Cox v. Department of Justice et al
Filing
53
MEMORANDUM AND ORDER granting in part and denying in part 52 Motion for Summary Judgment: For the reasons set forth herein, the Agencies motion to dismiss is denied, and the Agencies motion for summary judgment is granted in part and denied in par t. Specifically, DOJ is granted summary judgment with respect to their withholding of records in response to Coxs requests numbered five through eight; DOD is granted summary judgment with respect to their withholding of records in response to Cox 039;s requests numbered five through seven; ODNI is granted summary judgment with respect to their withholding of records in response to Cox's requests numbered four and five; and the State Department is granted summary judgment with respect to their withholding of records in response to Cox's requests numbered four through six. The FBI's motion for summary judgment is denied without prejudice, and it is directed to supplement its Vaughn submissions in accordance with this Order. This matter is recommitted to Magistrate Judge Roanne L. Mann for all remaining pre-trial matters. Ordered by Chief Judge Roslynn R. Mauskopf on 11/26/2020. (Mauskopf, Roslynn)
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UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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DOUGLAS COX,
Plaintiff,
-against-
MEMORANDUM AND ORDER
17-CV-3329 (RRM) (RLM)
DEPARTMENT OF JUSTICE, et al.,
Defendants.
--------------------------------------------------------------------X
ROSLYNN R. MAUSKOPF, Chief United States District Judge.
Plaintiff Douglas Cox brings this action pursuant to the Freedom of Information Act
(“FOIA”), 5 U.S.C. § 552, claiming that defendants Department of Justice (“DOJ”), Federal
Bureau of Investigation (“FBI”), Department of Defense (“DOD”), Office of the Director of
National Intelligence (“ODNI”), and Department of State (“State” or “State Department”),
(collectively, “the Agencies”), are improperly withholding records responsive to Cox’s FOIA
requests for records relating to the Senate Select Committee on Intelligence’s (“SSCI”) Study of
the Central Intelligence Agency’s Detention and Interrogation Program (“SSCI Report”). The
Agencies now move to dismiss Cox’s complaint with respect to his requests for versions of the
SSCI Report, arguing that the report is not an agency record subject to FOIA. The Agencies also
move for summary judgment with respect to Cox’s remaining requests, arguing that they have,
among other things, properly withheld documents pursuant to FOIA exemptions. For the reasons
set forth below, the Agencies’ motion to dismiss is denied and the Agencies’ motion for
summary judgment is granted in part and denied in part.
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BACKGROUND
I. FOIA
FOIA requires that “each agency, upon any request for records which (i) reasonably
describes such records and (ii) is made in accordance with published rules . . , shall make the
records promptly available to any person.” 5 U.S.C. § 552(a)(3)(A). Under this provision,
the district court of the United States in the district in which the complainant
resides, or has his principal place of business, or in which the agency records are
situated, . . . has jurisdiction to enjoin the agency from withholding agency records
and to order the production of any agency records improperly withheld from the
complainant.
5 U.S.C. § 552(a)(4)(B).
In any FOIA case, the Court must bear in mind that FOIA was drafted to promote
disclosure of governmental information. See Fed. Labor Relations Auth. v. U.S. Dep’t of
Veterans Affairs, 958 F.2d 503, 508 (2d Cir. 1992) (“In interpreting FOIA, it must be
remembered that the statute seeks to permit access to official information long shielded
unnecessarily from public view, and was intended to establish a general philosophy of full
agency disclosure.” (internal quotation marks and citations omitted)). At the same time, the
statute enumerates exemptions, which serve “to protect specified confidentiality and privacy
interests.” N.L.R.B. v. Robbins Tire & Rubber Co., 437 U.S. 214, 220–21 (1978). These
exemptions are the primary means by which an agency may avoid production of records subject
to FOIA; “unless the requested material falls within one of these nine statutory exemptions,
FOIA requires that records and material in the possession of federal agencies be made available
on demand to any member of the general public.” Id. at 221. If a requestor believes an agency
improperly withheld records subject to disclosure under FOIA, the requestor “may seek an order
of production from a district court, which will review the matter de novo, placing the burden on
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the agency to defend its non-disclosure decisions.” Main St. Legal Servs., Inc. v. Nat’l Sec.
Council, 811 F.3d 542, 544 (2d Cir. 2016) (citing 5 U.S.C. § 552(a)(4)(B)).
A. Relevant Exemptions
FOIA exemption one exempts from disclosure matters that are “specifically authorized
under criteria established by an Executive order to be kept secret in the interest of national
defense or foreign policy and . . . are in fact properly classified pursuant to such Executive
order.” 5 U.S.C. § 551(b)(1).
FOIA exemption five exempts from disclosure matters that are “inter-agency or intraagency 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). “The exemption incorporates all
normal civil discovery privileges, including the deliberative process privilege, the attorney-client
privilege, and the attorney work product privilege.” Nat’l Day Laborer Org. Network v. U.S.
Immigration & Customs Enf’t Agency, 811 F. Supp. 2d 713, 734–35 (S.D.N.Y. 2011) (quotation
marks omitted), amended on reconsideration (Aug. 8, 2011).
B. Vaughn index
In Vaughn v. Rosen, the D.C. Circuit held that agencies must provide more than
“conclusory and generalized allegations of exemptions,” but rather “relatively detailed analysis
in manageable segments” explaining the basis for their claimed exemptions. 484 F.2d 820, 826
(D.C. Cir. 1973). Consistent with this obligation, an agency will use a “Vaughn index” and/or a
“Vaughn affidavit” to outline its claimed exemptions. A district court may grant summary
judgment to an agency based on its affidavits only if they provide a “reasonable specificity of
detail rather than merely conclusory statements” supporting the agency’s withholding of records.
Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 478 (2d Cir. 1999). “While there is no set
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form for a Vaughn index, the agency should describe the documents with as much information as
possible without thwarting the exemption’s purpose” and “provide a relatively detailed
justification, specifically identifying the reasons why a particular exemption is relevant and
correlating those claims with the particular part of a withheld document to which they apply.”
Navigators Ins. Co. v. Dep't of Justice, 155 F. Supp. 3d 157, 171 n.13 (D. Conn. 2016). Given
its purpose, the Second Circuit has explained that a Vaughn affidavit should provide a “factspecific justification that either (a) would permit appellant to contest the affidavit in adversarial
fashion, or (b) would permit a reviewing court to engage in effective de novo review of the
[withheld] information.” Halpern v. F.B.I., 181 F.3d 279, 293 (2d Cir. 1999). The level of
specificity required also depends in part on the exemption claimed. For instance, “[u]nder
Exemption 1, it makes sense to require itemized descriptions of documents and/or redactions in
the government’s Vaughn affidavits since these descriptions are likely to have a direct bearing on
the types of information contained in the document that are subject to redaction.” Halpern, 181
F.3d at 297.
C. Partial Disclosures
Finally, FOIA provides, “Any reasonably segregable portion of a record shall be provided
to any person requesting such record after deletion of the portions which are exempt under this
subsection.” 5 U.S.C. § 552(b). “This provision requires agencies and courts to differentiate
among the contents of a document rather than to treat it as an indivisible ‘record’ for FOIA
purposes.” F.B.I. v. Abramson, 456 U.S. 615, 626 (1982). That said, agencies need not disclose
non-exempt information that is “inextricably intertwined” with exempt information. See
Hopkins v. U.S. Dep’t of Hous. & Urban Dev., 929 F.2d 81, 85 (2d Cir. 1991). Information is
“inextricably intertwined” where “disclosure would compromise the confidentiality of [exempt]
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information that is entitled to protection.” Id. (citation and internal quotation marks omitted); see
also Am. Civil Liberties Union v. United States Dep’t of Justice, 252 F. Supp. 3d 217, 227
(S.D.N.Y. 2017). A district court is required to “make specific findings of segregability
regarding the documents to be withheld.” Color of Change v. United States Dep’t of Homeland
Sec., 325 F. Supp. 3d 447, 455 (S.D.N.Y. 2018) (quoting Sussman v. U.S. Marshals Serv., 494
F.3d 1106, 1117 (D.C. Cir. 2007)); see also Hopkins, 929 F.2d at 85 (remanding for district court
to make specific findings as to whether factual data could be segregated in record withheld
pursuant to exemption five deliberative process privilege). Although it is the agencies’ burden to
establish that they properly segregated information, “[a]gencies are entitled to a presumption that
they complied with the obligation to disclose reasonably segregable material.” Sussman, 494
F.3d at 1117; see also Navigators Ins. Co., 155 F. Supp. 3d at 174.
II.
Relevant Facts
The facts below are drawn from Cox’s complaint, as well as documents and declarations
submitted by the parties. Unless otherwise noted, the facts are undisputed.
A.
The SSCI Report
In March 2009, the SSCI informed the Central Intelligence Agency (“CIA”) that it
planned to review the CIA’s former detention and interrogation program. (Declaration of
Antoinette B. Shiner (“Shiner Decl.”) (Doc. No. 52-2), Attachment 1 (“Higgins Decl.”) ¶ 10.)
To this end, the SSCI requested access to CIA documents regarding the program. (Higgins Decl.
¶ 10.) According to former CIA Director of Congressional Affairs Neal Higgins, “Due to the
volume and the highly sensitive and compartmented nature of the classified information at issue,
the CIA determined that in order to properly safeguard classified equities, the SSCI’s review of
Agency records would need to take place at CIA facilities.” (Id.)
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1.
June 2009 Letter
In a June 2, 2009, letter, the SSCI wrote to then-CIA Director Leon Panetta regarding the
planned review of records at the CIA. (Higgins Decl., Ex. D (“June 2009 Letter”); see also
Plaintiff’s Brief in Opposition (“Opp.”) (Doc. No. 52-10), Ex. N (same).) The letter outlined
“procedures and understandings” under which the SSCI and its staff would conduct its review.
(June 2009 Letter at 1.) The letter discussed the documents that would be provided, protections
for computers used by SSCI staff, and – most significantly, for the purposes of the instant action
– SSCI’s control over notes, documents, reports, and other materials generated by SSCI staff.
Quoting the relevant portion in full:
Any documents generated on the network drive referenced in paragraph 5, as well
as any other notes, documents, draft and final recommendations, reports or other
materials generated by Committee staff or Members, are the property of the
Committee and will be kept at the Reading Room solely for secure safekeeping and
ease of reference. These documents remain congressional records in their entirety
and disposition and control over these records, even after the completion of the
Committee’s review, lies exclusively with the Committee. As such, these records
are not CIA records under the Freedom of Information Act or any other law. The
CIA may not integrate these records into its records filing systems, and may not
disseminate or copy them, or use them for any purpose without the prior written
authorization of the Committee. The CIA will return the records to the Committee
immediately upon request in a manner consistent with paragraph 9. If the CIA
receives any request or demand for access to these records from outside the CIA
under the Freedom of Information Act or any other authority, the CIA will
immediately notify the Committee and will respond to the request or demand based
upon the understanding that these are congressional, not CIA, records.
(June 2009 Letter at 2–3.)
The parties disagree about the meaning and effect of this letter. According to the
Agencies, “Before the review commenced, the Senate Committee and officials at the CIA
negotiated arrangements to deal with access to classified materials by Senators and their staff,
and agreed on rules regarding the Committee’s control over its work product.” (Mem. of Law in
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Sup. of Defs’ Mot. to Dismiss and for Summ. J. (“Mot.”) (Doc. No. 52-1) at 12.)1 The Agencies
maintain that the June 2009 letter “memorialized” these “arrangements.” (Id.) Cox, on the other
hand, denies that the June 2009 Letter memorialized any agreement between the SSCI and the
CIA. (Opp. at 24.) According to Cox, the June 2009 Letter was “superseded by subsequent
negotiations back and forth between the CIA and SSCI that apparently came to an uncertain
end.” (Id.) Cox also argues that the above-quoted paragraph of the June 2009 Letter applied
only to SSCI records “on hard drives within a CIA Reading Room,” and not to versions of the
SSCI Report transmitted to the CIA, versions of the SSCI Report transmitted to other agencies,
or to the SSCI’s review of other agencies’ records. (Opp. at 23–25.)
2.
December 2012 Letter and Report
On December 13, 2012, the SSCI voted to approve an initial version of its full report,
including an executive summary. (See Declaration of Vanessa R. Brinkmann (“Brinkmann
Decl.”) (Doc. No. 52-3), Ex. N (“December 2012 Letter”); see also Compl. ¶¶ 13–14; Opp., Ex.
F (same).) In a December 14, 2012, letter to President Obama, SSCI Chairman Senator Dianne
Feinstein explained that the “6,000 page report, complete with executive summary, findings, and
conclusions” would be provided to the President and “appropriate Executive Branch agencies.”
(December 2012 Letter at 1.) Senator Feinstein requested “that the White House coordinate any
response from these agencies, and present any suggested edits or comments to the Committee by
February 15, 2012 [sic].” (Id.) “After consideration of these views,” Senator Feinstein added, “I
intend to present this report with any accepted changes again to the Committee to consider how
to handle any public release of the report, in full or otherwise.” (Id.) The parties agree that at
1
Page numbers for the parties’ briefs correspond to pagination assigned by the Court’s Electronic Case Filing
system.
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least some of the Agencies first received copies of the SSCI Report in December 2012. (Mot. at
13; Opp. at 10; Compl. ¶¶ 14–15 (DOJ), 60–61 (FBI), 87 (ODNI), 102 (State Department).)
