
Id. at 6.

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To be precise, Plaintiff’s letter sought the following:
1) Any and all communications with the Douglas County, Colorado District
Attorney’s Office that refer or relate in any way to Mr. Davis and/or Mr. Maes;
2) Any and all information that refers or relates to any and all communications
with the Douglas County, Colorado District Attorney’s Office regarding Mr.
Davis and/or Mr. Maes;
3) Any and all information that refers or relates to any communications with the
Douglas County, Colorado District Attorney’s Office regarding any lawsuits
between Mr. Davis and Mr. Maes and/or any other litigation involving Mr. Davis
and/or Mr. Maes;
4) Any and all information that refers or relates in any way to information
released to and/or made available to the Douglas County, Colorado District
Attorney’s Office;
5) Any and all information that refers or relates to government agencies deciding
to investigate Mr. Davis, including, but not limited to, any investigations of Mr.
Davis conducted in his capacity as an agent for the CIA[; and]
6) Any and all communications with the civil court and/or the judge in the civil
matter regarding Mr. Maes and/or Mr. Davis in a case styled Jeffrey Maes, et al.
v. Raymond Allen Davis (Case Number 2011CV2953).

Dkt. 9 at 7 (Amend. Compl., Ex. 1).
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On December 23, 2013, the CIA responded to Plaintiff’s request, stating that it could
“neither confirm nor deny the existence or nonexistence of records responsive to [the] request.”
Id. at 10 (Amend. Compl., Ex. 2). The Agency further explained that
The fact of the existence or nonexistence of [the] requested records is currently
and properly classified and is intelligence sources and methods, information that
is protected from disclosure by section 6 of the CIA Act of 1949, as amended, and
section 102A(i)(1) of the National Security Act of 1947, as amended.
Id. In particular, the Agency relied on FOIA Exemptions 1 and 3, see id., which exempt from
disclosure, respectively, matters that are properly classified pursuant to Executive Order, see 5
U.S.C. § 552(b)(1), and matters that are specifically exempted from disclosure by statute, see id.
§ 552(b)(3).
Plaintiff timely filed an administrative appeal of the Agency’s Glomar response. Dkt. 9
at 13 (Amend. Compl., Ex. 3). In a letter dated February 6, 2014, he argued that “[t]he CIA
effectively claimed a national security exemption for an altercation at an Einstein Bros. bagel
store,” and that “there is no plausible way in which this altercation is a matter of national
security.” Id. On April 25, 2014, the CIA denied the appeal, reasserting its Glomar response.
Dkt. 16-1 at 30 (Def.’s Mot. Summ. J., Ex. D).
Freedom Watch, Inc.—an organization founded by Klayman—initiated this action on
March 21, 2014, Dkt. 1, and the CIA moved to dismiss on the ground that the FOIA request did
not mention Freedom Watch and thus it lacked standing to challenge the Agency’s response.
Dkt. 6. With the CIA’s consent, Plaintiff then moved for leave to amend the complaint to
substitute himself, Larry Klayman, for Freedom Watch. Dkt. 8. The Court granted the motion.
Mar. 27, 2015 Minute Order. After Plaintiff filed the amended complaint, the CIA moved for
summary judgment on June 3, 2015, Dkt. 16, and submitted the declaration of its Information
Review Officer, Martha M. Lutz, in support of the motion. Dkt. 16-1 at 1 (Lutz Decl. ¶ 1).
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Plaintiff filed an opposition on August 13, 2015, Dkt. 20, and the CIA filed a reply later that
month, Dkt. 22.
II. ANALYSIS
“The FOIA mandates broad disclosure of government records to the public, subject to
nine enumerated exemptions. Given the FOIA’s broad disclosure policy, the United States
Supreme Court has consistently stated that FOIA exemptions are to be narrowly construed.”
Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (internal citations and quotation marks omitted).
Under the D.C. Circuit’s decision in Phillippi v. CIA, 546 F.2d 1009, however, “an agency may
refuse to confirm or deny the existence of records where to answer the FOIA inquiry would
cause harm cognizable under a[] FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.
Cir. 1982). “Such a response—commonly known as a Glomar response—is proper if the
existence vel non of an agency record is itself exempt from disclosure.” Moore, 666 F.3d at
1333. “If, however, the agency has officially acknowledged the existence of the record, the
agency can no longer use a Glomar response” and must instead disclose the record or establish
that its contents are otherwise exempt from disclosure. Id.
As discussed below, Plaintiff challenges the CIA’s Glomar response on two grounds: He
first argues that, as a substantive matter, the information sought does not implicate national
security and thus is not subject to a FOIA exemption. And, second, he argues that the
information sought was previously disclosed.
A.

