                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA


    LARRY KLAYMAN,

                Plaintiff,

         v.                                               Civil Action No. 14-472 (RDM)

    CENTRAL INTELLIGENCE AGENCY,

                Defendant.



                             MEMORANDUM OPINION AND ORDER

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

Plaintiff Larry Klayman challenges the Central Intelligence Agency’s (“CIA” or “Agency”)

Glomar response to his request for records relating, among other things, to any communication

between the CIA and the District Attorney’s Office in Douglas County, Colorado, concerning

Raymond Allen Davis, who Plaintiff alleges is or was an agent of the CIA. 1 Plaintiff asserts that

the records he sought might expose CIA interference in a civil case brought by his client, Jeffrey

Maes, against Davis for an assault that occurred in Douglas County in 2011. Dkt. 20 at 7–8. In

its motion for summary judgment, the CIA contends that its Glomar response was proper under

FOIA Exemptions 1 and 3 because “the mere confirmation or denial of the existence of

responsive records would reveal a classified fact—namely, whether [the] CIA has a covert

relationship with Mr. Davis.” Dkt. 16-1 at 6 (Lutz Decl. ¶ 10); see also Dkt. 16 at 15–21.


1
   “A Glomar answer is one that . . . neither confirms nor denies the existence of certain
requested agency records. The term Glomar comes from [the D.C. Circuit’s] opinion in Phillippi
v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), which involved a FOIA request for information
regarding” a ship named the “Hughes Glomar Explorer.” Moore v. CIA, 666 F.3d 1330, 1331
n.1 (D.C. Cir. 2011).
Plaintiff asserts that the Glomar response was improper because (1) the subject matter of the

records sought is incapable of being classified; and (2) he seeks information that he claims was

previously disclosed to third parties. Dkt. 20 at 11–20. The Court holds that the CIA’s Glomar

response was proper and, accordingly, GRANTS Defendant’s motion for summary judgment.

Dkt. 16.

                                        I. BACKGROUND

       In February 2011, the Associated Press (“AP”) reported on the fatal shooting of two men

in Pakistan by Raymond Allen Davis and Davis’s subsequent detention by Pakistani authorities.

See Adam Goldman & Kimberly Dozier, Arrested U.S. Official Raymond Allen Davis Is Actually

CIA Contractor, Associated Press, Feb. 21, 2011; Dkt. 20-4 (Pl.’s Opp., Ex. 4). According to the

AP story, anonymous former and current U.S. officials stated that Davis was a CIA contractor.

See id. The article further stated, however, that the State Department identified Davis as a

diplomat who worked at the U.S. Embassy in Islamabad and who was thus entitled to diplomatic

immunity for the shooting. Id.

       In March 2013, Davis pleaded guilty to third-degree assault in Douglas County,

Colorado. Dkt. 20-7 at 2 (Pl.’s Opp., Ex. 7). According to the complaint in a subsequent civil

lawsuit in which Plaintiff represented Jeffrey Maes, Davis severely assaulted Maes in the parking

lot of a Colorado bagel shop after Maes pulled into a parking spot that Davis wanted. See Dkt.

20-5 at 3–4, 6 (Pl.’s Opp., Ex. 5). When Plaintiff perceived that “strange things . . . started to

occur in the civil case,” he submitted a FOIA request to the CIA, which is the subject of the

instant litigation. Dkt. 20 at 7–8. By letter dated July 31, 2013, Plaintiff sought all records that

referred or related to any of the following: communications between the CIA and the Douglas

County District Attorney (“D.A.”) about Davis or Maes or litigation involving either man;



                                                  2
information made available to the D.A. by the CIA; information regarding “government agencies

deciding to investigate Mr. Davis;” and any communications between the CIA and the civil court

or judge in Maes v. Davis, the state civil suit. 2 Dkt. 9 at 6–7 (Amend. Compl., Ex. 1). The letter

alleged:

                 On at least one occasion, the Douglas County, Colorado District
         Attorney’s Office (“D.A.’s Office”) contacted and communicated with the Central
         Intelligence Office (“CIA”), seeking information regarding Raymond Allen
         Davis[,] a former and/or current CIA agent who was recently convicted of
         assaulting an individual, Jeffrey Maes.