The parties disagree about how to characterize the 6,000-page report, including executive
summary, that was approved and transmitted to the Executive Branch in December 2012 (the
“December 2012 SSCI Report”). The Agencies describe the December 2012 SSCI Report and
its executive summary as two distinct “drafts,” sent to the Executive Branch “for review,
soliciting suggested edits or comments but limiting dissemination to specific individuals
identified in advance to the Chairman.” (Mot. at 13.) According to Cox, the December 2012
SSCI Report was “the approved Dec. 2012 version of the full Study” and “[w]hile the term
‘draft’ might be useful shorthand,” it is “factually inaccurate and inconsistent with how Congress
and the agencies . . . treated” the December 2012 SSCI Report. (Opp. at 9–10.) Cox further
disputes that the executive summary constituted a “stand-alone” document as the Agencies
contend, arguing instead that it was part of “a cohesive whole.” (Mot. at 13; Opp. at 10 n.6.)
3.
April 2014 Letter and Report
The parties agree that in April 2014, the SSCI approved an updated version of its report,
(the “April 2014 SSCI Report”) and transmitted it to at least some of the Agencies. (Mot. at 13–
14; Opp. at 13; Compl ¶¶ 17–18 (DOJ), 62 (FBI), 89–90 (ODNI).) In an April 7, 2014, letter to
President Obama, Senator Feinstein stated that the SSCI had “voted to send for declassification
the Findings and Conclusions and Executive Summary of an updated version of the Committee’s
Study of the CIA’s Detention and Interrogation Program.” (Brinkmann Decl., Ex. L (“April
2014 Letter”) at 1; see also Compl. ¶ 16; Opp., Ex. G (same).) Feinstein explained, “This full
report should be considered as the final and official report from the Committee,” adding that she
“encourage[d] and approve[d] the dissemination of the updated report to all relevant Executive
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Branch agencies, especially those who were provided with access to the previous version.”
(April 2014 Letter at 1–2.)
4.
December 2014 Letter and Report
The parties agree that in December 2014, the SSCI sent another version of the SSCI
Report, (“December 2014 SSCI Report”), to the Agencies. (Mot. at 14; Opp. at 12; Compl. ¶¶
24 (DOJ), 63–64 (FBI), 73 (DOD), 92–93 (ODNI), 104–05 (State Department).) In a December
10, 2014, letter to President Obama, Senator Feinstein wrote that, the day prior, the SSCI
“formally filed the full version of its Study of the Central Intelligence Agency’s Detention and
Interrogation Program with the Senate and publicly released the declassified Executive Summary
and Findings and Conclusions, as well as the declassified additional and minority views.”
(Brinkmann Decl., Ex. M (“December 2014 Letter”); Opp., Ex. J (same).) According to the
Agencies, this report was based on the SSCI’s review of “comments and proposed edits from the
Executive Branch” following the April 2014 SSCI Report. (Mot. at 14.) Cox characterizes the
December 2014 differently, contending that the December 2014 SSCI Report incorporated
“‘declassification revisions’ that essentially ‘dumbed down’ portions of the Torture Study’s
Executive Summary in order to maximize public disclosure” and preserve the Committee’s
narrative and conclusions following the executive branch’s redactions. (Opp. at 13.)
At the end of the December 2014 Letter, Senator Feinstein wrote,
[T]he full report should be made available within the CIA and other components of
the Executive Branch for use as broadly as appropriate to help make sure that this
experience is never repeated. To help achieve that result, I hope you will encourage
use of the full report in the future development of CIA training programs, as well
as future guidelines and procedures for all Executive Branch employees, as you see
fit.
December 2014 Letter at 1.
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After the transmittal of the December 2014 SSCI Report, Yahoo News reported that the
CIA had deleted and destroyed copies of the SSCI Report it had received. (See Opp., Ex. S.) In
emails to DOJ, SSCI staff stated that they had reason to believe the CIA had deleted and
destroyed its copies of the SSCI Report in response to guidance from DOJ to the CIA Inspector
General. (Id.) Cox includes with his motion partially redacted emails that appear to discuss the
CIA’s loss of the SSCI Report and that suggest that the CIA Inspector General’s office was
involved in events leading up to the loss of the report. (See Opp., Exs. T, U, V (Doc. Nos. 30–
32).)
5.
January 2015 Letters
In January 2015, Senator Richard Burr took over as chairman of the SSCI. In a January
14, 2015, letter to President Obama, Senator Burr wrote that he considered the December 2014
SSCI Report “to be a highly classified and committee sensitive document” and “request[ed] that
all of copies of the full and final report in the possession of the Executive Branch be returned
immediately to the Committee.” (Brinkmann Decl., Ex. J (“January 2015 Senator Burr Letter”).)
In a January 16, 2015, letter to President Obama, Senator Feinstein, then Vice Chairman of the
SSCI, wrote that she “d[id] not support this request” in Senator Burr’s letter and that she
“believe[d] it is important for appropriately cleared individuals in the Executive Branch to have
access to the Committee’s full, classified report.” (Mot., Ex. 7 (“January 2015 Senator Feinstein
Letter”) (Doc. No. 52-8) at 1.)
6.
May 2017 Letter
On May 30, 2017, Senator Burr again requested that the Agencies return their copies of
the December 2014 Report. (Opp., Ex. X (Doc. No. 52-34).) The parties agree that in response
to this request at least some of the Agencies returned copies of the SSCI Report to the SSCI.
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(Opp. at 35–37; Reply at 34; Compl. ¶ 3.) Cox includes with his motion an email response to
Senator Burr’s request from ODNI Director of Legislative Affairs Dierdre Walsh that suggests
DOJ was potentially consulted on the Agencies’ obligations to retain records before the decision
to return the SSCI Report copies was made. (Opp., Ex. X.) Although they do not specifically
deny that DOJ was consulted, the Agencies state that Cox is merely “speculat[ing]” in his claim,
described in more detail below, that the Agencies may have returned copies of the SSCI Report
based on DOJ guidance. (Reply at 34.)
B.
Cox’s FOIA Requests and the Agencies’ Responses
On December 21, 2016, Cox submitted FOIA requests to the Department of Justice
(“DOJ”), the Federal Bureau of Investigation (“FBI”), the Department of Defense (“DOD”), the
Office of the Director of National Intelligence (“ODNI”), and the Department of State (“State”
or “State Department”), seeking copies of the SSCI Report and related documents. (Compl. ¶¶
45, 66, 81, 95, 107; Brinkmann Decl., Ex. A (“DOJ FOIA Request”); Declaration of David M.
Hardy (“Hardy Decl.”) (Doc. No. 52-4), Ex. A (“FBI FOIA Request”); Declaration of Deirdre
Walsh (“Walsh Decl.”) (Doc. No. 52-5), Ex. A (“ODNI FOIA Request”); Declaration of Mark
H. Herrington (“Herrington Decl.”) (Doc. No. 52-6), Ex. A (“DOD FOIA Request”); Declaration
of Eric F. Stein (“Stein Decl.”) (Doc. No. 52-7), Ex. B (“State Department FOIA Request”).)
1.
DOJ
In his request to DOJ, Cox sought specific final copies of the SSCI Report (Request Nos.
1–2); any other copies of the SSCI Report, including “portions . . . that have been cut and pasted
into, or quoted in, other Department of Justice documents,” (Request No. 3); draft copies of the
SSCI Report, (Request No. 4); “records, documents, or non-record material discussing or
referencing any copies of the final or draft SSCI Report on Torture,” (Request No. 5);
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communications between various agencies, government officials, and members of Congress
“regarding how the Department of Justice or these other entities should handle or treat copies of
either the draft or final SSCI Report on Torture,” (Request No. 6); “records, documents, or nonrecord material that discuss or describe when, why and/or under what circumstances the ‘DOJ
copy of the Full Report’ was marked ‘Congressional Record,’” (Request No. 7); and a “copy of
the letter from Senator Feinstein to the President that was ‘assigned an agency tracking number’
and references the SCSI Report on Torture ‘as a classified attachment to the letter’” (Request No.
8). On February 24, 2017, DOJ denied requests one through four of Cox’s FOIA request, stating
that the SSCI Report was not an “agency record,” that it would need more time to search for
records responsive to requests five through seven, and that it had located documents responsive
to request eight. (See Brinkmann Decl. ¶ 4, Ex. B.) Cox appealed DOJ’s response to his
requests, but the decisions with respect to requests one through seven were affirmed, and DOJ
deferred ruling on the eighth request because its search was ongoing. (See Brinkmann Decl. ¶¶
7–8, Exs. E, F.)
In a February 2, 2018, letter, DOJ’s Office of Information Privacy (“OIP”) informed Cox
that it had located 368 pages containing records responsive to his request, withheld 333 pages
pursuant to FOIA exemption five, and produced 35 pages with redactions pursuant to exemptions
three, five and six.2 (Brinkmann Decl., Ex. G.) In her declaration filed with this motion, Senior
Counsel at the DOJ’s Office of Information Privacy Vanessa R. Brinkmann states that upon
further review OIP released 10 more pages of the withheld documents with some redactions
pursuant to exemptions five and six, and identified some duplicate pages, reducing the total
pages withheld in full to 320. (Brinkmann Decl. ¶ 10.)
2
The letter noted that portions of the 333 pages withheld in full were also exempt pursuant to exemptions three and
six. (Brinkmann Decl., Ex. G.)
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Regarding the exemption five withholdings, Brinkmann organizes the documents
withheld into categories and in subsequent paragraphs describes the basis for withholding each
of these categories pursuant to exemption five. (Id. ¶¶ 39–82.) DOJ’s exemption five
withholdings were made based on the deliberative process privilege, attorney-client privilege,
and attorney work product doctrine. (Brinkmann Decl. ¶¶ 42, 51, 56.) These withholdings are
further supported by a Vaughn index included with Brinkmann’s declaration describing the
documents for which DOJ asserts exemptions. (Brinkmann Decl., Ex. P.) Finally, Brinkmann
describes OIP’s efforts to release segregable information in withheld and redacted records. (Id.
¶¶ 83–87.)
DOJ performed a supplemental search and, during the pendency of this motion, provided
Cox with additional records responsive to his request. (See Second Declaration of Vanessa R.
Brinkmann (“Second Brinkmann Decl.”) (Doc. No. 52-36) ¶ 5.) DOJ identified 448 additional
pages of responsive records, and released 150 pages in full or in part. (Second Brinkmann Decl.
¶¶ 9, 15.) DOJ withheld records from this supplemental search pursuant to exemptions three,
five, six, and seven. (Id. ¶ 5.) With respect to its exemption five withholdings, DOJ withholds
records as attorney work product, attorney-client privileged, and as subject to the deliberative
process privilege. (Id. ¶¶ 15–39.) The Second Brinkmann Declaration, like the first, organizes
the records withheld into logical categories and describes the basis of each claimed exemption,
(id.), includes Vaughn index providing more detail about each record subject to the exemption,
(id., Ex. B), and describes DOJ’s efforts to release all segregable information, (id. ¶¶ 40–44).
2.
DOD
Cox requested two specific versions of the SSCI Report in his requests to DOD (Request
Nos. 1–2); made requests that mirrored requests three through six of the DOJ FOIA Request
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(Request Nos. 3–6); and also requested “[a]ny records, documents, or non-record material that
discuss or describe or document when, under what circumstances, and/or how many times the
Department of Defense Deputy General Counsel (Intelligence) has accessed the SSCI Report on
Torture or any portion thereof ‘so that she may address/advise on litigation and other legal
related matters, as necessary’ or for other reasons” (Request No. 7). (DOD FOIA Request.)
DOD determined that records responsive to Cox’s FOIA requests one through four did
not constitute agency records, but began a search for documents responsive to Cox’s requests
five through seven in April 2017. (Herrington Decl. ¶ 5.) DOD did not locate documents
responsive to Cox’s requests five or seven, but did locate records responsive to Cox’s sixth
request, and produced some while withholding five email chains. (Id. ¶¶ 5–7, 13.) DOD
Associate Deputy General Counsel in the Office of General Counsel explains in his declaration
that DOD withheld the five email chains in full pursuant to exemption five, (Herrington Decl., ¶
18), identified personal information in those documents pertaining to other agencies’ employees
that those agencies stated was subject to exemption six, (Herrington Decl., ¶ 18), and separately
made four redactions of DOD email addresses in documents produced by DOJ pursuant to
exemption six, (Herrington Decl. ¶ 16).
Describing the emails withheld in full further, Herrington explains they are subject to
exemption five as attorney-client privileged because they contain “communications between
DOJ counsel defending DoD in ACLU v. CIA with [Herrington], as agency counsel, and
communications with [Herrington] and other attorneys with DoD OGC concerning the status of
whether DoD had any copies of the final SSCI report and how those copies were being stored
and treated.” (Id. ¶ 13.) Herrington explains that the same documents are also subject to
exemption five based on the work-product doctrine because the “communications were prepared
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in relation to the then-ongoing ACLU v. CIA FOIA litigation, and disclosure would reveal the
mental impressions and strategies of counsel.” (Id. ¶ 14.) Finally, Herrington explains that the
same documents are subject to the exemption five deliberative process privilege because “they
are predecisional discussions about how to respond to the Complaint or litigation strategy at
different stages of the proceedings in ACLU v. CIA” and that disclosure would “harm the ability
to have frank and candid discussions between agency counsel and DOJ attorneys in the future.”
(Id.) These documents were withheld in full, Herrington adds, because after “conduct[ing] a
document-by-document and line-by-line review,” he “determined that no segregable, nonexempt portions of documents could be released without potentially compromising information
protected by FOIA.” (Id. ¶ 15.)
3.
FBI
Cox’s request to the FBI mirrored his DOJ FOIA Request, but it did not include Cox’s
seventh and eighth requests to DOJ. (FBI FOIA Request.)
