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Florez v. Central Intelligence Agency

United States District Court, S.D. New York

February 19, 2015

SERGIO FLOREZ, Plaintiff,
v.
CENTRAL INTELLIGENCE AGENCY, Defendant.

OPINION & ORDER

SIDNEY H. STEIN, District Judge.

Plaintiff Sergio Florez has filed a request pursuant to the Freedom of Information Act, 5 U.S.C. § 552 et seq., with defendant Central Intelligence Agency ("CIA") for records concerning plaintiff's father, Dr. Armando J. Florez, a former high-ranking Cuban diplomat who defected and received political asylum in the United States following an alleged attempt to kill his fiancee by Cuban officials. After the CIA issued a so-called Glomar response-in which the agency neither confirms nor denies the existence of any records revealing a classified connection with Dr. Florez-his son filed this litigation to compel disclosure of any responsive records.

Currently before the Court are the parties' cross-motions for summary judgment, which raise the question of whether the CIA properly issued the Glomar response to protect information exempted from disclosure pursuant to 5 U.S.C. § 552(b). Because this Court finds that the CIA's Glomar response was justified and the existence of any records is exempt from disclosure under FOIA Exemption 1 (for classified national defense or foreign policy secrets) and Exemption 3 (for matters specifically exempted from disclosure by statute), defendant's motion for summary judgment is granted and plaintiff's cross-motion for summary judgment is denied.

I. BACKGROUND

The following facts are undisputed.

A. The 2001 FOIA Request

The Freedom of Information Act ("FOIA") "calls for broad disclosure of Government records" but exempts from disclosure information that falls within one or more of the nine exemptions Congress delineated in 5 U.S.C § 552(b). CIA v. Sims, 471 U.S. 159, 166-67 (1985).

On February 7, 2001-almost exactly fourteen years ago-plaintiff submitted a FOIA request to the CIA, seeking records pertaining to his father, Dr. Armando Florez ("Dr. Florez"). ( See Letter from Florez to CIA (Feb. 7, 2001), Ex. 1 to the Declaration of Martha M. Lutz, Chief of the Litigation Support Unit, Central Intelligence Agency, dated April 28, 2014 ("Lutz Decl.").) Dr. Florez was the Cuban charge d'affaires in Washington in 1960 when the United States severed diplomatic relations with Cuba. ( Id. ) Sergio's request included details about Dr. Florez's personal history, including his post as the Cuban ambassador to Czechoslovakia from 1962 to 1964, his subsequent defection from Cuba in 1967, and his successful request for political asylum in the United States in 1968. ( Id. )

The CIA responded to Sergio's request in a letter dated February 23, 2001. (Ex. 2 to Lutz Decl.) The CIA acknowledged receipt of the request, asked for additional identifying information regarding Dr. Florez (full name, date of birth, and nationality), and requested a signed, notarized statement from Dr. Florez authorizing the CIA to release his personal records pursuant to the Privacy Act of 1974. ( Id. ) Because Dr. Florez had Alzheimer's disease at the time and was no longer able to read or write, Sergio was unable to furnish the required waiver from his father. (Declaration of Sergio Florez, dated May 12, 2014 ("Florez Decl.") ¶ 35.) As a result, the CIA provided no information requested by Sergio in his 2001 FOIA request. ( Id. ¶ 36.)

B. The 2013 FOIA Request

Sergio submitted a second FOIA request to the CIA more than a decade later in November 2013, shortly after his father's death. ( Id. ¶¶ 37-38; Ex. 3 to Lutz Decl.) The request sought "information or records regarding my father, Armando J. Florez, " and included details about his father's career in Cuban politics as well as a United Press International story about his father's defection from Cuba. (Florez Decl. ¶ 41; Ex. 3 to Lutz. Decl.)

Upon receiving the second FOIA request, the CIA searched for any responsive records. Its Information Management Service professionals, under the supervision of the Information and Privacy Coordinator, identified two directorates-or office clusters-which "reasonably might be expected to possess responsive records": the Directorate of Support ("DS") and the National Clandestine Services ("NCS"). (Lutz Decl. ¶¶ 18-19, 23.) The DS contains records on "all current and former CIA employees and contractors as well as other individuals for whom security processing or evaluation has been required." ( Id. ¶ 20.) The NCS maintains information on "persons who are of foreign intelligence or counterintelligence interest to CIA and other U.S. government agencies." ( Id. ) Information Review Officers within each directorate searched their databases using Dr. Florez's name and other identifying information, but they were unable to locate any records "that reflected an open and acknowledged CIA affiliation and were responsive to Plaintiff's FOIA request." ( Id. ¶¶ 24-25).[1]

The CIA responded to the 2013 FOIA request in a letter dated November 20, 2013. (Ex. 4 to Lutz Decl.) It acknowledged receipt of the request and informed plaintiff that its search for an "openly acknowledged Agency affiliation... did not locate any responsive records." ( Id. ) With respect to any records beyond those revealing an open and acknowledged CIA affiliation, the CIA invoked the so-called Glomar response, [2] neither confirming nor denying the existence or nonexistence of records responsive to plaintiff's request because the existence or nonexistence of such records "is currently and properly classified and is intelligence sources and methods information that is protected from disclosure by section 6 of the CIA Act of 1949, as amended, and section 102A(i)(I) of the National Security Act of 1947, as amended." ( Id. ) Accordingly, the CIA denied the 2013 FOIA request pursuant to FOIA Exemptions 1 and 3, which govern classified national defense or foreign policy secrets (Exemption 1) as well as matters specifically exempted from disclosure by statute (Exemption 3).

Plaintiff immediately appealed the denial of his 2013 request. (Ex. 5 to Lutz. Decl.) The CIA confirmed receipt of his appeal and notified Sergio that "arrangements [were] being made for its consideration by the Agency Release Panel." (Ex. 6 to Lutz Decl.)

Plaintiff filed the instant action two months later, alleging that the CIA's denial of his 2013 request violated the FOIA, 5 U.S.C. § 552.[3] On April 22, 2014, the CIA's Agency Release Panel denied plaintiff's ...


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