UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)
MOTION TO DISMISS, OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGEMENTPursuant to Fed.R.Civ.P. 12(b)(1) and (6), the Central Intelligence Agency ("CIA") hereby moves the Court to dismiss plaintiff's Complaint for declaratory and injunctive relief under the Freedom of Information Act ("FOIA") in its entirety and with prejudice on the grounds that plaintiff's complaint fails to state a claim upon which relief may be granted. In the alternative, CIA moves the Court, pursuant to Fed.R.Civ.P. 56, for summary judgement on the grounds that there is no dispute as to any material fact and CIA is entitled to judgment as a matter of law.
In support of this Motion, the CIA respectfully refers the Court to the accompanying statement of material facts as to which there is no genuine dispute and memorandum in support of the Motion to Dismiss, or, in the Alternative, for Summary Judgment. A proposed Order consistent with this motion is attached.
Respectfully Submitted,
KENNETH L. WAINSTEIN, D.C. Bar #358637
United States Attorney
MARK E. NAGLE, D.C. Bar #416364
Assistant United States Attorney
DIANE M. SULLIVAN, D.C. #12765
Assistant United States Attornev
Judiciary Center Building
555 4th Street, N.W., Room 10-122
Washington, D.C. 20001
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)
STATEMENT OF MATERIAL FACTS
AS TO WHICH THERE IS NO GENUINE DISPUTE
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, and Local Rule 7.1(h), the Central Intelligence Agency ('CIA") hereby submits the following statement of material facts as to which there is no genuine dispute.
1. CIA received a letter dated September 9, 2000 from plaintiff, pursuant to the Freedom of Information Act (the "FOIA"), in which plaintiff requested a copy of all records about Jorge Eliecer Gaitan, "Including documents, reports, memoranda, letters and indices, official and confidential files, personal and confidential files, electronic files, database references, 'do not file' files, and other miscellaneous files and index citations relating to the subject in other files." (Declaration of Kathryn 1. Dyer ("Dyer Declaration") at ¶4 and Attachment A).
2. On September 22, 2000, the CIA acknowledged receipt of plaintiffs FOIA request (Id. at ¶ 5 and Attachment B). CIA's September 22 letter also informed plaintiff that CIA could "neither confirm nor deny the existence or nonexistence of any CIA records responsive to his request." Id. This CIA letter informed plaintiff that the fact of the existence or nonexistence of records containing the information requested by him is classified for reasons of national security, and that the Director of Central Intelligence has the responsibility and authority to protect information from unauthorized disclosure pursuant to statute. Id. This CIA letter informed plaintiff that CIA was denying her request pursuant to FOIA exemptions (b)(1) and (3). Id.
4. On October 31, 2000, CIA received a letter from the plaintiff appealing the CIA's denial of his FOIA request (Id. at ¶ 6 and Attachment C thereto).
5. On November 1, 2000, the CIA acknowledged receipt of plaintiff's appeal (Id. at ¶ 7 and Attachment D). On December 14, 2000, the CIA affirmed its earlier decision and denied plaintiff s appeal (Id. at ¶ 8 and Attachment E).
Respectfully Submitted,
KENNETH L. WAINSTEIN, D.C. Bar #358637
United States Attorney
MARK E. NAGLE, D.C. Bar #41634
Assistant United States Attorney
DIANE M. SULLIVAN, D.C. #12765
Assistant United States Attornev
Judiciary Center Building
555 4th Street, N.W., Room 10-122
Washington, D.C. 20001
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)
MEMORANDUM IN SUPPORT OF CENTRAL INTELLIGENCE AGENCY'S
MOTION TO DISMISS, OR, IN THE ALTERNATIVE,
FOR SUMMARY JUDGMENT
1. IntroductionOn September 9, 2000, pursuant to the Freedom of Information Act ("FOIA"), plaintiff requested that defendant Central Intelligence Agency ("CIA") produce to him documents regarding Jorge Eliecer Gaitan. Pursuant to FOIA Exemptions (b)(1) and (3), CIA responded that it can neither confirm nor deny whether it maintains documents responsive to plaintiff's FOIA request. On April 4, 2000, after exhausting his administrative remedies, plaintiff filed a Complaint (the "Complaint") for Declaratory and Injunctive relief under the FOIA. Plaintiff's Complaint seeks to compel CIA to produce documents responsive to his September 9, 2000 FOIA request. Because CIA's refusal to confirm or deny the existence or nonexistence of responsive records is lawful and proper under the FOIA, the Court should dismiss plaintiff's Complaint in its entirety and with prejudice.
