Case Detail

FOIA Project Annotation: Judge Ketanji Brown Jackson has ruled that pornographic materials recovered from Osama bin Laden's compound in Abbottabad, Pakistan during the 2011 U.S. raid that killed bin Laden would be contained in the CIA's operational files that are not subject to the search and review provisions of FOIA and that an exception for "special activities" contained in the CIA Information Act does not apply. In the aftermath of the raid, the press reported that an extensive collection of pornography was among the seized materials. Judicial Watch requested the pornographic records from the CIA. The CIA told Judicial Watch that if such records existed they would be in the agency's operational files which were not subject to FOIA. Judicial Watch challenged the agency's claim as to whether or not the pornographic materials would be in operational files, arguing that the records would fit into a "special activity" exception. After reviewing the evolution of the 1984 CIA Information Act, which was designed to alleviate the burden on the CIA to search and review records that were presumptively exempt, Jackson pointed out that the agency's affidavits detailed "the agency's procedures for designating operational files, and for maintaining the files to ensure that designation remains valid over time, and [the agency] also avers that those procedures were followed with respect to the particular operational files that are likely to contain the requested pornographic materials." She observed that "the agency need not actually review the files that are being described, since Judicial Watch has not made any showing to dispute the agency's contentions about the nature and content of the files. Indeed, requiring the CIA to reveal more than it already has about the contents of the operational files that [the agency] describes would undermine the very exemption that Congress has authorized the CIA to invoke in situations such as this." To the extent that Judicial Watch continued to claim that the records were not operational files, Jackson noted that "any argument that the requested pornographic materials do not fit the statute's definition of an 'operational file' misunderstands the statute: a challenge brought under section (f)(4) is a challenge to the designation of the file in which the requested records are placed as 'operational,' and is not a challenge to any individual records that are located in that file." Judicial Watch argued that the records fell within an exception for "special activities." Jackson rejected the claim, pointing out that "the statute also unambiguously provides that the CIA need only open its exempted operational files to 'search and review for information concerning' any special activity of the CIA, which, in this Court's view, precludes the application of the exception to require the agency to search for the pornographic materials requested here." She observed that 'to read the special activity exception more broadly would be to require the CIA to give up its ability to fend off burdensome FOIA requests in pursuit of records that actually do not shed any light on the United States government's role in the planning or execution of a covert intelligence operation, and are, in fact, entirely incidental to that operation." Analogizing the bin Laden records to personal records the CIA might have collected on Fidel Castro as part of the Bay of Pigs operation, Jackson explained that "the relevant public interest for the purpose of circumventing the CIA's special exemption from the FOIA's search and review obligations is the public's interest in the activities of the United States government, and not the public's freestanding interest in documents and information that reveal nothing about the preexisting circumstances of the target of the government's covert action." She added that "far from constituting information about the CIA's alleged special activity, the pornographic materials that Judicial Watch has requested pursuant to the FOIA are entirely incidental to it, such that the special activity exception does not apply to divest the CIA of the protection of the operational files exemption."
Issues: Litigation - Jurisdiction - Failure to State a Claim

Date Filed	Doc #	Docket Text
2016-03-07	1	COMPLAINT against CENTRAL INTELLIGENCE AGENCY ( Filing fee $ 400 receipt number 0090-4438889) filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Civil Cover Sheet, # 2 Summons US Attorney, # 3 Summons US Attorney General, # 4 Summons CIA)(Bekesha, Michael) (Entered: 03/07/2016)
2016-03-07	2	LCvR 7.1 CERTIFICATE OF DISCLOSURE of Corporate Affiliations and Financial Interests by JUDICIAL WATCH, INC. (Bekesha, Michael) (Entered: 03/07/2016)
2016-03-07		Case Assigned to Judge Ketanji Brown Jackson. (dr) (Entered: 03/08/2016)
2016-03-08	3	SUMMONS (3) Issued Electronically as to CENTRAL INTELLIGENCE AGENCY, U.S. Attorney and U.S. Attorney General (Attachment: # 1 Consent Form)(dr) (Entered: 03/08/2016)
2016-03-10	4	GENERAL ORDER AND GUIDELINES FOR CIVIL CASES BEFORE JUDGE KETANJI BROWN JACKSON. The Court will hold the parties and counsel responsible for following these directives, and parties and counsel should pay particular attention to the Courts instructions for briefing motions. Failure to adhere to this Order may, when appropriate, result the imposition of sanctions and/or sua sponte denial of non-conforming motions. Signed by Judge Ketanji Brown Jackson on 3/10/2016. (lckbj1) (Entered: 03/10/2016)
