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Case TitleLEOPOLD v. CENTRAL INTELLIGENCE AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2014cv00048
Date Filed2014-01-14
Date Closed2015-03-31
JudgeJudge James E. Boasberg
PlaintiffJASON LEOPOLD
Case DescriptionLeopold requested a copy of an internal CIA report on its interrogation and detention program which was referred to by Sen. Mark Udall during a Senate Intelligence Committee hearing. Leopold requested expedited processing and a fee waiver. After hearing nothing further from the agency, Leopold filed suit.
Complaint issues: failure to grant expedited processing, improper withholding, attorney's fees

DefendantCENTRAL INTELLIGENCE AGENCY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Complaint attachment 3
Complaint attachment 4
Complaint attachment 5
Opinion/Order [30]
FOIA Project Annotation: Handing another victory to the CIA, Judge James Boasberg has ruled that an internal study created by the agency as part of its review of the contents of the records being turned over to the Senate Select Intelligence Committee as part of the Committee's investigation of the CIA's detention and interrogation program is entirely protected by Exemption 5 (deliberative process privilege). When the Senate Select Committee on Intelligence announced in 2009 that it would review the CIA's detention and interrogation program, it negotiated access to millions of pages of unredacted records for certain staff members. Then-CIA Director Leon Panetta asked to be kept apprised of the Senate review and the agency created a Special Review Team that was tasked with researching various related topics. Team members would then include anything significant in written reviews. The project was abandoned, however, after a year because the agency concluded it could complicate a separate criminal investigation being conducted by the Justice Department. The team reviewed less than half the responsive documents and its reviews were left unfinished. Several years after the project was terminated, Sen. Mark Udall (D-NM) publicly referenced an "internal study" the agency had allegedly drafted about its detention program. Journalist Jason Leopold then made a FOIA request for the study. After some negotiation, Leopold agreed to limit his request to what was known as the Panetta Review. The agency then told Leopold that it was withholding the review entirely, citing Exemption 1 (national security) and Exemption 3 (other statutes) as well as Exemption 5. Boasberg, however, found the review was properly withheld under Exemption 5 and did not discuss either of the other exemptions. Relying on Senate of Puerto Rico v. Dept of Justice, 823 F.2d 574 (D.C. Cir. 1987), Leopold argued that "the agency's reference to various potential uses to which the Reviews might have been put is too general, and that the government must be able to point to a specific decisionâ€"e.g. 'whether to use particular methods of interrogation in the future'â€"to which the documents could have contributed." Unfortunately for Leopold, the D.C. Circuit had rejected the "specific decision" limitation in my one contribution to FOIA litigation, Access Reports v. Dept of Justice, 926 F.2d 1192 (D.C. Cir. 1991), in which the D.C. Circuit concluded the deliberative process privilege extended to a potentially endless series of deliberations an agency might conduct as long as they somehow were marginally connected together. Although Boasberg did not mention the Supreme Court's decision in NLRB v. Sears, Roebuck & Co., 421 U.S. 132 (1975), a footnote in Sears indicating that agencies should be constantly deliberating on matters regardless of whether they reached a decision, was a crucial observation in rebutting the 'specific decision" analysis. Quoting from Access Reports, Boasberg observed that the deliberative process privilege was "aimed at protecting [an agency's] decisional process' and that it is unnecessary to identify a specific decision to which withheld materials contributed." He noted that the D.C. Circuit accepted "that the Justice Department's assertion that a memo was prepared to aid its 'study of how to shepherd [a] bill through Congress' sufficiently defined the decisionmaking process to which the document contributed, and that the agency had sustained it burden of showing that the memo was predecisional." Applying the holding of Access Reports to the case before him, Boasberg indicated that 'the decisionmaking process identified here is no more