MEMORANDUM OPINION AND ORDER
RANDOLPH D. MOSS, United States District Judge.
In this Freedom of Information Act case, 5 U.S.C. § 552 ("FOIA"), the Plaintiff,
The propriety of that response is at issue here, contested in cross-motions for summary judgment filed by each party. Dkt. 24; Dkt. 26. Plaintiff, the Government Accountability Project ("GAP"), wants the CIA to acknowledge and to disclose the records that it has. The CIA, meanwhile, stands by the non-response response it provided. For the reasons that follow, the Court will
I. BACKGROUND
"In extending abroad, under proper security safeguards, the evolving technology of atomic energy for peaceful purposes, we shall tighten the bonds that tie our friends abroad to us, we shall assure material resources that we need, and we shall maintain world leadership in atomic energy— leadership which today is such a large element of our national prestige." S. Rep. No. 83-1699, at 101 (1954). These were the lofty goals of the Atomic Energy Act of 1954, enacted just shy of nine years after World War II concluded. To meet its ends, the Act governs how the United States may cooperate with other countries on the subject of nuclear material. The Act requires, for example, that nuclear cooperation agreements contain certain terms, like a guarantee by the cooperating party that it will protect any nuclear material the United States provides. 42 U.S.C. § 2153(a)(1). The Act also establishes certain processes that the executive branch must follow before cooperation is permitted —mandating, for instance, the submission of proposed cooperation agreements to Congress for review and approval. Id. § 2153(c). The rationale for these rules was simple: "Almost any cooperation with any foreign country can be said to involve some risk to the common defense and security of the United States. The provisions are designed to permit cooperation where, upon weighing those risks (of proliferation) in the light of the safeguards provided, there is found to be no unreasonable risk to the common defense and security." S. Rep. No. 83-1699, at 22.
At issue here, according to GAP, is the fidelity of certain officials in the Trump Administration to the Atomic Energy Act's safeguards. In April 2015, Retired Lieutenant General Michael Flynn ("Flynn"), while acting as an advisor to a private firm, ACU Strategic Partners ("ACU"), allegedly began developing "the Middle East Marshall Plan"—an ambitious effort to "work with Russia to build nuclear reactors in the Middle East." Dkt. 1 at 5 (Compl. ¶ 18); see also Dkt. 26-2 at 2 (Pl.'s SUMF ¶ 4).
Shortly after Flynn joined the National Security Council ("NSC"), "IP3's co-founder Robert McFarlane emailed documents to Flynn, which included an outline of the Middle East nuclear plan and `a draft memo for the president to sign authorizing the project' and instructing cabinet secretaries to implement it." Id. (Pl.'s SUMF ¶ 8) (quoting Dkt. 1 at 13 (Compl. ¶ 42)). NSC staff raised concerns with Derek Harvey, a retired Army colonel that Flynn had installed on the NSC, "that any plan to transfer nuclear technology must comply with Section 123 of the Atomic Energy Act, which requires consultation with experts at the NSC, Department of State, Department of Defense, and Department of Energy." Id. at 4 (Pl.'s SUMF ¶ 9).
Later that year, after the murder of journalist Jamal Khashoggi, "it was reported that Energy Secretary Rick Perry was `pressing ahead with efforts to strike a deal that would allow U.S. companies such as Westinghouse Electric Co. [to] build ... nuclear reactors in Saudi Arabia,'" id. (Pl.'s SUMF ¶¶ 10-11) (quoting Dkt. 1 at 20 (Compl. ¶ 65)), despite opposition from bipartisan groups in Congress, id. (Pl.'s SUMF ¶ 10). Then, in February 2019, at the behest of IP3's co-founder, Jack Keane, "U.S. nuclear energy developers, including Westinghouse, met with President Trump to seek assistance in winning contracts to build power plants in the Middle East and other countries." Id. (Pl.'s SUMF ¶ 12). According to GAP, the "[d]iscussions included efforts to secure Section 123 Agreements with Saudi Arabia and Jordan that would allow U.S. nuclear power companies to share their technology with those countries and others in the Middle East." Id. (Pl.'s SUMF ¶ 13).
