Ullah v. Central Intelligence Agency

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

OBAID ULLAH, et al.,

Plaintiffs,
v. Civil Action No. 18-2785 (JEB)
CENTRAL INTELLIGENCE AGENCY,

Defendant.

MEMORANDUM OPINION

This case, like many brought under the Freedom of Information Act, triggers a clash

between personal and public concerns, between a family’s interest in mourning one of its own

and the Government’s interest in protecting sensitive national-security information. In 2002,

Afghan citizen Gul Rahman died in an overseas detention center at the hands of the Central

Intelligence Agency. Almost two decades later, the whereabouts of his corpse remains unknown.

Plaintiffs Obaid Ullah –– the representative of Rahman’s estate –– and the American Civil

Liberties Union now seek this Court’s enforcement of their FOIA request for information about

what happened after his death.

Although the Government has produced a fair number of documents detailing its

treatment of Rahman, it has withheld others, relying heavily on FOIA exemptions that protect

classified information from disclosure. While mindful that “[f]amily members have a personal

stake in honoring and mourning their dead,” Nat’l Archives & Records Admin. v. Favish, 541

U.S. 157, 168 (2004), the Court finds that the Government has carried its burden of

demonstrating the propriety of the relevant exemptions. It will therefore grant Defendant’s

Motion for Summary Judgment.

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I. Background

A. Factual Background

As noted above, this FOIA case arises out of Rahman’s death in 2002. When Rahman,

who was allegedly residing in a Refugee Camp in Peshawar, Pakistan, traveled to Islamabad for

a medical appointment, the CIA took custody of him and transported him to a facility in an

unknown location. See ECF No. 1 (Complaint), ¶ 2. According to Plaintiffs, the CIA then

“forcibly disappeared Mr. Rahman and tortured him to death.” Id., ¶ 1.

The Agency has confirmed that Rahman died in its custody, releasing various reports that

provide detailed information about his detention, treatment, and death. These materials,

comprising hundreds of pages (albeit in redacted form), memorialize that Rahman died of

hypothermia after being short-chained to a concrete floor in near-freezing temperatures. See

Office of CIA Inspector General, Report of Investigation: Death of Detainee (April 27, 2005) at

3; Memorandum from John Brennan, CIA Director, to Sens. Feinstein & Chambliss, CIA

Comments on the Senate Select Committee on Intelligence Report on the Rendition, Detention,

and Interrogation Program 4, 9 (June 27, 2013). As of this date, the CIA has not officially

informed Rahman’s family of his death or returned his body to them. See Compl., ¶ 7.

B. Procedural History

Seeking primarily to discover the location of Rahman’s remains, Plaintiffs filed a FOIA

request on April 18, 2018, for records concerning:

(1) The United States’ (or its agents’) disposition of Mr. Rahman’s body
after his death in CIA custody in November 2002;

(2) Any and all documents referencing the location of Mr. Rahman’s
body; and

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 (3) Procedures, protocols, or guidelines to be followed in the event of a
CIA detainee’s death while in United States’ custody, including
family notification, investigation and disposition of the body.

ECF No. 17-3 (Declaration of Antoinette B. Shiner), ¶ 6. After the CIA failed to

immediately respond, Plaintiffs brought this suit in November 2018. See ECF No. 18 (Pl.

Opp.) at 2.

On May 31, 2019, the CIA identified 38 responsive documents, producing 9 of those

documents in part while withholding the remaining 29 in full. See ECF No. 17-2 (Def.

Statement of Facts), ¶ 4. (The CIA later determined that three of the documents withheld in full

were not responsive. Id.) Defendant justified its withholdings by invoking FOIA Exemptions 1

(information classified to protect national security), 3 (information the disclosure of which is

prohibited by another federal law), 5 (privileged communications), 6 (information that invades

another individual’s personal privacy), and 7(C) and (D) (information that was compiled for law-

enforcement purposes and threatens to disclose personal information or the identity of a

confidential source). See 5 U.S.C. § 552(b). The CIA acknowledges that the produced

documents in their current redacted forms do not reveal the disposition or location of Rahman’s

body or any official policy the Agency has adopted with regard to the disposal of bodies.