On September 9, 2000, under the FOIA, plaintiff sent a letter to the CIA requesting documents pertaining to Jorge Eliecer Gaitan (See Declaration of Kathryn I. Dyer ["Dyer Decl."] at ¶ 4 and Attachment A [attached hereto as Exhibit 1])1. On September 22, 2000, the CIA acknowledged receipt of plaintiff's FOIA request (Id. at ¶ 5 and Attachment B). Moreover, in its September 22 letter, the CIA informed plaintiff that it could "neither confirm nor deny" the existence or nonexistence of any CIA records responsive to his request. Id.
Specifically, the CIA informed plaintiff that the fact of the existence or nonexistence of records containing the information requested by him is classified for reasons of national security. Id. Moreover, the CIA further indicated that the Director of Central Intelligence otherwise has the responsibility and authority to protect such information from unauthorized disclosure pursuant to statute. Id. Accordingly, the CIA informed plaintiff that it was denying his request pursuant to FOIA, exemptions (b)(1) and (b)(3). Id.
On October 23, 2000, plaintiff appealed the CIA's denial of his FOIA request (Dyer Decl. at ¶ 6 and Attachment C ). On November 1, 2000, the CIA acknowledged receipt of plaintiff's appeal (Id. at ¶ 7 and Attachment D). On December 14, 2000, the CIA affirmed its earlier decision and denied plaintiff's appeal (Id. at ¶ 8 and Attachment E).
_______________________1 The Declaration of Kathryn I. Dyer submitted with this motion is a facsimile copy of the original. The original will be filed with the Court upon receipt.
II. ARGUMENT
A. Standard of ReviewThe standard of review for a District Court reviewing an agency FOIA - nondisclosure decision is de novo. 5 U.S.C. § 552(a)(4)(B). An agency must meet the burden of proving the applicability of an exemption when it refuses to disclose information to a requesting party. Minier v. CIA, 88 F.3d 796, 800, (9th Cir. 1996). An agency meets this burden by providing to the Court an affidavit that describes, in detail, why the information "logically falls within the claimed exemptions." Id. (quoting Hunt v. CIA, 981 F.2d 1116, 1119, (9th Cir. 1992).
In conducting a de novo review in the context of a national security exemption, Courts give "substantial weight" to agency affidavits that describe the justifications for nondisclosure. Hunt, 981 F.2d at 1119 (citing, Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984). "Summary judgment is warranted on the basis of agency affidavits when the affidavits describe 'the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith."' Miller v, Casey, 730 F.2d 773,776 (D.C. Cir. 1984)(quoting, Military Audit Project v. Casey , 656 F.2d 724, 738 (D.C. Cir. 1982).
B. CIA's Response to Neither Confirm Nor
Deny the Existence or Non-Existence of Records
Responsive to Plaintiffs FOIA Request is Proper
"[A]n agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exemption." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). In the instant matter, CIA properly refused to confirm or deny the existence or nonexistence of the records sought by plaintiff pursuant to FOIA Exemptions (b)(1) and (b)(3), since the existence or non-existence of the requested records is a fact specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense, and specifically exempted from disclosure by statute.
A government agency may refuse to confirm or deny the existence of records requested under the FOIA if the FOIA exceptions would preclude the acknowledgment of such documents. Minier v. CIA, 88 F.3d at 800 (9th Cir. 1996); Hunt v. CIA, 981 F.2d at 1118 (9th Cir. 1992); Arabian Shield Development Company v. CIA, No. 3-98-CV-0624BD (N.D. Tex., Feb. 26, 1999),1999 U.S. Dist. LEXIS 2379, aff 'd without opinion 208 F.2d 1007 (5th Cir. 2000), cert. denied. 121 S.Ct. 173 (2000).
1. FOIA Exemption (b)(1)
The FOIA provides, in pertinent part, that5 U.S.C. § 552(b)(1).
(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....
Executive Order No. 12958, Sec. 1.5, 60 Fed.Reg. 19825 [hereinafter "Order"] is the currently effective Executive Order for classifying information in the interest of national defense. It provides at Section 1.5:
Classification Categories. Information may not be considered for classification unless it concerns:
* * * (c) intelligence activities (including special activities), intelligence sources or methods, or cryptology;
(d) foreign relations or foreign activities of the United States, including confidential sources...This Executive Order also provides that, in response to a FOIA request, "[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 under this order." Order at § 3.7(a). Similarly, CIA regulation, published at 32 C.F.R. § 1900.21(c) provides that:
The Agency 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. [renumbered as sect. 103(c)(6) by P.L. 104-293, § 807]
In this case, CIA properly determined that it could neither confirm nor deny the existence or non-existence of records responsive to Plaintiff's request because the mere confirmation or denial of the records would reveal a classified fact: whether CIA has records on Jorge Eliecer Gaitan. In FOIA cases seeking information that could reveal the CIA's covert relationships, interests, employees and facilities, the CIA must neither confirm nor deny the existence of records in order to avoid damage to intelligence sources and methods of the United States.
