                    UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
NATIONAL SECURITY ARCHIVE,    )
                              )
          Plaintiff,          )
                              )
     v.                       )     Civil Action No. 11-724 (GK)
                              )
CENTRAL INTELLIGENCE AGENCY, )
                              )
          Defendant.          )
______________________________)


                         MEMORANDUM OPINION

     Plaintiff, National Security Archive (“NSA”), brings this

action against Defendant, the Central Intelligence Agency (“CIA”),

under the Freedom of Information Act (“FOIA”), 5 U.S.C. § 552.

Plaintiff   seeks   material   related   to   the   CIA’s   internal

investigation of the Bay of Pigs Operation. This matter is before

the Court on Defendant’s Motion for Summary Judgment [Dkt. No. 8]

and Plaintiff’s Cross-Motion for Partial Summary Judgment [Dkt. No.

10]. Upon consideration of the Motions, Oppositions, and Replies,

and the entire record herein, and for the reasons set forth below,

Defendant’s Motion for Summary Judgment is granted and Plaintiff’s

Cross-Motion for Partial Summary Judgment is denied.
I.     BACKGROUND1

       The NSA “is an independent non-governmental research institute

and library” which “serves as a repository of government records on

a    wide   range   of   topics   pertaining to the   national security,

foreign, intelligence, and economic policies of the United States.”

Compl. ¶ 3 [Dkt. No. 1]. This case concerns the NSA’s efforts to

obtain a four-volume history of the Bay of Pigs Operation, compiled

by former CIA historian Dr. Jack B. Pfeiffer in the late 1970s and

early 1980s. On August 10, 11, and 15, 2005, the NSA sent the CIA

letters seeking access to Volumes I, II, IV, and V of the Official

History of the Bay of Pigs Operation. Lutz Decl. Exs. A, B, C [Dkt.

No. 8-1].

       In three separate responses, dated September 7, 2005, the CIA

acknowledged that it had received the NSA’s requests for Volumes I,

II, IV, and V. Lutz Decl. Ex. D. However, according to the NSA, it

received no substantive response from the CIA between September 7,

2005, and the filing of the Complaint, on April 14, 2011. Pl.’ Mot.

for Summ. J. 3. Three months after the Complaint was filed, on July

25, 2011, the CIA released Volumes I, II, and IV to the NSA. The

CIA has offered no explanation as to why it failed to provide any

materials to the NSA in the five years and seven months that

elapsed between acknowledgment of the FOIA requests and the filing


       1
       Unless otherwise noted, the facts set forth herein are
undisputed and drawn from the parties’ Statements of Undisputed
Material Facts submitted pursuant to Local Civil Rule 7(h).

                                       2
of this lawsuit, but was able to release extensive materials three

months after this lawsuit was filed.

      Nevertheless, the CIA did release Volumes I, II, and IV with

minimal redactions. The only issue now in dispute is whether the

CIA should also have released Volume V, which it has withheld in

its entirety. Def.’s Mot. for Summ. J. 1; Pl.’s Mot. for Partial

Summ. J. 1. According to the CIA, this volume, which is titled

“CIA’s Internal Investigation of the Bay of Pigs Operations,” is

covered by the deliberative process privilege and therefore exempt

from disclosure under FOIA.2 Def.’s Mot. for Summ. J. 3-4.

      On September 26, 2011, the CIA filed its Motion for Summary

Judgment. November 7, 2011, the NSA filed its Opposition and Cross-

Motion for Partial Summary Judgment. On November 29, 2011, the CIA

filed its combined Opposition and Reply [Dkt. No. 12]. On December

21, 2011, the NSA filed its Reply [Dkt. No. 14].

II.   STANDARD OF REVIEW

      The   purpose   of   FOIA   is       to   “‘to   pierce   the   veil   of

administrative secrecy and to open agency action to the light of

public scrutiny.’” Morley v. CIA, 508 F.3d 1108, 1114 (D.C. Cir.



      2
       The CIA also maintains that portions of Volume V are exempt
under Exemptions 1 and 3, which apply to information classified in
the interest of national defense or foreign policy and to
information protected from disclosure by statute, respectively.
Def.’s Mot. for Summ. J. 7-10; see 5 U.S.C. § 552(b)(1), (3).
Because, for the reasons given below, the entirety of Volume V is
covered by Exemption 5, there is no need to address the
applicability of Exemption 1 or 3.

                                       3
2007) (quoting Dep’t of Air Force v. Rose, 425 U.S. 352, 361

(1976)). FOIA “requires agencies to comply with requests to make

their records available to the public, unless the requested records

fall within one or more of nine categories of exempt material.”

