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Case TitleLEOPOLD et al v. CENTRAL INTELLIGENCE AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2017cv02176
Date Filed2017-10-19
Date Closed2019-03-29
JudgeJudge Rudolph Contreras
PlaintiffJASON LEOPOLD
PlaintiffBUZZFEED, INC.
Case DescriptionReporter Jason Leopold submitted a FOIA request to the CIA for records concerning payments made by the agency to Syrian rebels fighting Assad. Leopold argued that a tweet from President Trump critical of a Washington Post article about the payments constituted public acknowledgment of the payments. Leopold also requested a fee waiver and inclusion in the news media fee category. The agency acknowledged receipt of the request, but after hearing nothing further from the agency, Leopold filed suit.
Complaint issues: Failure to respond within statutory time limit, Litigation - Attorney's fees

DefendantCENTRAL INTELLIGENCE AGENCY
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [23]
FOIA Project Annotation: One of the perhaps unexpected consequences of President Donald Trump's characteristic shoot-from-the-hip style of public pronouncements has been a surfeit of misleading statements the legal significance of which courts continue to wrestle in real time. Although Trump constantly says things in public that no previous President would ever have said aloud, trying to use his statements as the basis for public acknowledgement of anything has proven to be a much more difficult task than Trump critics might have expected. While courts have agreed that what Trump says or writes in public constitute public documents, judges have usually concluded that such statements have no credible factual basis on which they could be considered a public acknowledgment of the underlying substance of any of his pronouncements. The most recent example comes in Judge Rudolph Contreras' ruling in a case brought by Buzzfeed journalist Jason Leopold alleging that Trump had acknowledged a covert CIA program to pay Syrian rebels in a tweet. Contreras noted that "because the Court finds that the President has not revealed the existence of a CIA-led program to arm Syrian revels, it grants the CIA's motion for summary judgment and denies Buzzfeed's cross-motion." Leopold's request was submitted to the CIA as a result of Trump's tweet and an interview with the Wall Street Journal in which he criticized a report a few days earlier in the Washington Post that the CIA was terminating a covert program to arm Syrian rebels fighting against the government of Bachar Al-Assad. In his tweet, he criticized the Post for getting the facts wrong, but in the Wall Street Journal interview he claimed that the program was terminated because weapons were being funneled to al-Qaida. In a discussion with Fox News national security reporter Catherine Herridge at the 2017 Aspen Security Forum, General Raymond Thomas, commander of the U.S. Special Operations Command, was asked about why the program was terminated. Based on Trump's statements, Leopold requested records about the program, arguing that it had now been publicly acknowledged. The CIA told Leopold that it would respond to the part of his request for records related to Trump's tweet, but that it was invoking a Glomar response neither confirming nor denying the existence of records as to whether the CIA had such a program under Exemption 1 (national security) and Exemption 3 (other statutes). Contreras pointed out that the official acknowledgment test as laid out by the D.C. Circuit in Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) required a plaintiff to show that disputed information was as specific as information previously disclosed, that the disputed information matched the information previously disclosed, and that the information had been made public through an official and documented disclosure. Leopold argued that the Fitzgibbon standard had been modified by ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), in which the D.C. Circuit had ruled that the CIA could not invoke a Glomar response because enough information had already been officially acknowledged that it was implausible for the agency to claim that it had no records on the subject of drones. While plaintiffs have argued that ACLU modified the Fitzgibbon test, it is probably more appropriate to say that ACLU created an exception to Fitzgibbon in the very limited circumstances involved. Contreras recognized this distinction. He observed that "the reasoning of the Fitzgibbon line of cases and of ACLU is not necessarily at odds. ACLU's admonition that an agency's Glomar response must be 'logical or plausible' and focus on reviewing the fiction of deniability from the perspective of a reasonable person did not displace Fitzgibbon's three-part test, which the circuit has used in official acknowledgement cases since ACLU. Rather, having determined that the information sought had already been officially acknowledged, the circuit in ACLU found, applying the 'logical and plausible' standard under which all agency invocation of exemptions are reviewed, that the CIA had not met its burden to issue a Glomar response." He added that "ACLU made clear that records are also officially acknowledged when 'the substance of an official statement and the context in which it is made permits the inescapable inference that the requested records in fact exist. In essence, while leaving intact the requirement that the information sought be as specific as, and match, the information disclosed, ACLU recognized that courts can infer such a disclosure when the statement does not explicitly disclose the information but leaves no doubt as to its existence." Relying on ACLU, Leopold argued that Trump's statements, combined with Thomas's confirmation of the existence of the program, created an inference that because the program had been acknowledged it must have been run by the CIA because it was the only agency capable of doing so. Contreras indicated that this inference went too far. He pointed out that "Buzzfeed does not explain how the tweet reveals the existence of a CIA program of payments to Syrian rebels " nor can it." He noted that "without taking a position as to what program, if any, the tweet may have officially acknowledged, the Court agrees [that] the President's tweet did not mention the CIA or create any inference that such a program would be linked to or run by the CIA. The President might have acknowledged the existence of 'massive, dangerous, and wasteful' payments to Syrian rebels, but he did not mention from which branch of government such payments would have originated." As has been the case in most previous litigation involving whether Trump's tweets actually are based on anything factual, Contreras indicated that "the President's characterization of the facts in the [Washington Post] article as 'fabricated' negates any inference that can be drawn from it as to the source of the payments. Because the article asserts that the program was a CIA program, Buzzfeed assumes that the President acknowledged as much, and that his reference to fabricated facts in the article necessarily concerned the details of the program rather than its origin. The Court cannot make such an assumption. At most, the tweet revealed that multiple payments were made by the government to Syrian rebels, that the President ended those payments, and that the Washington Post incorrectly reported on the payments." Contreras also rejected Leopold's claim that Trump's statement, combined with Thomas's statement, provided a sufficient inference that the CIA had been involved in the payments to Syrian rebels. Instead, he pointed out that "Buzzfeed strictly asks for documents relating to 'CIA payments.' Buzzfeed's request does not implicate any intelligence interest the CIA may have in any program run by other government components, so the Court cannot infer that documents responsive to Buzzfeed's request exist."
