Skip to content

Judicial Watch • JW Cross Motion for SJ

JW Cross Motion for SJ

JW Cross Motion for SJ

Page 1: JW Cross Motion for SJ

Category:General

Number of Pages:32

Date Created:November 12, 2012

Date Uploaded to the Library:February 20, 2014

Tags:filmmakers, ADMIN, Hollywood, Fedeli, Bigelow, names, watkins, KATHRYN, USDA, DOMA, laden, Exemption, Defense, defendants, ACLU, HHS, justice, government, watch, Obama, plaintiff, FBI, White House, DOJ, judicial, Supreme Court, department, united, EPA, IRS, ICE, CIA


File Scanned for Malware

Donate now to keep these documents public!

  • demand_answers

See Generated Text   ˅

Autogenerated text from PDF

THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INC.,  
Plaintiff,  Case No. 1:12-cv-00049-RC  

U.S. DEPARTMENT DEFENSE, and CENTRAL INTELLIGENCE AGENCY, 
Defendants. ____________________________________) 

PLAINTIFFS CROSS-MOTION FOR SUMMARY JUDGMENT 
Plaintiff Judicial Watch, Inc., counsel and pursuant Rule 56(c) the Federal Rules Civil Procedure, hereby cross-moves for summary judgment against Defendants U.S. Department Defense and Central Intelligence Agency. grounds therefor, Plaintiff respectfully refers the Court the accompanying Plaintiffs Memorandum Law Opposition Defendants Motion for Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment and Plaintiffs Response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Material Facts Support Cross-Motion for Summary Judgment.    Dated: November 12, 2012     Respectfully submitted, 
/s/ Chris Fedeli 
        Chris Fedeli
 D.C. Bar No. 472919 

JUDICIAL WATCH, INC.
        425 Third Street S.W., Suite 800         Washington, 20024 
(202) 646-5172 
Counsel for Plaintiff THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INC.,  
Plaintiff,  Case No. 1:12-cv-00049-RC  

U.S. DEPARTMENT DEFENSE, and CENTRAL INTELLIGENCE AGENCY, 
Defendants. ____________________________________) 
PLAINTIFFS MEMORANDUM LAW OPPOSITION DEFENDANTS 
MOTION FOR SUMMARY JUDGMENT AND SUPPORT PLAINTIFFS CROSSMOTION FOR SUMMARY JUDGMENT; REQUEST FOR HEARING

        Chris Fedeli 
JUDICIAL WATCH, INC.
        425 Third Street SW, Suite 800         Washington, 20024 
(202) 646-5172 
        Counsel for Plaintiff 
November 12, 2012 
TABLE CONTENTS
 

 TABLE CONTENTS ................................................................................................................ 

TABLE AUTHORITIES ........................................................................................................ iii 

MEMORANDUM LAW ...........................................................................................................1 	
INTRODUCTION ...............................................................................................................1 

II. 	
FACTUAL BACKGROUND  .............................................................................................3 

III.	 
SUMMARY THE ARGUMENT ..................................................................................7 

IV. 	
ARGUMENT.......................................................................................................................7	 
The Names Shared with the Filmmakers Cannot Withheld  
Under Exemption 3........................................................................................................7 	
The Government Did Not Obtain Adequate Assurances  
Non-Disclosure ............................................................................................8 	
Filmmaking Not Important Governmental Purpose ..........................12 	
Plaintiff Has Carried Its Burden ................................................................14	 
The Names Shared with the Filmmakers Cannot Withheld  
Under Exemption 6......................................................................................................15 	
The Public Interest Outweighs the Privacy Concerns  
For Each the Names...............................................................................16 	
The CIA Operatives Waived Their Privacy Interest  
   Their First Names ......................................................................................19 	
CONCLUSION ..................................................................................................................21 
TABLE AUTHORITIES
 
Cases 
ACLU Dept Justice, 
655 F.3d (D.C. Cir. 2011) ..............................................................................................16 

CNA Fin. Corp. Donovan, 
830 F.2d 1132 (D.C. Cir. 1987) ........................................................................................12 

Callaway U.S. Dep't Treasury, 
824 F.Supp.2d 153 (D.C. Cir. 2009) .................................................................................14 

Chang Department the Navy, 
314 F.Supp.2d (D.D.C. 2004) ................................................................................17, 

Citizens for Responsibility and Ethics Dept Justice, 
840 Supp. 226 (D.D.C. 2012) ..................................................................................16
 
Consumers Checkbook Ctr. for the Study Servs. HHS, 
554 F.3d 1046 (D.C. Cir. 2009) ........................................................................................16 

Dept Justice Reporters Committee for Freedom the Press, 
489 U.S. 749 (1989) ....................................................................................................17,
 
Joseph Diemert, Jr. and Assocs. Co., LPA FAA, 
218 Fed. Appx. 479 (6th Cir. 2007) ..................................................................................21
 
Judicial Watch Department Defense and Central Intelligence Agency, 
857 Supp. (D.D.C. 2012) ................................................................................3, 

McKinley Board Governors Fed. Res. Sys., 
849 Supp. (D.D.C. 2012) ....................................................................................11
 
Multi Media LLC USDA, 
515 F.3d 1224 (D.C. Cir. 2008) ........................................................................................16
 
Muslim Advocates DOJ, 
833 Supp. (D.D.C. 2011) ..................................................................10, 12, 13,
 
Natl Ass'n Home Builders Norton, 
309 F.3d (D.C. Cir. 2002) ............................................................................................16
 
Niagara Mohawk Power Corp. United States Dept Energy, 
169 F.3d (D.C. Cir. 1999) ............................................................................................11
 