Frustrated in their pursuit of this specific information, Plaintiffs then informed Defendant of their

intent to challenge the asserted withholdings. See ECF No. 15 (Joint Status Report of June 14,

2019) at 1.

The CIA countered with a Motion for Summary Judgment, contending that the agency

had fulfilled its search obligations under FOIA and that any withholdings were justified by the

above-mentioned exemptions. Plaintiffs opposed that Motion, challenging the CIA’s

withholdings and its assertion that none of the redacted information was segregable. The Court

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refrained from immediately deciding the Motion, instead ordering the Government to produce

the contested documents for in camera review. It has since reviewed the redactions along with

Defendant’s various justifications. Armed with the parties’ submissions and aided by its own

independent analysis of the documents, the Court is ready to rule.

II. Legal Standard

Summary judgment may be granted “if the movant shows 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). A genuine issue of material fact is one that would change the outcome of the litigation.

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (“Only disputes over facts that

might affect the outcome of the suit under the governing law will properly preclude the entry of

summary judgment.”). In the event of conflicting evidence on a material issue, the Court is to

construe that evidence in the light most favorable to the non-moving party. See Sample v.

Bureau of Prisons, 466 F.3d 1086, 1087 (D.C. Cir. 2006).

“FOIA cases typically and appropriately are decided on motions for summary judgment.”

Defs. of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d 83, 87 (D.D.C. 2009); Brayton v. Office

of the U.S. Trade Rep., 641 F.3d 521, 527 (D.C. Cir. 2011) (same). In these cases, the agency

bears the ultimate burden of proof to demonstrate the adequacy of its search and that it properly

withheld any records. See Defs. of Wildlife, 623 F. Supp. 2d at 88, 91; see also Morley v. CIA,

508 F.3d 1108, 1114 (D.C. Cir. 2007) (same). The Court may grant summary judgment based

solely on information provided in an agency’s affidavits or declarations when they “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.”

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Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir. 1981). Such affidavits or

declarations are “accorded a presumption of good faith, which cannot be rebutted by ‘purely

speculative claims about the existence and discoverability of other documents.’” SafeCard

Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc.

v. CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. Analysis

Congress enacted FOIA “to pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.” U.S. Dep’t of Air Force v. Rose, 425 U.S. 352, 361 (1976)

(internal quotation marks omitted). The Act promotes these aims by providing 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). Nine categories of information are exempt from FOIA’s

broad disclosure mandate, see 5 U.S.C. § 552(b), but the agency bears the burden of justifying

any withholdings. See Defs. of Wildlife, 623 F. Supp. 2d at 88. “While those exemptions must

be narrowly construed, they still must be given meaningful reach and application.” DiBacco v.

U.S. Dep’t of Army, 795 F.3d 178, 183 (D.C. Cir. 2015) (internal quotation marks and citations

omitted). The Act thereby establishes 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.” John Doe Agency v. John Doe Corp., 493 U.S. 146,

152 (1989) (quotation marks omitted).

In assessing whether the Government has carried its burden of establishing that a given

exemption applies, the Court is guided by a veritable avalanche of FOIA-related precedent. It is

well established that “[t]o show that unproduced documents are exempt from FOIA, an agency

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may file ‘affidavits describing the material withheld and the manner in which it falls within the

exemption claimed.’” Bin Ali Jaber v. U.S. Dep’t of Def., 293 F. Supp. 3d 218, 224 (D.D.C.

