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DOJ Reply

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Number of Pages:17

Date Created:December 3, 2012

Date Uploaded to the Library:February 20, 2014

Tags:Genocide, filmmakers, Osama, students, facts, watkins, names, Judgment, DOMA, laden, statement, summary, defendants, motion, Circuit, government, plaintiff, FBI, DOJ, court, united, EPA, IRS, ICE, CIA

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Plaintiff,  1:12-cv-00049-RC  

This Freedom Information Act (FOIA) case has narrowed substantially since its inception. Plaintiff Judicial Watchs FOIA request sought from the Central Intelligence Agency (CIA) and Department Defense (DoD) all records communications between the agencies and the filmmakers Mark Boal and Kathryn Bigelow (the filmmakers) concerning planned film about the killing Osama bin Laden.  The responsive records produced the agencies were largely unredacted, included 16-page transcript background interview between the filmmakers and Under Secretary Defense Mike Vickers, and revealed that the agencies assisted the filmmakers ensure the accuracy the film.  
After the Governments production responsive records, counsel for the parties negotiated plaintiffs challenges the Governments redactions. its opposition brief and cross-motion for summary judgment, plaintiff has now further narrowed its challenges.  Plaintiff now challenging only the withholding the true first names four undercover CIA officers who were involved the planning for the raid that resulted bin Ladens death and who met with the filmmakers, and the full name and rank DoD individual, also involved the planning for the raid, who Under Secretary Vickers suggested the filmmakers talk to.  Plaintiffs Memorandum Law Opposition Defendants Motion for Summary Judgment and Support Plaintiffs Cross-Motion for Summary Judgment (ECF No. 18) (Pl.s Opp.). Plaintiff has abandoned its challenge the withholding the last name one the four undercover CIA officers and the pseudonyms for two CIA undercover officers.  Id. See also id. 5-6 (plaintiff does not challenge the governments withholding any classified information seek its release this lawsuit.). has also dropped its challenge the names the DoD transcript that were suggested one the filmmakers, not DoD.  Id. Since DoD did not provide those names the filmmakers, could not have waived any exemptions for them. Defendants Motion for Summary Judgment (ECF No. 16) (Defs. Mtn.).  
Moreover, plaintiff concedes that the names continues challenge fall within FOIAs exemption (b)(3), but claims that the Government waived the protection this exemption sharing the names with the filmmakers.  Id. 7-8. With respect exemption (b)(6), plaintiff argues that the CIA and DoD names fail the balancing test under exemption (b)(6) and that the CIA officers waived their privacy interests their names meeting with the filmmakers. Id. 15-19. 
Thus, the only issues before the Court are whether the CIA and DoD waived the right protect the names the CIA and DoD officers from public disclosure providing them the filmmakers for the limited purpose meeting with the officers, whether the CIA officers waived exemption (b)(6) meeting with the filmmakers, and whether the CIA and DoD officers privacy interests outweigh any public interest the disclosure their names.  The Government did not waive exemption (b)(3) because, under the well-established D.C. Circuit public domain test, the CIA and DoD did not disclose the names the public and preserve them permanent public record. Nor did the CIA officers waive their privacy intereststhe release plaintiff points was draft, not signed any the officers, nor there any support for plaintiffs rank speculation that the movie will reveal the officers identity.  And the CIA and DoD officers strong privacy interests their names easily outweigh the nonexistent public interest their names.  Those names provide the public with substantive information that does not already have. 
Despite plaintiffs exaggerated rhetoric, these are the only issues before the Court. This case does not involve, for instance, the public interest learning more details about the raid that killed Osama bin Laden, the propriety the CIA and DoDs assisting the filmmakers, what other information not issue here may may not have been revealed the filmmakers, what the CIA DoDs policies are should sharing information with filmmakers, whether those policies were followed here. The material facts are undisputed and the legal questions straightforward.  Plaintiffs waiver theories fail, and the CIA and DoD are entitled the protection the claimed exemptions.  The Court should grant summary judgment favor the CIA and DoD. 