As a matter of policy, even if CIA has no documents, the CIA cannot provide requesters with a "no records" response. Should CIA consistently deny that it maintains responsive information only in cases where the CIA does not possess such information, the CIA response that refuses to confirm or deny whether the CIA has information would be tantanount to admitting that the CIA possesses such information (See Dyer Decl. at ¶ 33). This would allow interested parties to ascertain the nature of CIA intelligence interests by analyzing the Agency's answers in different FOIA cases.
Courts have have consistently affirmed the Agency's responses to FOIA requesters to refuse to confirm or deny the existence or nonexistence or its covert relationships. [sic] See Military Audit Project y. Casey, 656 F.2d 724 (affirming Agency response to FOIA request to neither confirm nor deny covert relationships with corporations); Hunt v. CIA, 981 F.2d 1999, (affirming a "neither confirm nor deny" response to a FOIA request for CIA information on an Iranian national); Gardels v. CIA, 689 F.2d 1100 (affirming "neither confirm nor deny" response to FOIA request for information on CIA contracts with University of California students and professors); Minier, 88 F.2d 796 (upheld summary judgment, based on an agency affidavit, where CIA refused to confirm or deny the existence or nonexistence of records responsive to FOIA request seeking information on an alleged CIA agent).
Unquestionably, FOIA Exemption (b)(1) protects from disclosure classified intelligence sources and methods, Central Intelligence Agency v. Sims, 471 U.S. 159, 174-77 (1985), and information that, if disclosed, could harm foreign relations. Frugone v. CIA, 169 F.3d 772, 775 (D.C. Cir. 1999). These are precisely the types of information that CIA seeks to protect by refusing to confirm or deny the existence or nonexistence of records that may be responsive to plaintiff's FOIA request.
In this regard, and as noted in the pertinent sections of the Dyer Declaration, the CIA's intelligence interest in a specific foreign national represents an intelligence activity, source and/or method, the unauthorized disclosure of which reasonably could be expected to result in serious damage to the national security (Dyer Decl. at ¶¶ 20-29, 32). The release of information that identifies an intelligence source could affect CIA's ability to recruit other potential sources jeopardize the health and safety of existing sources and impede CIA's ability to collect and analyze intelligence information (Id. at ¶¶ 15-17, 18, 22). Similarly, the release of information that identifies intelligence methods could impair the CIA's ability to employ successfully any such method in the future, and inhibit the CIA's ability to collect and analyze intelligence information (Id. at ¶¶ 18-22).
Moreover, any action that would require the CIA to confirm or deny the existence or nonexistence of CIA records about a foreign national also would cause serious harm to national security (Dyer Decl. at ¶ 25). Indeed, such a confirmation or denial would reveal whether the CIA had an intelligence interest in the particular foreign national, which in turn, would provide foreign intelligence services with information concerning which intelligence operatives or types of intelligence activities the CIA can and cannot monitor, indicate which persons are potential CIA sources, and demonstrate CIA interest in identified persons (Id. at ¶ 26). With such information, foreign intelligence services could redirect their resources to identify potential CIA sources and circumvent CIA's monitoring efforts. Frugone v. CIA, 169 F.3d at 775.
Additionally, action that would require the CIA to confirm or deny the existence or nonexistence of CIA records about a foreign national also could affect adversely the United States' foreign relations (Id. at ¶ 28). Official acknowledgement that CIA maintains information concerning a particular foreign national may-be construed negatively by a foreign government as indicating that the CIA has collected information on or recruited one of its citizens (Id. at ¶¶ 27-28).
Accordingly, information regarding the existence of CIA's intelligence interest in a foreign national properly is classified and should be protected. See e.g., Miller, 730 F.2d at 777 (where the response to the request would have amounted to admission or denial that a secret mission occurred, CIA's claim of foreseeable harm was all but indisputable). As such, the CIA properly refused to confirrn or deny the existence of records responsive to Plaintiff's 9 September 2000 FOIA request.
2. FOIA Exemption (b)(3)
The FOIA, section (b)(3) provides, in pertinent part, that:5 U.S.C. § 552(b)(3).
(b) This section does not apply to matters that are -
* * * (3) specifically exempted from disclosure by statute (other than section 552b of this title), provided that such statute (A) requires that 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....