2018) (quoting King v. DOJ, 830 F.2d 210, 217 (D.C. Cir. 1987)). Ultimately, “when an agency

seeks to withhold information, it must provide a relatively detailed justification, specifically

identifying the reasons why a particular exemption is relevant.” Morley, 508 F.3d at 1122

(quoting King, 830 F.2d at 219). Agencies often fulfill this obligation by filing “a so-called

‘Vaughn Index,’” which catalogs each withholding and provides the relevant justification. See

Defs. of Wildlife, 623 F. Supp. 2d at 88. “[A]n agency’s justification for invoking a FOIA

exemption is sufficient if it appears ‘logical’ or ‘plausible.’” Larson v. U.S. Dep’t of State, 565

F.3d 857, 862 (D.C. Cir. 2009) (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007)).

As an initial matter, the Court pauses to note the narrow range of the existing dispute

between the parties. Plaintiffs do not contest the adequacy of the CIA’s search itself or its

withholdings under FOIA Exemptions 6, 7(C), and 7(D). See Pl. Opp. at 3 n.1. While they

ostensibly challenge the Agency’s withholdings under Exemptions 1, 3, and 5, the CIA has not

justified any withholdings exclusively under Exemption 5. Instead, all documents and portions

of documents for which the Agency has claimed Exemption 5 are also covered by Exemptions 1

or 3 (and generally both).

This overlap among the claimed exemptions makes the Court’s role substantially less

complicated. Because “the Government may withhold documents or portions thereof as long as

[one] privilege applies,” Cause of Action Inst. v. DOJ, 330 F. Supp. 3d 336, 351–52 (D.D.C.

2018), the Court “need not address the other exemptions invoked” for any particular withholding

justified by a single exemption. See Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 925 (D.C.

Cir. 2003). The Court therefore will consider only whether the CIA has properly justified its

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claimed withholdings under Exemptions 1 and 3, as well as whether it has satisfied its burden of

demonstrating that no additional information is segregable and thus can be released.

A. Exemption 1

FOIA Exemption 1 protects classified information. To be precise, it shields 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. § 552(b)(1). The Government

argues that the redacted information sought by Plaintiffs was properly classified under Executive

Order 13,526, which “prescribes a uniform system for classifying, safeguarding, and

declassifying national security information.” Exec. Order No. 13,526, 75 Fed. Reg. 707 (Dec.

29, 2009). The Order provides that “information may be originally classified” if four conditions

are met:

(1) an original classification authority is classifying the information;

(2) the information is owned by, produced by or for, or is under the
control of the United Stated Government;

(3) the information falls within one or more of the categories of
information listed in section 1.4 of this order; and

(4) the original classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to
result in damage to the national security. . .[,] and the original
classification authority is able to identify or describe the damage.

Id. § 1.1(a). Section 1.4, in turn, identifies eight categories of information that may potentially

be subject to classification; among them are “intelligence activities (including covert action) [or]

intelligence sources or methods,” and “foreign relations or foreign activities of the United States,

including confidential sources.” Id. § 1.4(c)–(d).

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 Generally, an agency invoking Exemption 1 must make both a procedural and substantive

showing — namely, that it both “complies with classification procedures established by the

relevant executive order and withholds only such material as conforms to the order’s substantive

criteria for classification.” Mobley v. DOJ, 870 F. Supp. 2d 61, 66 (D.D.C. 2012) (quoting King,

830 F.2d at 214. In this case, however, Plaintiffs challenge only the CIA’s substantive showing.

In particular, they principally question whether the release of the withheld information “could be

expected to cause exceptionally grave damage to national security.” ECF No. 18-1 (Pl.

Statement of Genuine Issues), ¶ 13.

To support its invocation of Exemption 1, the CIA relies on the declaration of Antoinette

Shiner, the Information Review Officer for its Litigation Information Review Office. In this

role, Shiner is “responsible for the classification review of CIA documents and information that

may be the subject of . . . public requests for information under [FOIA].” Shiner Decl., ¶ 3. Of

relevance here, she is “authorized to assess the current, proper classification of CIA information,

up to and including TOP SECRET information, based on the classification criteria of Executive

Order 13526 and applicable regulations.” Id., ¶ 2. Shiner asserts that the disputed withholdings

are correctly classified under E.O. 13526 because they consist of “details about foreign liaison

services; locations of covert CIA installations and former detention centers located abroad; and

descriptions of specific intelligence methods and activities.” Id., ¶ 16.