vague than the one described in Access Reports. According to the CIA, the Reviews were created to aid senior agency officials' deliberations about how to respond to the SSCI's investigation into its former program, as well as how to deal with other policy issues that might arise therefrom. Contrary to Plaintiff's assertions, a finding that the documents are predecisional would not stretch the meaning of the term too far or risk rendering every document exempt because it might someday be used by agency officials to make 'various policy decisions.' Here, there was a congressional inquiry underway about a specific CIA program. That program had already generated considerable international controversy, and senior CIA officials knew that they would have to respond to the Committee's eventual report. They also knew that they might be called upon to make other decisions stemming from the Committee's study, such as how to prepare for meetings with other agencies on the subject. The agency was thus engaged in an ongoing, multi-year, deliberative process about how to handle these issues, and the Reviews preceded the agency's final decisions in that process." Leopold argued that the reviews were not predecisional because they addressed the CIA's former detention and interrogation program. Unfortunately, Access Reports had rejected that argument as well. Boasberg explained that "the plaintiff there contended that a memo about the potential impacts of certain proposed amendments to FOIA could not be considered predecisional because it was drafted after the Department submitted its legislative proposals to Congress. The court explained, however, that the Department had not prepared the memo to explain its past decisions, but instead 'as ammunition for the expected fray.' It analogized the memo to 'a staffer's preparation of "talking points" for an agency chief about how to handle a potentially explosive press conference.' Such talking points, while they may relate to past decisions or events, are predecisional because they are drafted to aid future policy-oriented decisionsâ€"e.g., how to respond to press inquiries." Boasberg then found the reviews were deliberative. He rejected Leopold's contention that the agency was required to disclose factual materials. He pointed out, however, that "the Reviews were not comprehensive, matter-of-fact summaries about the selected topics, nor were they rote recitations of facts. Rather, the authors strove to write briefing materials that would aid senior officials' decisionmaking." He observed that "the Reviews, consequently, reflected a point of viewâ€"namely, what agency personnel thought important enough to bring to senior officials' attention in light of their understanding of the policy issues that the CIA might face as a result of the investigation." Leopold argued that because the reviews did not incorporate any feedback from the CIA's leadership disclosure would not reveal any internal give-and-take. Boasberg noted that "but the agency's intended editing process was not what makes the Reviews deliberative. Instead, it is their planned role in the agency's decisionmaking process and the significant discretion that the authors exercised in order to prepare useful briefing documents on their selected topics."
Issues: Exemption 5 - Privileges - Deliberative process privilege - Deliberative, Exemption 5 - Privileges - Deliberative process privilege - Predecisional
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2014-01-141COMPLAINT against CENTRAL INTELLIGENCE AGENCY ( Filing fee $ 400 receipt number 0090-3590518) filed by JASON LEOPOLD. (Attachments: # 1 Exhibit 1 - FOIA Request to CIA, # 2 Civil Cover Sheet, # 3 Summons CIA, # 4 Summons USAO, # 5 Summons USDOJ)(Light, Jeffrey) (Entered: 01/14/2014)
2014-01-142NOTICE OF RELATED CASE by JASON LEOPOLD. Case related to Case No. 1:13-cv-1324-JEB. (Light, Jeffrey) (Entered: 01/14/2014)
2014-01-14Case Assigned to Judge James E. Boasberg. (md, ) (Entered: 01/14/2014)
2014-01-143ELECTRONIC SUMMONS (3) ISSUED as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Summons 2nd, # 2 Summons 3rd, # 3 Notice of Consent, # 4 Consent Form)(md, ) (Entered: 01/14/2014)
2014-01-274RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/24/2014. ( Answer due for ALL FEDERAL DEFENDANTS by 2/23/2014.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 1/24/2014. (Light, Jeffrey) (Entered: 01/27/2014)
2014-02-035RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 1/28/2014 (Light, Jeffrey) (Entered: 02/03/2014)