The National Security Act of 1947, as amended, 50 U.S.C. § 403-3(c)(6), which requires the DCI to protect intelligence sources and methods from disclosure, qualifies as a withholding statute under FOIA Exemption (b)(3). Sims, at 471 U.S. 167. The statute provides the CIA with "wide-ranging" authority to protect intelligence sources and methods. Id. at 177. Such authority includes even "innocuous" information that "might enable an observer to discover the identity of an intelligence source." Id at 178. As such, the statute exempts from FOIA's disclosure the identities of intelligence sources and methods. See Sims, 471 U.S. at 167-69; Krikorian v. Dep't of State, 984 F.2d 461, 465 (D.C. Cir. 1993).
Pursuant to FOIA Exemption (b)(3), CIA properly can refuse to confirm or deny the existence of records responsive to a FOIA request where otherwise answering the request reasonably can be expected to lead to unauthorized disclosure of intelligence methods and sources. Gardels, 689 F.2d at 1103; Frugone 169 F.3d at 775. Moreover, in assessing the propriety of not confirming or denying the existence of such records, the Court must accord substantial weight to the CIA's determinations regarding the applicability of Exemption (b)(3). Gardels, 689 F.2d at 1104; Miller, 730 F.2d at 777.
As explained supra, the CIA's intelligence interest in a particular foreign national constitutes an intelligence activity, source and/or method, the unauthorized disclosure of which reasonably could be expected to result in serious damage to national security. (Dyer Decl. at ¶¶ 18-22, 26). Moreover, the CIA's confirmation or denial that it maintains records concerning a foreign national could disclose intelligence sources and/or methods (Id. at ¶¶ 18-22, 25). Therefore, in order to protect these intelligence sources and methods from unauthorized disclosure, CIA must continue to neither to confirm nor deny that it maintains records concerning a specific foreign national (Id. at ¶¶ 31-33). Consequently, Exemption (b)(3) also justifies CIA's refusal to confirm or deny the existence of records responsive to plaintiff's FOIA request. See, e.g., Miller, 730 F.2d at 778 (where official confirmation that the CIA participated in a covert action would reveal intelligence sources and methods, the CIA properly refused to confirm or deny the existence or nonexistence or records regarding such action pursuant to Exemption (b)(3)).
III. Conclusion
For the foregoing reasons, and the reasons stated in the Declaration of Kathryn I. Dyer, the CIA's motion to dismiss, or in the alternative, for summary judgement, should be granted.
Respectfully Submitted,
KENNETH L. WAINSTEIN, D.C. Bar #358637
United States Attorney
MARK E. NAGLE, D.C. Bar #41634
Assistant United States Attorney
DIANE M. SULLIVAN, D.C. #12765
Assistant United States Attornev
Judiciary Center Building
555 4th Street, N.W., Room 10-122
Washington, D.C. 20001
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)
DECLARATION OF KATHRYN I. DYER
CHIEF, CIA PUBLIC INFORMATION RELEASE DIVISION
I, KATHRYN I. DYER, hereby declare and say:1. I am the Chief, Public Information Release Division, Information Review Group, Office of Information Management (OIM/PIRD), for the United States Central Intelligence Agency (CIA or Agency). I have held this position since 5 January 1998. In addition, on 15 February 2000, I was appointed the CIA Information and Privacy Coordinator (Coordinator), a position in which I had been acting since 7 September 1999. I have served in the CIA for over 25 years, and, in addition to my current position, have held other senior and supervisory positions in the field of information review and release.
2. In my capacities as Chief, OIM/PIRD, and Coordinator, I am responsible for managing the Freedom of Information Act (FOIA), Privacy Act (PA), and Executive Order 12,958 (E.O. 12958) Mandatory Declassification Review (MDR) programs in CIA. This includes, among other things, directing the searches of CIA record systems to locate records in response to public requests and ensuring the resulting searches are conducted in a thorough and reasonable manner.
3. Through the exercise of my official duties, I have become familiar with Plaintiff's civil action, I make the following statements based upon my personal knowledge, information made available to me in my official capacity, the advice and counsel of the CIA Office of General Counsel, and conclusions I reached and determinations I made in accordance therewith.
I. STATEMENT OF FACTS 4. By letter dated 9 September 2000, Plaintiff requested:
A copy of all records about Jorge Eliecer Gaitan, who as born on January 26th, 1903 in Bogota, Colombia and who died on April 9, 1948, including documents, reports, memoranda, letters and indices, official and confidential files, personal and confidential files, electronic files, database references, "do not file" files and other miscellaneous files and index citations relating to the subject in other files. (Attachment A.)