In as much detail as she deems possible, Shiner explains why the disclosure of the

information sought by Plaintiffs would harm national-security interests. With regard to the

withheld “Foreign Liaison and Government Information,” she notes that this includes “the

content of . . . communications with foreign government officials” as well as “the existence of

the U.S. Government’s relationships with particular intelligence services and foreign government

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officials,” the disclosure of which could “damage the relations with the entities mentioned[,] . . .

harming intelligence sharing.” Id., ¶ 17. Second, as to “Field Installations,” she points out that

the “[o]fficial acknowledgment that the CIA has or had a facility in a particular location abroad

could cause the government of the country in which the installation is or was located to take

countermeasures . . . to eliminate the CIA’s presence within its borders or curtail cooperation

with the CIA,” “could result in terrorists and foreign intelligence services targeting that

installation,” or “could harm relationships with foreign countries that housed those installations.”

Id., ¶ 18. Finally, as to “Intelligence Methods and Activities,” she avers that “the documents also

contain details that would disclose other intelligence methods and activities of the CIA.” Id.,

¶ 19. These activities are “highly sensitive,” and their disclosure “could impair the effectiveness

of CIA’s intelligence collection.” Id.

Plaintiffs characterize the Shiner Declaration as disingenuous and vague. They argue that

the affidavit offers only “abstract and conclusory statements” connecting the information sought

with classified information. See Pl. Opp. at 15. Plaintiffs also claim that innocent details such as

the “dates” of Rahman’s detention cannot possibly be legitimately classified as national-security

information. Id. at 14. They posit, moreover, “[I]t is no secret that CIA operated on bases

throughout Afghanistan or that its personnel interrogated prisoners in Afghanistan in 2002 and

2003.” Id. at 15.

The Court disagrees, finding that the Government has satisfied its burden of showing that

the withheld information is properly classified under E.O. 13526’s substantive criteria. As a

threshold matter, this Circuit’s FOIA caselaw cautions strongly against second-guessing the

Government’s discretionary decisions in matters of national security. Instead, courts “accord

substantial weight to an agency’s affidavit concerning the details of the classified status of the

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disputed record because the Executive departments responsible for national defense and foreign

policy matters have unique insights into what adverse effects might occur as a result of a

particular classified record.” Larson, 565 F.3d at 864 (quoting Ctr. for Nat’l Sec. Studies, 331

F.3d at 927). For this reason, courts have consistently rejected attacks on the Government’s

invocation of Exemption 1 when faced with substantially similar affidavits and contested records

as those at issue here. See, e.g., DiBacco v. U.S. Dep’t of Army, 234 F. Supp. 3d 255, 270

(D.D.C. 2017), aff’d., 926 F.3d 827 (D.C. Cir. 2019) (reaching similar conclusion based on

similar justification provided by Government); Am. Civil Liberties Union v. U.S. Dep’t of Def.,

628 F.3d 612, 624–25 (D.C. Cir. 2011) (same).

This is not to suggest that Exemption 1 embodies an anti-disclosure talisman that the

Government can wield whenever it so desires. Instead, the Court bases its conclusion on a

variety of specific factors beyond the sensitive nature of the records at issue: the explanation

provided by Shiner, the context supplied by the unredacted records, and the Court’s own in

camera review of the Government’s withholdings. All told, the CIA’s “logical” assessment is

not “called into question by contradictory evidence in the record or by evidence of agency bad

faith.” Halperin v. CIA, 629 F.2d 144, 148 (D.C. Cir. 1980).

First, contrary to Plaintiffs’ contention, Shiner’s declaration is not excessively abstract or

vague given the context. She instead offers a “logical connection” between disclosure of the

redacted information and potential consequent harm to national security. See Rosenberg v. U.S.