2014-02-206MOTION to Dismiss for Lack of Jurisdiction by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Memorandum in Support, # 2 Text of Proposed Order)(Mei, Vesper) (Entered: 02/20/2014)
2014-02-207AMENDED COMPLAINT First against CENTRAL INTELLIGENCE AGENCY filed by JASON LEOPOLD. (Attachments: # 1 Exhibit 1)(Light, Jeffrey) (Entered: 02/20/2014)
2014-02-218Memorandum in opposition to re 6 MOTION to Dismiss for Lack of Jurisdiction filed by JASON LEOPOLD. (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 02/21/2014)
2014-03-069ANSWER to 7 Amended Complaint by CENTRAL INTELLIGENCE AGENCY. Related document: 7 Amended Complaint filed by JASON LEOPOLD.(Mei, Vesper) (Entered: 03/06/2014)
2014-03-06MINUTE ORDER: Given the filing of an Amended Complaint, the Court ORDERS that: 1) Defendant's 6 Motion to Dismiss is DENIED WITHOUT PREJUDICE as moot; and 2) The parties shall meet and confer and submit a joint proposed briefing schedule by March 17, 2014. Signed by Judge James E. Boasberg on 3/6/14. (lcjeb1) (Entered: 03/06/2014)
2014-03-07Set/Reset Deadline: The parties shall meet and confer and submit a joint proposed briefing schedule by 3/17/2014. (ad) (Entered: 03/07/2014)
2014-03-1210MOTION for Order to preserve Internal Panetta Review by JASON LEOPOLD (Attachments: # 1 Exhibit 1 - Statement of Sen. Feinstein, # 2 Text of Proposed Order)(Light, Jeffrey) (Entered: 03/12/2014)
2014-03-1211MEET AND CONFER STATEMENT. (Mei, Vesper) (Entered: 03/12/2014)
2014-03-1412RESPONSE re 10 MOTION for Order to preserve Internal Panetta Review filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Text of Proposed Order)(Mei, Vesper) (Entered: 03/14/2014)
2014-03-2213REPLY to opposition to motion re 10 MOTION for Order to preserve Internal Panetta Review filed by JASON LEOPOLD. (Light, Jeffrey) (Entered: 03/22/2014)
2014-05-1514MOTION to Amend/Correct 11 Meet and Confer Statement by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Exhibit A - Apr. 18, 2014 Letter from Kathryn H. Ruemmler to Sen. Dianne Feinstein, # 2 Text of Proposed Order)(Mei, Vesper) (Entered: 05/15/2014)
2014-05-1915Memorandum in opposition to re 14 MOTION to Amend/Correct 11 Meet and Confer Statement filed by JASON LEOPOLD. (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 05/19/2014)
2014-05-1916MOTION for Summary Judgment by JASON LEOPOLD (Attachments: # 1 Statement of Facts, # 2 Exhibit 1 - Email chain, # 3 Text of Proposed Order)(Light, Jeffrey) (Entered: 05/19/2014)
2014-05-1917Memorandum in opposition to re 14 MOTION to Amend/Correct 11 Meet and Confer Statement Corrected filed by JASON LEOPOLD. (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 05/19/2014)
2014-05-2218REPLY to opposition to motion re 14 MOTION to Amend/Correct 11 Meet and Confer Statement filed by CENTRAL INTELLIGENCE AGENCY. (Mei, Vesper) (Entered: 05/22/2014)
2014-05-29MINUTE ORDER: As discussed at today's status hearing, the Court ORDERS that: 1) Given the CIA's stipulation to preserve the Panetta Review documents, Plaintiff's Motion for a Preservation Order (ECF No. 10 ) is DENIED as moot; 2) Plaintiff's Motion for Summary Judgment (ECF No. 16 ) is DENIED WITHOUT PREJUDICE as premature; 3) Defendant's Motion to Amend Joint Proposed Briefing Schedule (ECF No. 14 ) is GRANTED; and 4) Defendant shall file a status report by June 20, 2014, providing a date for the completion of the processing of the Panetta Review. Signed by Judge James E. Boasberg on 5/29/14. (lcjeb1) (Entered: 05/29/2014)
2014-05-29Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 5/29/2014. (Defendant shall file a status report by 6/20/2014, providing a date for the completion of the processing of the Panetta Review). (Court Reporter Patricia Kaneshiro-Miller) (ad) (Entered: 05/29/2014)
2014-06-2019STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Mei, Vesper) (Entered: 06/20/2014)
2014-08-14MINUTE ORDER: The Court ORDERS that the parties shall appear for a status conference in Case Nos. 13-1324, 13-1870, and 14-48 on September 4, 2014, at 10:30 a.m. Signed by Judge James E. Boasberg on 8/14/2014. ( lcjeb1) (Entered: 08/14/2014)
2014-08-14Set/Reset Hearing: A Status Conference is set for 9/04/2014 at 10:30 AM in Courtroom 19 before Judge James E. Boasberg in case nos. 13cv1324, 13cv1870, and 14cv048. (ad) (Entered: 08/14/2014)
2014-08-2720Unopposed MOTION for Extension of Time to process documents by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Exhibit 1, # 2 Text of Proposed Order)(Mei, Vesper) (Entered: 08/27/2014)