Id. at 6.




2
    To be precise, Plaintiff’s letter sought the following:

         1) Any and all communications with the Douglas County, Colorado District
         Attorney’s Office that refer or relate in any way to Mr. Davis and/or Mr. Maes;

         2) Any and all information that refers or relates to any and all communications
         with the Douglas County, Colorado District Attorney’s Office regarding Mr.
         Davis and/or Mr. Maes;

         3) Any and all information that refers or relates to any communications with the
         Douglas County, Colorado District Attorney’s Office regarding any lawsuits
         between Mr. Davis and Mr. Maes and/or any other litigation involving Mr. Davis
         and/or Mr. Maes;

         4) Any and all information that refers or relates in any way to information
         released to and/or made available to the Douglas County, Colorado District
         Attorney’s Office;

         5) Any and all information that refers or relates to government agencies deciding
         to investigate Mr. Davis, including, but not limited to, any investigations of Mr.
         Davis conducted in his capacity as an agent for the CIA[; and]

         6) Any and all communications with the civil court and/or the judge in the civil
         matter regarding Mr. Maes and/or Mr. Davis in a case styled Jeffrey Maes, et al.
         v. Raymond Allen Davis (Case Number 2011CV2953).

Dkt. 9 at 7 (Amend. Compl., Ex. 1).
                                                    3
       On December 23, 2013, the CIA responded to Plaintiff’s request, stating that it could

“neither confirm nor deny the existence or nonexistence of records responsive to [the] request.”

Id. at 10 (Amend. Compl., Ex. 2). The Agency further explained that

       The fact of the existence or nonexistence of [the] requested records is currently
       and properly classified and is intelligence sources and methods, information that
       is protected from disclosure by section 6 of the CIA Act of 1949, as amended, and
       section 102A(i)(1) of the National Security Act of 1947, as amended.

Id. In particular, the Agency relied on FOIA Exemptions 1 and 3, see id., which exempt from

disclosure, respectively, matters that are properly classified pursuant to Executive Order, see 5

U.S.C. § 552(b)(1), and matters that are specifically exempted from disclosure by statute, see id.

§ 552(b)(3).

       Plaintiff timely filed an administrative appeal of the Agency’s Glomar response. Dkt. 9

at 13 (Amend. Compl., Ex. 3). In a letter dated February 6, 2014, he argued that “[t]he CIA

effectively claimed a national security exemption for an altercation at an Einstein Bros. bagel

store,” and that “there is no plausible way in which this altercation is a matter of national

security.” Id. On April 25, 2014, the CIA denied the appeal, reasserting its Glomar response.

Dkt. 16-1 at 30 (Def.’s Mot. Summ. J., Ex. D).

       Freedom Watch, Inc.—an organization founded by Klayman—initiated this action on

March 21, 2014, Dkt. 1, and the CIA moved to dismiss on the ground that the FOIA request did

not mention Freedom Watch and thus it lacked standing to challenge the Agency’s response.

Dkt. 6. With the CIA’s consent, Plaintiff then moved for leave to amend the complaint to

substitute himself, Larry Klayman, for Freedom Watch. Dkt. 8. The Court granted the motion.

Mar. 27, 2015 Minute Order. After Plaintiff filed the amended complaint, the CIA moved for

summary judgment on June 3, 2015, Dkt. 16, and submitted the declaration of its Information

Review Officer, Martha M. Lutz, in support of the motion. Dkt. 16-1 at 1 (Lutz Decl. ¶ 1).

                                                  4
Plaintiff filed an opposition on August 13, 2015, Dkt. 20, and the CIA filed a reply later that

month, Dkt. 22.