Issues: Determination - Glomar response
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2017-10-191COMPLAINT against CENTRAL INTELLIGENCE AGENCY ( Filing fee $ 400 receipt number 0090-5167307) filed by JASON LEOPOLD, BUZZFEED, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Light, Jeffrey) (Entered: 10/19/2017)
2017-10-192LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BUZZFEED, INC. (Light, Jeffrey) (Entered: 10/19/2017)
2017-10-203ERRATA by BUZZFEED, INC. 2 LCvR 7.1 Certificate of Disclosure - Corporate Affiliations/Financial Interests filed by BUZZFEED, INC.. (Attachments: # 1 Exhibit Corrected LCvR 7.1 disclosure statement)(Light, Jeffrey) (Entered: 10/20/2017)
2017-10-204NOTICE OF RELATED CASE by BUZZFEED, INC., JASON LEOPOLD. Case related to Case No. 17-cv-6354 (SDNY). (Light, Jeffrey) (Entered: 10/20/2017)
2017-10-20Case Assigned to Judge Rudolph Contreras. (md) (Entered: 10/20/2017)
2017-10-205SUMMONS (3) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General (Attachments: # 1 Notice of Consent) (md) (Entered: 10/20/2017)
2017-11-286RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 10/31/2017. ( Answer due for ALL FEDERAL DEFENDANTS by 11/30/2017.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 10/31/2017. (Light, Jeffrey) (Entered: 11/28/2017)
2017-11-307ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY.(td) (Entered: 12/04/2017)
2017-12-04MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and jointly submit a proposed briefing schedule on or before December 18, 2017. SO ORDERED. Signed by Judge Rudolph Contreras on 12/4/2017. (lcrc3) (Entered: 12/04/2017)
2017-12-06Set/Reset Deadlines: Proposed Briefing Schedule due by 12/18/2017 (tj) (Entered: 12/06/2017)
2017-12-188NOTICE of Appearance by Elizabeth Murray Tulis on behalf of CENTRAL INTELLIGENCE AGENCY (Tulis, Elizabeth) (Entered: 12/18/2017)
2017-12-189Joint STATUS REPORT by CENTRAL INTELLIGENCE AGENCY. (Tulis, Elizabeth) (Entered: 12/18/2017)
2017-12-1810STIPULATION by the Parties Regarding the Scope of Plaintiffs' FOIA Request by CENTRAL INTELLIGENCE AGENCY. (Tulis, Elizabeth) (Entered: 12/18/2017)
2017-12-19MINUTE ORDER: Upon consideration of 9 the parties' joint status report, it is hereby ORDERED that the following schedule shall govern these proceedings: Defendant shall issue a final response to the Freedom of Information Act request that is the subject of this case on or before December 21, 2017; Defendant shall submit any motion for summary judgment on or before January 26, 2018; Plaintiffs shall file their opposition to Defendant's motion for summary judgment along with any cross-motion for summary judgment on or before February 26, 2018; Defendant shall file any reply in support of its motion and opposition to Plaintiff's cross-motion on or before March 28, 2018; Plaintiffs shall file their reply in support of their own motion on or before April 23, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 12/19/2017. (lcrc3) (Entered: 12/19/2017)
2018-01-2511Consent MOTION to Stay Summary Judgment Briefing to Allow Parties to Meet and Confer by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order Proposed Order)(Tulis, Elizabeth) (Entered: 01/25/2018)
2018-01-29MINUTE ORDER granting 11 Consent Motion to Stay: It is hereby ORDERED that the current briefing schedule is STAYED. It is FURTHER ORDERED that the parties shall file a joint status report proposing a revised briefing schedule for the parties' anticipated cross-motions for summary judgment on or before February 1, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 1/29/2018. (lcrc3) (Entered: 01/29/2018)
2018-01-31Set/Reset Deadlines: Status Report due by 2/1/2018 (tj) (Entered: 01/31/2018)
2018-02-0112Joint STATUS REPORT Proposing Revised Briefing Schedule by CENTRAL INTELLIGENCE AGENCY. (Tulis, Elizabeth) (Entered: 02/01/2018)