That same month, "the House Committee on Oversight and Reform released its first interim staff report about `efforts inside the White House to rush the transfer of highly sensitive U.S. nuclear technology
Several months later, "[i]n July 2019, the House Oversight Committee, based on a review of more than 60,000 pages of documents obtained since February 2019, released a second interim report, which concluded that `contacts between private and commercial interests and high-level Trump Administration officials were more frequent, wide-ranging, and influential than previously known—and continue to the present day.'" Id. (Pl.'s SUMF ¶ 16) (quoting Second Interim Staff Report, Corporate and Foreign Interests Behind White House Push to Transfer U.S. Nuclear Technology to Saudi Arabia, Comm. on Oversight and Reform U.S. House of Representatives, https://oversight.house.gov/sites/democrats.oversight.house.gov/files/Trump%20Saudi%20Nuclear%20Report%20July%202019.pdf). The report included three references to then-CIA Director Mike Pompeo and recounted two correspondences from IP3 to certain members of the intelligence community. Id. at 5-6 (Pl.'s SUMF ¶ 18). Although the references to Pompeo are opaque, they suggest (at least) that IP3 attempted "to promote [its] plan with high-level stakeholders[,] including ... Pompeo" among others. Id.
On August 29, 2018, GAP submitted a FOIA request to the CIA seeking records "from January 20, 2017 to the present regarding: (1) civil nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia; (2) the Middle East Marshall Plan; (3) negotiation of a U.S.-Saudi `123' Civil Nuclear Cooperation Agreement; (4) the IP3 Corporation and its proposal for nuclear and cyber cooperation with various Middle Eastern countries; and (5) Westinghouse, including its March 2017 bankruptcy and the subsequent policy response of the U.S. Government." Id. at 6 (Pl.'s SUMF ¶ 19); see also Dkt. 1 at 28 (Compl. ¶ 85); Dkt. 24-2 at 1 (Def.'s SUMF ¶ 1). "To help focus the CIA's search for responsive records, GAP provided [the CIA] four categories of additional information," Dkt. 26-2 at 6 (Pl.'s SUMF ¶ 20); "identified 18 White House staff likely to have been referenced in the requested documents and communications," id. at 7 (Pl.'s SUMF ¶ 21); "identified [six] individuals at the IP3 Corporation for which the CIA would have correspondence," id. (Pl.'s SUMF ¶ 22); and "identified [groups of] individuals at the CIA ... most likely to have responsive information in their emails, archived documents, or other stored files," id. (Pl.'s SUMF ¶ 23); see also Dkt. 24-2 at 1 (Def.'s SUMF ¶ 1).
On December 4, 2018, "the CIA requested further clarity from [GAP] with respect to the first category of information [] requested in order to allow the CIA to conduct a reasonable search." Dkt. 24-2 at 2 (Def.'s SUMF ¶ 3); see also Dkt. 26-2 at 8 (Pl.'s SUMF ¶ 24). "GAP responded by letter dated January 8, 2019, clarifying that its request for records regarding civil nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia,
Six weeks later, and "[b]efore the CIA provided a substantive response to [GAP's] FOIA request," Dkt. 24-2 at 2 (Def.'s SUMF ¶ 5), GAP brought this FOIA action. While the litigation was ongoing, "the CIA completed its review of [GAP's] FOIA request and determined that, in accordance with section 3.6(a) of Executive Order 13,526, it could neither confirm nor deny the existence or nonexistence of records responsive to [GAP's] FOIA request." Dkt. 24-2 at 2-3 (Def.'s SUMF ¶ 5).
The instant cross-motions for summary judgment followed. Dkt. 24; Dkt. 26; Dkt. 46; Dkt. 48. Meanwhile, the Departments of Commerce, Treasury, Defense, and Energy have embarked on the task of processing and releasing non-exempt, responsive records. That process is underway but is far from complete at this time.
II. LEGAL STANDARD
Congress enacted FOIA "to pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny." Bartko v. Dep't of Just., 898 F.3d 51, 61 (D.C. Cir. 2018) (internal quotation marks omitted). The Act is premised on the notion that "an informed citizenry [is] vital to the functioning of a democratic society ... [and] needed to check against corruption and to hold the governors accountable to the governed." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242, 98 S.Ct. 2311, 57 L.Ed.2d 159 (1978). FOIA thus "protects the basic right of the public `to be informed about what their government is up to,'" Hall & Assocs. v. EPA, 956 F.3d 621, 624 (D.C. Cir. 2020) (quoting Competitive Enter. Inst. v. Off. of Sci. & Tech. Pol'y, 827 F.3d 145, 150 (D.C. Cir. 2016)), and embraces "`a general philosophy of full agency disclosure,'" U.S. Dep't of Def. v. FLRA, 510 U.S. 487, 494, 114 S.Ct. 1006, 127 L.Ed.2d 325 (1994) (citation omitted).