North Department Justice, 
658 Supp. 163 (D.D.C 2009) ...................................................................................14
 
Prison Legal News Exec. Office for U.S. Attorneys, 
628 F.3d 1243 (10th Cir. 2011) ..................................................................................12,
 
Schmidt U.S. Air Force, 
2007 U.S. Dist. Lexis 69584 (C.D. Ill. 2007) .............................................................17,
 
Sherman United States Dept the Army, 
244 F.3d 357 (5th Cir. 2001) ............................................................................................19
 
Showing Animals Respect Kindness Dep't the Interior, 
730 F.Supp.2d 180 (D.D.C. 2010) ....................................................................................20
 
Students Against Genocide Dept State, 
257 F.3d 828 (D.C. Cir. 2001) ..........................................................................................12
 
U.S. Dept. State Ray, 
502 U.S. 164 (1991) ..........................................................................................................21
 
Watkins U.S. Bureau Customs Border Prot., 
643 F.3d 1189 (9th Cir. 2011) .............................................................................8, 10, 

Other Authorities U.S.C.  552(b)(3) .......................................................................................................................7 U.S.C.  130b ..............................................................................................................................7 U.S.C.  403g ..............................................................................................................................7 

iii
 
Plaintiff Judicial Watch, counsel, respectfully submits this memorandum opposition Defendants motion for summary judgment and support Plaintiffs cross-motion for summary judgment. addition, pursuant LCvR 7(f), Plaintiff requests oral hearing Defendants motion for summary judgment and Plaintiffs cross-motion for summary judgment. grounds therefor, Plaintiff states follows:   
MEMORANDUM LAW INTRODUCTION. 
This precisely the kind case under which FOIA disclosures should ordered.  The government withholding certain information disclosed filmmakers planning make movie about the hunt for Osama bin Laden.  There suspicion that the way these disclosures were made was improper, and constituted effort the Defendant agencies influence the dramatic portrayal government events beyond merely insuring accuracy.  Indeed, certain the disclosures are now part Inspector General investigation. The public has high interest any information which could shed more light the possibility wrongdoing the governments decisions disclose allegedly sensitive information about the raid that killed bin Laden. 
The governments brief illustrates the difference between avoiding disclosures that would politically awkward embarrassing the one hand, and legitimate exercise FOIA exemptions the other.  For instance, its brief, the government asserts but fails sufficiently demonstrate that public disclosure the names question will harm national security privacy interests, and common sense dictates that this unlikely.  This because the government itself chose share these names with Hollywood filmmakers  individuals without security clearances  who were interested producing realistic yet fictionalized movie about recent events. doubtful that the governments interest assisting private venture effort make more realistic film about the killing bin Laden (whatever that interest is) would have justified any risk national security. The governments brief does not explain why was necessary create these alleged risks national security and allegedly jeopardize the privacy these individuals disclosing the names Kathryn Bigelow and Mark Boal (the filmmakers). other words: the government cannot have both ways this case. this information were very sensitive, would not have been shared with the filmmakers.  Since the government did share the information with the filmmakers, the court should conclude that necessarily not sensitive. Most other cases where courts have held that selective disclosure did not constitute putting information into the public domain generally involved some disclosure for necessary governmental purposes  disclosures the United Nations Security Council, ensure law enforcement methods not violate civil liberties, jury during criminal prosecution.   Assisting make movie about government accomplishments not necessary important governmental function. were, the term for would political propaganda.   
Naturally the government may choose assist private industry, and may even share some confidential and non-public information with industry groups without waiving FOIA exemptions.  However, when the government shares confidential information selectively with individual industry participations, should not enjoy the privilege keeping that information secret from others once disclosed.  That what happened this case.1 The case bar would therefore analogous hypothetical case where the government shared new engine technology with Ford but not Chrysler, and then tried exempt that information from FOIA.  
There may reasons why the government prefers assist one private group instead another, but there are rarely legitimate reasons for doing so. 
Finally, the publics interest learning any information about the historic Pakistan raid that killed Osama bin Laden enormous.  Indeed, makes sense that the more significant event our nation  and the end Bin Ladens reign terror certainly ranks high  the more need the public has for full disclosure. Judicial Watch Department Defense and Central Intelligence Agency, 857 Supp. 44, (D.D.C. 2012), appeal pending, Case No. 12-5137 
(D.C. Cir. 2012). addition, the public interest information about the governments sharing confidential information with filmmakers bolstered the scandal this event has caused, over which the Department Defense Inspector General has launched internal investigation.  The publics interest therefore easily outweighs the privacy concerns that the government has cited this instance.   
II. FACTUAL BACKGROUND. August 2011, Maureen Dowd published article the New York Times accusing the Obama administration sharing sensitive information with Kathryn Bigelow and Mark Boal that the pair could make better film dramatizing the killing Osama bin Laden, which would help President Obamas reelection efforts. Fedeli Decl.  12, Exh. Since this revelation, the media, members Congress, and Plaintiff have been aggressively pursuing the details this collaboration between the government and Hollywood. 
