Int'l Counsel Bureau v. U.S. Cent. Intelligence Agency

• Decision Date: 31 March 2011
• Docket Number: Civil Action No. 09–2269(JDB).
• Citation: 774 F.Supp.2d 262
• Court: U.S. District Court — District of Columbia
• Parties: INTERNATIONAL COUNSEL BUREAU, Plaintiff,v.U.S. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

774 F.Supp.2d 262

INTERNATIONAL COUNSEL BUREAU, Plaintiff,

v.U.S. CENTRAL INTELLIGENCE AGENCY, et al., Defendants.

Civil Action No. 09–2269(JDB).

United States District Court, District of Columbia.

March 31, 2011.

Ronald A. Schechter, Arnold & Porter LLP, Washington, DC, for Plaintiff.Jonathan Eli Zimmerman, Stephen J. Buckingham, U.S. Department of Justice, Washington, DC, for Defendants.

MEMORANDUM AND OPINION

JOHN D. BATES, District Judge.

Plaintiffs International Counsel Bureau and Pillsbury, Winthrop, Shaw, Pittman, LLP (collectively, “ICB”) bring this action against the United States Central Intelligence Agency (“CIA” or “the Agency”) and others, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. 552 et seq., seeking records pertaining to four individuals allegedly detained (or previously detained) at Guantanamo Bay Naval Base, Cuba. Plaintiffs pursue several FOIA requests to the CIA and other agencies seeking (a) records containing references to or reflecting the terms of the U.S. government's policies and practices relating to the transfer or release of detainees held at Guantanamo and (b) records relating to four current and former detainees at Guantanamo: Fawzi Khaled Abdullah Fahad Al Odah, Khalid Abdullah Misha'al Al–Mutairi, Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al Kandari (“detainees”). Now before this Court is the CIA's motion for partial summary judgment and the plaintiffs' cross-motion for summary judgment with respect to ICB's request to the CIA for detainee-specific records. At issue is whether the CIA properly issued a “Glomar” response to ICB's FOIA request for records concerning the detainees, neither confirming nor denying the existence of responsive records.

BACKGROUND

ICB has made a series of FOIA requests to several agencies in this action, as well as a related action before this Court, International Counsel Bureau v. U.S. Dep't of Defense, 08–cv01063 (JDB), seeking records relating to the four aforementioned detainees. However, the Agency's partial summary judgment motion and ICB's cross-motion for summary judgment concern only the propriety of the CIA's “Glomar” response to ICB's requests for information, as set forth in paragraphs 65–66 of the amended complaint.¹ Accordingly, this Memorandum Opinion addresses only the FOIA requests at issue in these motions.

On September 4, 2009, ICB submitted two FOIA requests to the CIA. The first request sought:

Any and all records relating to or reflecting any alleged breaches or violations by the Detainees of any governing rules of discipline and/or behavior during their detention by the United States Government (“USG”). This request includes, but is not limited to, records related to any disciplinary actions taken by personnel in response to such breaches.

Any and all records relating to or reflecting any investigations into alleged abuse or mistreatment of any of the Detainees while under the control of the USG. This request includes, but is not limited to, records related to any disciplinary actions taken against USG personnel for engaging in such abuse or mistreatment.

[a]ny recording, including any image, photograph, picture, film, drawing, painting, video, videotape, tape recording, audiotape, CD, or DVD, depicting or reflecting the image, likeness, voice, audible action, or any other aspect or activity of any [of the four detainees].

Am. Compl. ¶ 65; see also Ex. A to Declaration of Ralph S. DiMaio, Information Review Officer for the National Clandestine Service, CIA (“DiMaio Decl.”).

The CIA responded by letter dated September 23, 2009, indicating that plaintiffs had submitted a previous request for information related to the four individuals, which had already been denied. See Ex. B to DiMaio Decl. ICB subsequently asked that the CIA treat the September 4, 2009 FOIA request as a new request, rather than an appeal. In a reply letter, the CIA agreed but also denied the FOIA request itself, informing plaintiffs that:

[i]n accordance with section 3.6(a) of Executive Order 12958, as amended, the CIA can neither confirm nor deny the existence or nonexistence of records responsive to your request. The fact of the existence or nonexistence of requested records is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949 as amended. Therefore, your request has been denied pursuant to FOIA exemptions b(1) and b(3).