"FOIA does not pursue transparency at all costs," however. Hall, 956 F.3d at 624. Instead, Congress recognized that "legitimate governmental and private interests could be harmed by release of certain types of information." AquAlliance v. U.S. Bureau of Reclamation, 856 F.3d 101,
Under limited circumstances, an agency "may refuse to confirm or deny the existence of records" in response to a FOIA request. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). "Such an agency response is known as a Glomar response," id., and presents "an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request," Roth v. U.S. Dep't of Just., 642 F.3d 1161, 1178 (D.C. Cir. 2011).
To meet that burden, an agency must submit "relatively detailed and non-conclusory" affidavits or declarations explaining why its Glomar response was merited. SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quotation marks and citation omitted); see also Phillippi, 546 F.2d at 1013. The Court is obligated to review an agency's affidavits or declarations de novo, 5 U.S.C. § 552(a)(4)(B), but, as the D.C. Circuit has cautioned, "de novo review in FOIA cases is not everywhere alike," Ass'n of Retired R.R. Workers, Inc. v. U.S. R.R. Ret. Bd., 830 F.2d 331, 336 (D.C. Cir. 1987). That is especially so in the face "of national security concerns," where "courts must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record." Wolf, 473 F.3d at 374 (citations and internal quotation marks omitted); see also Mil. Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981); Ray v. Turner, 587 F.2d 1187, 1194 (D.C. Cir. 1978) ("[T]he executive ha[s] unique insights into what adverse [e]ffects might occur as a result of public disclosure of a particular classified record." (internal quotation marks omitted)); Ctr. for Nat. Sec. Stud. v. U.S. Dep't of Just., 331 F.3d 918, 927 (D.C. Cir. 2003) ("[B]oth the Supreme Court and this Court have expressly recognized the propriety of deference to the executive in the context of FOIA claims which implicate national security.").
III. ANALYSIS
The CIA argues that its Glomar response was proper because acknowledgment that the records do or do not exist would cause cognizable harm under FOIA Exemptions 1 and 3. Dkt. 24-1 at 1. In support of that argument, the CIA has submitted the declaration of Antoinette B. Shiner, the Information Review Officer ("IRO") for the Litigation Information Review Office at the CIA. Dkt. 24-3 at 1 (Shiner Decl.). Before addressing the sufficiency of Shiner's declaration, a brief overview of the relevant Exemptions is in order.
A. Asserted FOIA Exemptions
1. Exemption 1
FOIA Exemption 1 permits an agency to withhold "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 [that] are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1); see also Salisbury v. United States, 690 F.2d 966, 971-72 (D.C. Cir. 1982). Here, the applicable order is Executive Order 13526, which authorizes the classification of information pertaining to any of the following topics, so long as "unauthorized disclosure" of such information "could reasonably be expected to cause identifiable or describable damage to the national security":
Exec. Order 13526 § 1.4; see also id. § 1.2; Dkt. 24-3 at 10 (Shiner Decl. ¶ 19).
2. Exemption 3
FOIA Exemption 3 permits an agency to withhold information "specifically exempted from disclosure by statute," if such statute either "requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue" or "establishes particular criteria for withholding or refers to particular types of matters to be withheld." 5 U.S.C. § 552(b)(3). "Exemption 3 differs from other FOIA exemptions in that its applicability depends less on the detailed factual contents of specific documents; the sole issue for decision is the existence of a relevant statute and the inclusion of withheld material within the statute's coverage." DiBacco v. U.S. Army, 795 F.3d 178, 197 (D.C. Cir. 2015) (quoting Morley v. CIA, 508 F.3d 1108, 1126 (D.C. Cir. 2007)).