                                             II. ANALYSIS

       “The FOIA mandates broad disclosure of government records to the public, subject to

nine enumerated exemptions. Given the FOIA’s broad disclosure policy, the United States

Supreme Court has consistently stated that FOIA exemptions are to be narrowly construed.”

Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007) (internal citations and quotation marks omitted).

Under the D.C. Circuit’s decision in Phillippi v. CIA, 546 F.2d 1009, however, “an agency may

refuse to confirm or deny the existence of records where to answer the FOIA inquiry would

cause harm cognizable under a[] FOIA exception.” Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.

Cir. 1982). “Such a response—commonly known as a Glomar response—is proper if the

existence vel non of an agency record is itself exempt from disclosure.” Moore, 666 F.3d at

1333. “If, however, the agency has officially acknowledged the existence of the record, the

agency can no longer use a Glomar response” and must instead disclose the record or establish

that its contents are otherwise exempt from disclosure. Id.

       As discussed below, Plaintiff challenges the CIA’s Glomar response on two grounds: He

first argues that, as a substantive matter, the information sought does not implicate national

security and thus is not subject to a FOIA exemption. And, second, he argues that the

information sought was previously disclosed.

A.     Application of the Glomar Doctrine

       Under D.C. Circuit precedent, the standard for reviewing the Agency’s Glomar response

in a national-security case is as follows:

       In determining whether the existence of agency records vel non fits a FOIA
       exemption, courts apply the general exemption review standards established in

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       non-Glomar cases. Under the FOIA, the burden is on the agency to sustain its
       action, 5 U.S.C. § 552(a)(4)(B), and [the Court] review[s] de novo the agency’s
       use of a FOIA exemption to withhold documents. Yet in conducting de novo
       review in the context of national security concerns, courts must accord substantial
       weight to an agency’s affidavit concerning the details of the classified status of
       the disputed record. Indeed, [s]ummary judgment is warranted on the basis of
       agency affidavits when the affidavits describe the justifications for nondisclosure
       with reasonably specific detail . . . and are not controverted by either contrary
       evidence in the record nor by evidence of agency bad faith. Moreover, a
       reviewing court must take into account . . . that any affidavit or other agency
       statement of threatened harm to national security will always be speculative to
       some extent, in the sense that it describes a potential future harm. Ultimately, an
       agency’s justification for invoking a FOIA exemption is sufficient if it appears
       logical or plausible.

Wolf, 473 F.3d at 374–75 (internal citations, quotation marks, and paragraph break omitted)

(third, fourth, and fifth alterations in original) (emphasis in original). Here, the Agency asserts

that its Glomar response is justified under FOIA Exemptions 1 and 3. Dkt. 16 at 1–2.

       FOIA Exemption 1 permits non-disclosure of 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.” 5 U.S.C. § 552(b)(1). The CIA contends that the fact of whether or not the

records sought by Plaintiff exist is properly classified pursuant to Section 1.4(c) of Executive

Order 13,526. Dkt. 16 at 15. Information is properly classified under Executive Order 13,526

“only if all of the following conditions are met”:

       (1) an original classification authority is classifying the information;

       (2) the information is owned by, produced by or for, or is under the control of the
           United States Government;

       (3) the information falls within one or more of the categories of information listed
           in section 1.4 of this order; and

       (4) the original classification authority determines that the unauthorized
          disclosure of the information reasonably could be expected to result in damage
          to the national security, which includes defense against transnational terrorism,

                                                  6
           and the original classification authority is able to identify or describe the
           damage.

Exec. Order No. 13,526, 3 C.F.R. 298 (2010), 2009 WL 6066991. Section 1.4(c) of Executive

Order 13,526 establishes “classification categories,” including “intelligence activities . . . ,

intelligence sources or methods.” Id.

