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Case TitleLEOPOLD et al v. CENTRAL INTELLIGENCE AGENCY
DistrictDistrict of Columbia
CityWashington, DC
Case Number1:2019cv00978
Date Filed2019-04-08
Date Closed2021-02-09
JudgeJudge Rudolph Contreras
PlaintiffJASON LEOPOLD
PlaintiffBUZZFEED, INC.
Case DescriptionBuzzFeed reporter Jason Leopold submitted a FOIA request to the CIA for records concerning U.S. payments to Syrian rebels fighting Assad, including any records related to President Trump pertaining to his tweet that the Washington Post had misrepresented his decision to end such funding. Leopold argued that Trump's tweet constituted a public acknowledgement 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, Public Interest Fee Waiver, Litigation - Attorney's fees

DefendantCENTRAL INTELLIGENCE AGENCY
DefendantCENTRAL INTELLIGENCE AGENCY
Washington, DC 20505
AppealD.C. Circuit 20-5002
Documents
Docket
Complaint
Complaint attachment 1
Complaint attachment 2
Opinion/Order [17]
FOIA Project Annotation: Judge Rudolph Contreras has ruled that the CIA may not issue a Glomar response neither confirming nor denying the existence of records in response to Buzzfeed reporter Jason Leopold's request for records concerning payments to Syrian rebels, finding it neither logical nor plausible that the agency did not have records responsive to Leopold's request. In so ruling, Contreras made clear that while Leopold's previous litigation involving his original request asking for records on CIA payments to Syrian rebels mentioned in a tweet by President Donald Trump was specific enough to allow the agency to issue a Glomar response, once Leopold resubmitted and broadened his request, he had met the threshold prohibiting the agency from plausibly denying the existence of records. Contreras pointed out that "with the question broadened in this way, it is now implausible for the CIA to claim that it cannot say one way or another whether it has any records concerning these payments. Undoubtedly, wherever the payments were coming from, the CIA must have some intelligence awareness of them." Leopold submitted his second series of requests while his original request asking for records on CIA payments was in litigation. His second request added several completely new sub-parts, but also broadened his original request for records on payments to delete any mention of CIA involvement with the payments and instead asked for "emails referring to payments to Syrian rebels fighting Assad" and simply "records authorizing payments." In response to Leopold's second multi-part request, the agency once again issued a Glomar response. To the extent that any daylight exists in the nuances of when Glomar responses are or are not appropriate, it stems from ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013), which held that because President Barack Obama, CIA Director John Brennan, and others had publicly acknowledged the U.S. involvement in targeted-drone strikes to kill alleged terrorists, the CIA no longer could plausibly claim that it had no intelligence interest in such drone strikes. While the weight of public acknowledgments made it impossible for the CIA to continue to pretend that it had no interest in such topics, the ACLU v. CIA decision did not go so far as to require intelligence agencies to confirm more specific aspects of such operations. Thus, in the earlier Leopold litigation, Contreras still could conclude that for the CIA to admit the existence of records pertaining to payments by the CIA to Syrian rebels could harm national security, once Leopold made his request more general, the agency's ability to make the same claim no longer was tenable. However, Leopold admitted that Trump's tweet provided the public acknowledgment that some form of payment existed. But Contreras pointed out that "despite the focus on the tweet, nothing about the tweet has changed since Leopold I. The only variable that has actually been manipulated is the wording of Buzzfeed's FOIA request." Contreras then observed that "it seems obvious enough that the changes in Buzzfeed's FOIA requests are intended to bring this case closer in line with ACLU than Leopold I was. Rather than focusing on the CIA payments that might not exist, Buzzfeed now seeks records concerning 'payments' in general. Based on the rule established in ACLU, this change to the request makes enough of a difference that Buzzfeed is entitled to more than a Glomar response." Contreras noted that "the Court agrees with Buzzfeed that there is no logical reading of the President's tweet in which the tweet does not acknowledge that the U.S. government had some knowledge of some payment to Syrian rebels. These payments may not have come from the CIA, and, as the Court observed in Leopold I, they may not even have necessarily come from the U.S. government." He added, however, that "at the absolute least, the tweet revealed that President Trump knew something about payments made by someone to Syrian rebels." Contreras pointed out that "the President's tweet officially acknowledged that the federal government had some sort of intelligence awareness of some type of payments. After that tweet " and likely before it as well " it seems wildly unlikely that, in the eight and a half years since the Syrian civil war began, the Central Intelligence Agency has done no intelligence-gathering that produced a single record even pertaining to payments Syrian rebels are receiving from somewhere, or a single record even mentioning or referring to any program to arm or train anti-Assad rebels. An across-the-board Glomar response is therefore not 'plausible' or 'logical.'" Contreras then observed that even if the CIA had to search for records, it was still likely that records would be exempt. But he concluded that "because the President's tweet make it implausible for any reasonable person to truly doubt the existence of at least some CIA records that are responsive to at least some of the nine categories of records that Buzzfeed requested, Buzzfeed has managed to overcome the Agency's Glomar response and the Agency has failed to meet its burden in this case."