5. By letter dated 22 September 2000, the CIA acknowledged receipt of the Plaintiff's 9 September 2000 request. Upon learning that Jorge Eliecer Gaitan was a foreign national, the CIA informed Plaintiff that it could neither confirm nor deny the existence or nonexistence of any CIA records responsive to his request. Plaintiff was informed that the fact of the existence or nonexistence of records at CIA containing information on a foreign national - - unless, of course, CIA has officially acknowledged the existence or nonexistence of such records - - would be classified for reasons of national security under Sections 1.5(c) (intelligence sources and methods] and 1.5(d) [foreign relations] of E.O. 12958. Further, Plaintiff was informed that the Director of Central Intelligence has the responsibility and authority to protect such information from unauthorized disclosure in accordance with Subsection 103(c)(b) of the National Security Act of 1947 and Section 6 of the CIA Act of 1949. Therefore, Plaintiff was advised his request was denied pursuant to FOIA Exemptions (b)(1) and (b)(3), neither confirming nor denying the existence or nonexistence of such records. (Attachment B.) The Plaintiff was advised in the same letter that he could appeal the decision to the Agency Release Panel within 45 days.
6 . By letter dated 23 October 2000, the Plaintiff submitted an administrative appeal. (Attachment C.)
7. By letter dated 1 November 2000, the CIA informed Plaintiff that his administrative appeal had been received and was being processed. (Attachment D.)
8. By letter dated 14 December 2000, the Agency affirmed its denial of Plaintiff's request under FOIA Exemptions (b)(1) and (b)(3), neither confirming nor denying the existence or nonexistence of any such documents. Plaintiff was informed that the CIA "determined that we must neither confirm nor deny the existence or nonexistence of any records." Plaintiff was advised that he could seek judicial review of its determination in United States district court. (Attachment E.)
9. I submit this declaration to explain why I have concluded that the CIA can neither confirm nor deny whether or not the Agency maintains records responsive to Plaintiff's request. This position is necessary because to do otherwise reasonably could be expected to damage U.S. national security by revealing intelligence sources and methods and information harmful to foreign relations. Thus the fact of the existence or not of responsive CIA records is properly classified in accordance with E.O. 12958 and exempt from release pursuant to FOIA Exemption (b)(1).
Concomitantly, this position is necessary to fulfill the responsibility of the Director of Central Intelligence to protect intelligence sources and methods from unauthorized disclosure pursuant to statute. Therefore, the existence or not of responsive CIA records is additionally exempt from disclosure by FOIA Exemption (b)(3). My determinations are supported by E.O. 12958, which provides at Section 3.7(a) that:
An agency may refuse to confirm or deny the existence or non-existence of requested information whenever the fact of its existence or non-existence is itself classified under this order.
10. The type of CIA response to a FOIA request that neither confirms nor denies the existence or non-existence of particular records protects a specific -- and narrow -- type of classified fact. By contrast, in a typical circumstance, a FOIA requester submits a request to CIA for information on a particular subject, and the CIA responds by conducting a search of non-exempt records and advising whether responsive records were located. If records were located, CIA provides those non-exempt records or reasonably segregable non-exempt portions of records, and withholds the remaining exempt records and exempt portions of records. In this typical circumstance, the CIA's answer, either to provide or not provide the records sought, actually confirms to the requester (and the world, for that matter) the existence or non-existence of such CIA records. Typically, this confirmation threatens neither the national security nor the revelation of intelligence sources and methods, because the focus is on releasing or withholding specific substantive information, and the fact that the CIA possesses or does not possess records is not itself a classified fact.
11. The particular request by Plaintiff involves different and narrower circumstances, wherein the mere confirmation or denial of the existence of responsive records would reveal a classified fact - - namely, whether the CIA has gathered evidence on a particular foreign national. While such matters are not frequently encountered in FOIA requests, they must be approached in the reasonable manner of neither confirming nor denying the existence of such records, in order to protect their sensitivity in connection with, in this case, intelligence sources and methods and U.S. foreign relations. The remainder of this Declaration will address, first, the types of information to be protected in this litigation, and, second, the particular exemptions invoked in the instant litigation.
II. INTELLIGENCE SOURCES AND METHODS
A. In General12. The CIA is charged with both foreign intelligence and counterintelligence collection and analysis responsibilities, as well as with protecting the sources and methods used to carry out these responsibilities. The CIA, in operating in foreign nations, engages in activities that, if disclosed, would constitute and confirm serious violations of local law. It is an activity, however, that is necessary to the survival of the nation.
