United States District Court, D. New Jersey
March 29, 2004.
SIMONA PIPKO, Plaintiff
CENTRAL INTELLIGENCE AGENCY, Defendant
The opinion of the court was delivered by: WILLIAM BASSLER, District Judge
This matter comes before the Court on a motion for summary judgment
brought by defendant Central Intelligence Agency (the "Government", the
"CIA" or "Defendant"), pursuant to Federal Rule of Civil Procedure 56.
Plaintiff Simona Pipko ("Pipko" or "Plaintiff") opposes the Government's
Plaintiff instituted this action, pursuant to the Freedom of
Information Act, 5 U.S.C. § 552 ("FOIA"), and the Privacy Act,
5 U.S.C. § 552a, concerning a denial by the CIA to release certain
documents requested by Plaintiff.
This Court has jurisdiction over this matter pursuant to
28 U.S.C. § 1331. Venue is proper pursuant to 28 U.S.C. § 1391(b) and (e).
For the reasons discussed below, Defendant's motion for summary
judgment is GRANTED.
The parties do not dispute the background leading up to the current
Plaintiff submitted a written FOIA/Privacy Act request to the CIA by
letter dated October 29, 2001. (Compl. Ex. A.) Plaintiff's request sought
any and all records maintained by the CIA on Simona Pipko a/k/a Simona
Pipko-Bercovici. By letter dated January 2, 2002, Plaintiff's counsel
provided the CIA with additional information, including copies of
Plaintiff's birth certificate and United States Certificate of
Naturalization, in support of Plaintiff's request. (Compl. Ex. B.)
By letter dated January 7, 2002, the CIA acknowledged receipt of
Plaintiff's FOIA/Privacy Act request, assigned the request a reference
number of P-2001-00660, and agreed to process the request. (Compl. Ex.
C.) By letter dated January 15, 2002, the CIA issued its final response
to Plaintiff's FOIA/Privacy Act
request. The CIA represented that there were no documents available
to Plaintiff under either FOIA or the Privacy Act. (Id.) The
Government's January 15th letter stated: "You may construe this as a
denial on the basis of FOIA exemptions (b)(1) and (b)(3) and Privacy Act
exemptions (j)(1) and (k)(1)." (Id.) The CIA also notified
Plaintiff of her right to file an appeal with the Agency Release Panel
within 45 days of the date of the CIA's final response. (Id.)
By letter dated February 28, 2002, Plaintiff appealed the CIA's final
determination and requested "an explanation as to why [Plaintiff's]
request for information was denied." (Compl. Ex. D.) Plaintiff counsel's
February 28th letter stated that the "requested documents should be
released under the FOIA due to the fact that the records are not being
sought for commercial use." (Id.) Plaintiff further contended:
"[I]t is in the public interest for the requested documents to be
released, especially since the records will likely contribute
significantly to public understanding of the operations or activities of
the government." (Id.)
By letter dated March 11, 2002, the CIA acknowledged receipt of
Plaintiff's appeal. (Compl. Ex. E.) By letter dated May 23, 2002, the CIA
denied Plaintiff's appeal, again concluding that there were no records
available to Plaintiff under either FOIA or the Privacy Act.
(Id.) The CIA also informed Plaintiff in its
May 23rd letter that Plaintiff had the right to seek
judicial review of the CIA's decision in United States District Court.
Plaintiff filed the current action on July 3, 2002. The CIA answered
Plaintiff's Complaint and thereafter moved for summary judgment.
I. Summary Judgment Standard
A party seeking summary judgment must "show that there is no genuine
issue as to any material fact and that the moving party is entitled to
judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v.
Catrett, 47 U.S. 317, 322 (1986). The applicable substantive law
determines whether or not a fact is material. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). An issue of fact is genuine
only "if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party." Id. at 248. In determining
whether genuine issues of material fact exist, all inferences must be
drawn, and all doubts must be resolved, in favor of the non-moving party.
Coregis Ins. Co. v. Baratta & Fenerty, Ltd., 264 F.3d 302,
305-306 (3d Cir. 2001) (citing Anderson, 477 U.S. at 248).