Issues: Determination - Glomar response
User-contributed Documents
 
Docket Events (Hide)
Date FiledDoc #Docket Text

2019-04-081COMPLAINT against CENTRAL INTELLIGENCE AGENCY ( Filing fee $ 400 receipt number 0090-6047271) filed by JASON LEOPOLD, BUZZFEED, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons)(Light, Jeffrey) (Entered: 04/08/2019)
2019-04-082LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by BUZZFEED, INC. (Light, Jeffrey) (Entered: 04/08/2019)
2019-04-083NOTICE OF RELATED CASE by BUZZFEED, INC., JASON LEOPOLD. Case related to Case No. 1:17-cv-2176 (RC). (Light, Jeffrey) (Entered: 04/08/2019)
2019-04-09Case Assigned to Judge Rudolph Contreras. (zef, ) (Entered: 04/09/2019)
2019-04-094SUMMONS (3) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General. (Attachments: # 1 Notice and Consent)(zef, ) (Entered: 04/09/2019)
2019-04-115RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 4/10/2019. ( Answer due for ALL FEDERAL DEFENDANTS by 5/10/2019.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 4/10/2019. (Light, Jeffrey) (Entered: 04/11/2019)
2019-05-076Consent MOTION for Extension of Time to File Answer re 1 Complaint by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 05/07/2019)
2019-05-07MINUTE ORDER granting 6 motion for extension of time: It is hereby ORDERED that Defendant's deadline to file its answer or other response to the complaint is extended to and including May 17, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on 5/7/19. (lcrc1) (Entered: 05/07/2019)
2019-05-177ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY.(Tulis, Elizabeth) (Entered: 05/17/2019)
2019-05-17MINUTE ORDER: It is hereby ORDERED that the parties shall meet, confer, and jointly submit a proposed briefing schedule by May 31, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on May 17, 2019. (lcrc2) (Entered: 05/17/2019)
2019-05-21Set/Reset Deadlines: Proposed Briefing Schedule due by 5/31/2019 (tj) (Entered: 05/21/2019)
2019-05-318PROPOSED BRIEFING SCHEDULE by CENTRAL INTELLIGENCE AGENCY. (Tulis, Elizabeth) (Entered: 05/31/2019)
2019-05-31MINUTE ORDER: It is hereby ORDERED that the following schedule will govern the parties' anticipated cross-motions for summary judgment in this case: Defendant's motion for summary judgment is due on July 19, 2019. Plaintiffs' opposition and cross-motion for summary judgment is due August 19, 2019. Defendant's reply and opposition to Plaintiffs' cross-motion is due September 13, 2019. And Plaintiffs' Reply is due September 30, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on May 31, 2019. (lcrc2) (Entered: 05/31/2019)
2019-07-189Consent MOTION for Extension of Time to File Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 07/18/2019)
2019-07-19MINUTE ORDER granting 9 Motion for Extension of Time: It is hereby ORDERED that the motion is GRANTED. The briefing schedule for the parties' cross-motions for summary judgment is amended as follows: Defendant's motion for summary judgment is now due on August 2, 2019. Plaintiffs' opposition and cross-motion is due on September 4, 2019. Defendant's reply and opposition is due on September 27, 2019. And Plaintiffs' reply is due on October 14, 2019. SO ORDERED. Signed by Judge Rudolph Contreras on July 19, 2019. (lcrc2) (Entered: 07/19/2019)
2019-07-19Set/Reset Deadlines: Cross Motions due by 9/4/2019. Response to Cross Motions due by 9/27/2019. Reply to Cross Motions due by 10/14/2019. Summary Judgment motions due by 8/2/2019. Response to Motion for Summary Judgment due by 9/4/2019. Reply to Motion for Summary Judgment due by 9/27/2019. (tj) (Entered: 07/19/2019)
