Bonner v. Federal Bureau Of Investigation

Background

Raymond Bonner, described in the opinion as a journalist, brought this Freedom of Information Act (FOIA) action against the Central Intelligence Agency (CIA) and Federal Bureau of Investigation (FBI). He sought records concerning Abu Zubaydah’s detention and interrogation.

On August 9, 2023, the court granted the Government’s motion for summary judgment and denied Bonner’s cross-motion on the claims then before it. The court held that FOIA Exemption 3 applied to information withheld in documents otherwise disclosed to Bonner. Exemption 3 allows an agency to withhold information specifically protected from disclosure by another statute. The court relied on the National Security Act, which protects intelligence sources and methods, and found that the Government had adequately shown that disclosure could reasonably be expected to reveal such sources or methods. The court also held that the Government had not waived the exemption through official disclosures.

Some issues remained because of a CIA processing error. The CIA had not initially considered whether it could independently assert FOIA Exemptions 1 and 3 over certain redactions that the FBI had already made. After the court ordered an expedited review, the CIA asserted 711 additional exemption claims. More than 60 other redactions remained supported only by the FBI’s claims under Exemptions 6, 7(C), and 7(E). Exemptions 6 and 7(C) protect certain personal-privacy interests, while Exemption 7(E) protects specified law-enforcement techniques and procedures.

Motions and Arguments

Bonner moved for reconsideration of the August 9 decision under Local Civil Rule 6.3. He argued that the CIA’s supplemental claims showed that the court had improperly treated raw intelligence as protected intelligence sources and methods. He also argued that the Supreme Court’s decision in United States v. Zubaydah required the court to treat statements by former CIA contractors and an FBI agent as official disclosures that waived Exemption 3.

The Government opposed reconsideration and sought summary judgment on the CIA’s supplemental exemption claims and the FBI’s remaining claims. Bonner filed a cross-motion for summary judgment concerning those claims.

Reconsideration Ruling

The court denied Bonner’s motion for reconsideration. It explained that reconsideration is narrowly limited and generally requires the moving party to identify controlling decisions or information that the court overlooked and that could change the result. It is not a chance to repeat arguments already rejected or present arguments that could have been made earlier.

The court rejected Bonner’s argument that the CIA’s supplemental claims undermined the earlier Exemption 3 ruling. The court agreed that the National Security Act does not automatically protect all raw intelligence. But it found that the information at issue could also reveal Abu Zubaydah as a source of the intelligence and reveal methods used to obtain it. The court further held that the same material may be covered by more than one FOIA exemption.

The court also rejected Bonner’s reliance on United States v. Zubaydah. It stated that Bonner had already cited that decision in earlier summary-judgment briefing, so the court’s rejection of his interpretation was not a proper basis for reconsideration. The court additionally concluded that the Supreme Court decision did not establish a blanket rule that statements by former contractors with firsthand knowledge always constitute official disclosures that waive Exemption 3. The court noted that its earlier decision had also found that the information withheld did not specifically match information already publicly disclosed.

Supplemental Summary Judgment

The court granted the Government’s summary-judgment motion and denied Bonner’s cross-motion concerning the CIA’s supplemental Exemption 3 claims. The court found that the CIA’s additional claims were supported on the same grounds as the withholdings upheld in the August 9 decision. Because the Exemption 3 claims were sufficient, the court did not reach the CIA’s alternative argument under Exemption 1.

The court also granted the Government summary judgment on the FBI’s 60 claims under Exemptions 6 and 7(C), which concern personal privacy. Bonner had stated in his earlier briefing that he did not challenge those redactions except insofar as they might withhold information already disclosed, but he did not make a specific showing on that point. The court therefore upheld those withholdings.

Two redactions rested solely on Exemption 7(E), which protects law-enforcement information whose disclosure would reveal investigative or prosecution techniques and procedures, or guidelines whose disclosure could risk circumvention of the law. The FBI asserted that disclosure would reveal nonpublic methods used to collect and analyze information obtained through interviews, including interviews of Abu Zubaydah. The court found that Bonner had not produced evidence showing that those details, or the resulting information and analysis, were generally known to the public. It held that the FBI had plausibly shown that the withheld information fell within Exemption 7(E) and granted summary judgment to the Government on that issue.

Disposition

The court denied Bonner’s motion for reconsideration, granted the Government’s motion for summary judgment in full, and denied Bonner’s cross-motion for summary judgment in full. The court dismissed the action and directed the Clerk of Court to terminate the pending motions and close the case. Judge Paul A. Engelmayer signed the opinion and order.