Case Detail

FOIA Project Annotation: Judge Rudolph Contreras has ruled that the CIA and the Defense Department did not waive their right to protect the names of several agency employees under Exemption 3 (other statutes) when the two agencies identified the individuals to the filmmakers during production of Zero Dark Thirty about the killing of Osama bin Laden. Acknowledging that the individuals' identities could normally be withheld under FOIA, Judicial Watch argued that by identifying them to the filmmakers the government had waived its right to withhold their names. Contreras pointed out that under D.C. Circuit law Judicial Watch's waiver claim could only succeed if the agencies had made the information publicly available. He noted that "because the public domain doctrine is a doctrine of futility, triggered only when it would serve no purpose to enforce an exemption, it is of almost no use to a plaintiff attempting to learn something that it does not already know." But he observed that "Judicial Watch does not knowâ€"and, outside of this suit, apparently has no way of learningâ€"the names of these individuals. That fact is strong evidence that those names are not in the public domain." After finding that Judicial Watch had failed to show that the names of the individuals were in the public domain, Contreras indicated that Judicial Watch was arguing that he adopt a Ninth Circuit test articulated in Watkins v. Bureau of Customs & Border Protection, 643 F.3d 1189 (9th Cir. 2011) holding that "when the government has made 'a no-strings-attached disclosure of. . .confidential information to a private third party' it has waived its ability to withhold that information under FOIA." Contreras noted that "even if that description of the disclosures were accurate. . .it would not be enough to establish waiver in this circuit." He observed that "if the filmmakers had publicized the names that they learned and the government now seeks to withhold, this would be a much harder case. . .But this is not that case. The names have not been 'released to the general public' and Judicial Watch cannot meet its 'initial burden of pointing to specific information in the public domain that duplicates that being withheld.'" Judicial Watch also suggested that waiver could occur when the government disclosed exempt information for an unimportant reason. But Contreras pointed out that "Judicial Watch would apparently recast its burden of production as an obligation to either 'point to specific information in the public domain that duplicates that being withheld' or identify a disclosure that, although not publicly documented, was made for an unimportant reason. As should by now be obvious, that is not the law of this circuit."
Issues: Exemption 3

Date Filed	Doc #	Docket Text
2012-01-12	1	COMPLAINT against CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE ( Filing fee $ 350, receipt number 4616045224) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet)(td, ) (Entered: 01/13/2012)
2012-01-12	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. identifying Corporate Parent NONE for JUDICIAL WATCH, INC.. (td, ) (Entered: 01/13/2012)
2012-01-18	3	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 1/17/2012. Answer due for ALL FEDERAL DEFENDANTS by 2/16/2012. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 01/18/2012)
2012-01-18	4	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 01/17/12. (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 01/18/2012)
2012-01-18	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. U.S. DEPARTMENT OF DEFENSE served on 1/17/2012 (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 01/18/2012)
2012-01-18	6	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 1/18/2012 (Attachments: # 1 Declaration of Cristina Rotaru)(Orfanedes, Paul) (Entered: 01/18/2012)
2012-02-16	7	NOTICE of Appearance by Marcia Berman on behalf of CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Berman, Marcia) (Entered: 02/16/2012)
2012-02-16	8	ANSWER to 1 Complaint by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE.(Berman, Marcia) (Entered: 02/16/2012)
2012-02-22	9	ORDER. The parties shall submit to the Court by March 2, 2012, a joint status report proposing a schedule for the filing of dispositive motions. Signed by Judge Reggie B. Walton on 2-22-12 (lcrbw3). (Entered: 02/22/2012)
2012-02-22		Set/Reset Deadlines: Joint Status Report due by 3/2/2012 (mpt) (Entered: 02/22/2012)
2012-03-01	10	STATUS REPORT Joint Status Report by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE. (Berman, Marcia) (Entered: 03/01/2012)
2012-03-02		MINUTE ORDER. In accordance with the parties' joint proposed schedule 10 , it is ORDERED that this case shall proceed as follows: (1) the defendants shall produce any responsive, non-exempt documents to the plaintiff by May 18, 2012; (2) the defendants shall submit their motion for summary judgment, if any, by July 16, 2012; (3) the plaintiff shall file its opposition and cross-motion for summary judgment, if any, by August 16, 2012; (4) the defendants shall file their opposition and reply by September 6, 2012; and (5) the plaintiff shall file its reply by September 20, 2012. Signed by Judge Reggie B. Walton on 3-2-12 (lcrbw3). (Entered: 03/02/2012)