In January 9, 2017, letter, the FBI told Cox that it had located no documents responsive
to his requests. (See Hardy Decl. ¶ 6, Ex. B.) Cox appealed, but the FBI’s response was
affirmed on May 2, 2017. (See id. ¶¶ 7–9, Exs. C, E.) After Cox filed this action, the FBI
conducted an additional search and located 181 pages of responsive records. (Id. ¶ 11.) The FBI
released nine pages in full, 143 pages in part, and withheld 29 pages in full. (Id.) The FBI
withheld information pursuant to exemptions one, three, five, six, and seven. (Id. ¶ 27.)
In his declaration, David M. Hardy, FBI Section Chief of the Record/Information Dissemination
Section of the Information Management Division, states that the FBI redacted a single page of
records, Cox-123, pursuant to FOIA exemption one. (Hardy Decl. ¶ 36 n.13.) According to
Hardy, the FBI redacted this information
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to protect from disclosure information that would reveal the actual intelligence
activities and methods used by the FBI against specific targets of foreign
counterintelligence investigations or operations; identify a target of a foreign
counterintelligence investigation; or disclose the intelligence gathering capabilities
of the activities or methods directed at specific targets.
(Id. ¶ 34.) Hardy explains that the withheld information is subject to exemption one because it is
protected from disclosure under Executive Order 13526, § 1.4. Classified National Security
Information, Exec. Order No. 13,526 § 1.4, 75 Fed. Reg. 707 (Dec. 29, 2009). Hardy describes
the harm that could arise from disclosure of this information and declines to provide further
information about the document, stating that “the disclosure of the specific and detailed
information describing the intelligence activities or methods withheld in these pages . . . could
reasonably be expected to cause damage to national security.” (Hardy Decl. ¶¶ 34–36.)
Hardy also discusses the records withheld pursuant to exemption five under the
deliberative process privilege and attorney-client privilege. (Id. ¶¶ 48–49.) Regarding the FBI’s
withholdings pursuant to the exemption five deliberative process privilege, Hardy states,
The FBI relied on Exemption 5 and the deliberative process privilege to protect
deliberations between FBI employees concerning information that was in draft
form (working copies of the SSCI report), and handwritten notes and
communications between FBI employees discussing these drafts and discussions,
recommendations, and proposals for how FBI equities should be presented and/or
protected within the final report.
(Id. ¶ 49.) Then, after describing the harm he claims might will result from disclosing this
information, Hardy includes a footnote to the pages withheld pursuant to this exemption. (Id. ¶
49 n.19.) Regarding the FBI’s withholdings pursuant to the exemption five attorney-client
privilege, Hardy states,
The FBI has protected communications between and among FBI counsel and their
FBI client employees reflecting the seeking and/or providing of legal advice with
respect to aspects of the FBI information contained within the report. Specifically,
the FBI withheld information from emails between FBI’s attorneys and other FBI
personnel discussing matters pertaining to the application of an investigative
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technique, and a report containing information discussing legal issues regarding
detainees.
(Id. ¶ 51.) After describing the harm that he expects would come from disclosing agency legal
advice, Hardy identifies in a footnote the records withheld pursuant to this exemption. (Id. ¶ 51
n.20.) Finally, Hardy writes, “During the processing of Plaintiff’s request, each responsive page
was individually examined to identify non-exempt information which could be reasonably
segregated and released. All segregable information has been released to Plaintiff.” (Id. ¶ 70.)
The FBI withheld some information in these documents at the request of the CIA. On
October 4, 2017, the FBI sent the CIA 39 documents totaling 132 pages that it determined might
be responsive to Cox’s request, but that might contain CIA information. (Shiner Decl. ¶ 9;
Hardy Decl. ¶ 69.) In response, the CIA requested that the FBI assert FOIA exemptions with
respect to 29 records. (Id.) The CIA claimed FOIA exemptions with respect to documents
responsive to Cox’s DOJ FOIA Request as well, and provided a single declaration stating that it
requested that DOJ records be withheld pursuant to exemptions three and six, but not stating the
exemptions based upon which it requested FBI records be withheld. (Shiner Decl. ¶ 9.) Instead,
the CIA cites particular FBI records as examples of records withheld pursuant exemptions one,
(id. ¶¶ 19, 25, 32), three, (id. ¶¶ 35, 37), and five, (id. ¶¶ 38–39).3
In summarizing the FBI’s withholdings at the end of his declaration, Hardy states that the
29 pages the FBI withheld in full were withheld by the FBI pursuant to exemptions five, six, and
seven and by the CIA pursuant to exemption three. (Hardy Decl. ¶ 71.) Hardy notes that the FBI
redacted information on 143 pages and does not state whether the CIA made any request for
withholding with respect to these pages. (Id.)
3
Given that the CIA withheld identifying information of personnel pursuant to exemption six, it appears likely that
it withheld information in FBI records, in addition to DOJ records pursuant to this exemption – though the
declaration does not make this clear. (Shiner Decl. ¶ 41.)
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Although Hardy’s declaration for the FBI does not mention the CIA withholding records
pursuant to exemptions one or five, Shiner’s declaration for the CIA describes withholding FBI
records pursuant to these exemptions. In her declaration, CIA Information Review Officer
Antoinette B. Shiner explains that the CIA withheld pursuant to exemption one information
related to one of six categories:
(i) personnel associated with the former detention and interrogation program; (ii)
the locations of covert Agency facilities, including former detention centers
located abroad; (iii) information pertaining to specific intelligence activities,
methods, and operations, including certain counterterrorism techniques; (iv) code
words and pseudonyms; (v) classification and dissemination control markings;
and (vi) relationships with foreign liaison partners.
(Shiner Decl. ¶ 15.) According to the CIA, it recommended that these documents be withheld
pursuant to FOIA exemption one because they “satisf[y] the procedural and substantive
requirements of Executive Order 13526, which governs classification.” (Shiner Decl. ¶ 13.)
Shiner goes on to provide general justifications for withholding information
related to each of the six identified categories of confidential information pursuant to
exemption one and Executive Order 13526. (Shiner Decl. ¶¶ 16–31.) For some of the
categories, she also identifies a particular record withheld pursuant to exemption one that
contained that category of information. For instance, Shiner cites a set of handwritten
notes, Cox-110–122, as an example of a document that “contain[s] details related to the
current locations of covert CIA installations and former detention centers located abroad,
and goes on to explain that the CIA “withheld references to the location of a former
Agency detention facility.” (Id. ¶¶ 19–20.) According to Shiner, the disclosure of
detention facilities could “endanger the physical safety of covert CIA officers who work
at those locations” and is “likely to cause complications for the host country,” negatively
impacting CIA intelligence efforts. (Id. ¶¶ 19–20.)
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According to Shiner, the CIA also withheld information pursuant to exemption five based
on attorney-client privilege and the deliberative process privilege. (Shiner Decl. ¶¶ 38–39.)
Regarding attorney-client privilege, Shiner states that two FBI documents responsive to Cox’s
request, Cox-123–138 and Cox-139–153, were attorney-client privileged because they were
emails between DOJ and CIA attorneys “arising from a request made by CIA to DOJ for legal
advice concerning the SSCI [] Report” to which “FBI attorneys were subsequently added.” (Id. ¶
38.) As the basis for asserting the deliberative process privilege, Shiner writes,
Here, the CIA invoked the deliberative process privilege and Exemption 5 to protect
certain inter-agency communications related to the process by which the CIA and
other Executive Branch agencies agreed to declassify certain national security
information for inclusion in the Executive Summary of the SSCI [] Report that was
released to the public on 8 December 2014. This includes the above-referenced
legal consolations with DOJ attorneys (Cox-123 to Cox-138 and Cox-139 to Cox153) as well as deliberations between national security professionals at CIA and
FBI (e.g., Cox-161 to Cox-165). Further, I have examined all of the documents
withheld pursuant to the deliberative process privilege and have determined that, to
the extent there is any factual material, it is part and parcel of the deliberations and
cannot be further segregated.
(Id. ¶¶ 39–40.) Although the CIA does not specifically identify all of the documents over which
it asserts the deliberative process privilege, Shiner does state earlier in her affidavit that 27 of the
29 FBI records the CIA requested be withheld are emails that “reflect CIA communications with
FBI and DOJ regarding the deliberations over the eventual public release of certain information
in the Executive Summary of the SSCI Report,” and that contain “requests . . . for legal advice
concerning the potential release of certain information, as well as deliberations between national
security professionals at CIA and FBI related to the national security implications of the release
of certain information.” (Id. ¶ 11.) Shiner states that the two other documents withheld relate to
the same deliberations, one of which is a letter from the FBI to the CIA, and the other the set of
handwritten notes, Cox-110–122, which arose “from the review of a draft version of the
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Executive Summary.” (Id.) Shiner adds that she had “examined all of the documents withheld
pursuant to the deliberative process privilege and have determined that, to the extent there is any
factual material, it is part and parcel of the deliberations and cannot be further segregated.” (Id. ¶
40.)
4.
ODNI
Cox made five requests to ODNI, which closely mirrored the language of requests one
through six of the DOJ FOIA Request. Cox sought “the copy of the final version of the SSCI
Report sent to the ODNI in December 2014” (Request No. 1); any other copies of the final SSCI
Report including “portions… that have been cut and pasted into, or quoted in, other ODNI
documents” (Request No. 2); draft copies of the SSCI report (Request No. 3); “records,
documents, or non-record material discussing or referencing any copes of the final or draft SSCI
Report that were previously in ODNI possession that were removed, transferred, destroyed, or
otherwise disposed of” (Request No. 4); and communications or documentation of
communications between ODNI and various agencies, government officials, and members of
Congress regarding “how ODNI or other entities should handle or treat copies of either the draft
or final SSCI Report” (Request No. 5). (ODNI FOIA Request.)
ODNI acknowledged receipt of Cox’s FOIA request but had not processed the requests
before Cox filed this action on June 2, 2017. (Walsh Decl. ¶¶ 13–14, Ex. B.) ODNI later
released 65 pages of records responsive to Cox’s FOIA request, redacting portions of the
documents pursuant to exemptions three, five, and six. (Id. ¶¶ 15, 18.) Regarding its exemption
five redactions, Diedre Walsh, ODNI’s Chief Operating Officer and Chief Freedom of
Information Act Officer, explained that the agency withheld portions of two sets of email
exchanges pursuant to the exemption five deliberative process privilege. (Id. ¶¶ 39–40.) Walsh
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explains these emails contain predecisional, back-and-forth deliberations related to (1) proposed
responses to media inquiries and (2) the response to Senator Burr’s request that copies of the
SSCI Report be returned to the SSCI. (Id. ¶ 40.) Walsh goes on to describe the email exchanges
further, explain the harm that could arise from their disclosure, and state that “[a]ll reasonably
segregable, non-exempt information was released to Plaintiff.” (Id. ¶¶ 40, 42.)
5.
State Department
Cox’s requests to the State Department mirrored his requests to ODNI, except he
included an additional request for “records, documents, or non-record material that discuss or
describe when, why, and/or under what circumstances the Department of State ‘marked the outer
envelope “Congressional Record – Do Not Open, Do Not Access,”’” (Request No. 5). (State
Department FOIA Request.) The State Department did not search for records responsive to
Cox’s first through third requests, as it determined that draft and final copies of the SSCI Report
were not agency records. (Stein Dec. ¶¶ 10–13.) The State Department conducted searches for
Cox’s remaining requests, and located a number of documents, some of which it released to Cox
on a rolling basis beginning in 2018. (Id. ¶¶ 7–9, 14–77; see also Compl. ¶ 111.)
In his declaration, Director of the State Department’s Office of Information Programs and
Services Eric F. Stein explains that, as of April 19, 2019, the State Department had located 374
records responsive to Cox’s request, releasing 29 in full, 53 in part, and withholding 292 in full.
(Stein Decl. ¶¶ 7–9, 77, Exs. D, E, F.) The State Department withheld records pursuant to FOIA
exemptions three, five, and six. (Id. ¶¶ 64–76.) A Vaughn index included with Stein’s
declaration describes each record withheld pursuant to an exemption and the basis for that
withholding. (Id., Ex. A.) Describing the withholdings pursuant to exemption five, Stein
explains that the State Department withheld records based on the deliberative process privilege,
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including inter- and intra-agency discussions related to communicating with Congress in
response to Senator Burr’s request that copies of the SSCI Report be returned; based on the
attorney-client privilege, for records containing communications with attorneys at the State
Department and DOJ; and based on the attorney work-product doctrine, including documents
related to the American Civil Liberties Union’s FOIA litigation related to the SSCI Report. (Id.
¶¶ 70–72.) As Stein notes in his affidavit, the basis for withholding each document pursuant to
exemption five is detailed in the accompanying Vaughn index. (Id.; id., Ex. A.) Stein further
states that the State Department “conducted a line-by-line review of all the documents released in
part or withheld in full, . . . segregated and released all reasonably segregable, non-exempt
information,” and “otherwise determined that no segregation of meaningful information in the
documents could be made without disclosing information warranting protection under law.” (Id.
¶ 77.)
III.
Complaint
Cox filed this action on June 2, 2017. (Doc. No. 1.) Cox has since twice amended his
complaint and the Second Amended Complaint is now the operative pleading. (Second
Amended Compl. (“Compl.”) (Doc. No. 26).) Cox brings claims under FOIA, claiming that the
Agencies are improperly withholding records responsive to his FOIA requests, and requesting
that the Court order the Agencies to produce the responsive records and award him costs
pursuant to 5 U.S.C. § 552(a)(4)(E). (Id. ¶¶ 58, 71, 85, 101, 111, 112.) Appended to Cox’s
complaint are the December 2012 Letter, the April 2014 Letter, the December 2014 Letter, and
Cox’s FOIA requests to the Agencies. (Compl., Exs. A–H (Doc. Nos. 26-1–8.).)