Since Plaintiff commenced this FOIA litigation January 12, 2012, the Defendants Department Defense (DoD) and Central Intelligence Agency (CIA) (collectively the government) have produced certain documents, often with redactions.  Upon receiving these documents, Plaintiff Judicial Watch has only challenged the governments withholding certain redacted information that appeared have been shared with the civilian filmmakers.  Plaintiff has communicated this stance correspondence and conversations between counsel.  See Fedeli Decl.  12, Exh. order determine which information the record the government shared with the filmmakers and which information did not, Judicial Watch has challenged narrow sets specific redactions which seemed, context, consist information disclosed them. result the winnowing down process, the amount information Plaintiff now seeks the release under FOIA down merely five names the government shared with the filmmakers. 
During the litigation, the government has claimed exemptions for several items information which later disclosed.  Both Defendants first produced documents this case May 18, 2012, following Plaintiffs initiation this lawsuit and this Courts adoption deadline for production. Thereafter, Plaintiff again informed Defendants again that would challenge redacted information that appeared have been shared with the civilian filmmakers and that unless those redactions were removed, the parties would need brief the case cross-motions for summary judgment. July 11, 2012, Defendant DoD made supplemental release information response Plaintiffs challenges.  Specifically, DoD re-released several documents without redactions where name had previously been blocked out.  The DoD had inadvertently redacted the name Jonathan Leven, film executive associated with the Mark Boal project, apparently mistaking Mr. Leven for military employee whose name would have been exempt from disclosure under FOIA. July 24, 2012, the Defendants informed this Court that they needed additional time file their summary judgment brief because they had inadvertently overlooked 4 inch stack responsive documents, which they had failed produce prior the May 18, 2012 Court deadline. ECF  August 24, 2012, Defendants produced the new set documents from this inch stack. with the last production, Plaintiff again challenged redactions information apparently shared with the filmmakers Kathryn Bigelow and Mark Boal. response these challenges, September 14, 2012, Defendant CIA made supplemental production several unredacted pages which Judicial Watch had identified appearing contain information shared with the filmmakers.  The redactions consisted the initials government personnel apparently involved the bin Laden raid who apparently met with the filmmakers, and the initials CIA buildings which the filmmakers were apparently given tours access.  Specifically, the unredacted versions, which the government had previously not released, contained the initials SAD and IPS, which appear refer the Special Activities Division within the National Clandestine Service and the Imaging and Publishing Support section.  Furthermore, the newly released documents revealed the initials JB and PAD, which appear refer CIA employees whose names initials were shared with the filmmakers.2 June 13, 2012, CIA Director Leon Panetta confirmed Senate testimony that classified information was shared with Bigelow Boal.  See Fedeli Decl.  Exh. Consistent with this testimony, the governments September 14, 2012 brief confirms that classified information was shared with the filmmakers.  Through declarations, the government has supported its claim that classified information was shared with the filmmakers.  Accordingly, Plaintiff Judicial Watch does not challenge the governments withholding any 
classified information seek its release this lawsuit.  Similarly, Judicial Watch does not challenge the governments right withhold other information under FOIA Exemptions that was not shared with third-party filmmakers.     
However, those same declarations, the government confirms that some the allegedly sensitive redacted information that Judicial Watch identified was shared with the filmmakers. Judicial Watch identified those redactions emails which appeared contain names shared with the filmmakers, and the government has now confirmed via declaration that these redacted names government officials were shared with the filmmakers.  See ECF 16-2, Lutz Decl.  and and Exhs. and ECF 16-1, Herrington Decl.  and Exh.  Specifically, the names question are the true first names only four CIA operatives who were interviewed the filmmakers (the last names were apparently never shared with the filmmakers and remain unknown Judicial Watch), and the full name and rank disclosed Mark Boal Undersecretary Defense Michael Vickers. These five partial full true names are the only information Judicial Watch seeks, appears that all other recorded information the government shared with the filmmakers has already been released Judicial Watch.3 September 24, 2012, the Inspector General the Department Defense expanded its investigation into whether the DoD has been following policies concerning release sensitive information journalists and filmmakers.  Fedeli Decl.  -10, Exhs. and This investigation was apparently triggered criticism over the way the DoD decided give nonpublic and allegedly sensitive information Bigelow and Boal the exclusion others.  Fedeli Decl.  11, Exh. 
III. SUMMARY ARGUMENT. its brief, the government attempts justify its refusal release that redacted information Judicial Watch, arguing that not required pursuant FOIA Exemptions and  There genuine dispute between the parties about what this requested information consists  names4  whether would subject Exemptions and absent waiver the government individuals, and absent the publics interest knowing more about these disclosures the filmmakers.   
Plaintiffs argument simple: sharing the names with the filmmakers without sufficient confidentiality precautions and for the purpose the production fictionalized feature film, the government waived Exemption  Furthermore, the publics interest outweighs whatever Exemption privacy interest exists, and the CIA operatives further waived their own privacy interest their names undertaking the meetings with the filmmakers. 
IV. ARGUMENT.  The Names Shared with the Filmmakers Cannot Withheld Under Exemption this case, the government has waived FOIA Exemption disclosing the information filmmakers.  Exemption permits government agency withhold material specifically exempted from disclosure certain statutes. U.S.C.  552(b)(3). the instant case, Defendants rely U.S.C.  130b and U.S.C.  403g.  See Defendants Memorandum Law Support Motion for Summary Judgment (Govt Br.), ECF 6-7.  Plaintiff does not challenge Defendants reliance the two sections withhold the requested names; Plaintiff 