The moving party has the initial burden of showing that no genuine
issue of material fact exists. Celotex Corp., 477 U.S. at 323.
If the moving party satisfies this requirement, the burden shifts to the
nonmoving party to present evidence that
there is a genuine issue of fact. Id. at 324.
Courts apply the same summary judgment standard in FOIA and Privacy Act
suits as in any other type of case. See Wojciechowicz v. Dep't of the
Army, 763 F.2d 149, 153 (3d Cir. 1985) (Privacy Act); Perry v.
Block, 684 F.2d 121, 126 (D.C. Cir. 1982) (FOIA).
For an agency to succeed on a motion for summary judgment in a FOIA
suit, it must "prove that each document that falls within the class
requested either has been produced, is unidentifiable, or is wholly
exempt from the (FOIA's) inspection requirements." Perry, 684
F.2d at 126 (internal quotations and citations omitted). An agency is
entitled to summary judgment only "when the agency's affidavits describe
the withheld information and the justification for withholding with
reasonable specificity, demonstrating a logical connection between the
information and the claimed exemption . . ., and are not controverted
by either contrary evidence in the record nor by evidence of agency bad
faith." Davin v. United States Dep't of Justice, 60 F.3d 1043,
1050 (3d Cir. 1995) (citations and internal quotation marks omitted).
Because the requested documents are often solely in the possession of
the defending agency, when evaluating the adequacy of the agency's
identification and retrieval efforts, "the trial court may be warranted
in relying upon agency affidavits, for
these are equally trustworthy when they aver that all documents
have been produced or are unidentifiable as when they aver that
identified documents are exempt." Perry, 684 F.2d at 126
(internal quotation marks and citations omitted).
In cases, like this one, involving purported national security issues,
"Congress has instructed the courts to accord `substantial weight' to
agency affidavits[.]" Goland v. CIA, 607 F.2d 339, 352 (D.C.
Cir. 1978). The agency affidavits relied on must not, however, be merely
glib assertions of complete disclosure or retrieval; rather, to support
the granting of summary judgment to an agency, the supporting affidavits
must be "`relatively detailed' and nonconclusory and must be submitted in
good faith." Id.
If there are genuine issues regarding the sufficiency of the agency's
identification or retrieval procedure, summary judgment is inappropriate.
Perry, 684 F.2d at 126. In contrast, absent any countervailing
evidence or apparent inconsistency of proof, affidavits explaining in
reasonable detail the scope and method of the agency's search will
suffice to show compliance with the disclosure requirements of FOIA and
the Privacy Act. See Id. at 126-27.
A district court must conduct a de novo review of a government
agency's decision to withhold information under FOIA and the Privacy Act.
5 U.S.C. § 552(a)(4)(B); 5 U.S.C. § 552a
(g)(3)(A). Furthermore, the burden is on the agency to sustain
its decision to claim an exemption from disclosure. Id.
A. Local Civil Rule 56.1
"On motions for summary judgment, each side shall furnish a statement
which sets forth material facts as to which there exists or does not
exist a genuine issue." L. Civ.R. 56.1. Upon serving its motion for
summary judgment on opposing counsel, the CIA failed to submit a 56.1
Statement in compliance with L.Civ.R. 56.1.
Although typically the Court requires a movant to include a L.Civ.R.
56.1 Statement with his or her moving papers, failure to do so may be
excused where there is no evidence of bad faith. See Fowler v.
Borough of Westville, 97 F. Supp.2d 602, 606-607 (D.N.J. 2000).
Furthermore, since the parties do not dispute the procedural or factual
background of this action, Defendant's summary judgment motion presents
only questions of law for the Court. Accordingly, the Court shall proceed
with an analysis of the legal issues presented herein.
II. Actions Brought Pursuant to FOIA and the Privacy Act
A. Freedom of Information Act
FOIA requires federal agencies to disclose, upon request, broad
classes of agency records unless those records are covered by the
statute's exemptions. 5 U.S.C. § 552(a)(3)(A), (b). Congress enacted
FOIA in order to "facilitate public access to
Government documents." United States Dep't of State v.
