Leopold v. Central Intelligence Agency

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA JASON LEOPOLD, et al., Plaintiffs, Case No. 16-cv-1833 (JMC) v. CENTRAL INTELLIGENCE AGENCY, Defendant. MEMORANDUM OPINION AND ORDER Plaintiffs Jason Leopold and Ryan Noah Shapiro sue the Central Intelligence Agency (CIA) under the Freedom of Information Act (FOIA). Plaintiffs seek documents that were cited in the publicly-released Executive Summary of the Senate Select Committee on Intelligence report on the CIA’s rendition, interrogation, and detention program. The CIA produced hundreds of documents responsive to this request, but withheld or redacted others. Both sides now move for summary judgment. The Parties disagree over the adequacy of the CIA’s search for records and the propriety of its withholding of certain records under Exemption 5 of the Act. The Court GRANTS the CIA’s motion in part and DENIES it in part. While the CIA has adequately described the searches that it conducted of the primary database at issue in the case, it has failed to adequately describe the searches it performed of other locations that documents were likely to be found and must come forward with additional information about those searches. Additionally, the Court cannot determine on this record whether the CIA had an unredacted version of the Executive Summary available to it during the search, so cannot grant summary judgment for the Agency on the issue of whether the search was inadequate for failure to consult this document. As for the CIA’s Exemption 5 withholdings, the CIA has properly withheld the majority 1 of the records in dispute in this lawsuit. However, there remain a number of records for which the Court needs more details from the agency before it can decide one way or the other. As a result, the Court will DENY Plaintiffs’ cross-motion for summary judgment, albeit without prejudice as to the searches and withholdings the Court cannot rule on at this juncture. 1 I. BACKGROUND In 2009, the Senate Select Committee on Intelligence (SSCI) began to investigate the CIA’s post-9/11 detention and interrogation program. See S. Rep. No. 113-288, at iv (2014); see also Connell v. CIA, 110 F.4th 256, 261 (D.C. Cir. 2024). The program is now notorious—thanks in large part to the SSCI report—for its use of so-called “enhanced interrogation techniques,” including treatment of detainees that the “Government has since concluded . . . constituted torture.” United States v. Zubaydah, 595 U.S. 195, 200 (2022). The SSCI investigation lasted for multiple years, involved review of millions of CIA records, and resulted in the preparation of a committee report on the program (the “Full Report”), as well as an executive summary (the “Executive Summary”). S. Rep. No. 113-288, at viii. In 2012, the SSCI sent drafts of the Full Report and the Executive Summary to the Executive Branch for comment. Id.; Connell, 110 F.4th at 261. Following additional revisions, the SSCI sent a version of the Executive Summary to the President for declassification. S. Rep. No. 113-288, at iv. The declassified Executive Summary was released by the SSCI in December 2014. See generally id. The nearly 500-page document contains 2,725 footnotes, some of which are heavily redacted, which refer to various operational cables, intelligence reports, internal memoranda and emails, briefing materials, and other records that the SSCI reviewed in compiling the Executive Summary. Id. at 1–499. 1 Unless otherwise indicated, the formatting of citations has been modified throughout this opinion and order, for example, by omitting internal quotation marks, emphases, citations, and alterations and by altering capitalization. All pincites to documents filed on the docket in this case are to the automatically generated ECF Page ID number that appears at the top of each page. 2  Plaintiffs submitted a FOIA request to the CIA seeking specific records that were “discussed in the Executive Summary” and were “identified in the footnotes of the SSCI Report.” ECF 25-1 at 36. An attached index listed over 800 specific citations, organized by the footnote of the Executive Summary in which they appeared. ECF 25 at 2; ECF 26-1 ¶ 1. After the CIA failed to make a determination on the request by the statutory deadline, Plaintiffs brought suit, alleging violations of FOIA. ECF 25 at 3; see generally ECF 1. According to a schedule proposed by the Parties and approved by the Court, the CIA eventually produced 378 documents in whole or in part and withheld 225 documents in full. ECF 25 at 3; ECF 26-1 ¶ 2. However, the CIA stated that it was unable to locate 19 of the documents cited in SSCI Report. ECF 25 at 3. At that point, the CIA moved for summary judgment. ECF 25. The CIA asserted that its search was adequate, and its withholdings and redactions were proper under the statute. Plaintiffs cross-moved for summary judgment and challenged the adequacy of the CIA’s search and the propriety of its withholdings. ECF 27. While the CIA withheld and redacted documents under various exemptions, Plaintiffs only challenged the withholdings and redactions that are based solely on Exemption 5 of the Act, which leaves only 65 records in dispute. ECF 25 at 3; ECF 26- 1 ¶ 3. During summary judgment briefing, the CIA provided additional documents, bringing the number of purportedly unlocatable records down to 11. ECF 27-4 ¶ 5; ECF 26-1 ¶ 2. The CIA also produced declarations regarding the CIA’s search and a Vaughn index. See, e.g., ECF 25-1 at 1– 33; ECF 27-4. Following developments in the D.C. Circuit’s FOIA caselaw, the Court ordered additional briefing from the Parties. ECF 33; ECF 34. During that briefing, the CIA filed an additional declaration. ECF 33-1. The Court now proceeds to resolve the motions. 