Application of the Glomar Doctrine
Under D.C. Circuit precedent, the standard for reviewing the Agency’s Glomar response

in a national-security case is as follows:
In determining whether the existence of agency records vel non fits a FOIA
exemption, courts apply the general exemption review standards established in
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non-Glomar cases. Under the FOIA, the burden is on the agency to sustain its
action, 5 U.S.C. § 552(a)(4)(B), and [the Court] review[s] de novo the agency’s
use of a FOIA exemption to withhold documents. Yet in conducting de novo
review in the context of national security concerns, courts must accord substantial
weight to an agency’s affidavit concerning the details of the classified status of
the disputed record. Indeed, [s]ummary judgment is warranted on the basis of
agency affidavits when the affidavits describe the justifications for nondisclosure
with reasonably specific detail . . . and are not controverted by either contrary
evidence in the record nor by evidence of agency bad faith. Moreover, a
reviewing court must take into account . . . that any affidavit or other agency
statement of threatened harm to national security will always be speculative to
some extent, in the sense that it describes a potential future harm. Ultimately, an
agency’s justification for invoking a FOIA exemption is sufficient if it appears
logical or plausible.
Wolf, 473 F.3d at 374–75 (internal citations, quotation marks, and paragraph break omitted)
(third, fourth, and fifth alterations in original) (emphasis in original). Here, the Agency asserts
that its Glomar response is justified under FOIA Exemptions 1 and 3. Dkt. 16 at 1–2.
FOIA Exemption 1 permits non-disclosure of matters that are “(A) specifically
authorized under criteria established by an Executive order to be kept secret in the interest of
national defense or foreign policy and (B) are in fact properly classified pursuant to such
Executive order.” 5 U.S.C. § 552(b)(1). The CIA contends that the fact of whether or not the
records sought by Plaintiff exist is properly classified pursuant to Section 1.4(c) of Executive
Order 13,526. Dkt. 16 at 15. Information is properly classified under Executive Order 13,526
“only if all of the following conditions are met”:
(1) an original classification authority is classifying the information;
(2) the information is owned by, produced by or for, or is under the control of the
United States Government;
(3) the information falls within one or more of the categories of information listed
in section 1.4 of this order; and
(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to result in damage
to the national security, which includes defense against transnational terrorism,
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and the original classification authority is able to identify or describe the
damage.
Exec. Order No. 13,526, 3 C.F.R. 298 (2010), 2009 WL 6066991. Section 1.4(c) of Executive
Order 13,526 establishes “classification categories,” including “intelligence activities . . . ,
intelligence sources or methods.” Id.
There is no dispute that conditions one, two, and four for classification under Executive
Order 13,526 are met. The CIA has submitted the declaration of Martha M. Lutz, its Information
Review Officer, who holds “original classification authority at the TOP SECRET level under
written delegation of authority” pursuant to the Executive Order. Dkt. 16-1 at 2 (Lutz Decl. ¶ 2).
Lutz avers, “based upon [her] personal knowledge,” id. at 2 (Lutz Decl. ¶ 3), that:
[c]onsistent with . . . Executive Order 13526, . . . [she] ha[s] determined that the
existence or nonexistence of the requested records is a properly classified fact that
concerns “intelligence activities” and “intelligence sources and methods” under
section 1.4(c) of the Executive Order, the records are owned by and under the
control of the U.S. Government, and the unauthorized disclosure of the existence
or nonexistence of requested records reasonably could be expected to result in
damage to national security.
Id. at 11 (Lutz Decl. ¶ 20).
Plaintiff disputes, however, that the “subject matter is []capable of being classified.” Dkt.
20 at 16. He contends that any communication between the CIA and Douglas County officials or
the Douglas County court “about civil litigation concerning issues wholly within the domestic
United States, in an Einstein Bros. bagel shop parking lot, cannot plausibly be covered.” Id. The
CIA’s position, however, is not that there is anything “about [the] civil litigation” pending in
Douglas County that would pose a threat to national security. Rather, it contends that disclosure
of whether or not it communicated with local officials would reveal whether or not it has or had a
covert relationship with Davis. Indeed, that is precisely what Plaintiff seeks to discover; the
underlying premise of his argument is that there would be no reason for the CIA to engage in
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communications with local officials about a purely local assault or to hold information about
governmental agencies’ investigations of Davis unless he had a relationship with the Agency.
Thus, if the CIA disclosed whether or not it had information about the Colorado incident, it
would reveal whether or not Davis was one of its covert contractors or employees.
The CIA has explained in “specific detail,” moreover, that such a disclosure could be
expected to result in damage to national security, and, absent controverting evidence or evidence
of bad faith, the Court must defer to that judgment. Wolf, 473 F.3d at 374–75. As Lutz
explained in her declaration, “the mere confirmation or denial of the existence of responsive
records would reveal a classified fact—namely, whether [the] CIA has a covert relationship with
Mr. Davis.” Dkt. 16-1 at 6 (Lutz Decl. ¶ 10). She elaborated that:
[I]f the CIA were to confirm the existence of records responsive to Plaintiff’s
FOIA request, such confirmation would indicate that the CIA had an interest in
the activities of Mr. Davis due to the existence of a covert relationship with Mr.
Davis. On the other hand, if the CIA were to respond by admitting that it did not
possess any responsive records, it would suggest that the CIA did not have a
covert relationship with Mr. Davis or an intelligence interest in his activities.
Either confirmation would reveal sensitive information about the CIA’s
intelligence sources and methods . . . .
If the CIA were to provide responses either confirming or denying that it
possesses records revealing a relationship with any particular individual, in the
absence of an acknowledged overt connection to this individual, this admission
could identify the CIA’s intelligence sources, methods, and activities.
Id. at 9–10, 12 (Lutz Decl. ¶¶ 17, 22).
More generally, Lutz explained that, “[f]or CIA officers to effectively and clandestinely
collect intelligence and conduct operations around the world, they cannot openly admit that they
work for the CIA. . . . Exposing a covert officer’s ties to the CIA could jeopardize the physical
safety of past, present, and prospective human sources,” including the CIA officer’s own safety.
Id. at 13 (Lutz Decl. ¶¶ 24–25). Exposure would also “decrease[] the professional effectiveness