2018-02-02MINUTE ORDER: Upon consideration of 12 the parties' Joint Status Report, it is hereby ORDERED that Defendant shall file its motion for summary judgment on or before May 1, 2018; Plaintiffs shall file their opposition and cross-motion for summary judgment on or before June 4, 2018; Defendant shall file its reply in support of its motion and opposition to Plaintiffs' cross-motion on or before July 6, 2018; and Plaintiffs shall file their reply in support of their cross-motion on or before August 6, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on 2/2/2018. (lcrc3) (Entered: 02/02/2018)
2018-02-02Set/Reset Deadlines: Cross Motions due by 6/4/2018. Response to Cross Motions due by 7/6/2018. Reply to Cross Motions due by 8/6/2018. Summary Judgment motions due by 5/1/2018. Response to Motion for Summary Judgment due by 6/4/2018. Reply to Motion for Summary Judgment due by 7/6/2018. (tj) (Entered: 02/02/2018)
2018-04-2713Consent MOTION for Extension of Time to File Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 04/27/2018)
2018-04-27MINUTE ORDER granting 13 Consent Motion for Extension of Time: It is hereby ORDERED that Defendant shall have up to and including May 4, 2018 to file its motion for summary judgment. SO ORDERED. Signed by Judge Rudolph Contreras on April 27, 2018. (lcrc3) (Entered: 04/27/2018)
2018-05-01Set/Reset Deadlines: Summary Judgment motions due by 5/4/2018. (tj) (Entered: 05/01/2018)
2018-05-0414MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Statement of Facts - Statement of Material Facts as to Which There Is No Genuine Issue, # 2 Declaration of Antoinette B. Shiner, # 3 Declaration of Elizabeth Tulis, # 4 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 05/04/2018)
2018-06-0415Memorandum in opposition to re 14 MOTION for Summary Judgment filed by BUZZFEED, INC., JASON LEOPOLD. (Attachments: # 1 Appendix News Articles, # 2 Exhibit 1-3, # 3 Statement of Facts Response, # 4 Text of Proposed Order)(Light, Jeffrey) (Entered: 06/04/2018)
2018-06-0416Cross MOTION for Summary Judgment by BUZZFEED, INC., JASON LEOPOLD (Attachments: # 1 Appendix News Articles, # 2 Exhibit 1-3, # 3 Statement of Facts, # 4 Text of Proposed Order)(Light, Jeffrey) (Entered: 06/04/2018)
2018-07-0317Consent MOTION for Extension of Time to File Response/Reply as to 16 Cross MOTION for Summary Judgment , 14 MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 07/03/2018)
2018-07-03MINUTE ORDER granting 17 Defendant's Consent Motion for Extension of Time: It is hereby ORDERED that Defendant shall file its reply in support of its motion for summary judgment, and its opposition to Plaintiffs' cross-motion for summary judgment, on or before July 11, 2018. SO ORDERED. Signed by Judge Rudolph Contreras on July 3, 2018. (lcrc3) (Entered: 07/03/2018)
2018-07-03Set/Reset Deadlines: Reply in Support of Motion for Summary Judgment/Opposition to Cross Motion due by 7/11/2018. (hs) (Entered: 07/03/2018)
2018-07-1118Memorandum in opposition to re 16 Cross MOTION for Summary Judgment and in Further Support of Defendant's Motion for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Statement of Facts (Response), # 2 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 07/11/2018)
2018-07-1119REPLY to opposition to motion re 14 MOTION for Summary Judgment and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 07/11/2018)
2018-08-0620REPLY to opposition to motion re 16 Cross MOTION for Summary Judgment filed by BUZZFEED, INC., JASON LEOPOLD. (Light, Jeffrey) (Entered: 08/06/2018)
2018-10-1621NOTICE of Change of Address by Elizabeth Murray Tulis (Tulis, Elizabeth) (Entered: 10/16/2018)
2019-03-2922ORDER granting 14 Defendant's Motion for Summary Judgment; denying 16 Plaintiffs' Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 3/29/19. (lcrc1) (Entered: 03/29/2019)
2019-03-2923MEMORANDUM OPINION granting 14 Defendant's Motion for Summary Judgment; denying 16 Plaintiffs' Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 3/29/19. (lcrc1) (Entered: 03/29/2019)
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