only challenges Defendants assertion that has not waived Exemption revealing the names the filmmakers. ECF 16, Govt Br. 11-15. 
The government has waived Exemption and placed the information the public domain for two primary reasons: the government did not obtain legally sufficient assurances confidentiality from the filmmakers; and the disclosure was not made for reasons important governmental purpose. Finally, Plaintiff has met its burden identifying with specificity where the record the requested information located. The Government Did Not Obtain Adequate Assurances Non-Disclosure.  
The government waived its rights claim exemptions divulging the information third parties. doing so, the government demonstrated lack concern about the future dissemination information that now claims highly sensitive.  Indeed, media analysis the documents produced this matter indicates that significant purpose the disclosures the filmmakers was cleverly market the message that the Presidents ordering the Abbottabad raid was gutsy decision. See Fedeli Decl.  Exh. its brief, the government asserts merely that the DoD asked the third party filmmakers not share certain names, without stating obtained legal assurances secrecy consequences for its violation. ECF 16, Govt Br.  This insufficient overcome waiver. Watkins U.S. Bureau Customs Border Protect., 643 F.3d 1189, 1198 (9th Cir. 2011) (Watkins) (when agency freely discloses third party confidential information covered FOIA exemption without limiting the third-partys ability further disseminate the information then the agency waives the ability claim exemption FOIA request for the disclosed information.).   
This case closely analogous Watkins. both cases, the requested information was lawfully subject FOIA exemption, but the governments ability claim that exemption has been waived under the public domain test due disclosure members the public.  Watkins 1196 FOIA exemption waived when the government releases purportedly confidential information the public.). Watkins, the government released non-public and otherwise FOIA-exempt information about infringing trademark imports only the trademark owners.  Watkins 1192 (The Agency gives the [infringing import] information the Notices Seizure only notify trademark owners upon the seizure good bearing counterfeit mark) (emphasis original). this case, the government released non-public and otherwise FOIA-exempt names CIA and military personnel only the makers film about military operation. The government has stated that the release this information serves the purpose assisting filmmakers create more accurate film.  See Fedeli Decl.   16, Exhs. and (articles quoting the following individuals: CIA Spokesman Preston Golson  goal an accurate portrayal the men and women the C.I.A.; CIA Spokeswoman Marie Harf   Our goal accurate portrayal the men and women the CIA; CIA Spokeswoman Jennifer Youngblood  Our goal accurate portrayal the men and women the CIA; White House Press Secretary Jay Carney  When people... are working articles, books, documentaries movies that involve the president.... our best accommodate them make sure the facts are correct). both Watkins and the instant case, the government did not impose legal restrictions how the information could used the third party who received it.  Watkins 1197 (after receiving the non-public information, the trademark owner can freely disseminate the Notice his attorneys, business affiliates, trade organizations, the importers competitors.). the present case, the government has provided evidence that the filmmakers are under any legal constraints that would prevent them from disclosing the requested information (first names CIA officers and name military official) their attorneys, business affiliates, other third parties. The only evidence the government supplies that they asked the filmmakers not use real names these individuals the movie.  See ECF 16, Govt Br. This does not constitute sufficient safeguard the release non-public information overcome waiver. the Watkins court observed, such broad interpretation the public domain doctrine would allow the government continue claim the exemption even the filmmakers opened the phonebook and faxed copy the non-public names every movie producer Hollywood.  Watkins 1197.  Accordingly, [w]hile the public domain test will persuasive most cases, does not reach the concerns confidentiality when the government has disclosed information without limits the third partys ability further disseminate it.5 Id. 
Even though the government did not authorize the filmmakers reveal the names, and told Mark Boal not so, does not appear the government has taken any legally significant steps protect the names.  ECF 16, Govt Br. ECF 16-2, Lutz Decl.  12.  For instance, the government, its briefs and declarations, provides evidence that the filmmakers signed non-disclosure agreement6 any other contract with the government that would prohibit the filmmakers from sharing the names privately with friends colleagues their own discretion. Similarly, the government offers evidence that either Boal Bigelow underwent The fact that Watkins dealt with the public domain doctrine Exemption claim instead Exemption not relevant the legal principle issue, the Circuit has noted elsewhere. See Muslim Advocates DOJ, 833 Supp. 102, (D.D.C. 2011) ([T]he Circuit has never limited application the public-domain doctrine cases involving national security, but instead has applied several non-national security contexts.). background check received security clearance prior giving them non-public and (allegedly) sensitive information about undercover CIA operatives and military personnel. 
The presence written confidentiality instrument legally significant fact determinations whether the government has waived FOIA exemptions disclosing information.  See McKinley Board Governors Fed. Res. Sys., 849 Supp. 47, 
(D.D.C. 2012) (the government argued disclosure certain information shared with Congress does not waive the Boards FOIA Exemptions because the records were provided the FCIC under written confidentiality agreement that did not authorize public disclosure) (emphasis added). McKinley, the fact that the disclosure was made violation written confidentiality agreement that was later breached formed key part the holding that the FOIA exemption had not been waived.  849 Supp. 60.  Also importantly, and addressed more thoroughly Section immediately below, the McKinley court went hold that finding waiver that case would frustrate public policy encouraging broad congressional access governmental information. Id. (internal citations and punctuation omitted). similar public policy ensuring governmental promotion accurate filmmaking exists stake here. 