Ray, 502 U.S. 164, 173 (1991)(citation omitted). "Consistent with
this purpose, FOIA requires governmental agencies to make promptly
available any records requested unless the requested information is
exempt from disclosure under one of the nine specific exemptions set
forth in the FOIA statute itself." Davin, 60 F.3d at 1049
(citing 5 U.S.C. § 552(b)).
Section 552(b) outlines the nine exemptions under FOIA. For the
purposes of this case, the Government cites two exemptions under which
Plaintiff's requests allegedly fall: FOIA exemptions (b)(1)
Exemption (b)(1) declares that FOIA is inapplicable to matters that are
"(A) specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive
5 U.S.C. § 552(b)(1). To support its FOIA exemption (b)(1) claim,
the Government invokes Executive Order 12,958, which authorizes the
classification of information that concerns intelligence activities,
sources, or methods, or foreign relations or activities. Exec. Order No.
12,958, §§ 1.5(c), (d), 60 Fed. Reg. 19,825 (Apr. 17, 1995), reprinted
in 50 U.S.C. § 435 (hereinafter "Executive Order 12,958").
The CIA also claims that the requested documents are exempt from
disclosure under FOIA exemption (b)(3). Exemption (b)(3) includes those
specifically exempted from disclosure by
statute . . ., provided that such statute (A)
requires that the matters be withheld from the
public in such a manner as to leave no discretion
on the issue, or (B) establishes particular
criteria for withholding or refers to particular
types of matters to be withheld[.]
5 U.S.C. § 552(b)(3)
To support its FOIA exemption (b)(3) claims, the CIA relies on Section
103(c)(7) of the National Security Act of 1947, as amended, codified at
50 U.S.C. § 403-3(c)(7), for its withholding in this action. Section
403-3(c)(7) requires the Director of Central Intelligence ("DCI") to
"protect intelligence sources and methods from unauthorized disclosure."
The Government further relies on Section 6 of the Central Intelligence
Agency Act of 1949, as amended, codified at 50 U.S.C. § 403g, which
provides that the CIA shall be exempt from "the provisions of any other
law which require the publication or disclosure of the
organization, functions, names, official titles, salaries or
numbers of personnel employed by the [CIA]." 50 U.S.C. § 403g. The
Supreme Court has held that both of these provision are "withholding
statutes" for the purposes of FOIA exemption (b)(3). CIA v.
Sims, 471 U.S. 159, 168, 193 (1985).
B. Privacy Act
The Privacy Act provides individuals access to records of personal
information maintained about them by the federal government.
5 U.S.C. § 552a. It provides generally that "[n]o agency shall disclose any
record which is contained in a system of records . . . except pursuant
to a record request by, or with the prior written consent of, the
individual to whom the record pertains[.]" Id. § 552a(b).
The Government invokes two Privacy Act exemptions exemptions
(k)(1) and (j)(1) to justify its refusal to comply with
Plaintiff's request. Privacy Act exemption (k)(1) states that the head
of any agency may promulgate rules to exempt any system of records
within the agency from disclosure if the system of records is subject to
the provisions of, inter alia, § 5 U.S.C. § 552(b)(1).
Furthermore, the DCI has implemented Privacy Act exemption (k)(1) by
promulgating 32 C.F.R. § 1901.63(a), which exempts classified
information from disclosure under the
The Government also invokes Privacy Act exemption (j)(1). Exemption
(j)(1) authorizes the head of an agency to promulgate rules to exempt a
system of records within the agency if that system of records is
maintained by the agency. The DCI has implemented Privacy Act exemption
(j)(1) by promulgating 32 C.F.R. § 1901.62(d)(1), which exempts from
disclosure information that consists of, pertains to, or would otherwise
reveal intelligence sources and methods.
III. FOIA Exemption (b)(1) and Privacy Act Exemption (k)(1)
As noted above, FOIA exemption (b)(1) applies to material which is
properly classified pursuant to an Executive Order in the interest of
national defense or foreign policy. Privacy Act exemption (k)(1) tracks
FOIA exemption (b)(1) "so that the fundamental question is whether the
requested information is exempt under FOIA." Wheeler v. CIA,
271 F. Supp.2d 132, 137 n.6 (D.D.C. 2003).
Here, the Government has submitted a declaration of William H. McNair
("McNair"), the Information Review Officer for the CIA's Directorate of
Operations. McNair has held operational and executive positions in
various United States intelligence agencies since 1962 and has been at
the CIA since 1982.
