United States District Court, W.D. Washington, Tacoma
LESLIE G. KINNEY, Plaintiff,
CENTRAL INTELLIGENCE AGENCY, Defendant.
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on Defendant Central
Intelligence Agency's (“CIA”) motion for
summary judgment. Dkt. 15. The Court has considered the
pleadings filed in support of and in opposition to the motion
and the remainder of the file and hereby grants the motion
for the reasons stated herein.
August 3, 2015, Leslie G. Kinney (“Plaintiff”)
submitted a FOIA request to the CIA seeking “the
personnel file, and any and all other documents”
related to James Harold Nichols (“Nichols”). Dkt.
16-1. On September 3, 2013, the CIA responded to the FOIA
request, explaining that (1) their “processing included
a search for records that would reveal an openly acknowledged
Agency affiliation . . . and did not locate any responsive
records, ” and (2) they could “neither confirm
nor deny the existence or nonexistence of records responsive
to [the] request.” Dkt. 16-2. On September 15, 2015,
Plaintiff administratively appealed the CIA's decision.
Dkt. 16-3. On April 21, 2016, Defendant denied the appeal.
September 12, 2016, Plaintiff filed his complaint alleging
that Defendant has wrongfully refused to provide information
pursuant to a request under the Freedom of Information Act, 5
U.S.C. § 552 et seq. (“FOIA”). Id.
On December 20, 2016, the CIA answered. Dkt. 6. On March 1,
2017, the CIA moved for summary judgment. Dkt. 15. On March
15, 2017, Plaintiff responded. Dkt. 18. On March 24, 2017,
the CIA replied. Dkt. 20. On March 28, 2017, Plaintiff filed
a surreply. Dkt. 21.
seeks to compel the release of any CIA personnel files and
all other documents related to Nichols. Dkt. 1. The CIA moves
for summary judgment on the basis that it has performed an
adequate search revealing that there are no records that
would demonstrate an openly acknowledged CIA affiliation with
Nichols and that any records that would reveal the existence
or nonexistence of a classified CIA affiliation are protected
from disclosure under 5 U.S.C. §§ 552(b)(1),
The CIA's Glomar Response
“Glomar” response originated from a case dealing
with a FOIA request pertaining to the Hughes Glomar
Explorer, an oceanic research vessel. See Phillippi
v. C.I.A., 546 F.2d 1009 (D.C. Cir. 1975). In that case,
the requestor issued a FOIA request to determine if the
vessel was owned by the United States. Id. As a
result of the case, the D.C. Circuit established that, when
the “existence or nonexistence of the requested records
was itself a classified fact exempt from disclosure under
Sections (b)(1) and (3) of FOIA, ” an agency could
refuse to either confirm or deny the existence of requested
records and issue a public affidavit that explains, in as
much detail as possible, the basis for the agency's
claim. Id. at 1013.
U.S.C. § 552(b)(1), material classified as secret in the
interest of national security or foreign policy may be exempt
from disclosure. Under 5 U.S.C. § 552(b)(3), material
specifically exempted by statute is also exempt from FOIA
requirements. “The CIA bears the burden of proving the
applicability of the exemption.” Berman v.
C.I.A., 501 F.3d 1136, 1140 (9th Cir. 2007). “In
evaluating a claim for exemption, a district court must
accord ‘substantial weight' to CIA affidavits,
provided the justifications for nondisclosure are not
controverted by contrary evidence in the record or by
evidence of CIA bad faith.” Minier v. C.I.A,
88 F.3d 796, 800 (9th Cir. 1996) (quotation omitted).
“When 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.” Wheeler v. C.I.A., 271 F.Supp.2d
132, 141 (D.D.C. 2003) (quoting Phillippi v. CIA,
546 F.2d 1009, 1013 (D.C. Cir. 1976)). “Ultimately, an
agency's justification for invoking a FOIA exemption is
sufficient if it appears ‘logical' or
‘plausible.'” Larson v. Dep't of
State, 565 F.3d 857, 862 (D.C. Cir. 2009) (quoting
Wolf v. C.I.A., 473 F.3d 370, 373-74 (D.C. Cir.
case, the CIA has issued a Glomar response and explained that
“[r]esponding to the substance of [Plaintiff's]
request could jeopardize the clandestine nature of the
Agency's intelligence activities or otherwise reveal
previously undisclosed information about CIA sources,
capabilities, authorities, interests, relationships with
domestic or foreign entities, strengths, weaknesses, and/or
resources.” Dkt. 17 at 9. Particularly in the context
of human sources, persons “can be expected to furnish
information to the CIA only when they are confident that the
CIA can and will do everything in its power to prevent the
public disclosure of their cooperation.” Id.
Moreover, disclosure of a source's identity can expose
family and relatives to retaliation from CIA targets and
place in jeopardy every person with whom the source has had
contact. Id. at 10. “As such, confirming or
denying the existence of records on a particular individual,
like Mr. Nichols, reasonably could be expected to cause
serious damage to U.S. national security by indicating
whether or not CIA maintained any human intelligence sources
related to an interest in the subject of the request.”
Court agrees that 5 U.S.C. § 552(b)(1) plainly applies
to the requested records. The CIA's affidavit reasonably
explains how confirming the existence or nonexistence of the
records sought would reveal an unacknowledged human
intelligence source, thereby (1) jeopardizing the
Agency's ability to perform future intelligence
activities with other human sources, and (2) exposing any
potential sources that may have grown out of the initial
source's service. Plaintiff's briefing admits that he
seeks records on the very premise that they would reveal
information regarding “a variety of unknown clandestine
assignments” in which Nichols participated during and
after World War II, including “a clandestine recovery
operation ordered by the highest levels of the U.S.
Government that has been kept secret to this day.” Dkt.
18 at 2. Accordingly, the CIA's invocation of 5 U.S.C.
§ 552(b)(1) is both plausible and logical.
advances two arguments for releasing the requested records,
notwithstanding the fact that acknowledging the existence or
nonexistence of an agency affiliation with Nichols would
reveal information about a human intelligence source. First,
Plaintiff argues that the CIA has already officially
disclosed the existence of the requested information. Dkt. 18
at 9-10. Second, he argues that the age of the requested
records, if they exist, shows that no harm can come from
releasing them. Id. at 12-18.
first argument focuses on a conversation that he had with a
CIA representative where he was informed that, before the
Agency could release any information related to his request,
it would need to communicate with other agencies to obtain
their joint approval. Dkt. 18 at 9-10. Plaintiff attempts to
construe this statement as an official acknowledgment by the
CIA that the records he has requested exist. “[W]hen
information has been ‘officially acknowledged, '
its disclosure may be compelled even over an agency's
otherwise valid exemption claim.” Fitzgibbon v.
C.I.A., 911 F.2d 755, 765 (D.C. Cir. 1990). However,
while the statement made to Plaintiff by a CIA representative
could be construed as evidence that such records exist, it
clearly falls ...