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IV.
Motion to Dismiss and Motion for Summary Judgment
On November 22, 2019, the Agencies moved to dismiss the complaint with respect to
Cox’s FOIA requests for draft and final copies of the SSCI Report, and for summary judgment
with respect to Cox’s remaining FOIA requests. (Notice of Motion to Dismiss and for Summary
Judgment (Doc. No. 52).) These motions, along with Cox’s arguments in opposition, are
outlined below.
A.
Motion to Dismiss
The Agencies move to dismiss Cox’s claims that the Agencies are improperly
withholding copies of the SSCI Report, portions of the SSCI Report quoted in other documents,
and drafts of the SSCI Report responsive to Cox’s FOIA requests. (Mot. at 21–22.) This motion
to dismiss “applies to items 1-4 of the requests to DOJ[,] . . . FBI,” and DOD, “and to items 1-3
of the requests to ODNI and State.” (Mot. at 22; DOD FOIA Request; DOJ FOIA Request; FBI
FOIA Request; ODNI FOIA Request; State Department FOIA Request.) The Agencies move to
dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3).
The Agencies contend that the draft and final copies of the SSCI Report Cox seeks are
not “agency records,” but rather “congressional records” not subject to FOIA.4 (Mot. at 21–22.)
The Agencies first argue that the Court should adopt the D.C. Circuit’s test for when records
constitute “agency records” subject to FOIA. (Id. at 24.) If the Court were to apply this test, the
Agencies contend, it would conclude that the SSCI intended to retain exclusive control over the
draft and final reports, and that they are therefore not subject to FOIA. (Id. at 25–26.) In support
of this view, the Agencies rely on the D.C. Circuit’s decision in American Civil Liberties Union
4
The Agencies characterize the December 2014 SSCI Report as the “final” Report and the prior versions from April
2014 and December 2012 as “drafts.” (Mot. at 11.) For ease of reference, the Court will at times refer to the
December 2012 and April 2014 reports as “drafts,” but this should not be construed as a finding about the status of
those reports.
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v. C.I.A., 823 F.3d 655 (D.C. Cir. 2016), reh’g en banc denied (July 13, 2016), cert. denied, 137
S.Ct. 1837 (2017), the June 2009 Letter’s directions to the CIA regarding SSCI-created records
and reports, as well as the SSCI’s treatment of the reports and communications with the
executive branch. (Mot. at 25–31.) The Agencies also argue that the Agencies’ own treatment
of the reports and other policy considerations counsel in favor of finding that the reports are not
“agency records” subject to FOIA. (Id. at 32–34.)
In his opposition brief, Cox argues that the December 2012 SSCI Report, the April 2014
SSCI Report, the December 2014 SSCI Report, and agency memoranda quoting these reports
constitute “agency records” based on the “plain meaning of that term.” (Opp. at 14.) Cox
contends that the Agencies have uploaded versions of the SSCI Report to their systems, and
annotated hard-copy versions of the SSCI Report, thus creating unique agency records. (Id. at
15.)
Cox urges the Court not to adopt the D.C. Circuit’s test to determine what constitutes an
“agency record,” but rather to look to the Supreme Court’s decision in U.S. Dep’t of Justice v.
Tax Analysts, 492 U.S. 136 (1989). According to Cox, under the standard articulated in Tax
Analysts, the SSCI Report, and memoranda quoting the reports, are agency records. (Opp. at 16–
20.) But even if the Court adopts the D.C. Circuit’s test, Cox argues, Congress did not express
an intent to control the SSCI Report when it transferred copies to the Agencies, making the
report copies and documents quoting the reports “agency records” under the D.C. Circuit’s test.
(Opp. at 21–23.) Cox cites to the December 2014 Letter from Senator Feinstein to argue that the
SSCI did not intend to retain control over copies of the SSCI Report. (Id. at 21.) Cox also
disputes that the June 2009 Letter was an expression of the SSCI’s intent with respect to the
SSCI Report generally; instead, he argues, the letter only applied to the SSCI’s dealings with the
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CIA, did not represent a final agreement between the SSCI and the CIA, and was only intended
to address treatment of documents kept in the CIA reading room where SSCI staffers worked,
not the copies of the SSCI Report later transmitted to the CIA. (Id. at 23–26.)
In their reply brief, the Agencies argue that the Supreme Court’s decision in Tax Analysts
did not provide a conclusive “agency record” test, and that the D.C. Circuit’s jurisprudence since
Tax Analysts enables “Congress to retain control of its documents when Congress sees fit to do
so.” (Reply Memorandum in Support of Defendants’ Motion to Dismiss and for Summary
Judgment (“Reply”) (Doc No. 52-35) at 15–16.) The Agencies go on to argue that the SSCI
evinced its intent to retain control of the SSCI Report, disputing Cox’s characterizations of the
June 2009 Letter and the December 2014 Letter from Senator Feinstein. (Reply at 16–18.) The
Agencies argue that Congress’s intent to retain control of the SSCI Report is further supported
by the classification of copies of the reports. (Id. at 17.) Finally, responding to Cox’s argument
that the Agencies have uploaded separate copies of the SSCI Report, and that those are therefore
agency records, the Agencies argue that they are not obligated to process duplicate records in
response to a FOIA request, and that even if some hard copies of the SSCI Report include agency
annotations, those documents remain congressional records not subject to FOIA. (Id. at 20–21.)
In his sur-reply brief, Cox argues once again against this Court adopting the D.C. Circuit’s
“agency record” test. (Plaintiff’s Sur-Reply (“Sur-Reply”) (Doc. No. 52-37) at 2–4.) Cox goes
on to argue that if the Court adopts the D.C. Circuit’s test, the Agencies have not met their
burden of establishing that Congress intended to retain control over copies of the SSCI Report
transmitted to the Agencies. (Id. at 5–6.) He contends that the Agencies have not presented any
evidence of the SSCI’s intent to retain control over copies of the SSCI Report that is
contemporaneous with the SSCI’s transmittal of those copies to the Agencies. (Id. at 5.) Finally,
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Cox once again argues that the June 2009 Letter is not evidence of the SSCI’s intent with respect
to the copies of the SSCI Report transmitted to the Agencies. (Id. at 6–8.)
B.
Motion for Summary Judgment
The Agencies’ motion for summary judgment relates to Cox’s FOIA requests for
documents other than the final versions, draft versions, or portions of the SSCI Report. (Mot. at
34–54.) Specifically, the Agencies seek summary judgment that they are not improperly
withholding records with respect to Cox’s request numbers five through eight to DOJ, five and
six to FBI, five through seven to DOD, four and five to ODNI, and four through six to the State
Department. (Mot. at 35–37; DOD FOIA Request; DOJ FOIA Request; FBI FOIA Request;
ODNI FOIA Request; State Department FOIA Request.) Cox describes these as the requests
“seeking communications related to Defendants’ treatment” of the SSCI Report. (Opp. at 27.)
The Agencies seek to establish that (1) they conducted adequate searches for the requested
records, (Mot. at 34–38), and (2) they properly withheld responsive records or portions of
responsive records pursuant to the FOIA exemptions one, three, five, six, and seven, and released
all reasonably segregable non-exempt portions of records, (Mot. at 38–55). See 5 U.S.C. §
552(b).
The scope of the motion has narrowed since it was filed. The Agencies produced
documents in response to the FOIA requests after Cox filed this action, and continued to do so
during briefing on the instant motions. (See Stein Decl. ¶¶ 7–9 (explaining that State Department
informed Cox it had located and released responsive documents by letters dated March 23, 2018,
April 27, 2018, and April 19, 2019); Second Brinkmann Decl. ¶¶ 1–11 (describing DOJ’s
supplemental search); Sur-Reply at 8 (noting that DOJ “supplemented its earlier search in
response to Plaintiff’s Opposition”).) In light of these subsequent productions, Cox withdraws
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his challenges to the adequacy of the searches conducted by the Agencies. (See Opp. at 28
(withdrawing challenges to adequacy of searches performed by the Department of State, the FBI,
and the ODNI); Sur-Reply at 8–9 (withdrawing his challenges to the adequacy of searches
performed by DOJ and DOD).) Furthermore, in his opposition and sur-reply, Cox withdraws
any challenges to the Agencies’ withholdings pursuant to exemptions three, six, and seven. (See
Opp. at 31 (withdrawing general challenge to redactions made pursuant to exemption three);
Opp. at 39 (withdrawing challenge to redactions regarding law enforcement techniques made
pursuant to exemption seven); Sur-Reply at 11 (withdrawing challenge to information withheld
pursuant to exemption six).)
Cox thus only argues that the Agencies’ withholding of records pursuant to FOIA
exemptions one and five was improper. See 5 U.S.C. §§ 552(b)(1), 552(b)(5). Regarding the
exemption one withholdings – only made by the FBI – Cox argues that the FBI and CIA
declarations in support of these withholdings “fail to provide sufficient detail to justify
withholdings under (b)(1).” (Opp. at 29.) Cox specifically calls into question the FBI’s
withholding of “handwritten notes from the review of a draft version of the Executive Summary”
(Bates numbers Cox-110–122) pursuant to exemption one based on the CIA’s claim that they
“contain details related to the current locations of covert CIA installations and former detention
centers located abroad.” (Shiner Decl. ¶ 11, 19.) Cox casts doubt on this explanation, arguing
that “even in the classified version of the Torture Study the ‘names of the countries that hosted
CIA detention sites’ are identified only by pseudonyms.” (Opp. at 30.)
Cox makes a “limited request” that the Court review in camera the FBI record bearing
the Bates number Cox-30 “[a]s a check” on the claims made by the FBI and CIA in the Shiner
and Hardy Declarations. (Opp. at 31.) The brief email in question was produced with
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substantial redaction pursuant to, among other exemptions, exemption one. (Id.) Cox argues
that it is “implausible,” given the email’s brevity, that it contains one of the categories of
classified information identified by the CIA in the Shiner Declaration or that it does not
otherwise contain segregable information. (Id.)
In response, the Agencies contend that the Court should not grant Cox’s request for in
camera review because the Shiner and Hardy Declarations are sufficiently detailed and entitled
to deference that outweighs Cox’s “paper thin speculation.” (Reply at 27–28.) With respect to
the specific records Cox discusses in his opposition – Bates numbers Cox-30 and Cox-110–122 –
the Agencies argue that Cox’s speculative arguments fail to acknowledge that information was
withheld in these records based on the fact that they contained multiple types of classified
information (in the case of Cox-110–122) and fell under multiple FOIA exemptions (in the case
of Cox-30). (Reply at 28–29.) In further support of withholding the record, the Agencies note
that Cox-30 “contains the name of a covert officer.” (Id. at 29.)
With respect to the exemption five withholdings, Cox contends that the Agencies’
Vaughn affidavits and indexes fail “to provide sufficient detail to justify withholdings under
(b)(5).” (Opp. at 32.) Cox objects once again to the FBI’s decision to withhold the handwritten
notes, Cox-110–122, arguing that the broad assertion of the exemption five deliberative process
privilege to these notes is unsupported because the notes “likely contain ‘factual matter’” which
could be segregated from the deliberative material. (Id.)
Next, Cox challenges the agencies’ exemption five claims based on attorney-client
privilege, arguing that there is reason to believe attorneys’ advice “led to . . . unlawful disposal
of records.” (Opp. at 32.) Cox cites to documents that he claims suggest that in December 2014,
DOJ provided guidance to the CIA that “resulted in CIA attorneys directing CIA personnel to
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intentionally delete an electronic copy of the Torture Study” while separate FOIA litigation
regarding a request for that document was pending. (Id. at 33.) Cox also argues that agencies
improperly surrendered copies of the SSCI Report in response to a request for copies of the
Report from Senator Richard Burr, and suggests that DOJ guidance played a role in this decision
as well. (Id. at 35.) According to Cox, the disposal of these copies of the SSCI Report violated
FOIA preservation obligations as well as other federal records laws. (Id. at 36–37.) Just as the
crime-fraud exception may prevent a party from asserting that communications with an attorney
are subject to attorney-client privilege, Cox argues that the attorneys involved in the guidance
described above “may have been involved in . . . the unlawful disposal of records,” and that a
crime-fraud exception to exemption five may apply. (Id. at 32.) For this reason, Cox requests
that the Court conduct an in camera review of “a sample” of records withheld by the Agencies
pursuant to exemption five, and specifically identifies particular documents withheld by the
DOD and the State Department. (Id. at 39.)
In response, the Agencies first argue that the handwritten notes bearing Bates numbers
Cox-110–122 were properly excluded under exemption five because they were part of “ongoing
internal deliberations regarding the accuracy and protection of FBI equities in the [SSCI]
Report.” (Reply at 30.) Next, the Agencies address Cox’s arguments related to the alleged DOJ
guidance to dispose of documents. The Agencies first note that it is “an open question” whether
the crime-fraud exception applies to assertions of exemption five attorney-client privilege, and
argue that it should not. (Reply at 30–31.) The Agencies then go on argue that DOJ’s
preservation guidance was “correct” and Cox has not shown the existence of a crime or fraud.
(Id. at 32–35.) In his sur-reply, Cox largely stands on his prior briefing, but disputes the
Agencies’ characterization of their legal obligations to preserve records. (Sur-Reply at 9–11.)