Here, the Department invokes the National Security Act of 1947, § 102A(i), as amended by the Intelligence Reform and Terrorism Prevention Act of 2004, 50 U.S.C. § 3024(i)(1) (collectively, the "National Security Act"). See Dkt. 24-3 at 16-17 (Shiner Decl. ¶¶ 28-29). The National Security Act requires the Director of National Intelligence ("DNI") to protect "intelligence sources and methods from unauthorized disclosure," 50 U.S.C. § 3024(i)(1), and authorizes the DNI to promulgate guidelines for the intelligence community regarding "[a]ccess to and dissemination of intelligence, both in final form and in the form when initially gathered," id. § 3024(i)(2)(B). Consistent with his duties and powers, the DNI has promulgated Intelligence Community Directive 700, which directs elements of the intelligence community to "[p]rotect[] national intelligence and intelligence sources, methods, and activities from unauthorized disclosure[.]" Intelligence Community Directive (ICD)700, at 3 (June 7, 2012), available at https://www.dni.gov/files/documents/ICD/ICD_700.pdf.
That directive binds the CIA and, according to the agency, further justifies its Glomar response here. Dkt. 24-3 at 16-17 (Shiner Decl. ¶¶ 28-29); see also DiBacco, 795 F.3d at 197-200 (explaining that, under the National Security Act, the DNI has "authority to assign responsibility to intelligence agency heads to protect intelligence sources and methods"); Exec. Order 12333, 46 Fed. Reg. 59,941 (Dec. 4, 1981), amended by Exec. Order 13470, § 1.6(d), 73 Fed. Reg. 45,325, 45,332 (July 30, 2008) ("The heads of elements of the Intelligence Community shall ... Protect intelligence and intelligence sources, methods, and activities from unauthorized disclosure in accordance with guidance from the [DNI]."). For its part, GAP does not dispute that the National Security Act falls
B. The Glomar Response
In assessing the propriety of the CIA's Glomar response, the Court begins with the agency's first claimed exemption —Exemption 1. To justify its invocation of that exemption, the CIA must explain (1) how the subject matter of GAP's FOIA request pertains to a type of information enumerated in Executive Order 13526, and (2) whether "unauthorized disclosure" of information pertaining to that topic "could reasonably be expected to cause identifiable or describable damage to the national security." Exec. Order 13526 § 1.4. "[A]n agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible." Wolf, 473 F.3d at 374-75 (citations and internal quotation marks omitted). As explained below, the CIA has, with one exception, carried this burden.
1. Executive Order 13526
To start, the subject matter of GAP's request falls within the coverage of Executive Order 13526. GAP's FOIA request, recall, sought records related to the following five topics: (1) civil nuclear cooperation with Middle Eastern countries, most notably Saudi Arabia; (2) the Middle East Marshall Plan; (3) negotiation of a U.S.-Saudi `123' Civil Nuclear Cooperation Agreement; (4) the IP3 Corporation and its proposal for nuclear and cyber cooperation with various Middle Eastern countries; and (5) Westinghouse, including its March 2017 bankruptcy and the subsequent policy response of the U.S. Government." Dkt. 26-2 at 6 (Pl.'s SUMF ¶ 19); see also Dkt. 1 at 28 (Compl. ¶ 85); Dkt. 24-2 at 1 (Def.'s SUMF ¶ 1). Each of these topics, as GAP itself admits, pertains directly to the interest of the United States in the provision of nuclear technologies to countries in the Middle East. GAP explains its requests as follows:
Section 1.4 of Executive Order 13526, however, prevents the unauthorized disclosure of precisely the types of information that GAP requests. That portion of the Executive Order twice affirms that classification of information pertaining to foreign relations is proper; see Exec. Order 13526 § 1.4(b) ("foreign government information"); (d) ("foreign relations or foreign activities of the United States"), and it curtails, in three separate subsections, disclosure of information related to the U.S. government's interests in nuclear material, see id. § 1.4(e) ("scientific, technological, or economic matters relating to the national security"); (f) ("United States Government programs for safeguarding nuclear materials or facilities"); (h) ("the development, production, or use of weapons of mass destruction"). It is hard to square these classification categories with GAP's FOIA request, which on its face seeks records related to efforts of the Trump administration to provide, or to aid and assist in the provision of, nuclear technology to foreign countries. The disclosure of information of this type—or the absence of any such information —is precisely what subsections (b), (d), (e), (f), and (h) of Executive Order 13526 safeguards against.
