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AMERICAN CIVIL LIBERTIES UNION v. DEPARTMENT OF DEFENSE

February 2, 2005.

AMERICAN CIVIL LIBERTIES UNION, et al., Plaintiffs,
v.
DEPARTMENT OF DEFENSE, et al., Defendants.



The opinion of the court was delivered by: ALVIN HELLERSTEIN, District Judge

OPINION AND ORDER DENYING APPLICATION BY CIA FOR STAY OF FOIA OBLIGATION TO SEARCH AND REVIEW
Invoking the Freedom of Information Act ("FOIA"), 5 U.S.C. § 552, plaintiffs, including the American Civil Liberties Union ("ACLU"), demanded that the Central Intelligence Agency ("CIA" or the "Agency") produce its records concerning the "treatment of Detainees in United States custody," the "death of Detainees in United States custody," and the "rendition of Detainees and other individuals" to countries known to employ torture. Plaintiffs' demands have been outstanding since October 7, 2003 and, as supplemented, since May 25, 2004. My Opinion and Order of September 15, 2004, 339 F. Supp. 2d 501 (S.D.N.Y. 2004), overruled objections made on behalf of several government agencies involved with detainees, and set out a procedure requiring compliance with FOIA by release of non-exempt documents, and identifications and motions to test if allegedly exempt documents under FOIA should be released.

Defendant CIA now moves for a stay of that Opinion and Order with respect to documents it alleges are, or may be, in its "operational" files and which, therefore, it contends, are exempted even from search and identification. I am asked to apply a seldom construed Page 2 statute: the CIA Information Act (the "Act"), which both authorizes the "Director of the Central Intelligence Agency, with the coordination of the Director of National Intelligence,"*fn1 to exempt the CIA's "operational files" from "publication or disclosure" under the Freedom of Information Act, "or search or review in connection therewith," see 50 U.S.C. § 431(a); and also provides an exception to that exemption where an "impropriety, or violation of law, Executive order, or Presidential directive, in the conduct of an intelligence activity" is being investigated by the congressional intelligence committees, various agencies of government, or the "Office of Inspector General of the Central Intelligence Agency." See id. § 431(c)(3). The exception provides that otherwise exempted operational files nonetheless "shall continue to be subject to search and review for information concerning . . . the specific subject matter of [such] investigation," id., subject, of course, to proof that documents identified as responsive in such a search nevertheless may not be released to the public because they are exempt under a specific FOIA exemption.

  I hold that defendant CIA has failed to satisfy the statutory prerequisites for invoking the operational files exemption, and hence may not avoid the requirements imposed by FOIA, as defined by my Opinion and Order of September 15, 2004. As I ordered, where identification of a responsive document may itself compromise security, in camera identifications may be used. I hold, also, that the investigation being carried out by the Office of Inspector General of the CIA requires the CIA to search for, and either release or claim exemption against release of, the Page 3 records responsive to plaintiffs' FOIA requests that have been produced or gathered pursuant to the investigation.

  I. Background

  Plaintiffs made their first FOIA request for the records described above on October 7, 2003. Def.'s Br., at 4. On October 27, 2003, the CIA denied this request, claiming exemption under the CIA Information Act. Id. at 4-5. Plaintiffs appealed and the CIA denied the appeal on May 13, 2004 with respect to operational files. Id. at 5. With respect to non-operational files, the CIA located thirteen documents responsive to plaintiffs' request, which it proceeded to withhold under FOIA exemptions (b)(1) and (b)(3). Id. On May 25, 2004, plaintiffs submitted a second FOIA request, nearly identical to the first,*fn2 in which they reiterated their first request as supplemented by additional records that may have been generated or obtained since the first request of October 7, 2003. Id.; Pls.' Br., at 4. According to plaintiffs, the CIA provided "no substantive responses" in its July 29, 2004 letter addressing the second request. Pls.' Br., at 3.

  Meanwhile, on May 11, 2004, the CIA's Office of Inspector General (the "OIG") "commenced a criminal investigation of allegations of impropriety in Iraq." Def.'s Br., at 5; see also Decl. of Mona B. Alderson, CIA Assistant Inspector General for Investigations, dated Nov. 9, 2004, at ¶ 5; Decl. of Scott A. Koch, CIA Information and Privacy Coordinator, dated Oct. 15, 2004, at ¶ 21. The CIA has been extremely sparing in the details it has supplied about the nature of this investigation. For example, in its brief, the CIA notes that Page 4

 
[a]lthough the Iraq investigation is referred to in the singular in this memorandum of law, there may be several investigations that are related to or grow out of the general Iraq investigation. In addition, the OIG is conducting other criminal investigations the specific subject matter of which may overlap with the subject matter of plaintiffs' FOIA requests.
Def.'s Br., at 2 n. 1. The investigation is ongoing, and requires the OIG to probe the conduct of CIA components and personnel. Id. at 5; see also Alderson Decl. ¶ 5; Koch Decl. ¶ 21. The CIA states that in the course of the investigation thus far, "the OIG has searched for and received documents, including documents from the [CIA's] operational files." Def.'s Br., at 5-6. These documents are held in the OIG's investigative files, which also contain documents created by OIG. Id. at 6 n. 3.