ARGUMENT 	THE CIA AND DOD DID NOT WAIVE THE PROTECTION EXEMPTION (B)(3) MAKING LIMITED DISCLOSURE THE FILMMAKERS. our opening brief, showed that under clear line D.C. Circuit case law, order prevail its waiver claim, plaintiff must establish that the CIA and DoD already made the information plaintiff seeks public, such that plaintiff would receive no more than what publicly available. Cottone Reno, 193 F.3d 550, 555 (D.C. Cir. 1999). the public domain for purposes waiver, the information must disclosed and preserved permanent public record. Id. 554. See also, e.g., Students Against Genocide Dept. State, 257 F.3d 828, 836 (D.C. Cir. 2001); Niagara Mohawk Power Corp. Dept Energy, 169 F.3d 16, 
(D.C. Cir. 1999); Public Citizen Dept State, F.3d 198, 201 (D.C. Cir. 1993). The CIA and DoD both released the names plaintiff seeks the private filmmakers only, not the public, and only for the limited purpose facilitating meetings.  DoD specifically instructed the filmmakers not reveal the name provided.  The agencies clearly did not reveal the names the public, and they certainly did not disclose and preserve them permanent public record. Plaintiffs waiver claim therefore fails. 
Plaintiffs response this controlling, dispositive precedent make their own outcome-determinative tests for when the Government waives FOIA exemption.  Relying Watkins U.S. Bureau Customs Border Prot., 643 F.3d 1189 (9th Cir. 2011), plaintiff claims that the test for waiver whether the Government imposes legally binding restrictions how the information may used the third party who received it.  Pl.s Opp. 8-9. Plaintiffs theory seems that, without the imposition such legal restriction, disclosure third party facto disclosure the public and satisfies the public domain doctrine. 
There are multiple reasons for rejecting this argumentfirst and foremost being that not the controlling test this circuit. Watkins adopted new test for waiver which the court specifically rejected the D.C. Circuits public domain test.  Watkins, 643 F.3d 1197 (noting that the public domain test articulated the D.C. Circuit should not the only test for government waiver); id. 1199 (Rymer, J., concurring and dissenting) (disagreeing with the majoritys retreat from D.C. Circuits public domain test and noting that the majority opinion odds with other circuits). See also Patrick Lightfoot, Comment, Waiving Goodbye Nondisclosure Under FOIAs Exemption The Scope and Applicability the Waiver Doctrine, Cath. Rev. 807, 808-09 (Summer, 2012) ([T]he Ninth Circuits decision Watkins constitutes puzzling departure from the well-settled public domain test, the prevailing rule among the circuit courts appeal).  This Court obviously bound the D.C. Circuit public domain test and not liberty follow Watkins. 
The second problem with plaintiffs argument that Watkins did not announce the test plaintiff claims did.  The Ninth Circuit held that when the Government discloses trademark owner information protected the trade secrets exemption FOIA (exemption (b)(4)) without imposing any restrictions the owners use the information, waives exemption (b)(4).  Watkins, 643 F.3d 1197. The court referred this no-strings-attached disclosure. Id. where the decision did the court mention, let alone require, the imposition legally binding restrictions further disclosurethat formulation the standard, which plaintiff repeatedly invokes, plaintiffs alone. See Pl.s Opp. 8-11. That the court did not require legally binding restrictions clear from its discussion the facts Students Against Genocide. The Court explained that the Governments displaying certain classified photos members the United Nations Security Council, but not distributing turning them over the members possession, was the kind restriction found lacking the disclosures trademark owners. Watkins, 643 F.3d 1197. There was nothing legally binding about this procedure. 