Oglesby v. U.S. Dep’t of Army, 79 F.3d 1172, 1176 (D.C. Cir. 1996)

(citing    5   U.S.C.   §     552(a),   (b)).   An    agency   that   withholds

information pursuant to a FOIA exemption bears the burden of

justifying its decision, Petroleum Info. Corp. v. Dep’t of the

Interior, 976 F.2d 1429, 1433 (D.C. Cir. 1992) (citing 5 U.S.C. §

552(a)(4)(B)), and must submit an index of all materials withheld.

Vaughn    v.   Rosen,   484    F.2d   820,   827-28   (D.C.    Cir.   1973).   In

determining whether an agency has properly withheld requested

documents under a FOIA exemption, the district court conducts a de

novo review of the agency’s decision. 5 U.S.C. § 552(a)(4)(B).

     FOIA cases are typically and appropriately decided on motions

for summary judgment. Gold Anti-Trust Action Comm., Inc. v. Bd. of

Governors of Fed. Reserve Sys., 762 F. Supp. 2d 123, 130 (D.D.C.

2011); Defenders of Wildlife v. U.S. Border Patrol, 623 F. Supp. 2d

83, 87 (D.D.C. 2009). Summary judgment will be granted when the

pleadings, depositions, answers to interrogatories, and admissions

on file, together with any affidavits or declarations, show that

there is no genuine issue as to any material fact and that the

moving party is entitled to judgment as a matter of law. See Fed.

R. Civ. P. 56(c).


                                        4
     In a FOIA case, the court may award summary judgment solely on

the basis of information provided in affidavits or declarations

when they (1) “describe the documents and the justifications for

nondisclosure with reasonably specific detail;” (2) “demonstrate

that the information withheld logically falls within the claimed

exemption;” and (3) “are not controverted by either contrary

evidence in the record nor by evidence of agency bad faith.”

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.

1981). Such affidavits or declarations are accorded “a presumption

of good faith, which cannot be rebutted by ‘purely speculative

claims   about     the    existence    and    discoverability      of    other

documents.’” SafeCard Servs., Inc. v. Sec. & Exch. Comm’n, 926 F.2d

1197, 1200 (D.C. Cir. 1991) (quoting Ground Saucer Watch, Inc. v.

CIA, 692 F.2d 770, 771 (D.C. Cir. 1981)).

III. ANALYSIS

     As noted above, the sole issue in this case is whether Volume

V was properly withheld under FOIA Exemption 5. Exemption 5 permits

an agency to withhold “inter-agency or intra-agency memorandums or

letters which would not be available by law to a party other than

an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5).

Exemption   5    “is   interpreted    to   encompass,   inter   alia,     three

evidentiary privileges: the deliberative process privilege, the

attorney-client        privilege,    and   the   attorney   work        product

privilege.” Tax Analysts v. IRS, 294 F.3d 71, 76 (D.C. Cir. 2002).


                                       5
      The    relevant     privilege      here,     the    deliberative      process

privilege,     “‘covers      documents       reflecting     advisory      opinions,

recommendations and deliberations comprising part of a process by

which governmental decisions and policies are formulated.’” Dep't

of Interior v. Klamath Water Users Protective Ass'n, 532 U.S. 1,

8-9 (2001) (quoting NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150

(1975)); see also Public Citizen, Inc. v. Office of Mgmt. & Budget,

598   F.3d   865,   874-75    (D.C.   Cir.       2010).    Because   “advice     and

information    would    not   flow    freely      within    an   agency    if   such

consultative information were open to public scrutiny,” Exemption

5 “allows agency staffers to provide decisionmakers with candid

advice without fear of public scrutiny” and “helps to prevent

premature disclosure of proposed policies and protects against

public confusion through the disclosure of documents suggesting

reasons for policy decisions that were ultimately not taken.”

Judicial Watch, Inc. v. U.S. Postal Serv., 297 F. Supp. 2d 252,

258-59 (D.D.C. 2004).

      To invoke the deliberative process privilege, an agency must

show that the requested material meets two requirements: it must be

“both ‘predecisional’ and ‘deliberative.’” Public Citizen, 598 F.3d

at 874 (quoting Coastal States Gas Corp. v. Dep't of Energy, 617

F.2d 854, 866 (D.C. Cir. 1980)); see also In re Sealed Case, 121

F.3d 729, 737 (D.C. Cir. 1997). Material is “predecisional if ‘it

was generated before the adoption of an agency policy.’” Judicial


                                         6
Watch, Inc. v. Food & Drug Admin., 449 F.3d 141, 151 (D.C. Cir.

2006) (quoting Coastal States, 617 F.2d at 866). Accordingly, a

“court must first be able to pinpoint an agency decision or policy

to which these documents contributed.” Morley, 508 F.3d at 1127.

