National Security Archive v. Central Intelligence Agency
859 F. Supp. 2d 65
D.D.C.2012Background
- NSA sues CIA under FOIA seeking four-volume Official History of the Bay of Pigs Operation by Dr. Jack B. Pfeiffer.
- NSA requested Volumes I, II, IV, and V on August 10–15, 2005; CIA acknowledged receipt on September 7, 2005.
- CIA provided no substantive response between 2005 and the complaint filed April 14, 2011; CIA later released Volumes I, II, and IV in July 2011 with minimal redactions.
- Volume V, titled CIA’s Internal Investigation of the Bay of Pigs Operations, was withheld in its entirety as to exemption from disclosure.
- CIA contends Volume V is protected by FOIA Exemption 5, specifically the deliberative process privilege.
- Court grants CIA’s Motion for Summary Judgment and denies NSA’s Cross-Motion for Partial Summary Judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Volume V is protected by Exemption 5’s deliberative process privilege | NSA argues Volume V should be disclosed. | CIA contends Volume V is predecisional and deliberative. | Volume V is protected under Exemption 5. |
| Whether Volume V is predecisional | Time since draft release warrants disclosure. | Volume V was generated before policy adoption and is predecisional. | Volume V is predecisional. |
| Whether Volume V is deliberative | Volume V is a historical draft, not deliberations. | Volume V reflects advisory opinions and the consultative process. | Volume V is deliberative. |
Key Cases Cited
- Morley v. CIA, 508 F.3d 1108 (D.C. Cir. 2007) (tests for de novo review and deliberative process protections)
- Public Citizen, Inc. v. Office of Mgmt. & Budget, 598 F.3d 865 (D.C. Cir. 2010) (deliberative process privilege scope of predecisional and deliberative materials)
- In re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997) (deliberative process standard and predecisional/deliberative distinction)
- Coastal States Gas Corp. v. Dep’t of Energy, 617 F.2d 854 (D.C. Cir. 1980) (predecisional and deliberative material framework)
- Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252 (D.D.C. 2004) (deliberative process and harm to decisionmaking process)
- Army Times Publ’g Co. v. Dep’t of the Air Force, 998 F.2d 1067 (D.C. Cir. 1993) (requirement that disclosure would harm decisionmaking process)
- Pfeiffer v. CIA, 721 F. Supp. 337 (D.D.C. 1989) (Volume V predecisional and properly withheld)
- Dep't of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1 (U.S. 2001) (deliberative process and policy formation context)