Presumably, plaintiff heightens the Watkins standard require legally binding restrictions because the CIA and DoD did restrict the filmmakers use the names:  DoD specifically told the filmmakers not reveal the name provided, and the CIA provided the officers first names only for the purpose facilitating meetings with them and authorized broader release. Defs. Mtn. 13-14. These facts are uncontroverted.  Plaintiffs Response Defendants Statement Material Facts Not Dispute,   17-19 (ECF No. 18) (Pl.s Resp. Defs. Statement Mat. Facts).1 Thus, under the test actually articulated Watkins, there has been waiver.2 
The third problem with applying Watkins here that the Watkins court explicitly limited its holding cases not involving requests for sensitive information matters national security. 643 F.3d 1197. The court noted that cases where such sensitive information issue, the presumption favor disclosure must yield overriding concerns for public safety  Plaintiffs response paragraphs and Defendants Statement Material Facts, that lacks sufficient knowledge confirm deny these facts, may sufficient answer complaint but surely insufficient carry plaintiffs burden summary judgment controverting these facts with evidence. Plaintiff does not contest paragraph Defendants Statement Material Facts. Plaintiffs reliance McKinley Board Governors Fed. Res. Sys., 849 Supp. 47, (D.D.C. 2012), for plaintiffs manufactured legal restrictions test even shakier. Pl.s Opp. 11. McKinley, the court rejected the argument that the Board Governors the Federal Reserve System waived FOIA exemptions disclosing the records Congressional committee.  While the court mentioned the fact that the records were provided under written confidentiality agreement, the courts reason for denying the plaintiffs waiver claim was that [d]isclosures Congress are not official disclosures within the meaning FOIA and not waive agencys FOIA exemptions.  849 Supp. 60. find waiver would frustrate public policy encouraging broad congressional access governmental information because agencies would invariably become more cautious furnishing sensitive information the legislative branch. Id. (internal quotations and citation omitted).  Even the records were provided without the confidentiality agreement, that would not have changed the outcome the case, because still would have been disclosure Congress and therefore not official disclosure. The presence written confidentiality agreement was not, therefore, legally significant fact the case, nor did form key part the holding.  Pl.s Opp. 11. 
and national securityconcerns not relevant the case bar. Id. The instant case just such case, involving request for the names officers who were involved the planning for the raid that killed Osama bin Laden.3 
Ultimately, there support for the presumption that plaintiff asks the Court draw: that because the names were provided the filmmakers make major motion picture, they should deemed irretrievably the public domain.  Pl.s Opp. 11. fact, the opposite conclusion warranted. Because the names were provided the filmmakers for the limited purpose facilitating meetings with the officers, because the filmmakers use the names was restricted, and because there evidence that the filmmakers have disclosed will disclose the names, there reason think there has been any disclosure the public.  See Muslim Advocates DOJ, 833 Supp. 92, 100-01 (D.D.C. 2011) (plaintiff produced evidence that the requested documents, disclosed certain civil rights groups, are, fact, the public domain); plaintiffs Ex. ([Mark] Boal refuses disclose any the sources for his screenplay .). Plaintiff flips the burden proof suggesting that for the Government submit evidence that the names have been used the filmmakers film.  Pl.s Opp. 15-16. That plaintiffs burden proving its waiver theory.  Def.s Mtn. 13. 
Plaintiffs second test for waiver contrived the first.  Plaintiff posits that the public domain test somehow dependent there being important governmental purpose behind the disclosure third party. Pl.s Opp. 12-14. come with this test, plaintiff  For this reason, among others, this case not analogous a hypothetical case where the government shared new engine technology with Ford but not Chrysler, and then tried exempt that information from FOIA.  Pl.s Opp. addition, plaintiffs hypothetical posits the disclosure substantive information, not mere identifying information which the individuals privacy interest outweighs the nonexistent public interest. 