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of the covert officer . . . in future intelligence operations,” id. (Lutz Decl. ¶ 26), and “would
reveal to Plaintiff and the public facts about the CIA’s clandestine intelligence activities,” id. at
14 (Lutz Decl. ¶ 27). These adverse consequences apply, moreover, whether or not the CIA has
any responsive records in a particular case. The Agency’s ability to decline to admit or deny the
existence of potentially responsive records would be meaningless if that authority could be
invoked only when the sought-after records in fact existed. See, e.g., Gardels, 689 F.2d at 1104
(“If the Agency were required to indicate those . . . with which it had had no covert contact, the
work of foreign intelligence bodies would obviously be much easier . . . .”).
The Court, accordingly, finds that the CIA’s detailed justification for invoking FOIA
Exemption 1 in these circumstances is both “logical [and] plausible.” Wolf, 473 F.3d at 375.
Plaintiff contends that this case presents a “clear[] . . . example of covering up
misconduct by the abuse of false designation as national security classified” because “[t]here can
be no proper[,] legitimate reason for the CIA to be communicating with the Douglas County,
Colorado District Attorney or civil court.” Dkt. 20 at 16. In Plaintiff’s view, “the assertion of
the exemption seems plainly aimed at concealing the CIA’s manipulation of local government
processes.” Id. at 17. There is nothing in the record, however, that “controvert[s]” the
CIA’s justification of its Glomar response or otherwise indicates “agency bad faith.” Wolf, 473
F.3d at 374. In his brief, Plaintiff simply states without elaboration or citation to supporting
evidence that “it was revealed that the prosecutor had been communicating with the CIA” and
that “[t]he judge abruptly revoked the undersigned counsel’s Pro Hac Vice admittance . . . with
no reason or fault suggested, except claiming some processing issue with the Colorado Supreme

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Court.” 3 Dkt. 20 at 7–8. In short, he offers nothing but unsupported speculation that the CIA
interfered in any way with the civil or criminal cases stemming from Davis’s assault on Maes—
or, indeed, that it had anything to do with either case. This is not a basis for questioning the
Agency’s good faith or otherwise rejecting its Glomar response. “[I]n light of the substantial
weight accorded agency assertions of potential harm” and the lack of evidence of bad faith or
other misconduct, the Lutz declaration “both logically and plausibly suffices” to sustain the
Agency’s Glomar response in this case. Wolf, 473 F.3d at 376.
The Agency also justifies its Glomar response under FOIA Exemption 3. That
exemption shields matters that are:
specifically exempted from disclosure by statute (other than section 552b of this
title), if that statute—
(A) (i) requires that the matters be withheld from the public in such a manner as to
leave no discretion on the issue; or (ii) establishes particular criteria for
withholding or refers to particular types of matters to be withheld; and
(B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
specifically cites to this paragraph.
5 U.S.C. § 552(b)(3). Here, the CIA relies on the statutory limits on disclosure contained in
Section 102(A)(i)(1) of the National Security Act of 1947 (“NSA”), Pub. L. No. 80-253, 61 Stat.
495 (codified as amended at 50 U.S.C. § 403-1(i)(1)), and Section 6 of the Central Intelligence
Act of 1949 (“CIA Act”), Pub. L. No. 81-110, 63 Stat. 208 (codified as amended at 50 U.S.C.
§ 403g). Dkt. 16 at 19–20. Subsequent to the filing of the briefs in this case, the relevant