2014-08-28MINUTE ORDER granting Defendant's Unopposed 20 Motion for Extension of Time to Process Documents. The Court ORDERS that Defendant shall complete processing on or before September 29, 2014. Signed by Judge James E. Boasberg on 08/28/14. (lcjeb1) (Entered: 08/28/2014)
2014-08-28Set/Reset Deadline: The Defendant shall complete processing on or before 9/29/2014. (ad) (Entered: 08/28/2014)
2014-09-04MINUTE ORDER: As discussed at today's status hearing in case nos. 13-1324, 13-1870, and 14-48, the Court ORDERS that: 1) The request in 13-1324 is confined to the Executive Summary of the SSCI Report; 2) In 13-1324, Defendant's 17 Motion to Dismiss is DENIED as moot with consent; 3) In 13-1870, Defendant's 17 Motion to Dismiss is DENIED as moot with consent; and 4) A further status hearing in all three cases shall take place on October 7, 2014, at 9:30 a.m. Signed by Judge James E. Boasberg on 9/4/14. (lcjeb1) (Entered: 09/04/2014)
2014-09-04Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 9/4/2014. A combined Status Conference for case numbers 14-cv-0048, 13-cv-1324, and 13-cv-1870 is scheduled for 10/7/2014 at 9:30 AM in Courtroom 19 before Judge James E. Boasberg. (Court Reporter Lisa Griffith) (jth) (Entered: 09/04/2014)
2014-09-2521MOTION for Extension of Time to Process Documents by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Mei, Vesper) (Entered: 09/25/2014)
2014-10-07MINUTE ORDER: As discussed in today's status conference in Nos. 13-1324, 13-1870, and 14-48, the Court ORDERS that: 1) The Government's Motions for Extension are GRANTED; 2) The ACLU need not file an additional amended complaint or additional FOIA request in 13-1870; and 3) Summary judgment briefing in all cases will comply with the following schedule: Government's Motion due December 5, 2014, Plaintiffs' Opposition and Cross-Motion due January 9, 2015; Government's Opposition and Reply due January 30, 2015, and Plaintiffs' Reply due February 13, 2015. Signed by Judge James E. Boasberg on 10/7/14. (lcjeb2) (Entered: 10/07/2014)
2014-10-07Minute Entry for proceedings held before Judge James E. Boasberg: Status Conference held on 10/7/2014. (Government's Motion due 12/05/2014, Plaintiffs' Opposition and Cross-Motion due 1/09/2015; Government's Opposition and Reply due 1/30/2015, and Plaintiffs' Reply due 2/13/2015. (Court Reporter Lisa Griffith) (ad) (Entered: 10/07/2014)
2014-12-0422MOTION for Extension of Time to File Summary Judgment Motion by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Mei, Vesper) (Entered: 12/04/2014)
2014-12-04MINUTE ORDER granting the Government's 22 Motion for Extension of Time. The Court ORDERS that the Government shall file its Motion for Summary Judgment on or before December 10, 2014. Signed by Judge James E. Boasberg on 12/4/14. (lcjeb1) (Entered: 12/04/2014)
2014-12-05Set/Reset Deadline: The Government shall file its Motion for Summary Judgment on or before 12/10/2014. (ad) (Entered: 12/05/2014)
2014-12-1023MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Declaration of Martha M. Lutz, # 2 Text of Proposed Order)(Mei, Vesper) (Entered: 12/10/2014)
2015-01-0924Memorandum in opposition to re 23 MOTION for Summary Judgment filed by JASON LEOPOLD. (Light, Jeffrey) (Entered: 01/09/2015)
2015-01-0925Cross MOTION for Summary Judgment by JASON LEOPOLD (Attachments: # 1 Text of Proposed Order)(Light, Jeffrey) (Entered: 01/10/2015)
2015-01-3026REPLY to opposition to motion re 23 MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Mei, Vesper) (Entered: 01/30/2015)
2015-01-3027Memorandum in opposition to re 25 Cross MOTION for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Declaration of Martha Lutz, # 2 Text of Proposed Order)(Mei, Vesper) (Entered: 01/30/2015)
2015-02-1328REPLY to opposition to motion re 25 Cross MOTION for Summary Judgment filed by JASON LEOPOLD. (Light, Jeffrey) (Entered: 02/14/2015)
2015-03-3129ORDER: The Court ORDERS that: 1) Defendant Central Intelligence Agency's 23 Motion for Summary Judgment is GRANTED; 2) Plaintiff Jason Leopold's 25 Cross-Motion for Summary Judgment is DENIED; and 3) Judgment is ENTERED in favor of Defendant. Signed by Judge James E. Boasberg on 03/31/15. (lcjeb3) (Entered: 03/31/2015)
2015-03-3130MEMORANDUM OPINION re 29 Order on Defendant's Motion for Summary Judgment and Plaintiff's Cross-Motion for Summary Judgment. Signed by Judge James E. Boasberg on 03/31/15. (lcjeb3) (Entered: 03/31/2015)
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