Open Soc'y Justice Initiative v. Cent. Intelligence Agency
| Decision Date | 08 December 2020 |
| Docket Number | 19 Civ. 234 (PAE), 19 Civ. 1329 (PAE) |
| Citation | 505 F.Supp.3d 234 |
| Parties | OPEN SOCIETY JUSTICE INITIATIVE, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
Matthew Forbes, Catherine M. Amirfar, Debevoise & Plimpton, LLP, New York, NY, for Plaintiff.
Natasha Waglow Teleanu, United States Attorney's Office, Sdny, New York, NY, for Defendants.
This case involves Freedom of Information Act ("FOIA") requests by the Open Society Justice Initiative ("OSJI") to a variety of federal agencies seeking information regarding the murder of Jamal Khashoggi, a U.S. resident, Saudi Arabian national, and Washington Post columnist who was not seen again after entering the Saudi consulate in Istanbul on October 2, 2018. See Dkt. 11 ("Compl.") ¶ 9. Pending now are cross-motions for summary judgment by plaintiff OSJI and two defendants—the Central Intelligence Agency ("CIA") and the Office of the Director of National Intelligence ("ODNI")—pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the Court grants each motion in part and denies each in part.
On October 2, 2018, Khashoggi entered the Saudi consulate in Istanbul. Pl. Mem. at 3. He never left alive. On October 19, 2018, the Saudi Government acknowledged that Khashoggi had been killed inside the consulate. Id. at 4.
In public statements, both the President and Vice President of the United States disclosed that federal government officials had participated in an investigation of the murder. On October 23, 2019, Vice President Pence told reporters that CIA Director Gina Haspel had traveled to Turkey to review evidence. Pl. Mem. at 4, 17; Def. Opp'n at 16. In an interview on November 18, 2018, President Trump stated that "we" have possession of a tape of Khashoggi's murder, and that he had "been fully briefed on it." Pl. Mem. at 4–5; Def. Opp'n at 17–20. On November 20, 2018, President Trump publicly stated: "After great independent research, we now know many details of this horrible crime," and that American "intelligence agencies [would] continue to assess all information." Pl. Mem. at 5. And, on November 22, 2018, when asked about the CIA's conclusions regarding the killing, the President responded that the CIA "did not come to a conclusion" as to the Saudi Crown Prince's potential involvement in the killing. Id.
Other U.S. officials later made further public statements regarding the Khashoggi killing and/or U.S. investigations into it. On November 23, 2018, Senator Jack Reed stated that the CIA had concluded that the Crown Prince of Saudi Arabia had been directly involved in Khashoggi's assassination. Id. at 6–7. On November 29, 2018, Defense Secretary James Mattis stated that he had read translations of the tape of Khashoggi's killing and had reviewed intelligence regarding the matter. Id. at 5–6; Def. Opp'n at 17–18. On December 4, 2018, Senator Lindsey Graham stated that the Crown Prince was responsible for Khashoggi's death. Pl. Mem. at 7; Def. Opp'n at 21. And, on January 29, 2019, CIA Director Haspel testified before the Senate Select Committee on Intelligence that "during the fall months, [the CIA] spent a significant amount of time briefing and providing written products on our assessment of what happened to Mr. Jamal Khashoggi." Def. Opp'n at 19.
On December 4, 2018, OSJI filed the FOIA requests at issue. See Compl. ¶ 25. OSJI filed such requests with seven federal agencies, including the CIA and ODNI, requesting in each "all records relating to the killing of U.S. resident Jamal Khashoggi, including but not limited to the CIA's findings on and/or assessment of the circumstances under which he was killed and/or the identities of those responsible." Id.
On January 9, 2019, after no agency had released any responsive records, OSJI filed this lawsuit, against all seven agencies, seeking orders directing compliance with its FOIA requests. See Compl. On March 18, 2019, the defendants answered. Dkt. 24. On April 23, 2019, the Court issued a scheduling order governing the agencies’ document production. Dkt. 30. Relevant here,3 by May 10, 2019, the CIA and ODNI had completed their searches for potentially responsive records. Dkts. 30, 43, 49. Between July 1 and August 7, 2019, the CIA produced 217 responsive documents, all from the agency's press office. Pl. Mem. at 9. By letter, the CIA notified OSJI that other responsive records and any descriptive information about such references were classified and covered by one or more FOIA exemptions. Id. ODNI similarly produced 48 responsive documents between June 28 and August 5, 2019, each from its press office. Id. ODNI sent a similar letter to OSJI stating that any remaining responsive records, and any descriptive information about them, were covered by FOIA exemptions. Id. at 9–10.