2. National Security
The remaining question, then, is whether "unauthorized disclosure" of the information sought—or, more to the point, unauthorized disclosure of whether the CIA has the records that GAP seeks— "could reasonably be expected to cause identifiable or describable damage to the national security." Exec. Order 13526 § 1.4. In making that assessment, the Court is mindful that "an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible," Wolf, 473 F.3d at 374-75 (citations and internal quotation marks omitted), and that it is not the Court's role to second-guess the reasonable judgment of executive branch officials when national security interests are plausibly at stake, see Mil. Audit Project, 656 F.2d at 738; Turner, 587 F.2d at 1194; Ctr. for Nat. Sec. Stud., 331 F.3d at 927; Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999); Ullah v. CIA, 435 F.Supp.3d 177, 184 (D.D.C. 2020) ("[T]his Circuit's FOIA caselaw cautions strongly against second-guessing the Government's
The Shiner declaration explains that a non-Glomar response in this case would give rise to a cognizable threat to national security in three ways. First, and most directly, it would provide U.S. adversaries "insight into the scope and nature of CIA's intelligence activities and interests." Dkt. 24-3 at 13 (Shiner Decl. ¶ 23). Shiner avers:
Id. at 12-13 (Shiner Decl. ¶ 23). Second, Shiner explains that acknowledgment vel non of the requested records would impinge on the CIA's ability "to operate as an effective clandestine intelligence agency." Id. at 13 (Shiner Decl. ¶ 24). She attests:
Id. at 14-15 (Shiner Decl. ¶¶ 24-25). Finally, Shiner explains that, in light of the CIA's clandestine nature and given that a non-Glomar response would elucidate the agency's intelligence interests, public revelation of the information GAP seeks would enable foreign organizations to counter the CIA's efforts and to threaten the United States. That is:
Id. at 11-12 (Shiner Decl. ¶ 22).
Based on the Shiner declaration, it is not particularly challenging to see how disclosure of whether the CIA possesses records responsive to GAP's FOIA request "could reasonably be expected to cause identifiable
3. Counterarguments
GAP lodges several counterarguments in response to the CIA's reliance on Exemption 1. See Dkt. 26-1. With one, limited exception, none persuade.
First, GAP contends that "[f]ar from seeking `intelligence information,' [it] seeks information about the extent to which private interests corrupted the process the United States is statutorily required to use in reaching civil nuclear agreements." Id. at 16. But even accepting that construction of GAP's request, whether the CIA retains records about "civil nuclear agreements" between the United States and the three countries in the Middle East that GAP identified—Egypt, Jordan, and Saudi Arabia, Dkt. 26-2 at 8 (Pl.'s SUMF ¶ 25)— would itself reveal the presence or absence of a particular CIA intelligence interest that is protected from disclosure by Executive Order 13526. The question is not, then, whether GAP seeks intelligence information —it is whether a non-Glomar response would reveal it. And, for the reasons explained above, it would.
Second, GAP argues that the CIA's assertions of national-security risk "are overblown at best." Dkt. 26-1 at 17. The
GAP's next argument is more substantial: it contends that the CIA's Glomar response is overly broad and insufficiently detailed under the D.C. Circuit's decision in ACLU v. CIA, 710 F.3d 422, 425 (D.C. Cir. 2013). Dkt. 26-1 at 18-19. In that case, plaintiffs filed a FOIA request with the CIA seeking records pertaining to the use of drones to carry out targeted killings. ACLU, 710 F.3d at 425. In response, the CIA invoked Glomar, arguing "that it was necessary to keep secret whether the CIA itself was involved in, or interested in, such strikes." Id. at 428. Up to this point, the D.C. agreed, noting that "[t]here is no doubt [that] ... disclosure would reveal whether the Agency `at least has an intelligence interest in drone strikes.'" Id. at 428-29. But, the D.C. Circuit was unpersuaded that it was either "logical or plausible[] for the CIA to contend that" revealing whether it had "an intelligence interest in such strikes" would jeopardize national security, "[g]iven the extent of the official statements on the subject." Id. at 429. In other words, the D.C. Circuit recognized that revelation of the CIA's intelligence interests was a basis upon which a Glomar response could be invoked, but only if that intelligence interest was not something "already officially acknowledged." Id.