3 II. LEGAL STANDARD “[T]he vast majority of FOIA cases can be resolved on summary judgment.” Brayton v. Off. of the U.S. Trade Representative, 641 F.3d 521, 527 (D.C. Cir. 2011). “The agency is entitled to summary judgment only if it shows beyond material doubt that it has conducted a search reasonably calculated to uncover all relevant documents.” Aguiar v. DEA, 865 F.3d 730, 738 (D.C. Cir. 2017). Likewise, an “agency withholding responsive documents from a FOIA release bears the burden of proving the applicability of claimed exemptions.” ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 619 (D.C. Cir. 2011). “Summary judgment is warranted on the basis of agency affidavits when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009). “If the agency fails to provide a sufficiently detailed explanation to enable the district court to make a de novo determination of the agency’s claims of exemption, the district court then has several options, including inspecting the documents in camera, requesting further affidavits, or allowing the plaintiff discovery.” Spirko v. U.S. Postal Serv., 147 F.3d 992, 997 (D.C. Cir. 1998). III. ANALYSIS The Court first considers whether the agency conducted an adequate search for responsive records and determines that the CIA’s declarations lack sufficient detail to establish that it has conducted an adequate search. Next, the Court reviews the CIA’s withholdings and finds that it has adequately justified holding the majority of the disputed records. As for the remainder, summary judgment is premature. 4  A. Adequacy of the CIA’s Search Under FOIA, agencies have “an obligation . . . to conduct an adequate search for responsive records,” Edelman v. SEC, 172 F. Supp. 3d 133, 144 (D.D.C. 2016), and “[a]n inadequate search for records constitutes an improper withholding” under the statute, Schoenman v. FBI, 764 F. Supp. 2d 40, 45 (D.D.C. 2011). A search is adequate if it is “reasonably calculated to uncover all relevant documents.” Valencia-Lucena v. U.S. Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). Whether a search is adequate is not determined by its results, but by the means used to conduct it. Iturralde v. Comptroller of the Currency, 315 F.3d 311, 315 (D.C. Cir. 2003). For example, “[t]here is no requirement that an agency search every record system.” Oglesby v. U.S. Dep’t of the Army, 920 F.2d 57, 68 (D.C. Cir. 1990). “However, the agency cannot limit its search to only one record system if there are others that are likely to turn up the information requested.” Id.; see also DiBacco v. U.S. Army, 795 F.3d 178, 190 (D.C. Cir. 2015). To prove its search was adequate, the agency may rely on a “reasonably detailed affidavit, setting forth the search terms and the type of search performed, and averring that all files likely to contain responsive materials . . . were searched.” Oglesby, 920 F.2d at 68. Such affidavits are “accorded a presumption of good faith, which cannot be rebutted by purely speculative claims about the existence and discoverability of other documents.” SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1200 (D.C. Cir. 1991). At minimum, the affidavit must describe “what records were searched, by whom, and through what process.” Steinberg v. U.S. Dep’t of Just., 23 F.3d 548, 552 (D.C. Cir. 1994). “Furthermore, the affidavit must explain the scope and method of the agency’s search in a non-conclusory fashion.” Nat’l Sec. Couns. v. CIA, 849 F. Supp. 2d 6, 11 (D.D.C. 2012). If an affidavit “lacks sufficient detail for the Court to determine whether the search was adequate,” the Court must “deny the [agency’s] motion for summary judgment.” Id. 5  Following various rounds of searches, the CIA located over 600 documents responsive to Plaintiffs’ request but was unable to locate eleven documents cited by the SSCI in the footnotes to the Executive Summary. ECF 25 at 3; ECF 27-4 ¶¶ 4–5. The CIA submitted declarations which describe the process used to identify responsive documents. First, according to Antoinette Shiner, an Information Review Officer at the CIA, the Agency first identified a database known as the “Rendition, Detention, and Interrogation Network,” or “RDINet,” as “the location that was reasonably likely to contain responsive records.” ECF 25-1 at 4. This was because RDINet is “a central repository containing materials gathered from across the Agency detailing the former detention and interrogation program,” and is also “the repository of information that was relied upon by SSCI staffers in drafting their study of the former detention and interrogation program.” Id. To identify responsive materials, “[a]gency search experts” focused on the language in each footnote and used search “terms appearing in the document title,” or “in the case of cables,” used “the cable citations.” ECF 25-1 at 4–5. If the CIA’s reviewers were not able to find the information in RDINet, they “conducted supplemental searches in the directorates or offices” where the document “likely originated,” including the Office of Congressional Affairs, the Center for the Study of Intelligence, the Office of the Inspector General, and the Office of General Counsel. ECF 25-1 at 5; see ECF 26-4 at 2. These additional searches are described as “[t]argeted searches led by knowledgeable personnel in these offices.” ECF 26-4 at 2–3. During the pendency of this litigation, the CIA conducted an additional search of its Counterterrorism Center and found one additional document, which the CIA provided to