       There is no dispute that conditions one, two, and four for classification under Executive

Order 13,526 are met. The CIA has submitted the declaration of Martha M. Lutz, its Information

Review Officer, who holds “original classification authority at the TOP SECRET level under

written delegation of authority” pursuant to the Executive Order. Dkt. 16-1 at 2 (Lutz Decl. ¶ 2).

Lutz avers, “based upon [her] personal knowledge,” id. at 2 (Lutz Decl. ¶ 3), that:

       [c]onsistent with . . . Executive Order 13526, . . . [she] ha[s] determined that the
       existence or nonexistence of the requested records is a properly classified fact that
       concerns “intelligence activities” and “intelligence sources and methods” under
       section 1.4(c) of the Executive Order, the records are owned by and under the
       control of the U.S. Government, and the unauthorized disclosure of the existence
       or nonexistence of requested records reasonably could be expected to result in
       damage to national security.

Id. at 11 (Lutz Decl. ¶ 20).

       Plaintiff disputes, however, that the “subject matter is []capable of being classified.” Dkt.

20 at 16. He contends that any communication between the CIA and Douglas County officials or

the Douglas County court “about civil litigation concerning issues wholly within the domestic

United States, in an Einstein Bros. bagel shop parking lot, cannot plausibly be covered.” Id. The

CIA’s position, however, is not that there is anything “about [the] civil litigation” pending in

Douglas County that would pose a threat to national security. Rather, it contends that disclosure

of whether or not it communicated with local officials would reveal whether or not it has or had a

covert relationship with Davis. Indeed, that is precisely what Plaintiff seeks to discover; the

underlying premise of his argument is that there would be no reason for the CIA to engage in

                                                   7
communications with local officials about a purely local assault or to hold information about

governmental agencies’ investigations of Davis unless he had a relationship with the Agency.

Thus, if the CIA disclosed whether or not it had information about the Colorado incident, it

would reveal whether or not Davis was one of its covert contractors or employees.

       The CIA has explained in “specific detail,” moreover, that such a disclosure could be

expected to result in damage to national security, and, absent controverting evidence or evidence

of bad faith, the Court must defer to that judgment. Wolf, 473 F.3d at 374–75. As Lutz

explained in her declaration, “the mere confirmation or denial of the existence of responsive

records would reveal a classified fact—namely, whether [the] CIA has a covert relationship with

Mr. Davis.” Dkt. 16-1 at 6 (Lutz Decl. ¶ 10). She elaborated that:

       [I]f the CIA were to confirm the existence of records responsive to Plaintiff’s
       FOIA request, such confirmation would indicate that the CIA had an interest in
       the activities of Mr. Davis due to the existence of a covert relationship with Mr.
       Davis. On the other hand, if the CIA were to respond by admitting that it did not
       possess any responsive records, it would suggest that the CIA did not have a
       covert relationship with Mr. Davis or an intelligence interest in his activities.
       Either confirmation would reveal sensitive information about the CIA’s
       intelligence sources and methods . . . .

       If the CIA were to provide responses either confirming or denying that it
       possesses records revealing a relationship with any particular individual, in the
       absence of an acknowledged overt connection to this individual, this admission
       could identify the CIA’s intelligence sources, methods, and activities.

Id. at 9–10, 12 (Lutz Decl. ¶¶ 17, 22).

       More generally, Lutz explained that, “[f]or CIA officers to effectively and clandestinely

collect intelligence and conduct operations around the world, they cannot openly admit that they

work for the CIA. . . . Exposing a covert officer’s ties to the CIA could jeopardize the physical

safety of past, present, and prospective human sources,” including the CIA officer’s own safety.