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STANDARD OF REVIEW
The standards of review applicable to the Agencies’ motion to dismiss and motion for
summary judgment are discussed separately below. However, the Court briefly notes one aspect
of its review applicable to both motions: although Cox is proceeding pro se, he is also a lawyer,
and therefore not entitled to the liberal construction of his pleadings normally afforded to pro se
litigants. (See, e.g., Opp. at 30 (noting that Cox “represent[ed] Guantanamo detainees in habeas
proceedings”).) See Jaffe v. Capital One Bank, No. 09-CV-4106 (PGG), 2010 WL 691639, at *2
(S.D.N.Y. Mar. 1, 2010) (“A lawyer proceeding pro se is not entitled to the special consideration
that courts customarily grant to pro se parties.” (citing Harbulak v. County of Suffolk, 654 F.2d
194, 198 (2d Cir. 1981)).
DISCUSSION
I.
Motion to Dismiss
The Agencies move pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(h)(3)
to dismiss Cox’s claims that the Agencies are improperly withholding copies of the SSCI Report,
portions of the SSCI Report quoted in other documents, and drafts of the SSCI Report, arguing
that this Court lacks subject-matter jurisdiction because the request documents are not “agency
records.” (Mot. 21–22.) For the reasons below, this motion is denied.
A.
Construing the Agencies’ Motion as a Rule 12(b)(6) Motion
First, a motion to dismiss on the basis that the requested documents are not agency
records is properly brought on the merits – under Federal Rule of Civil Procedure 12(b)(6) or as
a motion for summary judgment under Rule 56 – not Rules 12(b)(1) or 12(h)(3). The Second
Circuit has construed the mention of “jurisdiction” in § 552(a)(4)(B) “to reference remedial
power, not subject-matter jurisdiction.” Main Street Legal Servs, Inc. v. NSC, 811 F.3d 542,
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566–67 (2d Cir. 2016). An agency’s motion to dismiss based on the fact that the requested
documents are not “agency records” thus does not implicate the Court’s power to order that
relief, but the merits of the action, and is therefore properly brought as a motion to dismiss for
failure to state a claim under Rule 12(b)(6). As a district court in the D.C. Circuit recently
explained:
Thus, notwithstanding section 552(a)(4)(B)’s reference to “jurisdiction[,]” Courts
have long considered FOIA disputes that pertain to the nature of the defendant
entity (i.e., is it an “agency”?) or the nature of the records at issue (i.e., are they
“agency records”?) to relate to the merits of a plaintiff's claim that the defendant
has violated the FOIA, rather than a court’s authority to adjudicate the case. This
means that a Rule 12(b)(1) motion to dismiss brought solely on the grounds that the
court lacks subject-matter jurisdiction because the records are not “agency records”
necessarily fails.
Cause of Action Inst. v. Internal Revenue Serv., 390 F. Supp. 3d 84, 96 (D.D.C. 2019); see also
Citizens for Responsibility & Ethics in Washington v. Office of Admin., 566 F.3d 219, 225 (D.C.
Cir. 2009) (explaining that the district court erred in dismissing the complaint under Rule
12(b)(1) based on the fact that the Office of Administration was not an agency subject to FOIA
but affirming the district court’s dismissal pursuant to Rule 12(b)(6)).
The Agencies thus improperly seek dismissal for lack of subject-matter jurisdiction,
instead of bringing their motion on the merits. However, where a motion is brought under
Federal Rule of Civil Procedure 12(b)(1) in error, a court “may ‘construe [the] motion as one to
dismiss under 12(b)(6) (failure to state a claim upon which relief can be granted) or, in that both
parties have proffered and relied upon matters outside the pleadings, a motion for summary
judgment under Rule 56.’” Basile v. Levittown United Teachers, 17 F. Supp. 3d 195, 206
(E.D.N.Y. 2014) (quoting Newsom-Lang v. Warren Int’l, 129 F. Supp. 2d 662, 666 (S.D.N.Y.
2001)).
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Because the Agencies moved to dismiss pursuant to Rule 12(b)(1) and 12(h)(3), both the
Agencies and Cox “relied upon matters outside the pleadings” in briefing this motion to dismiss.
Basile, 17 F. Supp. 3d at 206. Still, the Court finds that the parties’ briefing is not appropriate
for conversion to summary judgment. In opposing the motion to dismiss for lack of jurisdiction,
Cox argued that he should be entitled to discovery before the Court dismisses the action based on
Congress’s intent to control the SSCI Report. (Opp. at 26.) Furthermore, Cox expressed an
interest in potentially cross-moving for summary judgment, and conversion of the motion would
deprive him of the opportunity to do so. (Plaintiff’s Response to Motion for Pre-Motion
Conference (Doc. No. 32) at 2.) Ultimately, the Court cannot say, as is necessary to convert a
Rule 12 motion to a motion for summary judgment, that the “parties should reasonably have
recognized the possibility of conversion,” so the Court declines to convert the Agencies’ motion
to dismiss into a motion for summary judgment. Fernandez v. Windmill Distrib. Co., 159 F.
Supp. 3d 351, 357 (S.D.N.Y. 2016). Instead, the Court construes the Agencies’ motion to
dismiss as brought pursuant to Rule 12(b)(6). See Basile, 17 F. Supp. 3d at 206.
B.
Standard of Review and Judicial Notice
To survive a motion to dismiss pursuant to Rule 12(b)(6), a complaint must plead
“enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007). A claim is plausible “when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be
true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.
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In adjudicating a motion to dismiss pursuant to Rule 12(b)(6), the Court may “consider
those documents submitted by the parties which are matters of public record or which are
deemed included in the Complaint.” LaFlamme v. Societe Air France, 702 F. Supp. 2d 136, 140
n.5 (E.D.N.Y. 2010) (citing Pani, M.D. v. Empire Blue Cross Blue Shield, 152 F.3d 67, 75 (2d
Cir. 1998)). Cox appended to his second amended complaint the December 2012 Letter, the
April 2014 Letter, the December 2014 Letter, and his FOIA requests to the Agencies. (Compl.,
Exs. A–H.) The Court may therefore consider these documents in adjudicating this motion to
dismiss. See LaFlamme, 702 F. Supp. 2d at 140 n.5.
The Court cannot take judicial notice of the June 2009 Letter for the purpose of this
motion to dismiss. This letter was not appended to or incorporated by reference in Cox’s
complaint. (See generally Compl.) Even if the Court could take judicial notice of this based on
its (arguable) status as a public record, the Court could consider the document only for the fact of
its existence, “not for the truth of the facts asserted” within the letter. Glob. Network Commc’ns,
Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006). It would therefore be improper for
the Court to evaluate the June 2009 Letter for the purpose of determining the SSCI’s intent
regarding copies of the SSCI Report as it would not be using “the extraneous documents . . . to
establish their existence, but rather to provide the reasoned basis for the court’s conclusion.” Id.
C.
“Agency Record” Test
FOIA does not define “agency record.” See Forsham v. Harris, 445 U.S. 169, 187
(1980) (Brennan, J., dissenting) (“The Court concedes, of course, that the statute itself does not
define ‘agency records.’”). However, FOIA explicitly excludes Congress from its definition of
“agency.” See 5 U.S.C. § 551(1). Accordingly, congressional documents are not agency
records. See United We Stand Am., Inc. v. I.R.S., 359 F.3d 595, 597 (D.C. Cir. 2004) (“Because
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Congress is not an agency, congressional documents are not subject to FOIA’s disclosure
requirement.”). Yet, in its role overseeing executive branch agencies, Congress shares records
with agencies. See Goland v. Central Intelligence Agency, 607 F.2d 339, 346 (D.C. Cir. 1978)
(explaining that “Congress has undoubted authority to keep its records secret” but also “exercises
oversight authority over the various federal agencies, and thus has an undoubted interest in
exchanging documents with those agencies to facilitate their proper functioning in accordance
with Congress’ originating intent”). As a result, the determination of whether the requested
documents are agency or congressional records can be a complex, and ultimately decisive,
inquiry in FOIA actions.
In U.S. Dep’t of Justice v. Tax Analysts, the Supreme Court articulated a two-part test for
whether a document constituted an “agency record” for the purposes of a FOIA request: (1) the
agency must “create or obtain” the document and (2) the agency must have been “in control of
the requested materials at the time the FOIA request is made.” 492 U.S. at 144–45. The Court
affirmed the judgment of the D.C. Circuit below, but in that decision, the D.C. Circuit had
applied for the first time a four-factor test for determining whether an agency was “in control” of
a document:
[1] the intent of the document’s creator to retain or relinquish control over the
records; [2] the ability of the agency to use and dispose of the record as it sees fit;
[3] the extent to which agency personnel have read or relied upon the document;
and [4] the degree to which the document was integrated into the agency’s record
system or files.
Tax Analysts v. U.S. Dep’t of Justice, 845 F.2d 1060, 1069 (D.C. Cir. 1988); see also Judicial
Watch, 726 F.3d 208, 218 (D.C. Cir. 2013) (stating that the D.C. Circuit “first announced this
test in our own decision” in Tax Analysts). The Supreme Court did not discuss the D.C. Circuit’s
four-part control test in its Tax Analysts decision. However, in rejecting the Department of
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Justice’s argument that it was not “in control” of district court opinions because it lacked the
power to alter the decisions’ content, the Court explained, “By control we mean that the
materials have come into the agency’s possession in the legitimate conduct of its official duties.”
Tax Analysts, 492 U.S. at 145; see also id. at 147 (“The control inquiry focuses on an agency’s
possession of the requested materials, not on its power to alter the content of the materials it
receives.”).
Since Tax Analysts, the D.C. Circuit has continued to apply the four-part test for
“control” of documents when determining if a requested document is an “agency record.” See
Judicial Watch, 726 F.3d at 218 (explaining that the Circuit applies the four-part test “in the
usual case”). The D.C. Circuit has further held that the first two factors are dispositive with
respect to documents “an agency has either obtained from, or prepared in response to a request
from . . . the United States Congress.” Judicial Watch, 726 F.3d at 221. This is because due
deference to Congress requires focusing on Congress’s intent to control the documents,
“render[ing] the first two factors of the standard test effectively dispositive.” Id.
Cox contends that the D.C. Circuit’s approach to determining whether an agency is “in
control” of a document is inconsistent with the “straightforward” test the Supreme Court applied
in Tax Analysts. (Opp. at 19.) In support of his view that the Court announced a
“straightforward” test for agency “control,” Cox calls attention footnote six from the Supreme
Court’s opinion: “Because requested materials ordinarily will be in the agency’s possession at
the time the FOIA request is made, disputes over control should be infrequent.” Tax Analysts,
492 U.S. at 146 n.6. (Opp. at 17.) According to Cox, this footnote is evidence that Supreme
Court believed “control” should be a straightforward inquiry subject to no further limitation or
analysis.
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Cox’s insistence that Tax Analysts announced an exhaustive “control” test precluding
further doctrinal development is belied by a closer reading of that case. In his argument, Cox
omits the remainder of the above footnote, which goes on to read: “In some circumstances,
however, requested materials might be on loan to another agency, ‘purposefully routed ... out of
agency possession in order to circumvent [an impending] FOIA request,’ or ‘wrongfully
removed by an individual after a request is filed.’ We leave consideration of these issues to
another day.” Tax Analysts, 492 U.S. at 146 n.6 (citation omitted) (quoting Kissinger v.
Reporters Committee for Freedom of Press, 445 U.S. 136, 155, n. 9 (1980)). The Supreme Court
plainly recognized that “control” of agency records would not always be the straightforward
inquiry that disposed of the case in Tax Analysts – in fact, it explicitly left the “control” inquiry
open to further doctrinal development, particularly in circumstances where records are shared
between government entities. Id.
Cox nevertheless insists that Tax Analysts is dispositive of the case before the Court. He
likens the Agencies’ position in the instant action to an argument advanced by the DOJ and
rejected by the Supreme Court in Tax Analysts: that because the DOJ did not control the content
of district court opinions, they were not agency records. (Opp. at 18 (“Each Defendant here, like
the defendant in Tax Analysts, argues that it nevertheless ‘does not control’ the material at issue
and that it is controlled by an entity not subject to FOIA. The Supreme Court rejected that
argument, as this Court should here, as ‘beside the point’ on the basis that the ‘control inquiry
focuses on an agency’s possession of the requested materials’ not on whether it controls ‘the
content of the materials it receives.’” (citations omitted))). This analogy is specious. In Tax
Analysts, the Supreme Court understood the DOJ to be advancing an “authorship-control”
requirement – that an agency’s control of a document would turn on the agency’s “power to alter
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the content of the materials it receives.” Tax Analysts, 492 U.S. at 147. The Court reasonably
rejected that argument, explaining that it would limit FOIA “essentially to documents generated
by the agencies themselves.” Id. Here, the Agencies argue that they do not control the
documents because Congress retained control of them when transferring them to the Agencies.
This argument has little relation to “authorship-control” test the Supreme Court rejected in Tax
Analysts.
The Court need not resolve the dispute between Cox and the Agencies as to whether the
Supreme Court’s holding in Tax Analysts was inconsistent with the D.C. Circuit’s four-part test
for agency “control” of a record. Before the Court is the narrow question of the proper test for
agency “control” of documents obtained from Congress. This is a question with its own unique
constitutional considerations – and a question not before the Court in Tax Analysts. Cf. United
We Stand Am., Inc., 359 F.3d at 599 (explaining that “the connection between Congress and the
requested records implicates considerations not at issue in Tax Analysts, where a non-profit
organization sought disclosure of judicial opinions possessed by the Department of Justice”).