The court should follow the Watkins holding here finding that merely asking filmmaker not use names movie not legally binding and does not prevent the filmmakers from sharing the true names with host other third parties (attorneys, business affiliates, members the MPAA, etc.). Combined with the very public nature major motion picture based actual people and events, the requested information should deemed irretrievably the public domain and the government must release pursuant Plaintiffs FOIA request. See Niagara Mohawk Power Corp. United States Dept Energy, 169 F.3d 
16, 19, (D.C. Cir. 1999) (if the information already the public domain that fact will give victory to FOIA plaintiffs); CNA Fin. Corp. Donovan, 830 F.2d 1132, 1154 (D.C. Cir. 1987) (To the extent that any data requested under FOIA are the public domain, the [government] unable make any claim confidentiality). Filmmaking Not Important Governmental Purpose. 
The government further argues that the public domain test allows withhold the information precisely because was only shared selectively with the filmmakers.  ECF 16, Govt Br. pp. 14-15. For this argument, the government relies chiefly Muslim Advocates DOJ, 833 Supp. (D.D.C. 2011), Students Against Genocide Dept. State, 257 F.3d 828 (D.C. Cir. 2001), and Prison Legal News Exec. Office for U.S. Attorneys, 628 F.3d 1243 (10th Cir. 2011), cert. denied, 132 Ct. 473 (2011).  ECF 16, Govt Br. pp. 14-15. However, closer examination these decisions demonstrates the weakness the governments argument that selective disclosure its own necessarily shields information from FOIA. key part the courts reasoning Students Against Genocide was the finding that the 
government had legitimate foreign policy reasons supporting its decision show surveillance 
photographs Serbian war crimes some foreign diplomats, but not others: 
[W]e find nothing unreasonable the governments contention that may have affirmative foreign policy reasons for sharing sensitive information with some foreign governments and not others. this case, the government may well decide that its foreign policy objectives  here, the garnering support for opposition ongoing genocide  require disclosing information member countries the United Nations Security Council that may position assist the United States its efforts, yet the same time requiring protecting that information from disclosure other countries that may actively oppose those policies.   
Students Against Genocide, 257 837. 
Turning the present case, the government has articulated similar policy reasons why should share names CIA and military personnel with some moviemakers but not others.    
 Similarly, Muslim Advocates, the court noted that the FBI had showed draft portions its Domestic Investigations and Operations Guide (DIOG) organizations dedicated protecting the civil rights American Arabs, Muslims, and Sikhs.   See Muslim Advocates, 833 Supp. 96. This disclosure was made for the important purpose getting feedback from these civil rights organizations how well the FBIs draft operations procedures complied with the Fourth Amendment rights U.S. citizens.  Indeed, the preamble the DIOG explained this purpose with statement FBI Director Robert Mueller: [T]he FBI must fully comply with all laws and regulations, including those designed protect civil liberties and privacy. .  Muslim Advocates, 833 Supp. 95. The court found that disclosure civil rights groups, for the purpose getting feedback the FBIs own civil rights concerns, justified selective release the information such that FOIA would not apply.  Muslim Advocates, 833 Supp. 102, fn. Again, this far weightier purpose than that insuring the accuracy Hollywood films that the government has claimed this case.  Fedeli Decl.   16, Exhs. and 
 Finally, Prison Legal News, was necessary for the government disclose the information question (gruesome murder scene video and photographs) for the legitimate purpose prosecuting criminal case trial where the death penalty was sought.  628 F.3d 1246. that case, although the information was disclosed jury, the government was allowed withhold the information from FOIA request regardless.  Prison Legal News, 628 1252-1253. There could question that the criminal trial prosecution Prison Legal News gave rise necessary, limited disclosure for important government purpose.   
The governments argument this case would greatly weaken FOIA disclosure allowing the government selectively disclose information whomever the government wishes for virtually any reason. The cases Defendants cite all support limits the public disclosure documents for valid reasons the public interest.  The governments interest the quality Hollywood films not such compelling public value warrant exception the broad requirement disclose records and information the American people. Plaintiff Has Carried Its Burden. 
Finally, Plaintiff has identified the precise emails that contain the information wishes obtain, and the government has conceded this very information was shared with the third party filmmakers. ECF 16, Govt Br. 13-14; ECF 16-1, Herrington Decl.  ECF 16-2, Lutz Decl.  15. Plaintiff contends that this act sharing information with third party filmmakers constitutes putting the information into the public domain.  Accordingly, plaintiff has carried its initial burden proof under the public domain doctrine.  North Department Justice, 658 F.Supp. 163, 173 (D.D.C. 2009) (Under this public domain doctrine, materials normally immunized from disclosure under FOIA lose their protective cloak once disclosed and preserved permanent public record.  However, the plaintiff such instances bears the initial burden pointing specific information the public domain that appears duplicate what being withheld.) (internal quotations omitted); See also Callaway U.S. Dep't Treasury, 824 F.Supp.2d 153, 164-165 (D.C. Cir. 2009) (Plaintiff meets his initial burden pointing specific information the public domain that appears duplicate that being withheld. Prior disclosure similar information does not suffice; instead, the specific information sought the plaintiff must already the public domain.) (internal citations and quotations omitted). sufficient that this information contained government emails which demonstrate disclosure the filmmakers.  See Muslim Advocates, 833 Supp. 100 (the public domain test does not require hard copy simulacrum the sought-after material). The Names Shared with the Filmmakers Cannot Withheld Under Exemption this case, all Exemption privacy interests that the government claims exempt the names from FOIA are outweighed the enormous public interest both the Zero Dark Thirty disclosures incident and the Abbottabad raid that killed bin Laden.  