Subh v. Central Intelligence Agency
2011 U.S. Dist. LEXIS 4986
D.D.C.2011Background
- FOIA/Privacy Act suit against CIA seeking records about plaintiff's CIA background checks tied to Army employment screening.
- Army INSCOM searched DCII and JPAS; DCII yielded an intelligence record on Subh, JPAS did not.
- Army released 128 pages with redactions under Exemption 6; CIA deemed a one-page CI/FP Intelligence Checks document with (b)(3) and (j)(1) redactions.
- CIA referred the CI/FP document to FBI and CIA; FBI released document in full, CIA withheld portions.
- Plaintiff appealed CIA and Army determinations; Army Privacy Review Board denied; CIA ARP sustained redactions, leading to judicial review.
- Court evaluates whether CIA properly withholds information under Exemption 3 and whether a Glomar response is appropriate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CIA properly withholds under Exemption 3 | Subh argues CIA should release all details. | CIA asserts NSA/CIA Act statute mandates withholding as a class. | Exemption 3 supported; withholding sustained. |
| Whether CIA can use a Glomar-like response | Subh seeks disclosure of records; no need to cloak methods. | Disclosing existence or nonexistence would reveal CIA methods. | Glomar-like stance appropriate; no records examined beyond affidavits. |
| Whether the CIA’s withholding of audit/records is consistent with NSA and CIA Act | Statute permits disclosure to assess employment eligibility. | NSA/CIA Act basis requires withholding to protect sources/methods. | Statutes support withholding under Exemption 3; proper construction of withholding authority. |
| Whether summary judgment is proper on FOIA claims | Dispute facts about disclosure. | Agency affidavits provide sufficient detail and show exemptions apply. | Summary judgment for CIA affirmed. |
Key Cases Cited
- Phillippi v. Cent. Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976) (Glomar context for agency refusal to confirm/deny records)
- Goland v. Cent. Intelligence Agency, 607 F.2d 339 (D.C. Cir. 1978) (Exemption 3 requires showing statute covers withholding)
- Gardels v. Cent. Intelligence Agency, 689 F.2d 1100 (D.C. Cir. 1982) (Withholding may rest on statute-based exemptions)
- Sims v. Cent. Intelligence Agency, 471 U.S. 159 (1985) (NSA qualifies as withholding statute under Exemption 3)
- Fitzgibbon v. Cent. Intelligence Agency, 911 F.2d 755 (D.C. Cir. 1990) (Exemption 3 scope and agency need for withholding)
- Wolf v. Cent. Intelligence Agency, 473 F.3d 370 (D.C. Cir. 2007) (Reaffirmed risk of revealing methods; Glomar considerations)
- Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2010) (Glomar approach when records' existence itself is sensitive)
- Bassiouni v. Cent. Intelligence Agency, 392 F.3d 244 (7th Cir. 2004) (Affirmed protective rationale for methods/sources disclosure)