       Material is deliberative if “it reflects the give-and-take of

the   consultative       process.”    Judicial     Watch,     449    F.3d   at   151

(internal quotation omitted). Deliberative materials “‘reflect[ ]

advisory opinions, recommendations, and deliberations comprising

part of a process by which governmental decisions and policies are

formulated, [or] the personal opinions of the writer prior to the

agency's adoptions of a policy.’” Public Citizen, 598 F.3d at 875

(quoting Taxation With Representation Fund v. IRS, 646 F.2d 666,

677 (D.C. Cir. 1981) (alterations in Public Citizen)). Hence, the

privilege covers information that “reflect[s] the personal opinions

of the writer rather than the policy of the agency.” Morley, 508

F.3d at 1127 (internal quotation omitted). But when the information

at    issue    is    “[f]actual   material     that    does    not    reveal      the

deliberative process,” it is not protected. Id. (quoting Paisley v.

CIA, 712 F.2d 686, 698 (D.C. Cir. 1983)).

       In order to withhold a document under the deliberative process

privilege,     the    agency   must   make   the   additional        showing     that

disclosure would cause injury to the decisionmaking process. Army

Times Publ’g Co. v. Dep’t of the Air Force, 998 F.2d 1067, 1071

(D.C.   Cir.    1993);    Judicial    Watch,     297   F.   Supp.     2d    at   259.


                                        7
Therefore, “the agency must ‘show, by specific and detailed proof

that disclosure would defeat, rather than further, the purposes of

FOIA.’” Hall v. U.S. Dep’t of Justice, 552 F. Supp. 2d 23, 29

(D.D.C. 2008) (quoting Mead Data Cent. Inc. v. U.S. Dep’t of Air

Force, 566 F.2d 242, 258 (D.C. Cir. 1977)).

       The CIA offers the Declarations of Martha Lutz, an Information

Review Officer, and Dr. David S. Robarge, the Chief Historian for

the CIA, to support its view that Volume V is predecisional and

deliberative. Lutz explains that Dr. Pfeiffer was tasked during the

1970s and 1980s with preparing a classified history of the Bay of

Pigs   Operation.   Lutz   Decl.   ¶¶   16-17.   Two   chapters   from   Dr.

Pfeiffer’s 1981 draft fourth volume, which addressed the Inspector

General’s report for the Bay of Pigs Operation and the Directorate

of Plans’ response to that report, became the first draft of Volume

V, which covers the Internal Investigation of the Bay of Pigs

Operation. Id. ¶ 18. Despite multiple drafts, Dr. Pfeiffer’s

supervisor, then Chief Historian Dr. J. Kenneth McDonald, found

serious deficiencies with Dr. Pfeiffer’s proposed Volume V, and

therefore it never moved beyond the first stage of the CIA’s review

process. Id. ¶¶ 19-20.

       This is not the first time the CIA has denied a FOIA request

for Volume V. In 1989, Judge John H. Pratt considered a request by

Dr. Pfeiffer, who had by then retired, for access to Volume V.




                                    8
Pfeiffer v. CIA, 721 F. Supp. 337, 338 (D.D.C. 1989). Judge Pratt

found that Volume V was a predecisional draft, stating:

          We   are    unpersuaded   that   the   Internal
          Investigation Report that plaintiff seeks to
          have disclosed is a “final” agency history, nor
          are we convinced that plaintiff had authority
          to unclassify the material. The subjective
          views    of    a   staff   member    that   the
          decision-making process is complete and “final”
          when he submits his recommendation to a
          superior is of no consequence.

Id. at 340. Therefore, Judge Pratt held that Volume V was properly

withheld under Exemption 5. Id. at 341.

     This Court finds no reason to depart from Judge Pratt’s sound

conclusion. Volume V was undoubtedly “generated before the adoption

of an agency policy,” and is therefore predecisional. Judicial

Watch, 449 F.3d at 151. Volume V represents only the first step in

a multi-step process of creating an official CIA history. Robarge

Decl. ¶¶ 4-8 [Dkt. No. 12-1]; see Morley, 508 F.3d at 1127 (a

“court must first be able to pinpoint an agency decision or policy

to which these documents contributed.”). As the current Chief

Historian for the CIA, Dr. Robarge, explains, Volume V did not even

pass through the first stage of a multilayer review process.

Robarge Decl. ¶¶ 13-14.

     In addition, Volume V represents a proposal by a subordinate

member of the history staff--a proposal which was rejected by the

Chief Historian due to significant deficiencies. Morley, 508 F.3d

at 1127 (“‘a document from a subordinate to a superior official is


                                9
more likely to be predecisional.’” (quoting Coastal States Gas

Corp. v. Dep’t of Energy, 617 F.2d 854, 866 (D.C. Cir. 1980))).