Furthermore, four the five individuals whose names are issue (the CIA operatives) have waived any privacy interest they could have voluntarily sharing their true names with filmmakers for the purpose helping Boal and Bigelow make movie about their accomplishments.  Contrary what the government argues, the public interest this information extremely high, and the privacy interest the information extremely low.  ECF 16, Govt Br. 10-11. its declaration, the government claims that keeping the names secret extremely important the governments functioning, that release the names would create unnecessary security and counterintelligence risk, and that releasing even just the first names these officers presents unnecessary and unacceptable risk.  ECF 16-2, Lutz Decl.,  19. This declaration, however, does not contain supporting facts for claim. discussed above Section IV.1.A., the declaration does not aver that the government obtained any legal assurances from the filmmakers prevent further dissemination.  Supra pp. 8-11. Nor does the declaration stipulate that the filmmakers had obtained security clearances, that they were employed CIA contractors such that the disclosure confidential information would have been appropriate.  The declaration also fails demonstrate whether the factual personal details the interviews between the CIA operatives and the filmmakers were used the screenplay character details for the film Zero Dark Thirty  highly relevant fact determining whether the CIA agent names are now irretrievably in the public domain. light the governments expressed desire keep the names confidential, the foregoing indicates the government should not have permitted the confidential information pass the hands private citizens the first place, and minimum should not have done without the protection much nondisclosure agreement.  Indeed, according public reports, the Inspector General the Department Defense has now launched inquiry into how the government decided share these names with the filmmakers and whether any laws were violated the process. Fedeli Decl.   11, Exhs. and  The public interest now requires that the names disclosed that whatever harms that have been done can more fully learned, order better prevent such mistakes the future. The Public Interest Outweighs the Privacy Concerns Alleged for Each the Names   
[U]under Exemption the presumption favor disclosure strong can found anywhere the Act. Multi Media LLC USDA, 515 F.3d 1224, 1227 (D.C. Cir. 2008), quoting Natl Ass'n Home Builders Norton, 309 F.3d 26, (D.C. Cir. 2002). Indeed, FOIAs presumption favoring disclosure its zenith under Exemption 6.  Consumers Checkbook Ctr. for the Study Servs. HHS, 554 F.3d 1046, 1057 (D.C. Cir. 2009). 
When Exemption claimed, the Court must first assess whether the third party has more than minimis privacy interest the requested material.  See Citizens for Responsibility and Ethics Dept Justice, 840 Supp. 226, 231 (D.D.C. 2012), quoting ACLU Dept Justice, 655 F.3d (D.C. Cir. 2011)). such interest exists, the court must then determine whether the third partys privacy interest outweighed the public interest the disclosure. Id. Dept Justice Reporters Committee for Freedom the Press, 489 U.S. 749, 773 (1989), the Supreme Court observed that the extent the public interest disclosure under FOIA tied how well release the information will shed[] light agencys performance its statutory duties. this case, release the names will shed additional light the governments decision share non-public information with the filmmakers.  Specifically, disclosure who was selected for interviews with the filmmakers chronicling the raid will potentially shed more light how the government decided who should inform the details the cinematic portrayal the Abbottabad raid. Once the names those disclosed become public, the media and the public can investigate and draw whatever inferences may follow from knowing the governments choice personnel appointments for this filmmaking detail.   
The public interest these decisions and events trifling affair passing fancy.  The CIAs own emails produced this case show there was internal friction and confusion over perceived favoritism for granting access Hollywood visitors.  See Fedeli Decl.  22, Exhs. and This has led widespread speculation that the government acted improperly selectively disclosing information Kathryn Bigelow and Mark Boal, along with calls for broader investigation. Fedeli Decl.  Exhs. and  The Inspector General the Department Defense has announced inquiry into how the military shares information with the public about sensitive operations light the Zero Dark Thirty disclosures and other selective information sharing.  Fedeli Decl.   11, Exhs. and light the foregoing, this case resembles FOIA cases Chang Department the Navy, 314 F.Supp.2d (D.D.C. 2004) and Schmidt U.S. Air Force, 2007 U.S. Dist. Lexis 69584 (C.D. Ill. 2007). Schmidt, the court found that although Air Force officer had privacy interest keeping information about his discipline confidential, the competing public interest accountability over friendly-fire incident outweighed that privacy interest.  Schmidt, 2007 U.S. Dist. Lexis 69584, 31-32.  The court stated: 
Schmidt had privacy interest keeping the information about his discipline confidential.  However, the competing public interest disclosure clearly outweighs Schmidts privacy interest. undisputed that the friendly-fire incident garnered significant public and media attention. The release Schmidts reprimand gave the public, the United States and around the world, insight into the way which the United States government was holding its pilot accountable. Thus, considering all the circumstances, the disclosures issue were clearly warranted. 
Id. This Court has similarly held that the public interest whether public servants carry out their duties efficient and law-abiding manner outweighs officers privacy interest... Chang, 314 Supp. 44. Public and media interest the governments questionable practice selectively sharing non-public information with the filmmakers this case enormous, with scores media accounts covering the subject.  This partly due the general public and media interest Osama bin Ladens death (see Judicial Watch Department Defense and Central Intelligence Agency, 857 Supp. 63), but also due the interest how the government will hold its agencies accountable for the questionable practices this event shed light on. See Fedeli Decl.  11, Exhs. through 