  II. Standard of Review

  The parties did not brief the question whether the Agency's interpretation of the CIA Information Act is entitled to any deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). In the present case, there has been no apparent articulation of the position now advocated by defendant CIA prior to the commencement of this lawsuit. See In re New Times Sec. Serv., Inc., 371 F.3d 68, 80-81 (2d Cir. 2004) (finding Chevron deference inappropriate in part because "it appears that the position taken by the SEC in its [amicus] brief is one that it has not previously articulated in any form"); see also In re Enter. Mortg. Acceptance Co., LLC, Sec. Litig., 391 F.3d 401, 410 n. 8 (2d Cir. 2004) (remarking that "because the SEC's position is put forth only in an amicus brief, it lacks the force of law and thus does not warrant Chevron deference" (citing In re New Times Sec. Serv., Inc.) (internal quotations omitted)). The CIA provided three written responses to plaintiffs' FOIA requests: two in response to plaintiffs' direct requests; one responding to plaintiffs' administrative appeal. Although the Agency cited generally therein to the CIA Information Act's provisions regarding Page 5 operational files, it nowhere espoused the basis that it now, through counsel, puts forward. See Decl. of Sean H. Lane, Assistant United States Attorney, dated July 30, 2004, Exs. M, N, & O (attaching copies of correspondence). Nor do the regulations cited in the Agency's responses to plaintiffs set forth this position. See 32 C.F.R. pt. 1900 (Public Access to CIA Records Under the Freedom of Information Act (FOIA)).

  "The fact that Chevron is inapplicable to this case does not mean that the [Agency's] interpretation will merit no deference whatsoever." In re New Times Sec. Serv., Inc., 371 F.3d at 82-83. Rather, "it warrants the more limited standard of deference adopted by the Supreme Court in Skidmore v. Swift & Co., 323 U.S. 134 [(1944)]." Id. at 83 (citing United States v. Mead Corp., 533 U.S. 218, 234 (2001)). As the Second Circuit has interpreted, "the level of deference owed to any particular interpretation depends upon `the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.'" Id. (quoting Skidmore, 323 U.S. at 140, and citing Mead, 533 U.S. at 239). The Second Circuit has "outlined the factors that inform our Skidmore analysis, including `the agency's expertise, the care it took in reaching its conclusions, the formality with which it promulgates its interpretations, the consistency of its views over time, and the ultimate persuasiveness of its arguments.'" Id. (quoting Cmty. Health Ctr. v. Wilson-Coker, 311 F.3d 132, 138 (2d Cir. 2002)).

  On the record before me, I decline to address the CIA's position in the present motion with formal Skidmore deference, as I am not able adequately to address these factors except for the "persuasiveness of [the CIA's] arguments," a factor that I take into consideration in any Page 6 event. Accordingly, I review the Agency's statutory interpretation, as reflected in its motion, de novo.

  III. Freedom of Information Act and CIA Information Act

  A. The Statutory Texts

  Originally enacted in 1966, the Freedom of Information Act "is often explained as a means for citizens to know what the Government is up to." National Archives and Records Admin. v. Favish, 541 U.S. 157, ___, 124 S. Ct. 1570, 1580 (2004) (internal quotations omitted). In brief, FOIA commands each agency to make certain information available to the public through a variety of means, including publication in the Federal Register, see 5 U.S.C. § 552(a)(1), public inspection, see id. § 552(a)(2), and requests for records, see id. § 552(a)(3). These requirements do not apply, however, to certain categories of records, which may be withheld, among other reasons, in the interests of national defense or law enforcement proceedings, or pursuant to statutory exemption:
(b) This section does not apply to matters that are —
(1) (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 order;
. . . .
(3) specifically exempted from disclosure by statute (other than section 552b of this title), 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;
. . . .
  (7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a Page 7 confidential source, including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to endanger the life or physical safety of any individual.

 Id. § 552(b).

  The CIA Information Act, which significantly modifies the way in which FOIA applies to the Agency, was enacted in 1984 and added a new title to the National Security Act of 1947, codified at 50 U.S.C. § 401 et seq., the statute that created the CIA. The CIA Information Act authorizes the head of the Agency to exempt operational files from the purview of FOIA. "The Director of the Central Intelligence Agency, with the coordination of the Director of National Intelligence, may exempt operational files of the Central Intelligence Agency from the provisions of section 552 of title 5, United States Code (Freedom of Information Act), which require publication or disclosure, or search or review in connection therewith." 50 U.S.C. § 431(a). Operational files are in turn defined to include certain files of the Directorate of Operations, the Directorate for Science and Technology, and the Office of Personnel Security that contain sensitive information about CIA methods:
(b) "Operational files" defined.
In this section, the term "operational files" means —
  (1) files of the ...

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