Id. at 13 (Lutz Decl. ¶¶ 24–25). Exposure would also “decrease[] the professional effectiveness



                                                 8
of the covert officer . . . in future intelligence operations,” id. (Lutz Decl. ¶ 26), and “would

reveal to Plaintiff and the public facts about the CIA’s clandestine intelligence activities,” id. at

14 (Lutz Decl. ¶ 27). These adverse consequences apply, moreover, whether or not the CIA has

any responsive records in a particular case. The Agency’s ability to decline to admit or deny the

existence of potentially responsive records would be meaningless if that authority could be

invoked only when the sought-after records in fact existed. See, e.g., Gardels, 689 F.2d at 1104

(“If the Agency were required to indicate those . . . with which it had had no covert contact, the

work of foreign intelligence bodies would obviously be much easier . . . .”).

       The Court, accordingly, finds that the CIA’s detailed justification for invoking FOIA

Exemption 1 in these circumstances is both “logical [and] plausible.” Wolf, 473 F.3d at 375.

       Plaintiff contends that this case presents a “clear[] . . . example of covering up

misconduct by the abuse of false designation as national security classified” because “[t]here can

be no proper[,] legitimate reason for the CIA to be communicating with the Douglas County,

Colorado District Attorney or civil court.” Dkt. 20 at 16. In Plaintiff’s view, “the assertion of

the exemption seems plainly aimed at concealing the CIA’s manipulation of local government

processes.” Id. at 17. There is nothing in the record, however, that “controvert[s]” the

CIA’s justification of its Glomar response or otherwise indicates “agency bad faith.” Wolf, 473

F.3d at 374. In his brief, Plaintiff simply states without elaboration or citation to supporting

evidence that “it was revealed that the prosecutor had been communicating with the CIA” and

that “[t]he judge abruptly revoked the undersigned counsel’s Pro Hac Vice admittance . . . with

no reason or fault suggested, except claiming some processing issue with the Colorado Supreme




                                                  9
Court.” 3 Dkt. 20 at 7–8. In short, he offers nothing but unsupported speculation that the CIA

interfered in any way with the civil or criminal cases stemming from Davis’s assault on Maes—

or, indeed, that it had anything to do with either case. This is not a basis for questioning the

Agency’s good faith or otherwise rejecting its Glomar response. “[I]n light of the substantial

weight accorded agency assertions of potential harm” and the lack of evidence of bad faith or

other misconduct, the Lutz declaration “both logically and plausibly suffices” to sustain the

Agency’s Glomar response in this case. Wolf, 473 F.3d at 376.

       The Agency also justifies its Glomar response under FOIA Exemption 3. That

exemption shields matters that are:

       specifically exempted from disclosure by statute (other than section 552b of this
       title), if that statute—

       (A) (i) requires that the matters be withheld from the public in such a manner as to
       leave no discretion on the issue; or (ii) establishes particular criteria for
       withholding or refers to particular types of matters to be withheld; and

       (B) if enacted after the date of enactment of the OPEN FOIA Act of 2009,
       specifically cites to this paragraph.

5 U.S.C. § 552(b)(3). Here, the CIA relies on the statutory limits on disclosure contained in

Section 102(A)(i)(1) of the National Security Act of 1947 (“NSA”), Pub. L. No. 80-253, 61 Stat.

495 (codified as amended at 50 U.S.C. § 403-1(i)(1)), and Section 6 of the Central Intelligence

Act of 1949 (“CIA Act”), Pub. L. No. 81-110, 63 Stat. 208 (codified as amended at 50 U.S.C.

§ 403g). Dkt. 16 at 19–20. Subsequent to the filing of the briefs in this case, the relevant




3
  Plaintiff’s observation that “the CIA is not allowed to conduct clandestine operations within
the United States,” Dkt. 20 at 17, is irrelevant. He does not contend that the Agency has done so
here, but only that it allegedly communicated with local officials about a pending litigation. Nor
does Plaintiff offer any evidence that any such communications actually occurred or that, if they
did, they involved obstruction of the proceedings or any other misconduct.


                                                 10
provision of the NSA was transferred to § 3024 of title 50, and the relevant provision of the CIA

Act was transferred to § 3507 of title 50.