Volume V was therefore generated prior to and in preparation for

completion of the CIA’s official history, i.e. its final policy,

but was     rejected   for inclusion       in    the final      publication   and

remained a draft.

      Volume V also “reflects the give-and-take of the consultative

process” and is therefore deliberative. Judicial Watch, 449 F.3d at

151 (internal quotation omitted). As both Declarants observe,

Volume V represents an intermediate step in the CIA’s intensive

review process. Robarge Decl. ¶ 13; Lutz Decl. ¶ 19; see Public

Citizen, 598 F.3d at 875 (the privilege covers documents that

“reflect[ ] advisory opinions, recommendations, and deliberations

comprising part of a process by which governmental decisions and

policies are formulated.” (internal quotation omitted)). Further,

in   the   view   of Dr.   Pfeiffer’s      superiors,     Volume    V   contained

significant       problems,   including         “offer[ing]     a   polemic    of

recriminations      against   CIA   officers      who   later   criticized    the

operation,” and was therefore unfit for publication. Robarge Decl.

¶ 13; Lutz Decl. ¶ 20. Hence, Volume V “reflect[s] the personal

opinions of the writer rather than the policy of the agency.”

Morley, 508 F.3d at 1127 (internal quotation omitted).

      Finally, the CIA has made a strong and specific showing that

disclosure of Volume V would harm the deliberative process. Army


                                      10
Times Publ’g Co., 998 F.2d at 1071; Judicial Watch, 297 F. Supp. 2d

at 259. Dr. Robarge has convincingly demonstrated that releasing a

draft history may cause staff historians not “to reach--or even

propose--judgments that may be critical of the Agency’s performance

or otherwise unpopular within the Agency.” Robarge Decl. ¶ 10.

Disclosure    of   a    draft   history    would   risk   public   release    of

inaccurate historical information. Id. ¶ 11. The CIA has also

explained why release of Volume V, in particular, would cause harm.

Specifically, while Dr. Pfeiffer’s approach may have had its

deficiencies,      it   clearly   contained   controversial       opinions    and

therefore “[d]isclosure of Volume V would have a chilling effect on

CIA’s current historians who would henceforth be inhibited from

trying out innovative, unorthodox or unpopular interpretations in

a draft manuscript.” Id. ¶¶ 13, 17.

        The NSA argues that the passage of time should serve as basis

for disclosure. Pl.’s Mot. for Partial Summ. J. 7-9. The NSA does

not, however, cite any case supporting the notion that a document

becomes    less    predecisional     or    deliberative    over    time.     More

importantly, the CIA has shown why, in this case, the passage of

time has not affected the rationale for invoking Exemption 5: the

CIA does not want to discourage disagreement, of which there was

clearly much in this instance, among its historians. Robarge Decl.

¶ 10.




                                      11
     Given the fact that, as an agency, the CIA operates in secrecy

and faces relatively little public scrutiny of its operations for

that reason,    and    given the   importance     of    the   activities   and

operations it undertakes, it is particularly important that in-

house historians--who do have the facts--feel free to present their

views, theories, and critiques of the Agency’s actions. See Morley,

508 F.3d at 1127 (“To test whether disclosure of a document is

likely to adversely affect the purposes of the privilege, courts

ask themselves whether the document is so candid or personal in

nature that public disclosure is likely in the future to stifle

honest   and   frank   communication     within   the   agency.”   (internal

quotation omitted)); James Madison Project v. CIA, 607 F. Supp. 2d

109, 128 (D.D.C. 2009) (“The critical factor in determining whether

the material is deliberative in nature ‘is whether disclosure of

the information would discourage candid discussion within the

agency.’” (quoting Access Reports v. Dep’t of Justice, 926 F.2d

1192, 1194 (D.C. Cir. 1991))).

     In short, the CIA has satisfied its burden of demonstrating

that Volume V is predecisional and deliberative, and that its

release would harm the deliberative process. Public Citizen, 598

F.3d at 874; Army Times Publ’g Co., 998 F.2d at 1071. Therefore,

Volume V is covered by the deliberative process privilege and

properly withheld under Exemption 5. Klamath Water Users Protective

Ass'n, 532 U.S. at 8-9; Morley, 508 F.3d at 1126-27.


                                    12
IV.   CONCLUSION

      For the reasons set forth above, Defendant’s Motion for

Summary Judgment is granted and Plaintiff’s Motion for Partial

Summary   Judgment    is   denied.   An   Order   shall   accompany   this

Memorandum Opinion.




                                           /s/
May 10, 2012                              Gladys Kessler
                                          United States District Judge




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