stretches Students Against Genocide, Muslim Advocates, and Prison Legal News Exec. Office for U.S. Attorneys, 628 F.3d 1243, 1249 (10th Cir.), cert. denied, 132 Ct. 473 (2011), beyond recognition. Plaintiff claims that just because the Government made the disclosures these cases for what plaintiff considers important governmental purpose, that fact was somehow dispositive the courts analysis.  That simply not true.  The reasoning all three courts was that the records issue were not disclosed the general public, there was waiver under the public domain doctrine.  For instance, the penultimate paragraph Students Against Genocide is: 
The photographs question here plainly not fall within [the public domain] 
doctrine. They were not released the general public; only the [United Nations] 
Security Council delegates saw them. fact, the photographs were not 
released all. Although Ambassador Albright displayed them the delegates, 
she retained custody, and none left the U.N. chamber.  Hence, there 
permanent public record the photographs. 257 F.3d 836 (internal citations omitted).    Plaintiff misreads the case claiming that [a] key part the courts reasoning 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.  Pl.s Opp. 12. The court discussed the possible reasons behind the Governments disclosure rejecting the plaintiffs argument that the Government had let the cat out the bag showing the photographs the members the Security Council and that further damage could done releasing them the plaintiff, not part its reasoning for finding waiver under the public domain doctrine, which was quoted above. 
Plaintiff similarly distorts the courts reasoning Muslim Advocates claiming that [t]he court found that disclosure [of certain chapters FBI operations guide] civil rights groups, for the purpose getting feedback the FBIs own civil rights concerns, justified selective release the information .  Pl.s Opp. 13. The Governments purpose for the disclosure had nothing with the courts reasoning why the public domain doctrine did not apply. Students Against Genocide, that reasoning was that the disputed chapters were not released the general public; rather, they were only shown select group organizationspersonally invited the FBIat FBI headquarters. [And because] none the disputed chapters left FBI headquarters, the Court finds that there permanent public record the disputed chapters the public domain.  Muslim Advocates, 833 Supp. 
100. Likewise, Prison Legal News the necessity using the photographs and video issue during criminal trial had nothing with the courts decision that the materials were not the public domain for purposes waiver.  That decision instead turned the limited nature the disclosurei.e., that the images were longer available the public, that they were displayed only twice, that only those physically present the courtroom viewed the images, and that the images were never reproduced for public consumption.  Prison Legal News, 628 F.3d 1249-50. 
Not only plaintiffs important governmental purpose test complete fabrication, suffers from the same additional flaw plaintiffs reliance Watkinsthere was important governmental purpose behind the disclosure the names the filmmakers, and the test, fact existed, met here. plaintiff itself acknowledges, the defendant agencies worked with the filmmakers ensure accurate portrayal the facts and people involved the raid.  Pl.s Opp. citing plaintiffs Exs. L-O. This entirely legitimate, important governmental purpose, one that function public affairs offices across the Government. say that less important than, for example, getting feedback from civil rights groups about draft FBI policy, plaintiff does, wholly subjective. Nor does plaintiff offer any standard which make this judgment.4 
Lastly, the Court should reject plaintiffs conclusory argument that has satisfied its burden proof under the public domain test.  Pl.s Opp. 14-15.  Plaintiff correctly notes that its burden establish that the precise information has requested the public domain; not the Governments burden prove negativethat the requested information has not been disclosed the public. See Def.s Mtn. 13. Plaintiff incorrect, however, baldly asserting that has shown that the withheld names are the public domain.  Plaintiff has not shown that the names were disclosed the public, that they were preserved permanent public record, for all the reasons set forth the Governments opening brief and herein.  The CIA and DoD properly withheld the names from internal email chains and transcript under well-established FOIA exemptions, and the agencies have not waived those exemptions. 