2016-03-15	5	RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed as to the United States Attorney. Date of Service Upon United States Attorney on 3/14/2016. ( Answer due for ALL FEDERAL DEFENDANTS by 4/13/2016.), RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed on United States Attorney General. Date of Service Upon United States Attorney General 03/15/2016., RETURN OF SERVICE/AFFIDAVIT of Summons and Complaint Executed. CENTRAL INTELLIGENCE AGENCY served on 3/15/2016 (Attachments: # 1 Affidavit of Cristina Rotaru)(Bekesha, Michael) (Entered: 03/15/2016)
2016-04-13	6	ANSWER to Complaint by CENTRAL INTELLIGENCE AGENCY.(Bernie, Andrew) (Entered: 04/13/2016)
2016-04-14		MINUTE ORDER. Before the Court in this FOIA case are a complaint and an answer. It is hereby ORDERED that the parties shall promptly confer and file a joint proposed schedule for briefing or disclosure, by 4/28/2016. Signed by Judge Ketanji Brown Jackson on 04/14/2016. (lckbj1) (Entered: 04/14/2016)
2016-04-25	7	PROPOSED BRIEFING SCHEDULE re Order, Set Deadlines,, by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 04/25/2016)
2016-05-06		MINUTE ORDER. It is hereby ORDERED that the following schedule is set for briefing summary judgment in this matter: Defendant's motion for summary judgment is due by 6/21/2016; Plaintiff's consolidated opposition and cross-motion for summary judgment is due by 7/19/2016; Defendant's consolidated reply and opposition to Plaintiff's cross-motion is due by 8/23/2016; Plaintiff's cross-motion reply is due by 9/12/2016. (lckbj1) (Entered: 05/06/2016)
2016-06-20	8	Consent MOTION for Extension of Time to File Defendant's Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 06/20/2016)
2016-06-23		MINUTE ORDER granting 8 Motion for Extension of Time, nunc pro tunc to June 21, 2016. All other deadlines remain in effect. Signed by Judge Ketanji Brown Jackson on 6/23/2016. (lckbj2) (Entered: 06/23/2016)
2016-06-28	9	MOTION for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Declaration, # 2 Exhibit A to Shiner Declaration, # 3 Exhibit B to Shiner Declaration, # 4 Exhibit C to Shiner Declaration, # 5 Text of Proposed Order)(Bernie, Andrew) (Entered: 06/28/2016)
2016-07-16	10	Memorandum in opposition to re 9 MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 07/16/2016)
2016-07-16	11	Cross MOTION for Summary Judgment by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 07/16/2016)
2016-08-16	12	Consent MOTION for Extension of Time to File Reply in Support of Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 08/16/2016)
2016-08-17		MINUTE ORDER granting, for good cause shown, 12 Consent Motion for Extension of Time to File Reply in Support of Motion for Summary Judgment and Opposition to Plaintiff's Cross-Motion for Summary Judgment. It is hereby ORDERED that Defendant's consolidated reply and opposition to Plaintiff's cross-motion is due by 9/9/2016; Plaintiff's cross-motion reply is due by 9/26/2016. Signed by Judge Ketanji Brown Jackson on 08/17/2016. (lckbj1, ) (Entered: 08/17/2016)
2016-09-09	13	Memorandum in opposition to re 11 Cross MOTION for Summary Judgment and Reply Memorandum in Support of Defendant's Motion for Summary Judgment filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Declaration Supplemental Declaration of Antoinette Shiner, # 2 Text of Proposed Order)(Bernie, Andrew) (Entered: 09/09/2016)
2016-09-09	14	NOTICE of Lodging of Classified In Camera Ex Parte Declaration by CENTRAL INTELLIGENCE AGENCY (Bernie, Andrew) (Entered: 09/09/2016)
2016-09-12	15	REPLY to opposition to motion re 11 Cross MOTION for Summary Judgment filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 09/12/2016)
2016-09-29	16	Unopposed MOTION for Leave to File Supplemental Declaration by CENTRAL INTELLIGENCE AGENCY (Attachments: # 1 Exhibit A Supplemental Declaration, # 2 Text of Proposed Order)(Bernie, Andrew) (Entered: 09/29/2016)
2016-10-03		MINUTE ORDER granting 16 Unopposed Motion for Leave to File Supplemental Declaration. Signed by Judge Ketanji Brown Jackson on 10/3/2016. (lckbj1) (Entered: 10/03/2016)
2016-10-03	17	MOTION Strike Spetember 29, 2016 Supplemental Declaration by JUDICIAL WATCH, INC. (Attachments: # 1 Text of Proposed Order)(Bekesha, Michael) (Entered: 10/03/2016)
2016-10-03	18	SUPPLEMENTAL DECLARATION filed by CENTRAL INTELLIGENCE AGENCY. (jf) (Entered: 10/03/2016)
2016-10-20	19	Memorandum in opposition to re 17 MOTION Strike Spetember 29, 2016 Supplemental Declaration filed by CENTRAL INTELLIGENCE AGENCY. (Attachments: # 1 Text of Proposed Order)(Bernie, Andrew) (Entered: 10/20/2016)
2016-10-20	20	REPLY to opposition to motion re 17 MOTION Strike Spetember 29, 2016 Supplemental Declaration filed by JUDICIAL WATCH, INC.. (Bekesha, Michael) (Entered: 10/20/2016)
2017-04-20		MINUTE ORDER setting Motion Hearing on 9 Motion for Summary Judgment, 11 Cross Motion for Summary Judgment, and 17 Motion to Strike for June 22, 2017 at 2:30 PM in Courtroom 17 before Judge Ketanji Brown Jackson.Signed by Judge Ketanji Brown Jackson on 4/20/2017. (lckbj1) (Entered: 04/20/2017)
2017-06-22		Minute Entry for Motion Hearing held on 6/22/2017, before Judge Ketanji Brown Jackson. Oral argument heard, re 9 MOTION for Summary Judgment and 11 Cross MOTION for Summary Judgment, taken under advisement. MOTION 17 Strike Spetember 29, 2016 Supplemental Declaration, denied. (Court Reporter Barbara DeVico) (gdf) (Entered: 06/23/2017)
2018-03-31	21	ORDER granting 9 Defendant's motion for summary judgment, and denying 11 Plaintiff's motion for summary judgment. Signed by Judge Ketanji Brown Jackson on 3/31/2018.(lckbj2) (Entered: 03/31/2018)
2018-03-31	22	CORRECTED ORDER granting 9 Defendants motion for summary judgment, and denying 11 Plaintiffs motion for summary judgment. Memorandum Opinion to follow shortly, absent unforeseen circumstances. This Corrected Order replaces the Order at ECF No. 21 . Signed by Judge Ketanji Brown Jackson on 03/31/2018. (lckbj1) (Entered: 03/31/2018)
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