Bonner v. Federal Bureau Of Investigation

Background

Raymond Bonner, a journalist, brought this Freedom of Information Act (FOIA) case against the Federal Bureau of Investigation (FBI) and the Central Intelligence Agency (CIA). He sought access to a notebook created by former FBI agent Ali Soufan and written summaries that Soufan prepared with another FBI agent concerning interviews at the U.S. military base at Guantanamo Bay, Cuba. The parties’ cross-motions for summary judgment were pending.

On July 5, 2023, the court ordered the parties to identify the remaining disputes, the documents still at issue, the redactions in those documents, and the FOIA exemptions asserted for each redaction. The court also required the parties to provide copies showing which exemption applied to each redaction.

CIA Processing Error

In their July 7 joint letter, the parties reported that the CIA had discovered an error in its processing. CIA subject-matter experts who were not FOIA specialists had failed to identify CIA-applicable exemptions for material that the FBI had already marked for redaction. The CIA acknowledged that it had not yet examined whether those portions of the notebook and interview summaries were protected by FOIA Exemption 1, which concerns national security, or Exemption 3, which covers information protected from disclosure by another statute.

The court described the error as significant and alarming because potentially classified or statutorily protected material could have been released if the FBI’s claimed exemptions had been rejected. The court stated that the CIA should conduct an internal review of how the lapse occurred.

Requests and Rulings

The CIA asked for permission to submit a proposed schedule for completing its review. Bonner objected to the CIA adding its own withholding grounds and asked the court to review the notebook and summaries privately, known as an in-camera review. The court concluded that such a review would not substitute for the CIA’s expert assessment of national-security and statutory-protection issues.

The court therefore gave the CIA an opportunity to review the previously unreviewed material and identify any portions it believed were protected by Exemptions 1 or 3. The court rejected the CIA’s request to set its own preferred schedule and instead set the schedule itself. The CIA was ordered to complete its FOIA review and provide specific written identifications of all additional claimed exemptions by August 10, 2023. The parties were ordered to propose an expedited schedule for supplemental summary-judgment briefing by July 14, 2023.

The court also ordered the parties by July 14 to refile the disputed documents so that each redaction’s currently asserted exemption was clearly identified. In addition, the parties had to file an index sorting the current redactions by the exemptions asserted and identifying where each redaction appeared.

Effect of the Order

This order addressed the CIA’s review, the organization of the redaction materials, and the schedule for further briefing. It did not resolve the parties’ pending summary-judgment motions or decide whether the disputed records were ultimately exempt from disclosure.