In Goland v. Central Intelligence Agency, the D.C. Circuit explained the unique problems
that arise when congressional documents are treated as “agency records” merely by their transfer
to an agency subject to FOIA:
Congress has undoubted authority to keep its records secret, authority rooted in the
Constitution, longstanding practice, and current congressional rules. Yet Congress
exercises oversight authority over the various federal agencies, and thus has an
undoubted interest in exchanging documents with those agencies to facilitate their
proper functioning in accordance with Congress' originating intent. If plaintiffs’
argument were accepted, Congress would be forced either to surrender its
constitutional prerogative of maintaining secrecy, or to suffer an impairment of its
oversight role.
Goland, 607 F.2d at 346. Cox refers to Goland as the D.C. Circuit’s “original sin,” arguing it
created an unduly restrictive definition of “agency record” for the purpose of protecting
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congressional documents that were already subject to protection from disclosure under the FOIA
exemptions. (Sur-Reply at 4.) Yet this view of the FOIA’s exemptions as a self-contained
mechanism for sorting documents to be disclosed from those properly withheld is inconsistent
with long-established Supreme Court jurisprudence. For instance, the Supreme Court previously
held that, despite the absence of an on-point FOIA exemption, agencies did not improperly
withhold documents enjoined from disclosure by a district court. See GTE Sylvania, Inc. v.
Consumers Union of U. S., Inc., 445 U.S. 375, 387 (1980). The GTE Sylvania Court reasoned
that in passing FOIA Congress “was largely concerned with the unjustified suppression of
information by agency officials.” GTE Sylvania, 445 U.S. at 385. FOIA exemptions aside, there
was no reason to read FOIA “to require an agency to commit contempt of court in order to
release documents.” Id. at 387.
The disclosure of congressional documents also raises concerns separate from FOIA’s
primary goal of preventing “unjustified suppression of information by agency officials.” GTE
Sylvania, 445 U.S. at 385. Specifically, the disclosure of congressional documents raises unique
constitutional concerns that Cox fails to adequately address. Cox notes that “Defendants
nowhere assert that the application of FOIA’s exemptions to Defendants’ copies of the Torture
Study would be inadequate to protect any purported congressional restrictions,” but does not
address the question of why our constitutional system should leave it to the agencies to make this
determination in the first place. (Sur-Reply at 4.) What if, as part of its oversight role, Congress
wants to share documents with an agency while restricting public access to portions of those
documents that would not fall within FOIA’s exemptions? Or what if Congress wants certainty
as to the information that will be subject to public access before it releases them to agencies, as
opposed to relying on agencies’ and courts’ subsequent assessments of whether particular
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information falls within one of FOIA’s enumerated exemptions? Cox presents no answer to
these concerns. Far from hypothetical, these questions implicate the delicate separation of
powers that underlies our constitutional system. If Congress were forced to rely on predictions
about agencies’ and courts’ assessments of applicable FOIA exemptions before sharing
documents, its essential role as an oversight body would be severely inhibited.
Although they dispute the proper test to apply, the parties to this action agree that the
Second Circuit has not adopted the D.C. Circuit’s four-part test for agency control.5 (Mot. at 24;
Opp. at 19.) The Court concludes that FOIA is not best read as a statute that forces a choice
between congressional oversight and the very congressional secrecy the statute protects by
exempting Congress from its coverage. Accordingly, the Court’s inquiry into whether the
documents at issue constitute agency records “turns on whether Congress manifested a clear
intent to control the document[s].” Judicial Watch, 726 F.3d at 221 (quoting United We Stand
America, Inc., 359 F.3d at 596); see also Am. Civil Liberties Union, 823 F.3d at 663. As the
D.C. Circuit explained in Judicial Watch, this inquiry focuses on the first two prongs of the fourpart “control” test the Circuit has articulated. See Judicial Watch, 726 F.3d at 221 (explaining
that the focus on Congressional intent “renders the first two factors of the standard test
effectively dispositive”). These two factors are: “[1] the intent of the document’s creator to
retain or relinquish control over the records; [and] [2] the ability of the agency to use and dispose
of the record as it sees fit.” Id. at 218 (quoting Tax Analysts, 845 F.2d at 1069). Finally, it is the
Agencies’ burden to establish that these records are not “agency records.” See Tax Analysts, 492
U.S. at 142 n.3 (“The burden is on the agency to demonstrate, not the requester to disprove, that
5
Defendants do note that a district court within this Circuit appeared to apply an early variation of the four-part test
in its decision in Navasky v. Cent. Intelligence Agency, 499 F. Supp. 269, 278 (S.D.N.Y. 1980). However, as this
decision, already not binding on this Court, predated the Supreme Court’s decision in Tax Analysts, it is of little
value in determining the legal question at issue here.
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the materials sought are not ‘agency records.’”); see also Grand Cent. P’ship, Inc., 166 F.3d at
478.
D.
Copies of the SSCI Report as Agency Records
The Agencies rely to a large extent on the SSCI’s June 2009 Letter to the CIA to argue
that the SSCI intended to retain control over copies of the SSCI Report. However, as explained
above, the Court cannot take judicial notice of this letter for the purposes of the instant motion to
dismiss. On the other hand, documents of which the Court can take judicial notice – including
the December 2012 Letter, the April 2014 Letter, and the December 2014 Letter appended to
Cox’s complaint – provide mixed evidence of the SSCI’s intent to relinquish control over the
SSCI Report. (December 2012 Letter; April 2014 Letter; December 2014 Letter; see also
Compl., Exs. A–C (same).)
The Agencies accurately note the December 2012 Letter provides some support for the
conclusion that the SSCI intended to retain control over the December 2012 SSCI Report. In the
December 2012 Letter, Senator Feinstein invited agency responses and noted, “After
consideration of these views, I intend to present this report with any accepted changes again to
the Committee to consider how to handle any public release of the report, in full or otherwise.”
(December 2012 Letter at 1.) The Agencies cite the D.C. Circuit’s analysis of this letter in
ACLU v. CIA, arguing that the court found “the transmission of the 2012 draft made clear that
the ‘Committee intended to retain control over the Full Report.’” (Mot. at 27 (quoting Am. Civil
Liberties Union, 823 F.3d at 667)). However, the D.C. Circuit’s analysis of this letter appears to
be largely premised on its prior examination of the June 2009 Letter, as is evident in the court’s
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statement that the December 2012 Letter “reinforced what had already been made clear in the
June 2009 Letter.”6 Am. Civil Liberties Union, 823 F.3d at 667.
If the December 2012 Letter contains indicia of the SSCI’s intent to control the SSCI
Report, it is difficult to ignore the absence of similar language in two subsequent letters from
Senator Feinstein regarding the April 2014 SSCI Report and the December 2014 SSCI Report.
In the April 2014 Letter, Senator Feinstein stated that she “encourage[d] and approve[d] the
dissemination of the updated report to all relevant Executive Branch agencies.” (April 2014
Letter at 1–2.) Then, in the December 2014 Letter, Senator Feinstein used language even more
indicative of an intent to relinquish control:
[T]he full report should be made available within the CIA and other components of
the Executive Branch for use as broadly as appropriate to help make sure that this
experience is never repeated. To help achieve that result, I hope you will encourage
use of the full report in the future development of CIA training programs, as well
as future guidelines and procedures for all Executive Branch employees, as you see
fit.
(December 2014 Letter at 1.) Both of these letters provide compelling evidence that SSCI
intended to “relinquish control” over the SSCI Report upon transmittal. Judicial Watch, 726
F.3d at 218. Looking at the second factor of the test, the letters – particularly the above-quoted
lines from the December 2014 Letter – also provide substantial evidence that the SSCI granted
the Agencies “the ability . . . to use and dispose of the record[s] as [they] s[aw] fit.” Id.
The Agencies separately argue that the fact that the SSCI sought declassification review
of only the Executive Summary, and subsequently released only the Executive Summary
publicly, supports the conclusion that it intended to retain control over the full versions of the
SSCI Report. (Mot. at 26.) While this provides some evidence that the SSCI did not intend to
6
The Agencies also point to an email from the SSCI Staff Director regarding the December 2012 SSCI Report.
(Mot. at 28; Higgins Decl. ¶ 15 & Ex. E.) However, as explained above, the Court cannot consider extrinsic
evidence of this sort on a motion to dismiss pursuant to Rule 12(b)(6).
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control the Executive Summary, the Court finds little support in this action alone for the
conclusion that the SSCI intended to retain control over the non-Executive Summary portions of
the SSCI Report.
The Agencies’ remaining arguments in support of the conclusion that Congress intended
to retain control over these records are not sufficient to justify dismissal here. The Agencies
point to the fact that the SSCI’s proceedings during the creation of the report were in closed
session, and that SSCI information is by default confidential, but these facts provide little insight
into what the SSCI intended with the reports once the SSCI transmitted them to the Agencies.
(Mot. at 26.) The Agencies’ note that copies of the SSCI Report were marked “top secret” is
even less instructive. (Id.) As Cox rightly argues, these restrictions on dissemination imposed
by classification authorities in the Executive Branch provide no insight into the relevant
congressional intent here. (Opp. at 22.) Finally, the Agencies argue that the Agencies’ own
treatment of the SSCI Report supports the conclusion that Congress intended to retain control
over the reports. (Mot. at 32.) As the Agencies acknowledge, however, this evidence – even if
the Court could consider it on the instant motion – is largely irrelevant to determining
congressional intent under the “agency record” test applied in this case. (Id.)
Based on the record before the Court, and drawing all inferences in Cox’s favor, the
Court cannot say that Congress “manifested a clear intent to control” the SSCI Report. Judicial
Watch, 726 F.3d at 221. Accordingly, the Agencies’ motion to dismiss is denied.
II.
Motion for Summary Judgment
The Agencies move for summary judgment with respect to Cox’s challenges to records
withheld pursuant to FOIA exemptions one and five. See 5 U.S.C. § 551(b)(1), (b)(5). As noted
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above, Cox has withdrawn any challenge to the Agencies withholdings under other exemptions
or to the adequacy of the Agencies’ searches.
A.
Standard of Review and Applicable Law
Summary judgment is appropriate when the pleadings, depositions, interrogatories,
admissions, and affidavits demonstrate that there are no genuine issues of material fact in dispute
and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Celotex
Corp. v. Catrett, 477 U.S. 317, 322 (1986). A genuine issue of material fact exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). When determining whether a
genuine issue of material fact exists, the evidence of the non-movant “is to be believed” and the
court must draw all “justifiable” or “reasonable” inferences in favor of the non-moving party. Id.
at 255 (citing Adickes v. S.H. Kress & Co., 398 U.S. 144, 158–59 (1970)); see also Brosseau v.
Haugen, 543 U.S. 194, 195 n.1 (2004).
“In order to prevail on a motion for summary judgment in a FOIA case, the defending
agency has the burden of showing that . . . any withheld documents fall within an exemption to
the FOIA.” Carney v. U.S. Dep’t of Justice, 19 F.3d 807, 812 (2d Cir. 1994) (citing 5 U.S.C. §
552(a)(4)(B)); see also New York Times Co. v. U.S. Dep’t of Def., 499 F. Supp. 2d 501, 509
(S.D.N.Y. 2007) (“For an agency to prevail on a summary judgment motion in a FOIA case, it
‘must demonstrate that each document that falls within the class requested either has been
produced, is unidentifiable, or is wholly exempt from the Act’s inspection requirements.’”
(quoting Ruotolo v. Dep’t of Justice, Tax Div., 53 F.3d 4, 9 (2d Cir. 1995)). In making this
showing, agencies normally rely on affidavits that “describe the justifications for nondisclosure
with reasonably specific detail, [and] demonstrate that the information withheld logically falls
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within the claimed exemption.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009)
(quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). “Ultimately, an agency’s
justification for invoking a FOIA exemption is sufficient if it appears logical or plausible.” Id.
If the agencies have satisfied their burden, “the plaintiff must make a showing of bad
faith on the part of the agency sufficient to impugn the agency’s affidavits or declarations, or
provide some tangible evidence that an exemption claimed by the agency should not apply or
summary judgment is otherwise inappropriate.” Carney, 19 F.3d at 812 (citation omitted); see
also Flores v. United States Dep’t of Justice, No. 15-CV-2627 (JMA), 2016 WL 7856423, at *9
(E.D.N.Y. Oct. 4, 2016), report and recommendation adopted, No. 15-CV-2627 (JMA) (RLM),
2017 WL 238425 (E.D.N.Y. Jan. 18, 2017), aff’d, 712 F. App’x 107 (2d Cir. 2018). Agencies’
affidavits in support of their withholdings are entitled to a presumption of good faith. See
Carney, 19 F.3d at 812; Estate of Ghais Abduljaami v. U.S. Dep’t of State, No. 14-CV-7902
(RLE), 2016 WL 94140, at *2 (S.D.N.Y. Jan. 7, 2016) (same). In addition to this presumption of
good faith, “[c]ourts are to give deference ‘to executive affidavits predicting harm to the national
security, and have found it unwise to undertake searching judicial review.’” Am. Civil Liberties
Union v. Dep’t of Def., 435 F. Supp. 3d 539, 554 (S.D.N.Y. 2020) (quoting Am. Civil Liberties
Union v. Dep’t of Justice, 681 F.3d 61, 70 (2d Cir. 2012)).