GAP misreads ACLU to stand for a different proposition altogether—namely, that the CIA may not invoke Glomar when the acknowledgement vel non of records would reveal the "intelligence role" of another agency instead of the CIA's. In support of that reading, GAP points to the following passage in ACLU:
Id. at 428. From this passage, GAP draws the following syllogism: the CIA in ACLU
The difficulty with this approach is that it misunderstands what ACLU was actually about. The decision did not concern whether a Glomar response by one agency was improper merely because it might shield records that disclosed the activities of other agencies. Instead, the D.C. Circuit assumed that a Glomar response could be proper on that basis and then addressed "[t]he question ... whether it is `logical or plausible[]' for the CIA to contend that it would reveal something not already officially acknowledged to say that the Agency `at least has an intelligence interest' in such strikes." Id. at 429.
Properly understood, ACLU's only aid to GAP can come in the form of the official acknowledgement doctrine. But GAP makes no effort to explain how that doctrine applies here. And to the extent GAP's isolated reliance on the House Oversight Reports can be construed as making such a claim, see, e.g., Dkt. 26-1 at 10-12, 17-18, that claim would fail. "To find official acknowledgment, ... three prerequisites must be met: `the information requested must be as specific as the information previously released,' `match the information previously disclosed,' and `already have been made public through an official and documented disclosure.'" Leopold v. CIA, 987 F.3d 163, 170 (D.C. Cir. 2021) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). "In the Glomar context, then, if the prior disclosure establishes the existence (or not) of records responsive to the [information] request, the prior disclosure necessarily matches both the information at issue ... and the specific request for that information." Id. (quoting Wolf, 473 F.3d at 379). "This test is `strict,'" id. (quoting Moore, 666 F.3d at 1333), and "[t]he initial burden rests with the requester, who must `point[] to specific information in the public domain that appears to duplicate that being withheld," id. (quoting ACLU, 710 F.3d at 427).
GAP points to only three statements contained in the House Oversight Reports that, in its view, show a connection between the CIA and the records sought: (1) "[a] March 14, 2017 [meeting] between President Trump, Kushner, and Saudi Deputy Crown Prince Mohammed Bin Salman, [where] officials from IP3 continued to promote their plan with high-level stakeholders—including ... CIA Director Mike Pompeo," Dkt. 26-2 at 5 (Pl.'s SUMF ¶ 18) (quotation marks omitted); (2) "[a]n April 23, 2017 email from IP3 CEO Hewitt to an employee of Barrack's company, Colony NorthStar, [that] included a two[-]pager summary that has been used by many of the Cabinet Secretaries, Pompeo, others," id. at 6 (Pl.'s SUMF ¶ 18) (emphasis and quotation marks omitted); and (3) "[a]n August 4, 2017 email from Hewitt to a Defense Department official attaching a presentation IP3 gave Kushner in August about IP3's plan[, which] notes [that] [o]ther Cabinet officials briefed [included] Rick Perry, Wilbur Ross and Mike Pompeo," id. (emphasis and quotation marks omitted).
This is a far cry from "official acknowledgment." In ACLU, the CIA's Glomar response was defeated on the basis of detailed public statements from the President, the President's counterterrorism advisor, and the Director of the CIA. Here, by contrast, there exists only a congressional report recounting a private businessman's two emails and a reference to
Beyond this difficulty, the D.C. Circuit has cautioned courts "not [to] deem `official' a disclosure made by someone other than the agency from which the information is being sought." Frugone, 169 F.3d at 774; see also Fitzgibbon, 911 F.2d at 765-766 (CIA could refuse to disclose classified information even if allegedly referenced in congressional committee report); Afshar v. Dep't of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983) (same, regarding information allegedly reported in book by former CIA official); Phillippi v. CIA, 655 F.2d 1325, 1330-31 (D.C. Cir. 1981) (same, regarding information allegedly reported in book by former Director of Central Intelligence); Salisbury, 690 F.2d at 971 ("[B]are discussions by this court and the Congress of [the National Security Agency's] methods generally cannot be equated with disclosure by the agency itself of its methods of information gathering."). GAP has adduced no evidence that the CIA itself—or any other executive agency or department for that matter—has ever acknowledged vel non the records that GAP now seeks. That, too, vitiates GAP's reliance on the official acknowledgement doctrine.