Furthermore, the privacy interest these names this point minimal.  The government claims that, after sharing all part the names with Hollywood executives making film, the individuals question still have strong privacy interest not having anyone know even parts their names their involvement the Pakistan raid.  ECF 16, Govt Br. 11. This argument unpersuasive.  Four the individuals question voluntarily sat down for faceto-face interviews with the movie makers discuss their roles the Pakistan raid.  Whatever desire for privacy they once had will hard keep once characters based them are portrayed actors the film Zero Dark Thirty, which scheduled for nationwide theatrical release December 19, 2012, just time for the holiday movie-going season, and already generating Oscar buzz.7  The alleged risk invasion their privacy from release their first names only the public both undemonstrated and unlikely.  Similarly, any privacy invasion from disclosure the name the person who Undersecretary Defense Michael Vickers gave Hollywood screenwriter Mark Boal outweighed the public interest.  
Finally, Plaintiff wishes reiterate that the information seeks about names disclosed the filmmakers extremely limited.  Plaintiff seeks only the first names the individuals who met with the filmmakers, and the name shared with Mr. Boal.  Plaintiff does not seek any other identifying information, code names, addresses, etc.  Any intrusion into the privacy these individuals would therefore extremely limited, and clearly outweighed the intense public interest and media attention that has been given the Zero Dark Thirty disclosures and the Pakistan raid over the past year. Therefore, the names the individuals should released Plaintiff. The CIA Operatives Waived Their Privacy Interest Their First Names 
While the government may waive its right exemption when its own interests are stake, cannot waive individuals privacy interests under FOIA unilaterally publicizing information about that person. Sherman United States Dept the Army, 244 F.3d 357, 36364 (5th Cir. 2001); see also Dept Justice Reporters Committee for Freedom the Press, 489 U.S. 749, 763-765 (1989) (privacy interest belongs individual, not agency holding information pertaining individual).  The privacy interest inherent Exemption belongs the individual, not the agency holding the information.  Id. See Fedeli Decl.  17, Exh. 
With respect waiver, the context Exemption for personal privacy, the waiver must made the individuals question, not the government.  See e.g. Showing Animals Respect Kindness Dept the Interior, 730 F.Supp.2d 180, 192-194 (D.D.C. 2010) (Showing Animals Respect). Moreover, while the question whether the information has been placed the public domain relevant, not dispositive whether the privacy interest has been waived the individuals. Id. 
The four operatives appear have waived their privacy interest.  Consider the release agreement the filmmakers sent the government for the CIA operatives sign.  Fedeli Decl.  21, Exh. states, part: hereby grant you... the right portray, represent, impersonate and depict 
(i.e., depict character based part, whole, the information provide 
events that happened me, but you will not use any actual image photograph me), any actor(s) which you may select... Id. minimum, this shows that the parties contemplated that these CIA interviews would about developing dramatic characters for portrayal Zero Dark Thirty, not for mere general background information.  Once the film released, hard imagine that anyone believes these individuals names are likely remain secret for long once their actions likenesses are portrayed Hollywood actors.8  The government offers evidence indicating the operatives took steps ensure the information would remain private.  See supra pp.  19. Moreover, participating interview with filmmakers, they voluntarily shared information they had know would eventually associated with characters major motion picture. the Supreme Court has stated, unless the invasion privacy clearly unwarranted, the public interest 
disclosure must prevail. U.S. Dept. State Ray, 502 U.S. 164, 177 (1991) (internal citations omitted).    
According press reports, least three leading actors the film portray CIA operatives.  One the CIA operatives reportedly being played Oscar-nominee Jessica Chastain,10 who became breakout star 2011 for string supporting roles critically acclaimed films such Terrence Malicks The Tree Life. Even the characters Zero Dark Thirty are composites, easy predict that the people whom they were partly based will become known certain circles. voluntarily partaking the interviews with the filmmakers, the CIA employees waived certain amount privacy.  The government has presented evidence suggesting the operatives were required the interviews with Kathryn Bigelow and Mark Boal. Since the Exemption privacy interest question belongs the CIA employees, not the government, the facts before the court the government employees have waived that interest.  Joseph Diemert, Jr. and Assocs. Co., LPA FAA, 218 Appx 479, 482 (6th Cir. 2007) ([C]ourts have concluded that where personal privacy interests are implicated, the individual who owns such interest may validly waive it.).11 CONCLUSION. Id. bears noting that the CIA employees question appear have voluntarily given their first names people they knew were about make movie about their exploits. either the employees the government had interest their first names remaining unknown, Plaintiff wonders why they could not have made used any name imaginable other than their true first names, asking the filmmakers address them sir maam, Joe Jane, Mr. Smith Ms. Jones  why the government would not have ordered its employees use randomized pseudonyms for the interviews. perfectly harmless endeavor, when the government goes from simple information sharing selectively providing non-public information some filmmakers while refusing release generally, this once harmless activity crosses line appearance.  The act longer appears mere informational assistance constituent American industry; rather, begins look like the government co-opting private industry giving special information access attempt influence the portrayal events and obtain favorable big screen treatment.  The perniciousness such practices, and the importance that they never permitted even the appearance occurring, justifies ruling favor Plaintiff this case.        Dated: November 12, 2012 Respectfully submitted, 
/s/ Chris Fedeli  
       Chris Fedeli (DC Bar No. 472919) 
JUDICIAL WATCH, INC.
       425 Third Street SW, Suite 800        Washington, 20024 
(202) 646-5172 
       Counsel for Plaintiff THE UNITED STATES DISTRICT COURT
 FOR THE DISTRICT COLUMBIA
 