Dep’t of Def., 342 F. Supp. 3d 62, 86 (D.D.C. 2018). She identifies both the type of information

withheld (such as facility locations and cooperating foreign partners) and the reasons why the

information remains classified (such as to protect ongoing CIA operations and foreign partners).

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 While Plaintiffs refuse to believe that the redacted information is actually “secret,” or

even significant, Shiner attests to the contrary. As to the issue of dates specifically, for example,

she notes that the CIA “routinely protects . . . seemingly innocuous details” such as “dates

associated with a particular program,” id., ¶ 20, and “undisclosed details about the practice of

intelligence gathering and Agency tradecraft, which continue to have application to other types

of CIA operations and activities.” Id., ¶ 21. While a FOIA plaintiff may compel disclosure of

information if the government has already “officially acknowledged” that information, “[p]rior

disclosure of similar information does not suffice; instead, the specific information sought by the

plaintiff must already be in the public domain by official disclosure.” Am. Civil Liberties Union,

628 F.3d at 621 (quoting Wolf, 473 F.3d at 378). “The insistence on exactitude recognizes ‘the

Government’s vital interest in information relating to national security and foreign affairs.’”

Wolf, 473 F.3d at 378 (quoting Public Citizen v. U.S. Dep’t of State, 11 F.3d 198, 202 (D.C. Cir.

1993)). Plaintiffs’ argument that the withheld information has already been disclosed because it

is known that the CIA operated generally throughout Afghanistan in 2002 therefore misses the

point entirely. Indeed, the year 2002 is not even redacted from the produced documents. See,

e.g., IG Report at 2 (“The cable from [redacted] on [redacted] November 2002 reporting that

Rahman had admitted his identity stated, ‘Rahman spent the days since his last session . . . in

cold conditions with minimal food and sleep.’”). Instead, specific dates and locations appear to

be redacted –– a conclusion confirmed by this Court’s in camera review.

Additionally, even if Plaintiffs are correct that some of the redacted information has

already entered into the public domain, this Court has previously embraced “the intuitive

proposition that official disclosure of information already in the public realm can nevertheless

affect national security.” Cable News Network, Inc. v. FBI, 384 F. Supp. 3d 19, 37 (D.D.C.

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2019); see also Edmonds v. FBI, 272 F. Supp. 2d 35, 49 (D.D.C. 2003) (“[I]n the area of national

security, it is accepted that an agency can determine that disclosure of information already in the

public realm ‘reasonably could be expected to cause damage to the national security.’”) (quoting

Washington Post v. U.S. Dep’t of Def., 766 F. Supp. 1, 10 (D.D.C. 1991)). The “mere fact” that

some similar information about CIA operations may be in the public domain does not “eliminate

the possibility that further disclosures cause harm.” Cable News Network, 384 F. Supp. at 37

(quoting Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990)).

At this juncture, it bears mention that the CIA is hardly stonewalling regarding its role in

Rahman’s death. It has produced no small amount of information –– both prior to and during

this litigation –– regarding his demise. The Inspector General Report, for example, contains 64

pages of material divulging numerous details surrounding his captivity and death. See, e.g., IG

Report at 2 (“Rahman was subjected to sleep deprivation sessions of up to 48 hours, at least one

cold shower, and a ‘hard takedown’ termed ‘rough treatment’ as reported in pre-death cables

addressing the progress of the interrogation.”); see also id. at 3 (describing events on a redacted

day in November 2002 and providing details about how Rahman threatened his guarads was

subsequently shackled and forced to sit on a cold concrete floor, and was discovered dead the

next day from “hypothermia”). Another of the disclosed documents offers a timeline of

Rahman’s detention and includes the significant events that occurred during each month. See

ECF No. 18-5 (Chronology of Significant Events). Plaintiffs are therefore not in the dark

regarding the circumstances surrounding Rahman’s death, even as they understandably continue

to seek more information on that subject.