Courts may conduct in camera review of documents to evaluate an agency’s claimed
exemptions. However, “[a] district court should not undertake in camera review of withheld
documents as a substitute for requiring an agency’s explanation of its claimed exemptions in
accordance with Vaughn.” Seife v. United States Dep’t of State, 298 F. Supp. 3d 592, 630
(S.D.N.Y. 2018) (quoting Spirko v. U.S. Postal Service, 147 F.3d 992, 997 (D.C. Cir. 1998)). In
adjudicating FOIA actions, “[i]n camera review is considered the exception, not the rule, and the
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propriety of such review is a matter entrusted to the district court’s discretion.” Local 3, Int’l
Bhd. of Elec. Workers, AFL-CIO v. N.L.R.B., 845 F.2d 1177, 1180 (2d Cir. 1988) (citing
Donovan v. F.B.I., 806 F.2d 55, 59 (2d Cir. 1986)); see also Am. Civil Liberties Union v. Office
of the Dir. of Nat. Intelligence, No. 10-CV-4419 (RJS), 2011 WL 5563520, at *12 n.9 (S.D.N.Y.
Nov. 15, 2011) (same). The Second Circuit has described its approach to ordering in camera
FOIA review as follows:
With respect to in camera review, we adopted a restrained approach permitting
such review where the record showed the reasons for withholding were vague or
where the claims to withhold were too sweeping or suggestive of bad faith, or where
it might be possible that the agency had exempted whole documents simply because
there was some exempt material in them. By the same token, where the affidavit is
sufficiently detailed to place the documents within the claimed exemptions, and
where the government’s assertions are not challenged by contrary evidence or a
showing of agency bad faith, we have held that the district court should restrain its
discretion to order in camera review.
Halpern, 181 F.3d at 292 (citations omitted). In general, a “district court should first offer the
agency the opportunity to demonstrate, through detailed affidavits and oral testimony, that the
withheld information is clearly exempt and contains no segregable, nonexempt portions.” Seife,
298 F. Supp. 3d at 630.
B.
Exemption One Withholdings
FOIA exemption one exempts from disclosure matters that are “specifically authorized
under criteria established by an Executive order to be kept secret in the interest of national
defense or foreign policy and . . . are in fact properly classified pursuant to such Executive
order.” 5 U.S.C. § 551(b)(1). Executive Order 13,526 sections 1.4(c) and 1.4(d), the basis for
the FBI and CIA’s assertions that records are properly withheld under exemption one, establishes
that information
shall not be considered for classification unless its unauthorized disclosure could
reasonably be expected to cause identifiable or describable damage to the national
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security in accordance with section 1.2 of this order, and it pertains to [among other
categories] . . . (c) intelligence activities (including covert action), intelligence
sources or methods, or cryptology; [or] (d) foreign relations or foreign activities of
the United States, including confidential sources.
Classified National Security Information, Exec. Order No. 13,526 § 1.4, 75 Fed. Reg. 707 (Dec.
29, 2009).
Cox contends that the FBI and CIA Vaughn affidavits submitted in support of the FBI’s
exemption one withholdings lack sufficient detail. (Opp. at 29.) The Court agrees. The FBI and
CIA’s Vaughn affidavits are contradictory, vague, and ultimately insufficiently detailed for the
Court to conduct meaningful review – or for Cox to meaningfully challenge – the FBI’s
exemption one withholdings.
In his Vaughn affidavit in support of the FBI’s withholdings, Hardy states that the FBI
withheld 29 pages in full. (Hardy Decl. ¶ 71.) Hardy explains that an unspecified number of the
documents were withheld pursuant to exemption three by the CIA and that the remainder were
withheld by the FBI pursuant to exemptions five, six, and seven. (Id.) This is at odds with the
CIA’s affidavit submitted with this case. Shiner’s declaration includes extensive discussion of
the CIA’s withholdings pursuant to exemption one. (Shiner Decl. ¶¶ 13–32.) Because the FBI
specifically identifies the single document it withholds pursuant to exemption one, Cox-123,
Hardy’s oversight would not, on its own, prevent the Court from conducting the required de novo
review of the exemption one withholdings, so long as the CIA provided an adequate accounting
of the documents it withheld pursuant to this exemption. (Hardy Decl. ¶ 34.) However, nowhere
in the CIA’s Vaughn affidavit does it specifically list the documents it is withholding pursuant to
exemption one.
Instead, the CIA’s Vaughn affidavit states that pursuant to exemption one it withheld
classified information related to:
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(i) personnel associated with the former detention and interrogation program; (ii)
the locations of covert Agency facilities, including former detention centers located
abroad; (iii) information pertaining to specific intelligence activities, methods, and
operations, including certain counterterrorism techniques; (iv) code words and
pseudonyms; (v) classification and dissemination control markings; and (vi)
relationships with foreign liaison partners.
(Shiner Decl. ¶ 15.) Shiner goes on to describe each of these categories in detail, and in some
cases, cite, apparently as an example, a document from which information was withheld pursuant
to that category. (See, e.g., id. ¶ 19 (explaining the basis for withholding information relating to
field installations and citing Cox-110–122 as an example of such withholding).) But Shiner cites
no documents withheld as related to other categories of classified information, such as “code
words and pseudonyms,” despite the fact that, according the Agencies’ briefs, the CIA withheld
documents pursuant to exemption one because they contained information related to these topics.
(Shiner Decl. ¶¶ 26–27 (explaining the basis for withholding unspecified “information . . .
consist[ing] of code words and pseudonyms”); Reply at 28 (noting that Cox-110–122 “includes
information about . . . codewords”).) In addition to not identifying the bases upon which each
record was withheld, the CIA’s Vaughn affidavit omits discussion of some records withheld
pursuant to exemption one altogether. Cox notes, for instance, that the CIA’s affidavit fails to
even mention Cox-30 in its affidavit, despite the fact it withheld information on this document
pursuant to exemption one (as well as other exemptions). (Opp. at 31, Ex. R; Shiner Decl.)
The problem with the FBI and CIA Vaughn affidavits is apparent from the Agencies’
briefing. In response to Cox’s challenges, the Agencies provide additional information in their
reply brief to support these withholdings pursuant to exemption one. For instance, after Cox
notes that the CIA fails to discuss its withholding of information in Cox-30, the Agencies inform
the Court that Cox-30 contains the name of a covert officer. (Reply at 29.) Then, as part of their
response to Cox’s argument that it is implausible that Cox-110–122 in fact contained information
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about the location of CIA detention facilities, the agencies state that the document in fact
contains information related to four categories of classified information – “location of covert
facilities[,] codewords[,] relationships with foreign liaison partners, and information regarding
specific intelligence activities” – and that Cox only identifies one category as questionable.
(Reply at 28–29; Opp. at 30.) While the Agencies present a reasonable explanation as to why
Cox-110–122 would contain information about the location of detention facilities, (Reply at 29),
this explanation is largely beside the point. The information necessary for Cox to challenge the
agencies’ withholdings or for the Court to perform de novo review of those withholdings must
present in an agency’s Vaughn affidavit – not provided by counsel in an agency’s reply brief.
Halpern, 181 F.3d at 293.
While agency affidavits are entitled to a presumption of good faith – especially so in the
national security context – these presumptions do not require a court to give the benefit of the
doubt to attestations never made. See Carney, 19 F.3d at 812; Am. Civil Liberties Union, 435 F.
Supp. 3d at 554. It is the FBI’s burden to provide “fact-specific justification[s]” for its
withholdings “that either (a) would permit [the FOIA litigant] to contest the affidavit in
adversarial fashion, or (b) would permit a reviewing court to engage in effective de novo review
of the [withheld] information.” Halpern, 181 F.3d at 293. So long as the FBI and CIA Vaughn
affidavits fail to identify all of the records the FBI withheld, and the CIA only vaguely states that
it withheld documents because they contained information related to one (or more) of six
specified topics, (Shiner Decl. ¶ 15), Cox cannot meaningfully challenge the FBI’s exemption
one withholdings and the Court cannot meaningfully review them. In Halpern, the Second
Circuit advised that the government may use “generalized justifications for certain types of
redactions” under exemption one, but those “generalized descriptions must accompany, and not
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substitute for, particularized descriptions of the context surrounding each of the individual
redactions and/or documents.” Halpern, 181 F.3d at 294. Here, the Vaughn affidavits
supporting the FBI’s withholdings under exemption one fall short of this standard. The CIA and
FBI’s omission of “fact-specific justification[s]” for the withheld information prevents Cox from
“contest[ing] the affidavit in adversarial fashion” and prevents the Court from “engag[ing] in
effective de novo review.” Halpern, 181 F.3d at 293. Accordingly, the Court denies summary
judgment with respect to the FBI’s exemption one withholdings without prejudice.
Although the Court denies summary judgment with respect to the FBI’s exemption one
withholdings at this time, the Court also declines Cox’s request to engage in in camera review of
Cox-30, or any other documents withheld pursuant to exemption one. Instead, the CIA and FBI
are directed to supplement their Vaughn submissions regarding the FBI’s withholding pursuant
to exemption one of documents responsive to Cox’s FOIA request. See Seife, 298 F. Supp. 3d at
630 (explaining that a “court should first offer the agency the opportunity to demonstrate,
through detailed affidavits and oral testimony, that the withheld information is clearly exempt
and contains no segregable, nonexempt portions.”). The FBI may renew its motion for summary
judgment based on these supplemental Vaughn submissions if it chooses to do so.
C.
Exemption Five Withholdings
FOIA exemption five exempts from disclosure matters that are “inter-agency or intraagency 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). “The exemption incorporates all
normal civil discovery privileges, including the deliberative process privilege, the attorney-client
privilege, and the attorney work product privilege.” Nat’l Day Laborer Org. Network v. U.S.
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Immigration & Customs Enf’t Agency, 811 F. Supp. 2d 713, 734–35 (S.D.N.Y. 2011) (quotation
marks omitted), amended on reconsideration (Aug. 8, 2011).
All of the agencies withheld records pursuant to exemption five. Cox argues that the
Agencies’ declarations fail to provide adequate justification for the records withheld pursuant to
this exemption. (Opp. at 32.) With respect to only the FBI’s exemption five withholdings, the
Court agrees.
1. Exemption Five Withholdings by the FBI
As an example of his objection to the Agencies’ justifications for their exemption five
withholdings, Cox cites the handwritten notes discussed above: Cox-110–122. It appears that
both the FBI and CIA claim that these notes can be withheld pursuant to exemption five based on
the deliberative process privilege, (Hardy Decl. ¶ 49; Shiner Decl. ¶ 11), but, Cox argues, the
FBI makes “no attempt at meaningfully connecting these records” to the standard for such a
withholding and also appears to have failed to segregate and release factual material contained
within the notes. (Opp. at 32.)
The “deliberative process privilege” is a “sub-species of work-product privilege that
covers documents reflecting advisory opinions, recommendations and deliberations comprising
part of a process by which governmental decisions and policies are formulated.” Tigue v. U.S.
Dep’t of Justice, 312 F.3d 70, 76 (2d Cir. 2002) (internal quotation marks and citations omitted).
The purpose of the privilege is to protect candid intra-agency and inter-agency communication
that might be stifled if communications were subject to public disclosure. See Dep’t of Interior
v. Klamath Water Users Protective Ass’n, 532 U.S. 1, 8–9 (2001) (“The deliberative process
privilege rests on the obvious realization that officials will not communicate candidly among
themselves if each remark is a potential item of discovery and front page news, and its object is
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to enhance ‘the quality of agency decisions,’ by protecting open and frank discussion among
those who make them within the Government.” (citations omitted) (quoting N.L.R.B. v. Sears,
Roebuck & Co., 421 U.S. 132, 151 (1975))).
Although it appears that both the CIA and the FBI sought to withhold Cox-110–122
pursuant to the exemption five deliberative process privilege, (Hardy Decl. ¶ 49; Shiner Decl. ¶
11), the Court is left to infer this fact. In describing the basis for the CIA’s withholdings
pursuant to the exemption five deliberative process privilege, Shiner does not identify Cox-110–
122 specifically as a document withheld. (Shiner Decl. ¶¶ 39–40.) Instead, after explaining that
the CIA withheld documents “regarding the deliberations over the eventual public release of
certain information in the Executive Summary of the SSCI Report,” Shiner briefly mentions the
withholding of “two non-email documents . . . related to these deliberations,” one of which she
identifies as Cox-110–122 and describes as “handwritten notes from the review of a draft version
of the Executive Summary.” (Shiner Decl. ¶ 11.)
The FBI’s affidavit adds little to the justification for withholding these notes. The FBI’s
Vaughn affidavit includes a single paragraph to justify its withholdings pursuant to the
exemption five deliberative process privilege followed by a footnote identifying – by the Court’s
count – 63 pages of records withheld in full or in part pursuant to the exemption. (Hardy Decl. ¶
49.) The sum of the FBI’s substantive justification for its withholding of Cox-110–122 pursuant
to exemption five is as follows:
The FBI relied on Exemption 5 and the deliberative process privilege to protect
deliberations between FBI employees concerning information that was in draft
form (working copies of the SSCI report), and handwritten notes and
communications between FBI employees discussing these drafts and discussions,
recommendations, and proposals for how FBI equities should be presented and/or
protected within the final report.
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(Id. ¶ 49.) The FBI does not even provide a basis for the Court to conclude that the “handwritten
notes” referred to in this paragraph are Cox-110–122. The Agencies assure the Court this is the
case in their reply brief, but that link is not established in the FBI’s Vaughn affidavit. (Reply at
30.)
The FBI not only fails to provide a detailed basis for its exemption five withholdings, but
at times wholly fails to justify its decision to withhold documents in full. The Court is obligated
to make specific findings that the Agencies properly segregated and released non-exempt
material. See Color of Change, 325 F. Supp. 3d at 455. In addition to challenging the limited
support for Cox-110–122 and other documents being subject to the deliberative process
privilege, Cox also challenges the decision to withhold Cox-110–122 in full. Cox reasonably
argues that “such ‘handwritten notes’ likely contain ‘factual material’ such as notes on the
content of the [SSCI Report] itself.” (Opp. at 32.) In contrast to this reasonable basis for
doubting that these handwritten notes contain no segregable information, Shiner and Hardy
provide only rote assurances that they have released all segregable material in the documents
withheld. (Shiner Decl. ¶ 40, Hardy Decl. ¶ 70.) The Agencies are entitled to a presumption that
they have adequately disclosed segregable material, but Cox specifically rebuts that presumption
here – and the Agencies present no further basis upon which the Court could conclude they have
released all segregable, non-exempt information withheld pursuant to exemption five. See
Sussman, 494 F.3d at 1117.