mere first names the four CIA individuals and the full name the DoD individual provided  Plaintiff claims that the CIA and DoD gave these filmmakers special access, and that this undermines the legitimacy the governmental purpose.  See, e.g., Pl.s Opp. 12, 14. initial matter, number plaintiffs own exhibits indicate that the Government has assisted other filmmakers, authors, reporters, and the like, negating plaintiffs selectivity argument.  See plaintiffs Exs. But even any the assistance was specific Mr. Boal and Ms. Bigelow, that does not make the need ensure that their film accurately portrayed the agencies any less important. the CIA and DoD the filmmakers; (2) these individuals, all involved the planning the raid that resulted the killing Osama bin Laden, have strong privacy interest their names and identities; and (3) the names were therefore properly withheld pursuant FOIAs exemption (b)(6).  Defs. Mtn. 10-11. Plaintiffs arguments responsethat because there enormous public interest the Governments assisting the filmmakers and the raid general, and because the individuals waived their privacy interests talking with the filmmakersare patently meritless, and should rejected. only defining the public interest the high level generality the Governments assisting the filmmakers and the raid general that plaintiff can argue that there any public interest disclosing the names issue here.  But this specious argument, because the balancing required exemption (b)(6) the individuals right privacy against the publics interest disclosure the specific information requested, not the general topic that relates to. There public interest knowing the first names the CIA individuals and the full name the DoD individual who the CIA and DoD suggested the filmmakers meet with. part because the disclosures that the Government has made this very case, the public already knows that the CIA and DoD assisted these filmmakers.  Those disclosures also reveal discussions about the assistance well what was said, verbatim, when Under Secretary Vickers met with Mark Boal.  Revealing the names issue tells the public nothing substance doesnt already know. 
Plaintiffs attempt find public interest the names themselves, opposed the larger topics assisting the filmmakers and the raid, feeble indeed.  Plaintiff claims there great public interest knowing the governments choice personnel appointments for this filmmaking detail.  The names (most them first names only) will not, however, reveal the individuals positions, duties, specific role the raid, and their disclosure will not fact reveal anything about how the government decided who should inform the details the cinematic portrayal the Abbottabad raid.  Nor does Judicial Watch spell out what exactly the public interest knowing this, and not readily apparent. Just because Judicial Watch curious about how the government decided who should inform the details the cinematic portrayal the Abbottabad raid does not make something the public interested in. 
The cases plaintiff cites, Schmidt United States Air Force, Case No. 06-3069, 2007 
U.S. Dist. LEXIS 69584, 2007 2812148 (C.D. Ill. Sept. 20, 2007), and Chang Dept the Navy, 314 Supp. (D.D.C. 2004), are clearly inapposite and, contrast, demonstrate the absence any public interest the names here.  See Pl.s Opp. 17-18. Schmidt, the court upheld the disclosure under exemption (b)(6) pilots reprimand that received result his role friendly-fire incident that killed and injured several people. The court found great public interest the disclosure the pilots discipline, given that the deadly friendly-fire incident garnered significant public and media attention and that the release the reprimand gave the public insight into the way which the Government was holding its pilot accountable for the incident. 2007 2812148, 11.  The reprimand was substantive release, unlike the mere names involved here. contrast the reprimand, the names provide insight into how the Government conducts its business.  The fact that the court also upheld the release the pilots identifying information also distinguishable from the instant case, because there were only two individuals charged following the friendly-fire incident, and their identities were known the public. Id. Nor does this case involve any claim that the CIA officers who met with the filmmakers failed carry out their duties efficient and law-abiding manner, whatever plaintiff may think about the propriety the agencys giving the filmmakers their names.  Pl.s Opp. (quoting Chang, 314 Supp. 44). Like Schmidt, Chang involved the substantive release disciplinary actions taken against the commander ship that had been high-profile collision. The court emphasized the plaintiffs position the commander the ship, opposed lower-level officeranother circumstance not present here.  Chang, 314 Supp. 44-45. See also Declaration Mark Herrington  (Ex. Defs Mtn.). 