Finally, the propriety of the CIA’s invocation of Exemption 1 has been confirmed by the

Court’s in camera review of the contested withholdings. It ordered this review both because of

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the potential public interest in the sought information and the relatively low number of

documents in dispute. See Physicians for Human Rights v. U.S. Dep’t of Def., 675 F. Supp. 2d

149, 167 (D.D.C. 2009) (outlining factors that weigh in favor of in camera review). Its

inspection has confirmed the accuracy of Shiner’s declaration, and the Court is now satisfied that

the Government has carried its burden of demonstrating that Exemption 1 applies. The review

bolstered the conclusion that “the information withheld by the government ‘is specific and

particular . . . and would reveal far more about the CIA’s interrogation process [and its

cooperation with foreign partners] than the previously released records.’” Am. Civil Liberties

Union, 628 F.3d at 621 (quoting Am. Civil Liberties Union v. Dep’t of Def., 664 F. Supp. 2d 72,

77 (D.D.C. 2009)).

Ultimately, the reason Plaintiffs continue to press onward is precisely why they cannot

prevail. They have access to the broad strokes of a grisly portrait of Rahman’s death but seek the

fine contours: more specific information as to the location of his remains and the process

surrounding their disposal. Yet disclosing those details would officially acknowledge the

specifics of an undisclosed CIA operation, the geographic position of a CIA facility, and the

identities of any involved foreign partners. This Court simply cannot force the CIA to

“disclos[e] to our adversaries the specific persons and areas in which CIA is interested,” its

foreign partners, and its “methods and resources.” Int’l Counsel Bureau v. CIA, 774 F. Supp. 2d

262, 270 (D.D.C. 2011). Defendant has therefore carried its burden of establishing that

Exemption 1 protects the relevant withholdings.

B. Exemption 3

Those fatigued by the Court’s coverage of Exemption 1 will be comforted to learn that it

can make swift work of the CIA’s invocation of Exemption 3. The latter exemption covers

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records “specifically exempted from disclosure by statute” provided that such statute either “(i)

requires that the matters be withheld from the public in such a manner as to leave no discretion

on the issue; or (ii) establishes particular criteria for withholding or refers to particular types of

matters to be withheld.” 5 U.S.C. § 552(b)(3)(A). In this case, the CIA asserts Exemption 3 in

connection with documents it claims are protected by two statutes: the National Security Act of

1947, which requires the Director of National Intelligence to “protect intelligence sources and

methods from unauthorized disclosure,” 50 U.S.C. § 3024(i)(1), and the CIA Act, which

provides that the Agency is exempted from provisions of “any other law” that require the

publication or disclosure of “the organization, functions, names, official titles, salaries, or

numbers of personnel employed by the Agency.” 50 U.S.C. § 3507. Both statutes “may be used

to withhold information under Exemption 3,” DiBacco v. U.S. Dep’t of Army, 926 F.3d 827, 834

(D.C. Cir. 2019), and Plaintiffs challenge only those withholdings for which the CIA relied on

the NSA. See Pl. Opp. at 17.

Much of the above discussion regarding the deference granted to an agency in the

national-security context remains relevant here, but Exemption 3, in fact, provides a lower hurdle

for Defendant to surmount than does Exemption 1. “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, 795 F.3d at 197 (quoting

Morley, 508 F.3d at 1126). “Although the invocation of other FOIA exemptions depends on ‘the

detailed factual contents of specified documents,’ Exemption 3’s applicability is thus more

categorical.” Cable News Network, 384 F. Supp. 3d at 30 (quoting Morley, 508 F.3d at 1126).

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 Unlike EO 13526 (relied on by Defendant in asserting Exemption 1), the NSA does not

require the CIA to identify or describe the actual damage to national security that could be

expected to result from the unauthorized disclosure of information covered by the statutes. See

50 U.S.C. § 3024(i)(1); Shiner Decl., ¶ 26. Courts, moreover, have interpreted the NSA’s

protection of “sources and methods” very broadly, holding that material is properly withheld if it

“relates to intelligence sources and methods,” Larson, 565 F.3d at 865 (emphasis added) (citation

omitted), or “can reasonably be expected to lead to unauthorized disclosure of” such material.