In sum, the Court concludes that the FBI has failed to provide Vaughn affidavits of
reasonable specificity to support each record withheld pursuant to exemption five, see Grand
Cent. P’ship, Inc., 166 F.3d at 478, and has failed to present evidence to support a finding that it
has released all segregable, non-exempt information in the records withheld pursuant to
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exemption five, see Hopkins, 929 F.2d at 85. Accordingly, the FBI’s motion for summary
judgment with respect to its exemption five withholdings is denied without prejudice to renewal.
Instead of conducting in camera review, the Court orders the FBI and CIA to supplement
their Vaughn affidavits consistent with this Order. See Seife, 298 F. Supp. 3d at 630 (explaining
that a “court should first offer the agency the opportunity to demonstrate, through detailed
affidavits and oral testimony, that the withheld information is clearly exempt and contains no
segregable, nonexempt portions.”). The problems identified above are not isolated to the FBI
and CIA’s basis for withholding Cox-110–122, or merely to the exemption five withholdings
pursuant to the deliberative process privilege – they are in large part the same problems
identified above with respect to the Vaughn affidavits in support of the FBI’s exemption one
withholdings. Accordingly, the FBI and CIA are directed to supplement their Vaughn
submissions to adequately support the withholding of each record withheld pursuant to
exemption five, and to support the conclusion that they released all reasonably segregable
information in the records withheld.
2. Exemption Five Withholdings by the Remaining Agencies
Cox presents no argument that any particular record withheld by the remaining four
agencies was not properly withheld pursuant to exemption five. Instead, Cox challenges the
documents withheld by the Agencies pursuant to exemption five as attorney-client privileged and
seeks in camera review of a selection of documents because “publicly available facts suggest
that advice from attorneys led to, and attorneys themselves may have been involved in, the
unlawful disposal of records.” (Opp. at 32.)
All of the Agencies except ODNI withheld documents pursuant to exemption five based
on attorney-client privilege. “Courts have construed Exemption 5 as covering materials
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protected by the attorney-client privilege and, in doing so, have assumed that such a privilege
attaches when the attorney is a government lawyer and the client a government entity.” In re
Grand Jury Investigation, 399 F.3d 527, 533 (2d Cir. 2005). Cox argues that because these
documents may not be subject to exemption five if the crime-fraud exception applies, the Court
should review “some responsive records in camera in order for the Court to determine de novo,
as FOIA provides, whether [exemption five] properly applies or whether the smell of smoke
indicates fire.” (Opp. at 32.) Cox argues based on “publicly available facts” that this case may
“present[] a rare situation” where attorney-client communications may not be properly withheld
pursuant to exception five because the communications were made in furtherance a crime or
fraud. (Opp. at 32.)
Cox points to two instances where he asserts that attorney-client privileged
communications may have been in furtherance of a crime or fraud. First, Cox states that he has
reason to believe guidance provided by DOJ attorneys to the CIA in December 2014 may have
included advice to improperly dispose of SSCI Report copies during the pendency of American
Civil Liberties Union v. C.I.A., 105 F. Supp. 3d 35 (D.D.C. 2015), aff’d, 823 F.3d 655 (D.C. Cir.
2016). (Opp. at 33–35.) In support of this claim, he points to, among other documents, emails
from SSCI staff to CIA officials stating that they have reason to believe that DOJ provided
guidance to the CIA Inspector General about disposal of the SSCI Report, (Opp., Ex. S), as well
emails apparently related to the deletion of the SSCI Report, (id., Ex. T), and emails suggesting
that counsel for the CIA Inspector General advised deleting a copy of the SSCI Report, (id., Exs.
U, V).
Second, Cox claims that DOJ may have provided additional guidance in 2017 to the
Agencies that resulted in the Agencies “intentionally alienating” their copies of the SSCI Report
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in response to a demand that copies of the SSCI Report to be returned to the SSCI by Senator
Burr, then Chairman of the SSCI. (Opp. at 35–37, Ex. X.) Cox argues that this decision by the
Agencies to return their copies of the SSCI Report violated their obligations under FOIA and
federal records laws. (Id. at 36–37.) In light of his concerns about DOJ’s guidance, Cox
requests that the Court review a sample of the records withheld by the Agencies pursuant to
exemption five which appear to relate to the DOJ guidance in question. (Opp. at 38–39.) Cox
requests that the Court review particular email chains involving the DOJ, the State Department,
and the CIA that were withheld by the DOD as attorney-client privileged. (Opp. at 38–39;
Herrington Decl. ¶¶ 13–14.) Cox also requests that the Court review documents withheld by the
State Department as attorney-client privileged. (Opp. at 39; Stein Decl., Ex. A (“State
Department Vaughn Index”) at 32–36.)
“It is indisputable that communications made in furtherance of an ongoing crime are not
protected by the attorney-client privilege.” In re John Doe Corp., 675 F.2d 482, 491 (2d Cir.
1982). However, as the Second Circuit has explained,
[T]he crime-fraud exception does not apply simply because privileged
communications would provide an adversary with evidence of a crime or fraud. If
it did, the privilege would be virtually worthless because a client could not freely
give, or an attorney request, evidence that might support a finding of culpability.
Instead, the exception applies only when the court determines that the client
communication or attorney work product in question was itself in furtherance of
the crime or fraud.
In re Richard Roe, Inc., 68 F.3d 38, 40 (2d Cir. 1995). Moreover, as the Agencies note, the law
is unsettled as to whether the crime-fraud exception applies to FOIA exemption five in the first
place.7 (Reply at 30–31.) See, e.g., Sorin v. U.S. Dep’t of Justice, 280 F. Supp. 3d 550, 563 n.5
7
The Supreme Court has previously held that an exception to a privilege rule did not apply when determining
whether documents are subject to FOIA exemption five. See F.T.C. v. Grolier Inc., 462 U.S. 19 (1983). In Grolier,
the Court held that the “substantial need” exception to the work-product doctrine was not applicable in determining
whether documents were properly withheld as work product under exemption five. Id. at 28. The Court reasoned
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(S.D.N.Y. 2017) (“To the extent Sorin’s brief could be construed as suggesting that the
crime/fraud exception should apply, it is unclear whether a court construing FOIA could properly
order disclosure based on the applicability of that exception.”), aff’d sub nom. Sorin v. United
States Dep’t of Justice, 758 F. App’x 28 (2d Cir. 2018).
The Court need not address whether the crime-fraud exception applies to exemption five
because Cox has not met his burden of establishing that review of these documents would reveal
evidence that the communications were made in furtherance of criminal or fraudulent activity.
The Court is conscious of the fact that its review at this stage of the litigation is de novo, and as a
result, Cox should not be obliged to make a substantial showing with respect to the application of
the crime-fraud exception before the Court reviews the Agencies’ documents in camera. At the
same time, Cox is challenging the propriety of the Agencies’ withholdings pursuant to exemption
five, and under the Second Circuit’s “restrained approach,” Cox must make some showing of
“contrary evidence” or that is “suggestive of bad faith” by the Agencies before the Court
that exemption five was meant to apply to “discrete categor[ies]” of documents which are “not ‘routinely’ or
‘normally’ available to parties in litigation,” and that importing an exception to the work-product doctrine would
undercut Congress’s intent to create “‘workable’ rules.” Id. at 27; see also Sears, Roebuck & Co., 421 U.S. at 149
n.16 (“The ability of a private litigant to override a privilege claim set up by the Government, with respect to an
otherwise disclosable document, may itself turn on the extent of the litigant’s need in the context of the facts of his
particular case; or on the nature of the case. However, it is not sensible to construe the Act to require disclosure of
any document which would be disclosed in the hypothetical litigation in which the private party’s claim is the most
compelling. Indeed, the House Report says that Exemption 5 was intended to permit disclosure of those intraagency memoranda which would ‘routinely be disclosed’ in private litigation, and we accept this as the law.”
(citations omitted)). At least one court in this Circuit has expressed the opinion, without so holding, that the crimefraud exception would apply to FOIA exemption five. See Nat’l Immigration Project of Nat. Lawyers Guild v. U.S.
Dep’t of Homeland Sec., No. 11-CV-3235 (JSR), 2014 WL 6850977, at *5 (S.D.N.Y. Dec. 3, 2014) (“Given
Congress’s intent in enacting FOIA to pierce the veil of administrative secrecy and to open agency action to the light
of public scrutiny, it is utterly implausible to suppose that Congress intended FOIA Exemption 5 to shield
government documents when they were created for the purpose of furthering a crime or a fraud.”); but see Raytheon
Aircraft Co. v. U.S. Army Corps of Engineers, 183 F. Supp. 2d 1280, 1292 (D. Kan. 2001) (stating that it “appears
that [the crime-fraud] exception would not apply in the FOIA context because [documents subject to the exception]
would not be ‘normally’ disclosed”).
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conducts in camera review to test that the Agencies properly withheld these documents pursuant
to exemption five.8 See Halpern, 181 F.3d at 292.
Cox fails to make any showing suggesting the existence of a crime or fraud related to
2014 DOJ guidance to the CIA. In his opposition brief, Cox concedes that “[w]hether DOJ
directly advised CIA or Defendants to make such deletions is not clear from the limited
information available.” (Opp. at 34.) Cox provides some evidence – largely based on an
unsubstantiated Yahoo News Report – that the DOJ provided legal guidance of some sort to the
CIA prior to the deletion of the SSCI Report. (See Opp., Exs. S, W.) Yet this is not evidence
that the DOJ’s guidance was related to the CIA’s decision to delete these documents – let alone
evidence that this guidance was “itself in furtherance of [a] crime or fraud.” In re Richard Roe,
Inc., 68 F.3d at 40. Accordingly, Cox has not made a showing of “contrary evidence” or “bad
faith” on the part of the Agencies to support in camera review of these documents. See Halpern,
181 F.3d at 292.
With respect to the DOJ’s 2017 guidance in response to Senator Burr’s request for
records, the Court finds that Cox fails to make a showing sufficient to justify in camera review.
First, Cox cites to no evidence establishing that the Agencies made this decision based on DOJ
guidance – or that DOJ issued guidance in the first place. (See Opp., Ex. X.) But even if Cox
were to establish this fact, he must do more than establish a disagreement about the legality of
agency guidance to justify in camera review. Cox and the DOJ plainly disagree about the
Agencies’ obligations to retain documents under FOIA as well as under federal record-keeping
laws when Congress asks for documents to be returned. (See Reply at 34–35; Sur-Reply at 9–
8
To conclude otherwise would permit a FOIA litigant’s unsupported claim that agency guidance was contrary to
law, or that an agency issued guidance resulting in actions contrary to law, to be sufficient for a Court to conduct in
camera review of attorney-client privileged documents in any FOIA case. Such a policy would run contrary
Congress’s “intent to provide ‘workable’ rules” for the administration of FOIA. Grolier, 462 U.S. at 27.
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11.) But if there in fact is a crime-fraud exception to exemption five, it must mean more than an
entitlement to see legal guidance with which one disagrees. For the Court to review these
documents in camera based on a concern that the crime-fraud exception applies, Cox must make
some initial showing that an agency’s request for guidance, or the guidance provided, was “itself
in furtherance” of the crime or fraud he claims occurred. In re Richard Roe, Inc., 68 F.3d at 40
(emphasis added). Cox makes no such showing here. Accordingly, his request for in camera
review is denied.
Upon review of the Vaughn submissions from the DOJ, DOD, ODNI, and State
Department, the Court finds that the Agencies carry their burden of establishing proper
withholding of documents pursuant to FOIA exemption five, including the release of all
segregable non-exempt information. See 5 U.S.C. § 552(a)(4)(B). The affidavits “demonstrate
that the information withheld logically falls within the claimed exemption,” they “are not
controverted by either contrary evidence in the record nor by evidence of agency bad faith,” and
ultimately, appear “logical or plausible.” Wilner, 592 F.3d at 70. Accordingly, DOJ, DOD,
ODNI, and the State Department are entitled to summary judgment with respect to their
exemption five withholdings.
CONCLUSION
For the reasons set forth herein, the Agencies’ motion to dismiss is denied, and the
Agencies’ motion for summary judgment is granted in part and denied in part. Specifically, DOJ
is granted summary judgment with respect to their withholding of records in response to Cox’s
requests numbered five through eight; DOD is granted summary judgment with respect to their
withholding of records in response to Cox’s requests numbered five through seven; ODNI is
granted summary judgment with respect to their withholding of records in response to Cox’s
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Case 1:17-cv-03329-RRM-RLM Document 53 Filed 11/30/20 Page 59 of 59 PageID #: 1525
requests numbered four and five; and the State Department is granted summary judgment with
respect to their withholding of records in response to Cox’s requests numbered four through six.
The FBI’s motion for summary judgment is denied without prejudice, and it is directed to
supplement its Vaughn submissions in accordance with this Order.
This matter is recommitted to Magistrate Judge Roanne L. Mann for all remaining pretrial matters.
SO ORDERED.
Roslynn R. Mauskopf
Dated: Brooklyn, New York
November 26, 2020
____________________________________
ROSLYNN R. MAUSKOPF
Chief United States District Judge
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