International Counsel Bureau v. U.S. Central Intelligence Agency
774 F. Supp. 2d 262
D.D.C.2011Background
- ICB filed FOIA requests to CIA seeking detainee records and records relating to detainee treatment, medical/psychological files, and recordings.
- CIA issued a Glomar response: cannot confirm or deny the existence of responsive records under Exemptions (b)(1) and (b)(3).
- Dispute centers on propriety of Glomar response and adequacy of CIA's search for detainee-specific records.
- DiMaio Declaration (NCS Information Review Officer) provides the factual basis for the asserted harms to national security and foreign relations from confirming/denying records.
- ICB cross-moves for summary judgment on the Glomar issue and seeks an adequate search across CIA components; CIA moves for partial summary judgment only on Glomar.
- Court analyzes Exemption 1 (classification) and Exemption 3 (NSA/CIA Act) to sustain the Glomar response; finds search adequacy not contested after ruling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glomar response is proper under Exemption 1 | ICB challenging CIA's reliance on Exemption 1 to shield existence of records. | CIA asserts classified status and harm from confirming/denying records; declaration is sufficiently detailed. | Glomar upheld under Exemption 1 |
| Whether Glomar response is proper under Exemption 3 | ICB contends NSA/CIA Act provisions do not justify withholding | NSA/CIA Act provisions cover intelligence sources/methods; denial consistent with Exemption 3 | Glomar upheld under Exemption 3 |
| Whether known government interest in Guantanamo precludes Glomar response | ICB argues public acknowledgments negate secrecy and bar Glomar | Public acknowledgments do not constitute CIA official acknowledgment of records; applies to all four detainees only if officially acknowledged | No official acknowledgment found; Glomar not barred |
| Adequacy of CIA's search for responsive records | DiMaio not adequate spokesperson; warrants broader search | DiMaio authorized and knowledgeable; search scope appropriate; Glomar resolves issue so search adequacy not central | Search adequacy not addressed due to upheld Glomar |
Key Cases Cited
- Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (glomar applicable when existence of records would reveal protected information)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (glomar appropriate; deference to national security declarations)
- Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) (exemption analysis; harm must be plausible and logical)
- Riquelme v. CIA, 453 F.Supp.2d 103 (D.D.C. 2006) (agency affidavits may suffice for Glomar; search/awareness considerations)
- Subh v. CIA, 760 F.Supp.2d 66 (D.D.C. 2011) (Glomar appropriate for records regarding intelligence checks on an individual)
- Am. Civil Liberties Union v. Dep't of Def., 628 F.3d 612 (D.C. Cir. 2011) (discussion of plausibility of harm and national security considerations)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) (agency need not disclose; harm analysis for sources/methods)
- Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984) (give substantial weight to agency declarations in national security FOIA)