B. Intelligence Sources in Particular 13. One of the major functions of the CIA is to gather intelligence from around the world that can be used by the President and other government officials in making important decisions. To do this, the Agency must often depend upon information that can only be garnered from knowledgeable sources under an arrangement of absolute secrecy.
In carrying out these responsibilities, the CIA utilizes both U.S. citizens and foreign nationals to collect intelligence directly, to identify or provide access to others who may have intelligence information, or to support our intelligence collection activities. If the CIA were to provide a response that either confirms or denies that the CIA possesses records concerning any such individual, this admission could reveal information about the CIA's specific intelligence interests or activities that reasonably could be expected to cause serious damage to the national security. Such information is co-extensively exempt from disclosure pursuant to FOIA Exemptions (b)(1) and (b)(3).
14. Human intelligence sources can be expected to furnish information to the CIA only when they are confident that the CIA can and will do everything in its power to prevent the public disclosure of their cooperation and that their cooperation will forever remain secret. In the case of a foreign national abroad who has been cooperating with the CIA, official confirmation of that cooperation could cause the target government to take retaliatory action against that person, or, if he is no longer alive, against his surviving family and friends. Even more importantly, it places in realistic jeopardy every individual with whom the foreign national has had contact. Thus, the indiscretion of one source in our chain of intelligence sources can ravage an entire spectrum of sources; the damage occasioned by one can he incalculable for the many.
15. Official acknowledgment that this Agency maintains information responsive to a FOIA request concerning an individual who has or had a covert relationship with CIA would also seriously damage this nation's credibility with all other current intelligence sources and undermine CIA's ability to attract potential intelligence sources in the future.
16. This secrecy extends both to the existence of the source's relationship with the CIA and to the kind of information or type of operational assistance the source is supplying. If the U.S. Government were to breach this confidentiality, whether three or 30 years later, present and potential sources throughout the world could reasonably be expected to conclude that the U.S. Government is unable to maintain such confidentiality. Furthermore, they may conclude that cooperation with the United States entails the risk that at some unknown later date the United States will make an official acknowledgment of covert activity in that country, which could jeopardize their career, family, or life. Therefore, to betray such confidentiality would seriously damage this nation's ability to retain present sources and recruit new sources.
17. The Director of Central Intelligence and, derivatively, I take great care in protecting-human sources from unauthorized disclosure for another reason beyond the preservation of the intelligence collection capability of the United States, The lives, safety, and well being of persons who provide information critical to this country deserve protection. Covert cooperation with U.S. intelligence is an inherently dangerous venture. Individuals put a great deal at risk by cooperating with CIA officers - in many areas of the world, those individuals put not only themselves, but also their loved ones at risk of death, imprisonment, injury, or ostracism. Such persons deserve our most vigilant protection for placing themselves in peril for the benefit of the United States.
C. Intelligence Methods in Particular 18. Intelligence methods include the basic business practices and methodological "tools" used by the CIA to accomplish its mission. Each intelligence method must be protected from disclosure in every situation where a certain intelligence interest, capability, or technique is unknown to those groups that could take countermeasures to nullify its effectiveness. Once an intelligence method (or the fact of its use in a certain situation) is discovered, its continued successful use by the CIA is seriously jeopardized. In fact, detailed knowledge of each intelligence method must be protected from disclosure because such knowledge would be of material assistance to those who seek to detect, prevent, or damage U.S. intelligence operations. Two examples will illustrate.
19. First, if the CIA admits that it possesses covert intelligence information about a particular individual who may be an intelligence operative of a foreign intelligence service, the CIA essentially admits to that operative that one or more of his intelligence activities have been detected by the CIA. Such an acknowledgment alerts this operative that he must take countermeasures to make his future intelligence activities undetectable by the CIA. If the operative's countermeasures are successful, the CIA loses its ability to monitor his activities. Moreover, others who may be collaborating with the operative also will soon cease engaging in these detectable activities with similar results. In a case where the foreign intelligence operative is no longer active, the foreign intelligence service for which he worked is still alerted to the fact that one or more of his intelligence activities may have been detected by the CIA, and any benefit from them should be considered suspect unless proven otherwise.
20. Second, if the CIA denies that it possesses intelligence information about a particular individual who may be an intelligence operative, and who indeed should be of intelligence interest to the CIA, the CIA essentially admits to the operative that his efforts to conceal his intelligence activities have been successful. The result of the CIA's admission is that this operative would know that he could act with impunity. Moreover, other intelligence operatives could soon begin to emulate the same successful pattern of undetectable intelligence activities with similar results. In a case where the foreign intelligence operative is no longer active, the CIA's acknowledgment of no records would signal to the foreign intelligence service that his intelligence activities were never detected by the Agency, and any ongoing benefit of those activities can continue to be reaped.