       The NSA provides that “the Director of National Intelligence shall protect intelligence

sources and methods from unauthorized disclosure,” 50 U.S.C. § 3024(i)(1), and the CIA Act

provides that the CIA is exempt from “the provisions of any . . . law which require[s] the

publication or disclosure of the organization, functions, names, official titles, salaries, or

numbers of personnel employed by the Agency,” id. § 3507. “[These] provisions of the NSA

and the CIA Act cited by the Agency plainly are statutes contemplated by Exemption 3.” Int’l

Counsel Bureau v. CIA, 774 F. Supp. 2d 262, 273 (D.D.C. 2011). The Court finds that the Lutz

declaration is sufficient to sustain the Agency’s Glomar response under these statutes for the

same reasons it is sufficient to invoke Exemption 1. See, e.g., Wolf, 473 F.3d at 377–78 (finding

that declaration supported Glomar response under Exemptions 1 and 3); Int’l Counsel Bureau,

774 F. Supp. 2d at 274 (“The Court . . . finds that the CIA’s invocation of [the NSA and CIA

Act] to support its ‘Glomar’ response under Exemption 3 was proper, for the same reasons

described in the Exemption 1 discussion above.”). Indeed, “[t]he Supreme Court gives even

greater deference to CIA assertions of harm to intelligence sources and methods under the

[NSA]” than under Exemption 1. Wolf, 473 F.3d at 377 (citing CIA v. Sims, 471 U.S. 159, 168–

69 (1985)).

B.     Application of the Official Acknowledgment Doctrine

       Plaintiff asserts that the Agency’s “Glomar response [was] ineffective and unwarranted”

because the information he sought had allegedly “already been disclosed to third parties.” Dkt.

20 at 12 (internal quotation marks omitted). The CIA disagrees, Dkt. 22 at 3, as does the Court.




                                                  11
       It is well settled that, “[w]hen information has been ‘officially acknowledged,’ its

disclosure may be compelled even over an agency’s otherwise valid exemption claim.” Moore,

666 F.3d at 1333 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). The test for

official acknowledgment is, however, a “strict” one. Id. (quoting Wilson v. CIA, 586 F.3d 171,

186 (2d Cir. 2009)). “To be officially disclosed: ‘(1) the information requested must be as

specific as the information previously released; (2) the information requested must match the

information previously disclosed; and (3) the information requested must already have been

made public through an official and documented disclosure.’” Id. (quoting Am. Civil Liberties

Union v. U.S. Dep’t of Def., 628 F.3d 612, 620–21 (D.C. Cir. 2011)). “‘[A] plaintiff asserting a

claim of prior disclosure must bear the initial burden of pointing to specific information in the

public domain that appears to duplicate that being withheld.’” Id. (quoting Afshar v. Dep’t of

State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)).

       Plaintiff argues that the information he seeks was by definition officially acknowledged

when it was purportedly disclosed to third parties—that is, he seeks communications with local

officials that, to the extent they exist, were necessarily disclosed to those local officials. See Dkt.

20 at 12. But, even putting aside the lack of factual support for Plaintiff’s contention, this

argument ignores the essential requirement of the “official acknowledgment” doctrine that “the

information requested must already have been made public through an official disclosure.”

Moore, 666 F.3d at 1333 (quoting Am. Civil Liberties Union, 628 F.3d at 620) (emphasis added).

It defies commonsense to argue that any time a CIA official allegedly communicates with a third

party, any such communication (if, in fact, one exists) has been “made public” and is thus subject

to FOIA disclosure. Although the government may waive the right to rely on an otherwise valid

FOIA exemption where a disclosure satisfies the official acknowledgment test, the Court “must



                                                  12
be confident that the information sought is truly public and that the requester receive no more

than what is publicly available before [it] find[s] a waiver.” Students Against Genocide v. Dep’t

of State, 257 F.3d 828, 836 (D.C. Cir. 2001) (quoting Cottone v. Reno, 193 F.3d 550, 555 (D.C.