2012-03-06		Set/Reset Deadlines: Response due by 5/18/12; Motion for Summary Judgment due by 7/16/12; Opposition and Cross Motion due by 8/16/12; Reply and Opposition to Cross Motion due by 9/6/12; Reply to Cross Motion due by 9/20/12(mpt) (Entered: 03/06/2012)
2012-04-13	11	Case randomly reassigned to Judge Rudolph Contreras. Judge Reggie B. Walton no longer assigned to the case. (gt, ) (Entered: 04/13/2012)
2012-07-11	12	Consent MOTION for Extension of Time to File Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Berman, Marcia) (Entered: 07/11/2012)
2012-07-12		ORDER granting 12 Motion for Extension of Time. Defendants shall file their motion for summary judgment no later than July 27, 2012; plaintiff shall file its opposition and cross-motion no later than August 24, 2012. Defendants' opposition and reply shall be due no later than September 14, 2012, and plaintiff's reply no later than September 28, 2012. Signed by Judge Rudolph Contreras on July 12, 2012. (lcrc2) (Entered: 07/12/2012)
2012-07-12		Set Deadlines: Summary Judgment motions due by 7/27/2012; Response to Motion for Summary Judgment due by 8/24/2012; Reply to Motion for Summary Judgment due by 9/14/2012; Replies due by 9/28/2012. (tj ) (Entered: 07/12/2012)
2012-07-24	13	Second MOTION for Extension of Time to File Summary Judgment Motion by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Text of Proposed Order)(Berman, Marcia) (Entered: 07/24/2012)
2012-07-25	14	Memorandum in opposition to re 13 Second MOTION for Extension of Time to File Summary Judgment Motion filed by JUDICIAL WATCH, INC.. (Fedeli, Christopher) (Entered: 07/25/2012)
2012-07-25	15	ORDER granting 13 Motion for Extension of Time. Signed by Judge Rudolph Contreras on July 25, 2012. (lcrc2) (Entered: 07/25/2012)
2012-09-14	16	MOTION for Summary Judgment , Memorandum of Law, and Statement of Material Facts by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE (Attachments: # 1 Declaration of Mark Herrington with exhibits, # 2 Declaration of Martha Lutz with exhibits, # 3 Text of Proposed Order)(Berman, Marcia) (Entered: 09/14/2012)
2012-09-27	17	Consent MOTION for Extension of Time to File Dispositive Briefs by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Fedeli, Christopher) (Entered: 09/27/2012)
2012-09-27		MINUTE ORDER granting 17 Motion for Extension of Time. Plaintiff shall submit its opposition and cross-motion for summary judgment no later than November 12, 2012; defendants shall submit their opposition and reply no later than December 3, 2012; and plaintiff shall submit its reply no later than December 17, 2012. Signed by Judge Rudolph Contreras on September 27, 2012. (lcrc2) (Entered: 09/27/2012)
2012-10-02		Reset Deadlines: Cross Motions due by 11/12/2012. Response to Cross Motions due by 12/3/2012. Reply to Cross Motions due by 12/17/2012. (tj ) (Entered: 10/02/2012)
2012-11-12	18	Cross MOTION for Summary Judgment , Memorandum in Support, and Statement of Material Facts by JUDICIAL WATCH, INC. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Fedeli, Christopher) (Entered: 11/12/2012)
2012-11-12	19	Memorandum in opposition to re 16 MOTION for Summary Judgment , Memorandum of Law, and Statement of Material Facts , and Response to Defendants' Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Declaration, # 2 Text of Proposed Order)(Fedeli, Christopher) (Entered: 11/12/2012)
2012-12-03	20	REPLY to opposition to motion re 16 MOTION for Summary Judgment , Memorandum of Law, and Statement of Material Facts filed by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE. (Berman, Marcia) (Entered: 12/03/2012)
2012-12-17	21	REPLY to opposition to motion re 18 Cross MOTION for Summary Judgment , Memorandum in Support, and Statement of Material Facts filed by JUDICIAL WATCH, INC.. (Fedeli, Christopher) (Entered: 12/17/2012)
2012-12-20	22	Memorandum in opposition to re 18 Cross MOTION for Summary Judgment , Memorandum in Support, and Statement of Material Facts (re-filed with corrected caption) filed by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE. (Berman, Marcia) (Entered: 12/20/2012)
2012-12-20	23	REPLY to opposition to motion re 16 MOTION for Summary Judgment , Memorandum of Law, and Statement of Material Facts (re-filed with corrected caption) filed by CENTRAL INTELLIGENCE AGENCY, U.S. DEPARTMENT OF DEFENSE. (Berman, Marcia) (Entered: 12/20/2012)
2013-08-28	24	MEMORANDUM OPINION. Signed by Judge Rudolph Contreras on August 28, 2013. (lcrc2) (Entered: 08/28/2013)
2013-08-28	25	ORDER granting 16 Motion for Summary Judgment and denying 18 Motion for Summary Judgment. Signed by Judge Rudolph Contreras on August 28, 2013. (lcrc2) (Entered: 08/28/2013)
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