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Case TitleKinney vs Central Intelligence Agency
DistrictWestern District of Washington
CityTacoma
Case Number3:2016cv05777
Date Filed2016-09-12
Date Closed2017-05-05
JudgeJudge Benjamin H. Settle
PlaintiffLeslie G Kinney
Case DescriptionLeslie Kinney submitted a FOIA request to the CIA for records concerning Harold Nichols, who had served with the Office of Strategic Services, the predecessor to the CIA, during World War II. The agency issued a Glomar response neither confirming nor denying the existence of records concerning Nichols. Kinney filed an appeal, which was upheld by the agency. Kinney then filed suit.
Complaint issues: Litigation - Attorney's fees

DefendantCentral Intelligence Agency CIA
AppealNinth Circuit 17-35384
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [13]
FOIA Project Annotation: A federal court in Washington has ruled that the CIA was required to participate in a Rule 26(f) discovery conference in response to a suit filed by Leslie Kinney, but that because of the sensitive nature of any potentially responsive records, the CIA will not be required to provide any initial disclosures under Rule 26(a)(1). Rejecting the agency's request to be excused from the discovery conference requirement, the court noted that "Defendant lacks any basis to fear improper discovery prior to discussing these issues with Plaintiff, as discovery is prohibited prior to the Rule 26(f) conference. Had Defendant simply fulfilled its obligations to confer with Plaintiff under Rule 26(f), it appears very likely that its concerns could have been resolved without requiring any Court intervention." Granting the CIA's request to be excused from initial discovery, the court observed that "in this case, in order to identify a specified individual as an intelligence source for the CIA, Plaintiff seeks potentially classified CIA documents that are almost certainly exempt from FOIA disclosure. Although Plaintiff is correct that the requested documents are likely quite old, the mere passage of time does not mean these documents are no longer exempt from FOIA requests. Therefore, because this case potentially implicates highly sensitive information, and because it is likely to be resolved on summary judgment, the Court finds it prudent to relieve Defendant of its initial disclosure obligations under Rule 26(a)."
Issues: Litigation - Discovery
Opinion/Order [22]
FOIA Project Annotation: A federal court in Washington has ruled that the CIA properly invoked a Glomar response neither confirming nor denying the existence of records in response to Leslie Kinney's request for records on James Harold Nichols, who Kinney claimed had served as a covert operative for the U.S. during and after World War II. Finding the agency's Glomar response was appropriate under Exemption 1 (national security), the court noted that "the CIA's affidavit reasonably explains how confirming the existence or nonexistence of the records sought would reveal an unacknowledged human intelligence source. . ." Kinney argued that the agency had publicly acknowledged the existence of records when he was told by a CIA employee that if the agency found records it might need to coordinate its response with other agencies. The court observed that "while the statement made to Plaintiff by the CIA representative could be construed as evidence that such records exist, it clearly falls short of the 'official' documented acknowledgement necessary to override an otherwise valid exemption." The court also rejected Kinney's assertion that the age of the records suggested that disclosure would not cause harm to national security. The court pointed out that "courts have routinely accepted the CIA's logical justification for its invocation of the Glomar response when dealing with records regarding alleged, long-deceased human sources."
Issues: Determination - Glomar response, Exemption 1 - Harm to national security
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2016-09-121COMPLAINT against defendant Central Intelligence Agency (Summons(es) issued) (Receipt # TAC14149), filed by Leslie G Kinney. (Attachments: # 1 Civil Cover Sheet, # 2 Email Verification of Filing Date)(MET) (Entered: 09/12/2016)
