De Sousa v. Central Intelligence Agency
239 F. Supp. 3d 179
D.D.C.2017Background
- Sabrina De Sousa, a former State Department Foreign Service Officer, sought records from the CIA, State Department, and DoD about U.S. involvement in the 2003 Milan extraordinary rendition of Abu Omar and agency decisions (immunity, clemency, SOFA assertion) affecting her and others.
- De Sousa filed six FOIA requests (May 8 and Sept 3, 2014) covering communications about defending/invoking immunity, authorization for the rendition, clemency, and SOFA/pardons; CIA issued a comprehensive Glomar (refuse to confirm/deny), State a partial Glomar, and DoD produced records but withheld one draft letter (Cole 61-62).
- Agencies produced some records: State released 79 documents (18 fully, 61 partially) and withheld 17; DoD produced 74 documents but withheld Cole 61-62 under FOIA Exemption 5; CIA declined to confirm existence of any responsive records under Exemption 1 (and 3).
- De Sousa sued under FOIA and the Privacy Act; cross-motions for summary judgment focused on: (1) CIA Glomar, (2) State Dept partial Glomar, (3) DoD withholding of Cole 61-62 (deliberative process/adoption), and (4) segregability of withheld materials.
- The district court evaluated agency declarations, supplemental declarations, and Vaughn indices to decide whether each Glomar was justified, whether Exemption 5 applied to Cole 61-62, and whether agencies satisfied segregability obligations.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| CIA Glomar (whether agency may refuse to confirm/exist) | De Sousa: Glomar unjustified because confirming existence of categories would not reveal classified facts; some facts already "officially acknowledged." | CIA: Existence/nonexistence of records would reveal classified facts (intelligence interest in Abu Omar, CIA involvement in rendition, relationship with plaintiff)—Exemption 1 (and 3) justify Glomar. | Court: CIA entitled to summary judgment—Glomar proper for each requested category; supplemental declaration tied each category to classified "Glomar facts." |
| State Dept partial Glomar | De Sousa: challenges some Glomar assertions (esp. clemency-related requests) and contends requests do not necessarily presuppose CIA affiliation. | State: similar to CIA—categories presuppose affiliation and implicate classified foreign relations/intelligence facts; Exemption 1/3 justified. | Court: State Department entitled to summary judgment on its partial Glomar response; requests reasonably assumed CIA affiliation and implicated classified facts. |
| DoD withholding of Cole 61-62 under Exemption 5 (deliberative process; predecisional vs adoption) | De Sousa: Draft undated/unsigned so timing unclear; if its rationale was adopted when DoD later asserted SOFA, it lost predecisional privilege and must be disclosed. | DoD: Cole 61-62 is a predecisional, deliberative draft letter from SecDef to President explaining proposed SOFA assertion; disclosure would chill deliberations—Exemption 5 applies. | Court: Draft was predecisional/deliberative when written, but record insufficient to determine whether agency adopted the letter's reasoning; remanded to DoD to supplement explanation whether the document was adopted. Summary judgment denied without prejudice on this issue. |
| Segregability of non-exempt material | De Sousa: Agency declarations and Vaughn indices are conclusory; agencies failed to justify non-segregability line-by-line. | Agencies: Declared line-by-line review and attested no further segregable factual material could be released; Vaughn indices describe withheld materials and exemptions. | Court: Agencies met segregability burden through Vaughn indices plus declarant attestations; summary judgment for State and DoD on segregability. |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (standards for Glomar responses and when existence/nonexistence of records itself is exempt)
- ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (Glomar review standards and agency burden)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) ("official acknowledgment" test to overcome Glomar)
- Judicial Watch, Inc. v. U.S. Dep't of Defense, 847 F.3d 735 (D.C. Cir. 2017) (deliberative process privilege and adoption analysis for Exemption 5)
- Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (2001) (purpose and rationale of deliberative process privilege)
- Milner v. U.S. Dep't of Navy, 562 U.S. 562 (2011) (FOIA exemptions are exclusive and construed narrowly)
- Pub. Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2010) (agency burden and Exemption 5 privileges)
- Coastal States Gas Corp. v. Dep't of Energy, 617 F.2d 854 (D.C. Cir. 1980) (predecisional/deliberative and when adoption defeats privilege)