Plaintiffs response the significant privacy interests the CIA and DoD individuals have not revealing their connection the raid that resulted the killing Osama bin Laden speculate that their identities will revealed the movie and claim that the individuals therefore waived their privacy interests merely meeting with the filmmakers. pure conjecture plaintiffs part that characters the movie will fact based these individuals, and such way that reveals their identities. Plaintiffs statement that [o]nce 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, Pl.s Opp. 20, completely unsupported and wholly speculative.5 
Plaintiff submits evidence dispute the CIA and DoDs declarations attesting the facts that the CIA and DoD individuals played role the planning for the Osama bin Laden  Because plaintiff does not know the names issue, any speculation about connections between the names and characters the movie will continue speculation after the movies release. Therefore, the CIA and DoD disagree with plaintiffs implication that the Court needs view the movie decide this case.  Pl.s Opp. n.4. The CIA and DoD therefore would oppose any additional attempts plaintiff extend the briefing this case until the movies release. 
raid, that some are undercover, and that virtue their involvement this highly sensitive mission, these individuals have strong privacy interest their names and identities, which would threatened their names (even the first names undercover officers) were revealed. Pl.s Resp. Defs. Statement Mat. Facts,  (ECF No. 18).  Plaintiffs response that disputes these assertions, without providing any contradictory evidence, course insufficient summary judgment.  Moreover, the fact that plaintiff contends that does not seek any other identifying information about these individuals (Pl.s Opp. 19) does not prevent from doing the future, another requestor from doing the future, nor does any way controvert the agencies assessment the threat posed the individuals from the disclosure their first names.    
The legal release form provided the CIA the filmmakers and disclosed the CIA this case does not support plaintiffs theory that the individuals waived their privacy interests. Id. 20. That document draftthere indication that any the CIA officers whose names are issue (or anyone else for that matter) signed such document.  Plaintiffs Ex. Thus, even the document suggests that the filmmakers contemplated that these CIA interviews would about developing dramatic characters for portrayal Zero Dark Thirty, id., plaintiff posits, there evidence that the CIA officers contemplated this such that waiver their privacy interests can implied from their meeting with the filmmakers. 
Moreover, making the argument that the CIA officers waived their privacy interests, plaintiff concedes that the privacy interests stake belong the individuals, not the Government, and that the CIA could not have waived those interests for them giving the filmmakers their names.  Pl.s Opp. 19-21. Thus, plaintiff specifically not arguing that the Government waived exemption (b)(6).  Id. See also Defs. Mtn. 11-12. 

For all the foregoing reasons and those set forth Defendants Motion for Summary Judgment, defendants respectfully request that the Court enter summary judgment their favor all plaintiffs claims. 
Respectfully Submitted, 
STUART DELERY Principal Deputy Assistant Attorney General JOHN TYLER 
Assistant Director, Federal Programs Branch
 /s/ Marcia Berman                              MARCIA BERMAN Senior Trial Counsel United States Department Justice Civil Division, Federal Programs Branch Massachusetts Avenue N.W.  Room 7132 Washington, D.C.  20530 Tel.: (202) 514-2205 Fax: (202) 616-8470 Email: 
Plaintiff,  1:12-cv-00049-RC  


Pursuant Local Civil Rule 7(h) the Rules the United States District Court for the District Columbia, defendants hereby submit the following response Plaintiffs Statement Material Facts Not Dispute Support Cross-Motion for Summary Judgment (ECF No. 18). Admitted that the true first names four CIA officers may have been shared with the filmmakers, for the sole purpose facilitating meetings with them, accordance with the guidance provided the CIA. Declaration Martha Lutz, Information Review Officer, Directors Area, Central Intelligence Agency,  12, 14-16 (ECF No. 16-2). Admitted that DoD provided the full name and rank individual Mark Boal, for the sole purpose facilitating meeting between the individual and Mr. Boal.  Declaration Mark Herrington,  Ex. thereto (ECF No. 16-1). 
2-4. Admitted but immaterial. 
Respectfully Submitted, 
Principal Deputy Assistant Attorney General JOHN TYLER Assistant Director, Federal Programs Branch
 /s/ Marcia Berman                              
Senior Trial Counsel 
United States Department Justice 
Civil Division, Federal Programs Branch Massachusetts Avenue N.W.  Room 7132 
Washington, D.C.  20530 
Tel.: (202) 514-2205 
Fax: (202) 616-8470 
Attorneys for Defendants.