21. Though the potential harm faced by the CIA from the two preceding examples is self-evident, the harm faced by the CIA is potentially magnified many times if a foreign intelligence service (or anyone, for that matter, who seeks to learn and publicly reveal CIA secrets) were to submit multiple FOIA requests. For example, if a foreign intelligence service were to submit separate FOIA requests for information concerning all individuals it suspected of being CIA collaborators, and the CIA were to provide a response other than neither confirming nor denying the existence of such records, the CIA would, in essence, provide the foreign intelligence service with information that would greatly aid in eliminating the CIA's network in that country.
22. Finally, the effective collection and analysis of intelligence require the Agency to prevent disclosing to our adversaries the specific persons and areas in which the CIA is interested and upon which it focuses its methods and resources. Every country or group has limited resources. The disclosure to a potential U.S. intelligence target of the areas and persons of CIA interest would indicate to that target how the CIA is allocating its resources. Therefore, the target may array its counterintelligence and security resources most efficiently to frustrate the CIA. The more efficiently an intelligence target may apply its counterintelligence resources, the more likely it will deny the information of interest to the United States.
III. FOIA EXEMPTIONS
A. (b)(1) Protection of Classified Information
(Intelligence Sources and Methods)23. FOIA Exemption (b)(1), 5 U.S.C. § 552(b)(1), provides that the disclosure provisions of the FOIA do not apply 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 Order.
As I will discuss below, the CIA invokes FOIA Exemption (b)(1) to justify its response of neither confirming nor denying the existence of records concerning any individual to the extent they may be a covert intelligence source, or to the extent confirming or denying the existence of the records about them might reveal the identity of a covert intelligence source.
24. Section 1.5 of E.O. 12958 specifies categories of information that are eligible for classification. One category of information eligible for classification is information that concerns intelligence activities or intelligence sources or methods. Moreover, E.O. 12958 provides at 5 1.2(a)(4) that information falling within one of those categories must be classified when "an original classification authority determines that the unauthorized disclosure of the information could be expected to cause damage to the national security."
25. The CIA's covert intelligence interest in a specific individual represents an intelligence activity, source and/or method, the unauthorized disclosure of which reasonably could be expected to cause serious damage to the national security. For example, the monitoring of each individual of potential intelligence interest to the CIA is a very costly enterprise with significant resource and national security implications.
26. At present, these costs are, in a sense, shared by both the CIA (which attempts to monitor the operatives) and the foreign intelligence service (which attempts to conceal from the CIA the identities of its operatives). The CIA may sometimes expend resources monitoring a particular individual who is not, in fact, an intelligence operative, while foreign intelligence operatives may sometimes undertake elaborate precautions because they believe they are being monitored by the CIA when, in fact, they are not. If the CIA were required to confirm or deny the existence or nonexistence of CIA records about a given individual, it would reveal whether it had an intelligence interest in that person. Such a revelation would provide the foreign intelligence service with information concerning which intelligence operatives or types of intelligence activities the CIA can and cannot monitor. it may also indicate which persons are potential CIA sources. It will at a minimum indicate CIA interest in identified persons. These admissions would greatly benefit the foreign service by enabling it to redirect its resources to identify potential CIA sources, circumvent the CIA's monitoring efforts, and generally enhance its intelligence activities at the expense of the United States. As a result, the CIA's efforts can be thwarted or made more difficult, reducing the CIA's effectiveness, requiring a diversion of CIA resources, and resulting in a loss of valuable intelligence information.
B. (b)(1) Protection of Classified Information
(Damage to U.S. Foreign Relations)27. In addition to intelligence sources and methods, U.S. foreign relations comprise another category of information eligible for classification as provided at § 1.5 of E.O. 12958. I have determined that official acknowledgment that the CIA maintains information concerning a covert relationship with a particular foreign national could be construed by that foreign government, whether friend or adversary, that the CIA has collected intelligence information on or recruited one of its citizens or resident aliens. Such a perception could be expected to affect adversely U.S. foreign relations with that nation. This is especially true where U.S. allies are concerned.
28. Further, an official acknowledgment that the CIA maintains information on a particular foreign national can be tantamount to a CIA admission that it has or has not collected (or intends to collect) specific information on specific foreign targets during specific time periods. Such an admission by this Agency invariably would adversely affect U.S. foreign relations.