The McNair Declaration addresses "the types of information to be
protected in this litigation and . . . the particular exemptions
invoked." In his declaration, McNair contends that "the mere confirmation
or denial of the existence of responsive records in this case would
reveal a classified information, namely, whether [the] CIA has gathered
information on or from a particular individual." (McNair Decl. ¶ 13.)
The McNair Declaration makes general policy arguments about
intelligence sources, including statements about the documents requested
by Plaintiff. For instance, McNair declares:
If the CIA were to provide responses that either
confirm or deny whether the CIA possesses records
concerning any particular individuals, in the
absence of an acknowledged overt connection to
these individuals, these admissions could identify
human intelligence sources, as well as reveal
information about the CIA's specific intelligence
interests or activities. . . . Therefore,
whether or not [the] CIA possesses such
information is exempt from disclosure pursuant to
FOIA exemptions (b)(1) and, co-extensively, (b)
(3). There is no acknowledged overt connection
between [the] CIA and Plaintiff. Accordingly, the
[CIA] must decline to reveal whether or not it
possesses records on her.
(Id. ¶ 16.)
The McNair Declaration goes on to discuss the CIA's
responsibility in protecting specific intelligence methods. McNair
states that in admitting the possession of covert intelligence
information about a particular individual, "the CIA essentially admits to
that operative that one or more of his intelligence activities have been
detected by the CIA." (Id. ¶ 22.) Conversely, "if the CIA
denies that it possesses intelligence information about a particular
individual who may be an intelligence operative," then the Government
"essentially admits to the operative that his efforts to conceal his
intelligence activities have been successful." (Id. ¶ 23.)
With reference specifically to the exemptions under FOIA exemption
(b)(1) and Privacy Act exemption (k)(1), Defendant argues that Sections
1.5(c) and 1.5(d) of Executive Order 12,958 allow for the classification
of information that relates to intelligence activities, intelligence
sources, intelligence methods, or foreign relations or activities.
Furthermore, Section 1.2(a) of Executive Order 12,958 allows an agency to
classify information falling into these categories when the appropriate
classification authority makes a determination that unauthorized
disclosure of this material reasonably could be expected to cause damage
to national security. In this case, McNair as the CIA official
charged with such reviews has made such a determination. (McNair
Decl. ¶ 13.)
As a result of this classification, the Government may
decline from either confirming or denying the existence of any
responsive records. Executive Order 12,958, § 3.7(a) ("[A]n agency
may refuse to confirm or deny the existence or nonexistence of requested
information whenever the fact of its existence or nonexistence is itself
classified."). In fact, the CIA's published FOIA regulations advise that:
[The CIA] shall decline to confirm or deny the
existence or nonexistence of any responsive
records whenever the fact of their existence or
nonexistence is itself classified under Executive
Order 12958 or revealing of intelligence sources
and methods protected pursuant to section
103(c)(5) of the National Security Act of 1947.
32 C.F.R. § 1900.21(c).
Accordingly, through the McNair Declaration, the CIA has shown that the
information requested by Plaintiff falls under FOIA exemption (b)(1) and
Privacy Act exemption (k)(1) and that the CIA has the right and duty to
protect such information by issuing the response it did to Plaintiff's
The only challenge Plaintiff makes to Defendant's use of FOIA exemption
(b)(1) and Privacy Act exemption (k)(1) is the claim that the McNair
Declaration fails to demonstrate that McNair is an "original
classification authority" within the meaning of Executive Order 12,958.
Plaintiff provides no support for this assertion. McNair declared, under
oath, that "[a]s a senior CIA official and under a written delegation of
authority pursuant to Executive Order 12958, § 1.4(c), [he] holds
original classification authority at the TOP SECRET level." (McNair Decl.