On December 9, 2019, the agencies filed a joint motion for summary judgment supported by two publicly filed declarations, see Dkts. 111–13, and two classified declarations filed ex parte and under seal. In their accompanying memorandum of law, the CIA and ODNI acknowledged that the law did not permit them to provide a Glomar response to OSJI's FOIA requests—i.e. , a response stating that the agency could neither confirm nor deny the existence of responsive records—because the U.S. government had "acknowledged that the intelligence community has assessed information concerning Mr. Khashoggi's killing." Def. Mem. at 1–2. Nevertheless, the agencies argued, the responsive records that each withheld, and descriptions of them, were all properly withheld in full pursuant to FOIA Exemptions 1 and 3. Id. at 3. They also argued that portions of these materials were subject to Exemptions 5 and 6. Id. The agencies argued that, because any further detail regarding the remaining responsive records, including the nature and volume of these records, was classified and protected from disclosure by statute, the agencies could provide only a collective "no number, no list" response to the request for these records. Id. at 2.
On January 21, 2020, OSJI filed a cross-motion for summary judgment. It argued that the two agencies’ "no number, no list" response was not permitted under FOIA, in particular, because some of the information the agencies proposed to withhold is already a matter of public record, having been disclosed by U.S. government officials. Pl. Mem. at 2. OSJI asks the Court to order the CIA and ODNI to produce a Vaughn index that enumerates and describes each withheld record, or file a declaration specifying why the information for each record is being withheld. Id. at 3.
On March 10, 2020, the agencies filed a brief in opposition to OSJI's cross-motion and in further support of their own. Def. Opp'n. On March 31, 2020, OSJI filed a reply. Pl. Reply. On October 15, 2020, after a delay prompted by the intervening public health crisis, the Court held argument.
To prevail on a motion for summary judgment, the movant must "show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts "in the light most favorable" to the non-moving party. Holcomb v. Iona Coll. , 521 F.3d 130, 132 (2d Cir. 2008) ; see also Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
If the movant meets its burden, "the nonmoving party must come forward with admissible evidence sufficient to raise a genuine issue of fact for trial in order to avoid summary judgment." Jaramillo v. Weyerhaeuser Co. , 536 F.3d 140, 145 (2d Cir. 2008). "[A] party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment." Hicks v. Baines , 593 F.3d 159, 166 (2d Cir. 2010) (internal quotation marks and citation omitted). Rather, to survive a summary judgment motion, the opposing party must establish a genuine issue of fact by "citing to particular parts of materials in the record." Fed. R. Civ. P. 56(c)(1)(A) ; see also Wright v. Goord , 554 F.3d 255, 266 (2d Cir. 2009). In determining whether there are genuine issues of material fact, the Court is "required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought." Johnson v. Killian , 680 F.3d 234, 236 (2d Cir. 2012) (internal quotation marks omitted) (quoting Terry v. Ashcroft , 336 F.3d 128, 137 (2d Cir. 2003) ).
FOIA governs public access to information held by the federal government. "The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed." John Doe Agency v. John Doe Corp. , 493 U.S. 146, 152, 110 S.Ct. 471, 107 L.Ed.2d 462 (1989) (citation omitted). However, "Congress realized that legitimate governmental and private interests could be harmed by release of certain types of information, and therefore provided the specific exemptions under which disclosure could be refused." Id. (citation omitted). "Recognizing past abuses, Congress sought to reach a workable balance between the right of the public to know and the need of the Government to keep information in confidence to the extent necessary without permitting indiscriminate secrecy." Id. (citation omitted).
"FOIA thus mandates that an agency disclose records on request, unless they fall within one of nine exemptions." Milner v. Dep't of Navy , 562 U.S. 562, 565, 131 S.Ct. 1259, 179 L.Ed.2d 268 (2011). "These exemptions are explicitly made exclusive, and...
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