C. (b)(3) Statutory Protection of Information
(National Security Act of 1947)29. Exemption (b)(3) of the FOIA provides that the disclosure provisions of the FOIA do not apply to matters that are:
... 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.
Section 103(c)(6) of the National Security Act of 1947, as amended, codified at 50 U.S.C. § 403-3(c)(6), requires the Director of Central Intelligence to protect intelligence sources and methods from unauthorized disclosure.
30. The CIA can neither confirm nor deny that it maintains records concerning a covert or clandestine interest in an individual because to do so would be to divulge an intelligence methodology that discloses that the CIA has identified an intelligence interest (or lack thereof) in such person. This is the only way that the CIA can continue to fulfill its intelligence responsibilities against groups who seek to learn about the CIA's intelligence sources and methods. Providing information that confirms that the CIA either possesses or does not possess an intelligence interest in a particular individual discloses exactly this information. By disclosing this information the CIA increases the difficulty it faces in carrying out its intelligence mission in the face of foreign intelligence services.
IV. CONCLUSION 31. Simply stated, the fact of the existence or nonexistence of CIA records evidencing a covert or clandestine interest in the subject of Plaintiff's request, irrespective of the content of such records, should they exist, is so intricately intertwined with intelligence sources and methods and U.S. foreign relations that this fact itself must remain classified. Therefore, the only appropriate response is for the CIA to neither confirm nor deny the existence or nonexistence of such records under FOIA Exemptions (b)(1) and (b)(3). No acceptable alternative exists to CIA's position, except in those few instances where there already has been an official affirmation or denial by an authorized United States Executive Branch official. That has not occurred with respect to the subject of Plaintiff's request.
32. The dilemma in which the CIA inevitably finds itself when such a request is received can be summarized if it is assumed, for the sake of argument, that the CIA does maintain a covert interest in and information concerning a particular individual. If a request for such information is received, only three possible courses of action are available:
(a) CIA can deny that it maintains any responsive information. This response, by hypothesis, is false and, therefore, is impermissible.(b) CIA can admit it maintains responsive information but decline to produce it on the grounds that it is classified and concerns intelligence sources and methods and U.S. foreign relations. This response is not acceptable because it discloses the very fact that must be protected (i.e., the fact that the CIA has such information).
(c) CIA can decline either to confirm or deny that: it maintains responsive information.
33. 1 have concluded that the third response best protects the security of the CIA's operations, preserves the confidential nature of intelligence sources and methods, and will maintain the current condition of U.S. foreign relations with particular countries. However, the CIA must respond to requests for such information in a consistent manner, For example, if the CIA denies that it maintains responsive information only in cases where the CIA does not, in fact, possess such information, a CIA response that refuses to confirm or deny whether the CIA has information would be tantamount to admitting that the CIA possesses such information, Such a procedure obviously reveals the information that the CIA is attempting to protect (i.e., a current or past covert interest), provides a valuable advantage to foreign intelligence services, and unduly jeopardizes th e CIA's intelligence activities worldwide. It is for precisely these reasons that the CIA can neither confirm nor deny whether it has information pertaining to Plaintiff's request.
I declare under penalty of perjury of the laws of the United States of America that the foregoing is true and correct.
Executed this 16th day of May 2001.
Kathryn 1. Dyer
Chief, Public Information Release Division
United States Central Intelligence Agency
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on this 18th day of May, 2001, a true and correct copy of the above and foregoing MOTION TO DISMISS OR IN THE ALTERNATIVE, FOR SUMMARY JUDGEMENT was served by first class mail, postage prepaid to:
Daniel S. Alcorn,
Esq. 2952 Yarling Ct.
Falls Church, Virginia 22042
DIANE M. SULLIVAN
Assistant United States Attorney
UNITED STATES DISTRICT COURT
DISTRICT OF COLUMBIA
____________________________________________ PAUL WOLF, Plaintiff, v. CENTRAL INTELLIGENCE AGENCY, et. al. Defendants. ____________________________________________ Civ. No. 01-00729 (PLF)ORDER
UPON CONSIDERATION of the Central Intelligence Agency's Motion to Dismiss, or in the Alternative, for Summary Judgment, it is this _____ day of 2001 hereby ORDERED, that the Central Intelligence Agency's Motion is granted and the complaint against it is dismissed with prejudice.
__________________________
United States District Court Judge
cc: Diane M. Sullivan
Assistant United States Attorney
Judiciary Center Building
555 Fourth Street, N.W.
Room 10-122
Washington, D.C. 20001
202) 514-7205
Daniel S. Alcorn, Esq.
2952 Yarling Ct.
Falls Church, Virginia 22042