Open Soc'y Justice Initiative v. Dep't of Def.

• Decision Date: 22 October 2021
• Docket Number: 20-CV-5096 (JMF)
• Parties: OPEN SOCIETY JUSTICE INITIATIVE, Plaintiff, v. DEPARTMENT OF DEFENSE et al., Defendants.
• Court: U.S. District Court — Southern District of New York

OPEN SOCIETY JUSTICE INITIATIVE, Plaintiff, v. DEPARTMENT OF DEFENSE et al., Defendants.

No. 20-CV-5096 (JMF)

United States District Court, S.D. New York

October 22, 2021

MEMORANDUM OPINION AND ORDER

JESSE M. FURMAN, United States District Judge

In this case, the Open Society Justice Initiative (“OSJI”) seeks records from fourteen federal agencies regarding the Executive Branch's earliest responses to the COVID-19 pandemic. Thirteen of the agencies are in the process of producing responsive records. The fourteenth, the Central Intelligence Agency (“CIA”), has - “pursuant to its customary practice, ” ACLU v. Dep't of Def., 322 F.Supp.3d 464, 468 (S.D.N.Y. 2018) (“ACLU III”) - refused to either confirm or deny the existence of documents responsive to OSJI's requests. In a prior Opinion and Order entered on July 15, 2021 familiarity with which is assumed, the Court upheld the CIA's response - known as a “Glomar response” - as to several of OSJI's requests. See Open Soc'y Just. Initiative v. Dep't of Def., No. 20-CV-5096 (JMF), 2021 WL 3038528, at *6-7 (S.D.N.Y. July 15, 2021) (“OSJI”) (ECF No. 90). The Court reserved judgment as to the rest concluding that the CIA had failed to adequately justify its Glomar response but should be given another opportunity to do so. See Id. at *7. Thereafter, the CIA filed a supplemental memorandum of law, see ECF No. 96, and a sixteen-page supplemental declaration from Vanna Blaine, a CIA Information Review Officer, see ECF No. 97 (“Supp. Blaine Decl.”); OSJI filed a supplemental memorandum of law, see ECF No. 99 (“OSJI Supp. Mem.”); and the CIA filed a supplemental reply, see ECF No. 104 (“Supp Reply”), along with a three-page second supplemental declaration from Officer Blaine, see ECF No. 104-1 (“2d Supp. Blaine Decl.”). Upon review of the parties' supplemental submissions, the Court upholds the CIA's Glomar response pursuant to FOIA Exemptions 1 and 3. Whereas Officer Blaine's initial declaration was “conclusory, vague, and sweeping” in its “assertions about the sensitivities of the CIA's activities and records generally, ” OSJI, 2021 WL 3038528, at *7 (internal quotation marks omitted), her supplemental declaration explains with adequate specificity why compelled responses to each of the remaining requests would reveal information that is both properly classified and protected from disclosure by the National Security Act and thus exempt. See Supp. Blaine Decl. ¶¶ 6-19. More generally, Officer Blaine explains that

[t]aken together, substantive responses confirming or denying the existence of nonexistence of records related to each of [OSJI's] twenty-one specific topics would provide significant insight into the CIA's role, or lack thereof, in the Executive Branch's pandemic response. . . . Were the CIA to issue substantive responses to Plaintiff's request, each confirmation or denial of the existence or nonexistence of records . . . would define the metes and bounds of the CIA's intelligence interests, activities, methods, and capabilities related to the ongoing COVID-19 crisis.

Id. ¶¶ 20-21. Giving Officer Blaine's declaration the “substantial weight” it is due, Osen LLC v. U.S. Cent. Command, 969 F.3d 102, 115 (2d Cir. 2020), the Court finds her explanations “logical and plausible” and, thus, upholds the CIA's Glomar response. ACLU v. U.S. Dep't of Def., 901 F.3d 125, 133-34 & n.9 (2d Cir. 2018) (“ACLU IV”), as amended (Aug. 22, 2018).

Notably OSJI does not really dispute that Officer Blaine's supplemental declaration provides sufficient justification for the CIA's Glomar response as to each of the remaining topics. Indeed, tacitly conceding the adequacy of the CIA's showing, OSJI now emphasizes that its requests “are not solely related to CIA's intelligence interests and operations, ” e.g., OSJI Supp. Mem. 3, and asks the Court to order the CIA “to issue a narrowly tailored Glomar response only for the scope of [OSJI's] topics that is fairly and truly deemed to be calling for the revealing of CIA's intelligence interests and activities or lack thereof and to order disclosure (or a Vaughn index) for any other responsive records, id. at 7-8. That request is denied. First, granting OSJI's request would undermine the principle...