Cir. 1999)) (emphasis added). The D.C. Circuit, accordingly, has held that the government did

not waive the right to withhold photographs that were shown to foreign officials, but withheld

from the general public. Id.; see also Judicial Watch, Inc. v. U.S. Dep’t of Def., 963 F. Supp. 2d

6, 17 (D.D.C. 2013) (holding that “a FOIA requester that knows information has been disclosed

to a private party is [not] necessarily entitled to that same disclosure” and that the relevant

question is whether the information has “become[] ‘truly public’”). Thus, the mere fact that

Plaintiff seeks communications allegedly occurring between the CIA and third parties does not

undermine the propriety of the CIA’s Glomar response.

       Nor do the press reports submitted by Plaintiff establish that the information sought was

“officially acknowledged.” Under D.C. Circuit precedent, the “official acknowledgment”

doctrine does not apply to “a disclosure made by someone other than the agency from which the

information is being sought.” Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir. 1999). “[O]nly the

CIA can waive its right to assert an exemption to the FOIA.” Id. at 775. Indeed, the Court of

Appeals has held that the “release of [a] [r]eport by the FBI” does not constitute “official

acknowledgment by the CIA.” Moore, 666 F.3d at 1333 n.4 (emphases in original).

       To the extent that the press reports relied upon by Plaintiff quote Davis’s lawyer or other

press reports quoting Davis’s wife, see Goldman & Dozier, supra; Dkt. 20-4 at 5 (Pl.’s Opp., Ex.

4); Lee Ferran, Raymond Davis, CIA Contractor, Charged with Felony in Parking Lot Skirmish,

ABC News, Oct. 4, 2011; Dkt. 20-6 at 2 (Pl.’s Opp., Ex. 6), they cannot satisfy this demanding

standard. Even if Davis’s lawyer or his wife indicated—or implied—that Davis was affiliated



                                                  13
with the CIA, their statements would not constitute an “official acknowledgment” by the

Agency. For similar reasons, references to statements purportedly made by anonymous “current

and former officials” do not suffice to show that the CIA “officially acknowledged” that it has,

or ever had, any relationship with Davis. Moore, 666 F.3d at 1333; see also Edmonds v. FBI,

272 F. Supp. 2d 35, 49 (D.D.C. 2003) (“[S]ince the statements in the press were made by

anonymous sources, even documents containing identical information may properly be withheld

because ‘release would amount to official confirmation or acknowledgment of their accuracy.’”

(quoting Washington Post v. U.S. Dep’t of Def., 76 F. Supp. 1, 9 (D.D.C. 1991)). To the

contrary, the very same reports on which Plaintiff relies include official statements from the

United States government asserting that Davis was a diplomat attached to the U.S. Embassy. See

Goldman & Dozier, supra; Dkt. 20-4 at 3 (Pl.’s Opp., Ex. 4); Ferran, supra; Dkt. 20-6 at 3 (Pl.’s

Opp., Ex. 6). And, finally, the report that the CIA allegedly asked the AP and other news outlets

“to hold their stories [reporting that Davis was a CIA contractor] as the U.S. tried to improve

Davis’ security situation,” Goldman & Dozier, supra; Dkt. 20-4 at 4 (Pl.’s Opp., Ex.4), even if

true, differs from the assertion that Davis actually was a CIA contractor, and thus does not

“match” the information that Plaintiff seeks, Moore, 666 F.3d at 1333. Even if the CIA believed

it was in the national interest to embargo stories about Davis’s purported connection to it until

after he was released from Pakistani custody, that would not constitute confirmation that he

was—or was not—actually affiliated with the CIA.




                                                14
                                    III. CONCLUSION

       For the foregoing reasons, Defendant’s motion for summary judgment, Dkt. 16, is

DENIED. The clerk shall enter final judgment.

                                                         /s/ Randolph D. Moss
                                                         RANDOLPH D. MOSS
                                                         United States District Judge

Date: March 22, 2016




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