Ex. D to DiMaio Decl. ICB had also submitted another FOIA request seeking “a complete set of medical records and / or psychological records ...” relating to Fouad Mahmoud Al Rabiah and Fayiz Mohammed Ahmed Al Kandari. Ex. G to DiMaio Decl. The CIA denied this request as well, and issued exactly the same response as quoted above. See Ex. H to DiMaio Decl. The CIA now moves for partial summary judgment with respect to the appropriateness of its “Glomar” response to both requests. ICB opposes the CIA's motion, challenging the CIA's invocation of Exemptions (b)(1) and (b)(3) as the basis for its “Glomar” response, and also cross-moves for summary judgment, contending that the CIA's search was inadequate; ICB requests that this Court order the CIA to conduct an adequate search of all its department and staff functions.

STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate “if the pleadings ... and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). Material facts are those that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The party opposing a motion for summary judgment, however, “may not rely merely on allegations or denials in its own pleading; rather, its response must—by affidavits or as otherwise provided in this rule—set out specific facts showing a genuine issue for trial.” Fed.R.Civ.P. 56(e)(2). The nonmoving party must do more than simply “show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Any factual assertions in the movant's affidavits will be accepted as being true unless the opposing party submits his own affidavits or other documentary evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C.Cir.1992).

FOIA requires a federal agency to release all records responsive to a proper request except those protected from disclosure by one or more of nine enumerated exemptions set forth at 5 U.S.C. § 552(b). A district court is authorized “to enjoin [a federal] agency from withholding agency records or to order the production of any agency records improperly withheld from the complainant.” 5 U.S.C. § 552(a)(4)(B); see Kissinger v. Reporters Comm. for Freedom of the Press, 445 U.S. 136, 139, 100 S.Ct. 960, 63 L.Ed.2d 267 (1980). The agency has the burden of proving 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.” Goland v. CIA, 607 F.2d 339, 352 (D.C.Cir.1978) (internal citation and quotation omitted); see also Maydak v. Dep't of Justice, 218 F.3d 760, 764 (D.C.Cir.2000) (the government has the burden of proving each claimed FOIA exemption). The district court may award summary judgment to an agency solely on the basis of information provided in affidavits or declarations that describe “the documents and the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981); see also Vaughn v. Rosen, 484 F.2d 820, 826 (D.C.Cir.1973). Although the court conducts de novo review of an agency's invocation of a FOIA exemption, 5 U.S.C. § 552(a)(4)(B), in the context of national security exemptions, agency declarations should be given “substantial weight.” Campbell v. Dep't of Justice, 164 F.3d 20, 30 (D.C.Cir.1998) (internal citation omitted).

DISCUSSION

I. Propriety of “Glomar” Response

In response to ICB's request for records, the CIA stated that it could neither confirm nor deny the existence or nonexistence of the information sought by ICB, citing Exemptions (b)(1) and (b)(3). Such a response by an agency in a FOIA case is called a “Glomar” response. See Phillippi v. CIA, 546 F.2d 1009 (D.C.Cir.1976). A “Glomar” response applies “in cases where to answer the FOIA inquiry would cause harm cognizable under a[ ] FOIA exception—in other words, in cases in which the existence or nonexistence of a record is a fact exempt from disclosure under a FOIA exception.” Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 70 (2d Cir.2009) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982)). And “[w]hen the Agency's position is that it can neither confirm nor deny the existence of the requested records, there are no relevant documents for the court to examine other than the affidavits which explain the Agency's refusal.” Phillippi, 546 F.2d at 1013. Such agency affidavits may be submitted by an official who coordinated the search, and do not need to be from each individual who participated in the search. See Riquelme v. CIA, 453 F.Supp.2d 103, 107 (D.D.C.2006) (citing SafeCard Servs. v. SEC, 926 F.2d 1197, 1201 (D.C.Cir.1991)). A “Glomar” response “is proper if the fact of the existence or nonexistence of agency records falls within a FOIA exemption.” Wolf v....