2016-09-142NOTICE: Plaintiff Leslie G Kinney has registered to electronically file and receive electronic service in this case. (PS) (Entered: 09/14/2016)
2016-09-143MINUTE ORDER REGARDING DISCOVERY AND DEPOSITIONS by Judge Benjamin H. Settle. (TG) (Entered: 09/14/2016)
2016-09-144ORDER REGARDING INITIAL DISCLOSURES AND JOINT STATUS REPORT Joint Status Report due by 1/12/2017, FRCP 26f Conference Deadline is 12/22/2016, Initial Disclosure Deadline is 1/5/2017, by Judge Benjamin H. Settle. (TG) (Entered: 09/14/2016)
2016-12-205NOTICE of Appearance by attorney Tricia S. Boerger on behalf of Defendant Central Intelligence Agency. (Boerger, Tricia) (Entered: 12/20/2016)
2016-12-206ANSWER to 1 Complaint by Central Intelligence Agency.(Boerger, Tricia) (Entered: 12/20/2016)
2016-12-20Attorney Kayla Stahman for Central Intelligence Agency added per the 5 Notice of Appearance. (CMG) (Entered: 12/21/2016)
2016-12-21Set/Reset Deadlines: FRCP 26f Conference Deadline is 1/22/2017, Initial Disclosure Deadline is 2/5/2017, Joint Status Report due by 2/12/2017. (TG) (Entered: 12/21/2016)
2017-01-057AFFIDAVIT of Mailing of Summons and Complaint to Lavergne on 12/29/2016, filed by Plaintiff Leslie G Kinney. (Kinney, Leslie) (Entered: 01/05/2017)
2017-01-198MOTION for Relief from Order Regarding Initial Disclosures, Joint Status Report and Early Settlement , filed by Defendant Central Intelligence Agency. (Attachments: # 1 Proposed Order) Noting Date 1/27/2017, (Boerger, Tricia) (Entered: 01/19/2017)
2017-01-279RESPONSE, by Plaintiff Leslie G Kinney, to 8 MOTION for Relief from Order Regarding Initial Disclosures, Joint Status Report and Early Settlement . (Kinney, Leslie) (Entered: 01/27/2017)
2017-01-2710PROPOSED ORDER (Unsigned) (Attachments: # 1 Proposed Order)(Kinney, Leslie) (Entered: 01/27/2017)
2017-01-3011REPLY, filed by Defendant Central Intelligence Agency, TO RESPONSE to 8 MOTION for Relief from Order Regarding Initial Disclosures, Joint Status Report and Early Settlement (Stahman, Kayla) (Entered: 01/30/2017)
2017-01-3112NOTICE OF WITHDRAWAL OF COUNSEL: Attorney Tricia S. Boerger for Defendant Central Intelligence Agency. (Boerger, Tricia) (Entered: 01/31/2017)
2017-02-2213ORDER granting in part and denying in part 8 Motion for Relief. Signed by Judge Benjamin H. Settle. (MGC) (Entered: 02/22/2017)
2017-02-2314JOINT STATUS REPORT signed by all parties estimated Trial Days: 0. (Stahman, Kayla) (Entered: 02/23/2017)
2017-03-0115MOTION for Summary Judgment and Motion for a Protective Order , filed by Defendant Central Intelligence Agency. (Attachments: # 1 Proposed Order) Noting Date 3/24/2017, (Stahman, Kayla) (Entered: 03/01/2017)
2017-03-0116DECLARATION of Kayla C. Stahman filed by Defendant Central Intelligence Agency re 15 MOTION for Summary Judgment and Motion for a Protective Order (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F)(Stahman, Kayla) (Entered: 03/01/2017)
2017-03-0117DECLARATION of Antoinette B. Shiner filed by Defendant Central Intelligence Agency re 15 MOTION for Summary Judgment and Motion for a Protective Order (Stahman, Kayla) (Entered: 03/01/2017)
2017-03-1518RESPONSE, by Plaintiff Leslie G Kinney, to 15 MOTION for Summary Judgment and Motion for a Protective Order . (Kinney, Leslie) (Entered: 03/15/2017)
2017-03-1519DECLARATION RESPONSE, by Plaintiff Leslie G Kinney, to 15 MOTION for Summary Judgment and Motion for a Protective Order . (Attachments: # 1 Exhibit, # 2 Exhibit, # 3 Exhibit, # 4 Exhibit, # 5 Exhibit, # 6 Exhibit, # 7 Exhibit, # 8 Exhibit, # 9 Exhibit, # 10 Exhibit, # 11 Exhibit)(Kinney, Leslie) Modified on 3/17/2017 (MET). (Entered: 03/15/2017)
2017-03-17NOTICE of Docket Text Modification re 19 Response to Motion : modified to reflect a declaration. (MET) (Entered: 03/17/2017)
2017-03-2420REPLY, filed by Defendant Central Intelligence Agency, TO RESPONSE to 15 MOTION for Summary Judgment and Motion for a Protective Order (Stahman, Kayla) (Entered: 03/24/2017)
2017-03-2821REPLY, filed by Plaintiff Leslie G Kinney, TO RESPONSE to 15 MOTION for Summary Judgment and Motion for a Protective Order (Kinney, Leslie) (Entered: 03/28/2017)
2017-05-0322ORDER by Judge Benjamin H. Settle granting 15 Motion for Summary Judgment and terminating case. (TG) (Entered: 05/03/2017)
2017-05-0523JUDGMENT BY COURT. (MGC) (Entered: 05/05/2017)
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by FOIA Project Staff