See Halperin, 629 F.2d at 147; see also CIA v. Sims, 471 U.S. 159, 168–69 (1985) (“The plain

meaning of [the Act] . . . indicates that Congress vested in the [CIA] very broad authority to

protect all sources of intelligence information from disclosure.”); Elec. Privacy Info. Ctr. v.

Office of Dir. of Nat’l Intelligence, 281 F. Supp. 3d 203, 213 (D.D.C. 2017) (describing NSA’s

protection of sources and methods as “near-blanket FOIA exemption”).

In any event, most of the Government’s withholdings for which it claims Exemption 3

overlap with its invocations of Exemption 1, and the Court therefore need not regurgitate the

analysis supplied above. See Larson, 565 F.3d at 862 (“FOIA Exemptions 1 and 3 are

independent; agencies may invoke the exemptions independently and courts may uphold agency

action under one exemption without considering the applicability of the other.”). As to the rare

redactions that the CIA justifies under only Exemption 3 (and only then via the NSA), the

Court’s in camera review has confirmed that Defendant has carried its minimal burden of

showing that they are exempt from disclosure. This material, it bears mentioning, does not

encompass any substantive information. Instead, it consists of labels, names of files, classified

markings, and categories of restrictions on the handling of the material. Put differently, it is the

sort of “internal organizational information” that Courts have found to fall within Exemption 3’s

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protective umbrella, see James Madison Project v. CIA., 607 F. Supp. 2d 109, 126 (D.D.C.

2009), and would, moreover, likely be of no consequence to Plaintiffs even if disclosed.

C. Segregability

The Court last looks at segregability. FOIA requires that “[a]ny reasonably segregable

portion of a record . . . be provided to any person requesting such record after deletion of the

portions which are exempt.” 5 U.S.C. § 552(b). The “focus of the FOIA” is thus on

“information, not documents, and an agency cannot justify withholding an entire document

simply by showing that it contains some exempt material.” Mead Data Central, Inc. v. U.S.

Dep’t of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). It naturally follows that “non-exempt

portions of a document must be disclosed unless they are inextricably intertwined with exempt

portions.” Id.

The parties dedicate scant resources to debating the segregabiltiy issue. Defendant’s

declarant simply asserts that “the CIA conducted a document-by-document and line-by-line

review and released all reasonably segregable, non-exempt information.” Shiner Decl., ¶ 42.

Plaintiffs devote most of their segregability-related arguments to the CIA’s invocation of the

now-irrelevant Exemption 5. Turning their focus to Exemptions 1 and 3, they merely posit that

the CIA has made “unsubstantiated” claims that no additional information may be released. See

Pl. Opp. at 21.

The Court concludes that there are no segregability issues in this case. The Government

has released a fair bit of information about Rahman’s captivity and death, and the Court’s own

line-by-line in camera review suffices to persuade it that the non-exempt portions of the withheld

and redacted documents “are inextricably intertwined with exempt portions” and need not be

further segregated. See Mead Data, 566 F.2d at 260. An agency is not obligated to segregate

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non-exempt material if “the excision of exempt information would impose significant costs on

the agency and produce an edited document with little informational value.” Neufeld v. IRS, 646

F.2d 661, 666 (D.C. Cir. 1981). Even if the Court were to order the agency to disclose additional

phrases, or even documents, it would take Plaintiffs no closer to their actual goal of discovering

the whereabouts of Rahman’s remains. See also Mead Data, 566 F.2d at 261 n.55 (“[A] court

may decline to order an agency to commit significant time and resources to the separation of

disjointed words, phrases, or even sentences which taken separately or together have minimal or

no information content.”). Unfortunately, there is no smoking gun in the CIA’s withholdings

that is generic enough to be harmless to national security and specific enough to satisfy

Plaintiffs’ desires.

IV. Conclusion

For these reasons, the Court will grant Defendant’s Motion for Summary Judgment. A

separate Order so stating will issue this day.

/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: January 16, 2020

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