Open Society Justice Initiative v. Central Intelligence Agency

Background

Open Society Justice Initiative (OSJI) submitted Freedom of Information Act (FOIA) requests to seven federal agencies for records concerning the killing of Jamal Khashoggi, including the CIA’s findings about the killing and the identities of those responsible. This opinion addressed OSJI’s requests to the Central Intelligence Agency (CIA) and the Office of the Director of National Intelligence (ODNI).

The CIA produced 217 responsive documents, all from its press office. ODNI produced 48 responsive documents, also from its press office. The agencies said that other responsive records, and information describing those records, were classified or otherwise protected by FOIA exemptions. They used what the court called a “no number, no list” response: acknowledging that additional responsive records existed but declining to state their number, dates, titles, or subjects.

OSJI and the agencies each moved for summary judgment. OSJI argued that the agencies were required to provide a Vaughn index, which is a list describing withheld records and the exemptions asserted for them. OSJI also challenged the adequacy of the agencies’ searches.

Court’s analysis

The court rejected OSJI’s argument that a “no number, no list” response is never permitted. It held that such a response can be justified in unusual circumstances when the number or description of responsive records is itself protected by a FOIA exemption and supported by particularly persuasive agency declarations.

The court found that the agencies’ public and classified declarations adequately showed that the withheld records concerned classified intelligence activities, sources or methods, or foreign relations. The court gave the agencies’ national-security assessments substantial weight and concluded that general public statements about the government’s investigation did not waive the agencies’ ability to withhold the specific features of most responsive records under FOIA Exemption 1.

The court identified two exceptions. First, public statements by the President and Vice President officially acknowledged the government’s possession and review of a tape of Khashoggi’s killing, including the CIA’s historical possession of it. The agencies therefore could not refuse to identify that tape on a Vaughn index. The court required an index entry for the tape but did not require the agencies to provide other details, such as its acquisition date, unless those details were separately shown to be publicly disclosed or not properly classified.

Second, statements by CIA Director Gina Haspel and the President officially acknowledged that the CIA had created a written product assessing what happened to Khashoggi. The court required the CIA to identify that record or records on a Vaughn index, including their subject matter and the producing agency. The court did not require disclosure of the report’s ultimate conclusion about the Saudi Crown Prince’s responsibility because the President’s statements were not specific enough to establish that conclusion.

The court also rejected the agencies’ reliance on FOIA Exemptions 3, 5, and 6 to prevent the limited index entries for the tape and CIA report. It concluded that the agencies had not explained why identifying those already-acknowledged items would disclose intelligence sources, methods, protected agency personnel information, privileged material, or private information.

Finally, the court found the CIA’s and ODNI’s searches adequate. The agencies’ declarations described searches of locations and systems reasonably likely to contain responsive records, and the court’s review of the classified filings provided additional detail supporting that conclusion.

Ruling

Judge Paul A. Engelmayer granted in part and denied in part each side’s motion for summary judgment. The CIA and ODNI were ordered to produce a Vaughn index limited to the tape of Khashoggi’s killing and the CIA’s report on the killing. The index was due two weeks after the opinion, and the parties were directed to confer and submit a joint letter about the next steps in the litigation.