JUDICIAL WATCH, INC.,  
Plaintiff,  Case No. 1:12-cv-00049-RC  

U.S. DEPARTMENT DEFENSE, and CENTRAL INTELLIGENCE AGENCY, 
Defendants. ____________________________________) 
PLAINTIFFS RESPONSE DEFENDANTS STATEMENT MATERIAL FACTS 
NOT DISPUTE AND PLAINTIFFS STATEMENT MATERIAL FACTS 
SUPPORT CROSS-MOTION FOR SUMMARY JUDGMENT
 
Plaintiff Judicial Watch, Inc., counsel and pursuant Local Civil Rule 7.1(h), respectfully submits this response Defendants Statement Material Facts Not Dispute and Plaintiffs Statement Material Facts Support Cross-Motion for Summary Judgment: 	Plaintiffs Response Defendants Statement Material Facts Not Dispute. 	General Objections initial matter, Plaintiff objects that Defendants U.S. Department Defense and Central Intelligence Agencys (collectively Defendants) statement does not comply with Local Civil Rule 7(h)(1). The failure comply with the requirement file proper statement material facts making opposing motion for summary judgment may fatal the delinquent partys position. Gardels Central Intelligence Agency, 637 F.2d 770, 773 (D.C. Cir. 1980); see also Adagio Investment Holding Ltd. Federal Deposit Insurance Corp., 338 Supp.2d 71, (D.D.C. 2004); Smith Property Holdings, 4411 Connecticut L.L.C. U.S., 311 

Supp. 69, (D.D.C. 2004); Robertson American Airlines, 239 Supp.2d 8-9 (D.D.C. 2002). Defendants statement material facts contains improper mix fact and legal conclusions and therefore fails assist the court isolating the material facts, distinguishing disputed from undisputed facts, and identifying the pertinent parts the record . Robertson, 239 Supp. (citations omitted). Particular Responses 
Not disputed. 
Not disputed. 
Plaintiff does not dispute this paragraph, with the exception the use the word minimal characterize the redactions, which subjective and constitutes opinion rather than fact. 
Plaintiff does not dispute this paragraph, with the exception the use the word minimal characterize the redactions, which subjective and constitutes opinion rather than fact. Not disputed. 
Plaintiff disputes this paragraph, constitutes conclusion inadequately supported the single fact cited. 
Not disputed. 
Not disputed. 
Plaintiff lacks sufficient knowledge confirm deny whether Defendants provided such instructions the CIA officers. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

disputes that Defendants searched components that were most likely have responsive records. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 
10. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

11. 
This paragraph contains legal conclusions about classified information, which are improperly asserted statement facts, and therefore require response. With respect the remainder the paragraph, Plaintiff lacks sufficient knowledge confirm deny it. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

12. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

13. 
This paragraph contains legal conclusions about classified information, which are improperly asserted statement facts, and therefore require response. With respect the remainder the paragraph, Plaintiff lacks sufficient knowledge confirm deny it. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases).         

14. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

15. 
Disputed, except the extent that Plaintiff lacks sufficient knowledge confirm deny the particular roles played the individuals whose names have been redacted from the documents and whether they are undercover. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). addition, this paragraph contains legal conclusions about privacy interests individuals whose names were shared with filmmakers. These legal conclusions are improperly asserted statement facts, and therefore require response. 

16. 
Plaintiff does not dispute that the public now aware that there were meetings between the filmmakers and CIA and DoD employees result both the documents Defendants produced Judicial Watch and the statements made the Defendants Motion for Summary Judgment. Plaintiff disputes the remainder this paragraph, except for the legal conclusions about the publics interest disclosure the information question, which require response. 

17. 
Plaintiff lacks sufficient knowledge confirm deny this paragraph. See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 

18. 
Plaintiff lacks sufficient knowledge confirm deny what the CIA and DoD communicated the filmmakers beyond what identified the documents, which speak for themselves.  See Judicial Watch, Inc. Food and Drug Admin., 449 F.3d 141, 145 (D.C. Cir. 

2006) (noting the asymmetrical distribution knowledge between FOIA requester and agency FOIA cases). 
19. 	Not disputed.   
II. 	Plaintiffs Statement Material Facts Not Dispute Support Cross-Motion for Summary Judgment. 
Defendant CIA and its employees provided true first names four CIA operatives the filmmakers Kathryn Bigelow and Mark Boal, and Defendant Department Defense provided the full name and rank military official Mark Boal. 
Defendants have not asserted that either Kathryn Bigelow Mark Boal employed the CIA the Department Defense any capacity. 
Defendants have not asserted that either Kathryn Mark Boal have been given security clearances receive non-public information about military covert operations. 
Defendants have not asserted that either Kathryn Bigelow Mark Boal executed agreements barring further disclosure the names subject penalties. Dated: November 12, 2012     Respectfully submitted, 

/s/ Chris Fedeli 
        Chris Fedeli Bar No. 472919 
JUDICIAL WATCH, INC.
        425 Third Street S.W., Suite 800         Washington, 20024 
(202) 646-5172 
Counsel for Plaintiff  Exhibit Declaration Chris Fedeli (Fedeli Decl.)  22, Exhibit (Exh.) (document produced CIA discussing decision make greater disclosures Boal and Bigelow than others seeking access for film projects).  Plaintiff notes that while FOIA gives right access certain government information, does not carry with the right have the government confirm what every piece information means.  Judicial Watch notes that believes its FOIA request would reach all other information the government shared with the filmmakers  including but not limited the full contents the filmmakers interviews with the CIA operatives  that information existed recorded form. the only remaining items documented information not produced Judicial Watch and shared with the filmmakers appears the five names question, that the information Judicial Watch now seeks this lawsuit.  Accordingly, Plaintiff sees little need for the camera review the redacted information the governments witness has offered. ECF 16-1, Lutz Decl. fn. light the fact that much the governments argument hinges the assertion that the individuals question will have continued privacy interest their names after this film released, viewing Zero Dark Thirty after its theatrical release December 19, 2012 may ultimately more illuminating.  Instead, the filmmakers requested that CIA employees sign release agreements precondition talking Bigelow and Boal, protect the filmmakers from defamation suits. See Fedeli Decl.  Exh.  Indeed, such media speculation started over two months before the films scheduled release.  See Fedeli Decl.  18, Exh. the government has stated, routinely provides information filmmakers who request for the purpose ensuring artists who wish portray government functions and historical events accurately may so.  Fedeli Decl.  16, Exh.  While that may normally  Fedeli Decl.  19, Exh.