¶ 3). Furthermore, McNair has been recognized by various courts
as qualified to make such representations. E.g., Linder v. Dept. of
Defense, 133 F.3d 17, 25 (D.C. Cir. 1998); Wheeler,
271 F. Supp.2d at 135-136; Snyder v. CIA, 230 F. Supp.2d 17, 20-23
(D.D.C. 2002). Therefore, Plaintiff's argument fails.
IV. FOIA Exemption (b)(3) and Privacy Act Exemption (j)(1)
Section (b)(3) of FOIA applies to information that is "specifically
exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). As noted
above, the CIA relies on both Section 103(c)(7) of the National Security
Act of 1947, as amended, codified at 50 U.S.C. § 403-3(c)(7), and on
Section 6 of the Central Intelligence Agency Act of 1949, as amended,
codified at 50 U.S.C. § 403g, to justify its withholding of
information pursuant to FOIA exemption (b)(3).
This same information is also exempt from disclosure under Privacy Act
exemption (j)(1), which, as implemented by the DCI, exempts from
disclosure information that consists of, pertains to, or would otherwise
reveal intelligence sources and methods. Thus, Privacy Act exemption
(j)(1) is a corollary to FOIA exemption (b)(3), and the two may be
considered together. See Wheeler, 271 F. Supp.2d at 137-138.
It is well-established that "it is the responsibility of the Director
of Central Intelligence, not of the judiciary, to weigh the variety of
complex and subtle factors in determining whether
disclosure of information may lead to an unacceptable risk of
compromising the [CIA's] intelligence-gathering process." Sims,
471 U.S. at 180. Furthermore, the two statutory authorities relied on by
the CIA 50 U.S.C. § 403-3(c)(7) and 50 U.S.C. § 403g
constitute a "very broad authority to protect all sources of
intelligence information from disclosure." Minier v. CIA,
88 F.3d 796, 801 (9th Cir. 1996) (discussing what was formerly §
403-3(c)(5), now § 403-3(c)(7))(internal quotation marks and
citations omitted). Courts have acknowledged that these statutory
mandates provide "a `near-blanket FOIA exemption,' which is `only a short
step [from] exempting all CIA records from FOIA.'" Id. (citing
Hunt v. CIA, 981 F.2d 1116, 1120, 1121 (9th Cir. 1992)).
In the present case, the CIA has determined that confirming or denying
the existence of responsive records would divulge intelligence targeting
and intelligence sources and methods. (McNair Decl. ¶¶ 10, 11, 13,
33.) The information sought by Plaintiff thus falls squarely within the
scope of the DCI's protective mandate under the National Security Act of
1947 and within Section 6 of the Central Intelligence Agency Act of 1949.
The only argument proffered by Plaintiff against the CIA's use of FOIA
exemption (b)(3) and Privacy Act exemption (j)(1) is Plaintiff's
allegation that the Privacy Act allows an agency to prohibit access by
individuals only to those portions of
documents that would reveal intelligence sources and methods.
32 C.F.R. § 1901.62(d)(1). Therefore, Plaintiff argues that the CIA must
provide to her the portions of those documents that do not fall under the
purview of the Privacy Act.
However, Plaintiff misconstrues Defendant's response in this matter,
which is that to confirm or deny the existence of any documents relevant
to Plaintiff would jeopardize national defense and reveal classified
information. Again, it is the very existence of these documents that
would reveal classified information, that is, whether the CIA has
gathered information on or from a particular individual. (McNair Decl.
¶ 13.) Accordingly, Plaintiff's argument fails.
V. Adequacy of the CIA's Search and McNair Declaration
Plaintiff argues that even if the requested materials fall under the
cited FOIA and Privacy Act exemptions, the CIA's response to Plaintiff's
requests did not identify whether and to what extent the Government had
conducted a search of its files. This alleged insufficiency of the McNair
Declaration and the CIA's search is the crux of Plaintiff's opposition to
the pending motion.
When responding to a request for information under FOIA, the CIA may
refuse to confirm or deny the existence of records if the FOIA exemption
would itself preclude the acknowledgment of such documents.