Finally, GAP argues that the records it seeks shed light on "embarrassing or possibly illegal conduct" and thus fall outside Executive Order 13526's coverage. Dkt. 26-1 at 19-21; see also Exec. Order 13526 § 1.7(a) ("In no case shall information be classified, continue to be maintained as classified, or fail to be declassified in order to: (1) conceal violations of law, inefficiency, or administrative error; (2) prevent embarrassment to a person, organization, or agency...."). "A plaintiff alleging that an agency has classified information to conceal a violation of law `must provide something more than conjecture to show that the agency's withholding decision violates Executive Order 13,526.'" Smith v. U.S. Nat'l Archives & Recs. Admin., 415 F.Supp.3d 85, 97 (D.D.C. 2019) (quoting Associated Press v. FBI, 265 F.Supp.3d 82, 96-97 (D.D.C. 2017)). Instead, the Court must find "credible evidence that the agency's motives for its withholding decisions were improper." Canning v. U.S. Dep't of Just., 848 F.Supp. 1037, 1047 (D.D.C. 1994); see also Smith, 415 F. Supp. 3d at 97.
That evidence is missing here. The Shiner declaration avers that the CIA's "determination that the existence or nonexistence of the requested records is classified and has not been made to conceal violations of law, inefficiency, or administrative error; to prevent embarrassment to a person, organization, or agency; to restrain competition; or to prevent or delay the release of information that does not require protection in the interests of national security." Dkt. 24-3 at 11 n.2 (Shiner Decl. ¶ 21). The Court has no reason to doubt that averment at this juncture, conclusory as it may be. Cf. SafeCard Servs., 926 F.2d at 1200 ("Agency affidavits are accorded a presumption of good faith...."). Indeed, even accepting GAP's telling of the pertinent events, GAP has provided no evidence that the CIA's Glomar response was
This conclusion could change, of course, if the records that are eventually released by the other defendants in this case (or any other evidence) call the CIA's motives into question. For now, however, that prospect is entirely speculative; but if GAP can eventually prove that it is right, it may renew its motion for summary judgment. On the present record, and in light of the plausible national security justifications proffered in favor of the CIA's Glomar response, the Court concludes that GAP has not satisfied its burden under § 1.7.
4. Exception
There is one category of records that neither party has addressed in detail and that might not, necessarily, reveal the CIA's intelligence interests (or non-interests): unsolicited communications from third parties that, for whatever reason, are responsive to GAP's FOIA request. One can imagine, for instance, that a lobbyist or business might send the Director of the CIA a briefing paper that is also sent to dozens of other executive branch officials, which the CIA merely receives and sticks in a file. The Director's purely passive receipt of a copy of that hypothetical paper would, in all likelihood, say nothing about the CIA's interests or activities; the submission might say something about the sender's interests and activities, but that is beside the point.
It is hard to see how revealing whether such unsolicited records exist would expose the agency's intelligence interests, methods, or sources in a manner that could imperil national security. At least in passing, the CIA suggests otherwise, asserting that "the majority of CIA relationships with outside entities are, in fact, classified." Dkt. 46 at 8. But that statement is unsupported by any citation to the record (and the factual record does not support the assertion in any event). Nor is the logic or plausibility of the CIA's position self-evident. The Court can, of course, imagine circumstances in which an unsolicited communication might reveal a classified or secret relationship, just as the Court can imagine unsolicited communications that would reveal nothing about the CIA's interests, methods, or sources. Reliance on the Court's imagination, however, is not how this works. The CIA carries the burden, 5 U.S.C. § 552(a)(4)(B), and it must offer a reasoned explanation in a declaration or affidavit that supports its position, SafeCard, 926 F.2d at 1200. Here, the CIA has done neither—it has offered no reason nor any evidence to support its suggestion that the identity of virtually any private party that might contact the Agency about a matter of policy is classified.
Accordingly, as to such unsolicited communications, if any, the Court must deny the CIA's motion for summary judgment. But because GAP only alludes to this argument, and because neither party has developed the issue, the Court is not prepared —at least on the present record—to grant summary judgment in GAP's favor on this issue. For present purposes, the Court will merely reserve judgment on the question and will permit both parties to renew their respective motions as appropriate.
CONCLUSION
For the foregoing reasons, it is hereby
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