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Plaintiff’s observation that “the CIA is not allowed to conduct clandestine operations within
the United States,” Dkt. 20 at 17, is irrelevant. He does not contend that the Agency has done so
here, but only that it allegedly communicated with local officials about a pending litigation. Nor
does Plaintiff offer any evidence that any such communications actually occurred or that, if they
did, they involved obstruction of the proceedings or any other misconduct.
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provision of the NSA was transferred to § 3024 of title 50, and the relevant provision of the CIA
Act was transferred to § 3507 of title 50.
The NSA provides that “the Director of National Intelligence shall protect intelligence
sources and methods from unauthorized disclosure,” 50 U.S.C. § 3024(i)(1), and the CIA Act
provides that the CIA is exempt from “the provisions of any . . . law which require[s] the
publication or disclosure of the organization, functions, names, official titles, salaries, or
numbers of personnel employed by the Agency,” id. § 3507. “[These] provisions of the NSA
and the CIA Act cited by the Agency plainly are statutes contemplated by Exemption 3.” Int’l
Counsel Bureau v. CIA, 774 F. Supp. 2d 262, 273 (D.D.C. 2011). The Court finds that the Lutz
declaration is sufficient to sustain the Agency’s Glomar response under these statutes for the
same reasons it is sufficient to invoke Exemption 1. See, e.g., Wolf, 473 F.3d at 377–78 (finding
that declaration supported Glomar response under Exemptions 1 and 3); Int’l Counsel Bureau,
774 F. Supp. 2d at 274 (“The Court . . . finds that the CIA’s invocation of [the NSA and CIA
Act] to support its ‘Glomar’ response under Exemption 3 was proper, for the same reasons
described in the Exemption 1 discussion above.”). Indeed, “[t]he Supreme Court gives even
greater deference to CIA assertions of harm to intelligence sources and methods under the
[NSA]” than under Exemption 1. Wolf, 473 F.3d at 377 (citing CIA v. Sims, 471 U.S. 159, 168–
69 (1985)).
B.

Application of the Official Acknowledgment Doctrine
Plaintiff asserts that the Agency’s “Glomar response [was] ineffective and unwarranted”

because the information he sought had allegedly “already been disclosed to third parties.” Dkt.
20 at 12 (internal quotation marks omitted). The CIA disagrees, Dkt. 22 at 3, as does the Court.

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It is well settled that, “[w]hen information has been ‘officially acknowledged,’ its
disclosure may be compelled even over an agency’s otherwise valid exemption claim.” Moore,
666 F.3d at 1333 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). The test for
official acknowledgment is, however, a “strict” one. Id. (quoting Wilson v. CIA, 586 F.3d 171,
186 (2d Cir. 2009)). “To be officially disclosed: ‘(1) the information requested must be as
specific as the information previously released; (2) the information requested must match the
information previously disclosed; and (3) the information requested must already have been
made public through an official and documented disclosure.’” Id. (quoting Am. Civil Liberties
Union v. U.S. Dep’t of Def., 628 F.3d 612, 620–21 (D.C. Cir. 2011)). “‘[A] plaintiff asserting a
claim of prior disclosure must bear the initial burden of pointing to specific information in the
public domain that appears to duplicate that being withheld.’” Id. (quoting Afshar v. Dep’t of
State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)).
Plaintiff argues that the information he seeks was by definition officially acknowledged
when it was purportedly disclosed to third parties—that is, he seeks communications with local
officials that, to the extent they exist, were necessarily disclosed to those local officials. See Dkt.
20 at 12. But, even putting aside the lack of factual support for Plaintiff’s contention, this
argument ignores the essential requirement of the “official acknowledgment” doctrine that “the
information requested must already have been made public through an official disclosure.”
Moore, 666 F.3d at 1333 (quoting Am. Civil Liberties Union, 628 F.3d at 620) (emphasis added).
It defies commonsense to argue that any time a CIA official allegedly communicates with a third
party, any such communication (if, in fact, one exists) has been “made public” and is thus subject
to FOIA disclosure. Although the government may waive the right to rely on an otherwise valid
FOIA exemption where a disclosure satisfies the official acknowledgment test, the Court “must