2019-08-0210MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Memorandum in Support, # 2 Declaration of Antoinette B. Shiner and exhibits, # 3 Statement of Facts, # 4 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 08/02/2019)
2019-09-0411Memorandum in opposition to re 10 MOTION for Summary Judgment filed by BUZZFEED, INC., JASON LEOPOLD. (Attachments: # 1 Appendix, # 2 Statement of Facts, # 3 Exhibit 1-2, # 4 Text of Proposed Order)(Light, Jeffrey) (Entered: 09/04/2019)
2019-09-0412Cross MOTION for Summary Judgment by BUZZFEED, INC., JASON LEOPOLD (Attachments: # 1 Appendix, # 2 Statement of Facts, # 3 Exhibit 1-2, # 4 Text of Proposed Order)(Light, Jeffrey) (Entered: 09/04/2019)
2019-09-2713REPLY re 11 Memorandum in Opposition Reply Memorandum in Further Support of Defendant's Motion for Summary Judgment and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Tulis, Elizabeth) (Entered: 09/27/2019)
2019-09-2714Memorandum in opposition to re 12 Cross MOTION for Summary Judgment Reply Memorandum in Further Support of Defendant's Motion for Summary Judgment and in Opposition to Plaintiffs' Cross-Motion for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Statement of Facts - Response to Plaintiffs' Statement of Facts, # 2 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 09/27/2019)
2019-10-1515REPLY to opposition to motion re 12 Cross MOTION for Summary Judgment filed by BUZZFEED, INC., JASON LEOPOLD. (Light, Jeffrey) (Entered: 10/15/2019)
2019-11-0716ORDER denying 10 Defendant's Motion for Summary Judgment and granting 12 Plaintiffs' Cross-Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 11/7/2019. (lcrc2) (Entered: 11/07/2019)
2019-11-0717MEMORANDUM OPINION denying 10 Defendant's Motion for Summary Judgment and granting 12 Plaintiffs' Cross-Motion for Summary Judgment. See document for details. Signed by Judge Rudolph Contreras on 11/7/2019. (lcrc2) (Entered: 11/07/2019)
2019-11-08Set/Reset Deadlines: Response due by 1/6/2020. Responses due by 12/7/2019 (tj) (Entered: 11/08/2019)
2019-11-2218Consent MOTION for Extension of Time to File New Response to Plaintiffs' FOIA Request by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Tulis, Elizabeth) (Entered: 11/22/2019)
2019-11-22ORDER granting 18 Motion for Extension of Time. It is hereby ORDERED that the Defendant shall file a new response to Plaintiff's FOIA request on or before January 9, 2020. Signed by Judge Rudolph Contreras on 11/22/2019. (lcrc2) (Entered: 11/22/2019)
2019-11-22Set/Reset Deadlines: Responses due by 1/9/2020 (tj) (Entered: 11/22/2019)
2020-01-0319NOTICE OF APPEAL TO DC CIRCUIT COURT as to 16 Order on Motion for Summary Judgment, 17 Memorandum & Opinion by CENTRAL INTELLIGENCE AGENCY. Fee Status: No Fee Paid. Parties have been notified. (Tulis, Elizabeth) (Entered: 01/03/2020)
2020-01-0620Transmission of the Notice of Appeal, Order Appealed (Memorandum Opinion), and Docket Sheet to US Court of Appeals. The Court of Appeals docketing fee was not paid because the appeal was filed by the government re 19 Notice of Appeal to DC Circuit Court. (ztth) (Entered: 01/06/2020)
2020-01-0621Consent MOTION to Stay re 16 Order on Motion for Summary Judgment, 17 Memorandum & Opinion Pending Appeal by CENTRAL INTELLIGENCE AGENCY (Tulis, Elizabeth) (Entered: 01/06/2020)
2020-01-06MINUTE ORDER granting 21 Consent Motion for Stay Pending Appeal. It is hereby ORDERED that the Court's 16 Order Denying Defendants' Motion for Summary Judgment and Granting Plaintiff's Cross-Motion for Summary Judgment is STAYED pending appeal. SO ORDERED. Signed by Judge Rudolph Contreras on 01/06/2020. (lcrc2) (Entered: 01/06/2020)
2020-01-09USCA Case Number 20-5002 for 19 Notice of Appeal to DC Circuit Court filed by CENTRAL INTELLIGENCE AGENCY. (zrdj) (Entered: 01/09/2020)
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