Hunt, 981 F.2d at 1118. This is known as a "Glomar
response."*fn3 Id. The CIA's right to make a Glomar
response in any given case depends upon whether the affidavits provided
by the Government support a denial of the plaintiff's FOIA request under
the proffered FOIA exemptions. Id.
Here, Plaintiff contends that the McNair Declaration did not support
the CIA's Glomar response with sufficient detail. However, "courts must
take into account . . . that any affidavit or other agency statement
of threatened harm to national security will always be speculative to
some extent[.] " Halperin v. CIA, 629 F.2d 144, 149 (D.C. Cir.
1980). As discussed above, the Court finds that the McNair Declaration
adequately outlines the CIA's justifications for why the requested
material falls under the cited FOIA and Privacy Act exemptions.
Plaintiff further complains about the general unspecific nature of the
Glomar response itself. Typically, when a government agency denies a FOIA
request, the agency is required to submit what has been termed a
"Vaughn index" of documents that the agency wishes to withhold
from public disclosure. Hunt, 981 F.2d at 1118 (citing
Vaughn v. Rosen, 484 F.2d 820, 826-828 (D.C. Cir. 1973));
Davin, 60 F.3d at 1049-1050. In a Vaughn affidavit, the
affiant details the efforts and steps taken by the government
agency to produce documents responsive to the plaintiff's FOIA
request. Minier, 88 F.3d at 803 ("A Vaughn index must
identify each document withheld, and provide a particularized explanation
of how disclosure would violate an exemption.") (citation omitted).
Vaughn indexes may be reviewed in camera, when the
information contained therein is of a sensitive nature. E.g.,
Hunt, 981 F.2d at 1118. However, in instances where the government
agency's affidavit is "sufficient to establish that the requested
documents should not be disclosed, a Vaughn index is not
required." Minier, 88 F.3d at 804 (citation omitted). Thus,
where the Government issues a Glomar response when the FOIA
exemption would itself preclude the acknowledgment of such documents
no Vaughn affidavit is necessary. See Id. at
803-804; Phillippi, 546 F.2d at 1013 n. 7 (omitting the
requirement of a Vaughn index where the CIA employed the Glomar
Plaintiff further alleges that a Glomar response is not appropriate
when an individual requests information about him or herself from a
government agency, and the Court should instead conduct an in
camera review of responsive documents submitted by the CIA. A
recently decided case in the District Court for the District of Columbia
belies Plaintiff's contentions.
In Wheeler v. CIA, the District Court addressed the
plaintiff's request, made pursuant to FOIA and the Privacy Act, for CIA
information concerning himself. 271 F. Supp.2d at 134.
In response to the plaintiff's request, the CIA issued a Glomar
response, cited to FOIA exemptions (b)(1) and (b)(3) and Privacy Act
exemptions (j)(1) and (k)(1), and provided a declaration prepared by
McNair to justify its refusal to confirm or deny the existence of records
pertaining to the plaintiff. Id. at 134-135. The Court found
that the CIA's Glomar response was proper and declined to allow further
discovery or an in camera review of documents. Id. at
141. The Wheeler Court found that "the adequacy of a search is
irrelevant to this `Glomar' response because the issue is whether the
Agency has given sufficiently detailed and persuasive reasons for taking
the position that it will neither confirm nor deny the existence or
non-existence of any responsive records." Id. Furthermore,
the Court held that "`[w]hen the [CIA'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 [CIA's] refusal.'" Id. (quoting
Phillippi, 546 F.2d at 1013). Therefore, when the CIA adequately
meets its burden of justifying FOIA exemptions through affidavits or
declarations, as it has done in this case, there is no need for a court
to conduct an in camera review of records. See Id.
at 141-142 (citations omitted).
Plaintiff does not establish any genuine issue of material fact
regarding the sufficiency of the CIA's identification or
retrieval procedures. Plaintiff fails to present any "affirmative
evidence in order to defeat a properly supported motion for summary
judgment." Anderson, 477 U.S. at 256-257. As a result, the
Government has met its burden, and summary judgment shall be granted.
For the foregoing reasons, Defendant's motion for summary judgment is
GRANTED. Plaintiff's Complaint is hereby DISMISSED.
An appropriate order follows.