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be confident that the information sought is truly public and that the requester receive no more
than what is publicly available before [it] find[s] a waiver.” Students Against Genocide v. Dep’t
of State, 257 F.3d 828, 836 (D.C. Cir. 2001) (quoting Cottone v. Reno, 193 F.3d 550, 555 (D.C.
Cir. 1999)) (emphasis added). The D.C. Circuit, accordingly, has held that the government did
not waive the right to withhold photographs that were shown to foreign officials, but withheld
from the general public. Id.; see also Judicial Watch, Inc. v. U.S. Dep’t of Def., 963 F. Supp. 2d
6, 17 (D.D.C. 2013) (holding that “a FOIA requester that knows information has been disclosed
to a private party is [not] necessarily entitled to that same disclosure” and that the relevant
question is whether the information has “become[] ‘truly public’”). Thus, the mere fact that
Plaintiff seeks communications allegedly occurring between the CIA and third parties does not
undermine the propriety of the CIA’s Glomar response.
Nor do the press reports submitted by Plaintiff establish that the information sought was
“officially acknowledged.” Under D.C. Circuit precedent, the “official acknowledgment”
doctrine does not apply to “a disclosure made by someone other than the agency from which the
information is being sought.” Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999). “[O]nly the
CIA can waive its right to assert an exemption to the FOIA.” Id. at 775. Indeed, the Court of
Appeals has held that the “release of [a] [r]eport by the FBI” does not constitute “official
acknowledgment by the CIA.” Moore, 666 F.3d at 1333 n.4 (emphases in original).
To the extent that the press reports relied upon by Plaintiff quote Davis’s lawyer or other
press reports quoting Davis’s wife, see Goldman & Dozier, supra; Dkt. 20-4 at 5 (Pl.’s Opp., Ex.
4); Lee Ferran, Raymond Davis, CIA Contractor, Charged with Felony in Parking Lot Skirmish,
ABC News, Oct. 4, 2011; Dkt. 20-6 at 2 (Pl.’s Opp., Ex. 6), they cannot satisfy this demanding
standard. Even if Davis’s lawyer or his wife indicated—or implied—that Davis was affiliated

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with the CIA, their statements would not constitute an “official acknowledgment” by the
Agency. For similar reasons, references to statements purportedly made by anonymous “current
and former officials” do not suffice to show that the CIA “officially acknowledged” that it has,
or ever had, any relationship with Davis. Moore, 666 F.3d at 1333; see also Edmonds v. FBI,
272 F. Supp. 2d 35, 49 (D.D.C. 2003) (“[S]ince the statements in the press were made by
anonymous sources, even documents containing identical information may properly be withheld
because ‘release would amount to official confirmation or acknowledgment of their accuracy.’”
(quoting Washington Post v. U.S. Dep’t of Def., 76 F. Supp. 1, 9 (D.D.C. 1991)). To the
contrary, the very same reports on which Plaintiff relies include official statements from the
United States government asserting that Davis was a diplomat attached to the U.S. Embassy. See
Goldman & Dozier, supra; Dkt. 20-4 at 3 (Pl.’s Opp., Ex. 4); Ferran, supra; Dkt. 20-6 at 3 (Pl.’s
Opp., Ex. 6). And, finally, the report that the CIA allegedly asked the AP and other news outlets
“to hold their stories [reporting that Davis was a CIA contractor] as the U.S. tried to improve
Davis’ security situation,” Goldman & Dozier, supra; Dkt. 20-4 at 4 (Pl.’s Opp., Ex.4), even if
true, differs from the assertion that Davis actually was a CIA contractor, and thus does not
“match” the information that Plaintiff seeks, Moore, 666 F.3d at 1333. Even if the CIA believed
it was in the national interest to embargo stories about Davis’s purported connection to it until
after he was released from Pakistani custody, that would not constitute confirmation that he
was—or was not—actually affiliated with the CIA.

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III. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary judgment, Dkt. 16, is
DENIED. The clerk shall enter final judgment.
/s/ Randolph D. Moss
RANDOLPH D. MOSS
United States District Judge
Date: March 22, 2016

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