Plaintiffs. ECF 31 at 14. The fact that the CIA’s search failed to turn up ten documents out of the hundreds requested is not, on its own, enough to find that the search was inadequate. See Wilbur v. CIA, 355 F.3d 675, 6 678 (D.C. Cir. 2004) (“[T]he agency’s failure to turn up a particular document, or mere speculation that as yet uncovered documents might exist, does not undermine the determination that the agency conducted an adequate search for the requested records.”). Again, the adequacy of a search is not determined by its results, but by the means used to conduct it. Iturralde, 315 F.3d at 315. But Plaintiffs do more than just point to missing documents. First, they challenge the CIA’s declarations as insufficiently detailed in describing the methodology underlying its searches. To make out a prima facie showing of adequacy, an agency’s affidavits or declarations must “specify what records were searched, by whom, and through what process.” Rodriguez v. Dep’t of Def., 236 F. Supp. 3d 26, 35 (D.D.C. 2017). Plaintiffs’ most persuasive challenge focuses on the CIA’s description of its purported searches of locations outside of RDINet. Plaintiffs identify documents referred to in footnotes 28, 719, 904 and 2461, as documents that are likely to have been located in the records of the Office of Congressional Affairs and the Office of General Counsel. See ECF 26 at 8–10, 11–13; see also ECF 31 at 10–11, 13–14. The CIA appears to agree that these locations were likely to contain those, and other documents not found in RDINet, given that when the CIA was unable to find documents in RDINet, the Agency claims to have searched additional offices in which the document “likely originated,” including the Office of Congressional Affairs and the Office of General Counsel. ECF 25-1 at 5. The CIA also conducted supplemental searches of the “Office of the General Counsel, Office of the Inspector General, and Office of Congressional Affairs” during the pendency of this litigation. ECF 26-4 at 2. Plaintiffs argue that to the extent that the CIA searched other offices or directorates for missing documents, the CIA’s description of the searches of these offices’ records is insufficient to support summary judgment in the CIA’s favor. The Court agrees. While the CIA’s declarations describe the search terms used by the agency, namely the “terms appearing in the document title” 7 or the “cable citations,” with respect to the searches of the other “offices in which the document likely originated, including” the Office of the General Counsel, Office of the Inspector General, and the Office of Congressional Affairs, ECF 25-1 at 5, the declarations fail to articulate any additional detail about the “type of search performed,” DeBrew v. Atwood, 792 F.3d 118, 122 (D.C. Cir. 2015) (requiring that a declaration sufficiently describe “the type of search performed”); Morley v. CIA, 508 F.3d 1108, 1122 (D.C. Cir. 2007) (finding CIA declaration insufficient that “merely identifie[d] the three directorates that were responsible for finding responsive documents without,” among other defects, “explaining how the search was conducted in each component”). In describing these searches, the declarations merely state that CIA staff “conducted supplemental searches in the[se] directorates or offices,” and that these searches were “diligent.” ECF 25-1 at 4–5. A declaration describing supplemental searches of these offices made during the pendency of litigation states that they were “[t]argeted searches led by knowledgeable personnel in these offices . . . for each of the remaining documents.” ECF 26-4 at 2–3. Unlike with the search of RDINet, which was described as a specific, unique database queried by the CIA’s search staff—a “central repository containing materials gathered from across the Agency” regarding the detention and interrogation program, ECF 25-1 at 4—these declarations “do not denote which files were searched, or by whom, do not reflect any systematic approach to document location, and do not provide information specific enough to enable the requester to challenge the procedures utilized,” Steinberg, 23 F.3d at 552 (quoting Weisberg v. Dep’t. of Just., 627 F.2d 365, 371 (D.C. Cir. 1980)). As a result, this case resembles National Security Counselors v. CIA, where the Agency’s declarations were insufficient to make a showing of an adequate search. 849 F. Supp. 2d at 11. There, the CIA submitted affidavits describing the searches conducted of one “directorate likely to contain responsive materials,” but stated only that within that directorate, Agency staff 8 “conducted a thorough and diligent search of relevant . . . records systems for responsive documents,” and “searched a records system that contain[ed] CIA regulations as well as other IMS records systems.” Id. The searches of the Office of Congressional Affairs and the Office of General Counsel described in this case contain less detail than those in National Security Counselors, in that the declarations here do not even describe what records systems existed in these offices or how they were searched. See id. (finding declaration inadequate for failure to identify what the “other IMS records systems were that were searched”); see also Am. Immigr. Council v. U.S. Dep’t of Homeland Sec., 950 F. Supp. 2d 221, 231–32 (D.D.C. 2013) (finding description of search insufficient when affidavits “describe[d] searches of particular databases without explaining what those databases [we]re and the documents they contain[ed]”); Spannaus v. CIA, 841 F. Supp. 14, 17 (D.D.C. 1993) (finding search adequate where the “affidavits describe[d] in detail the information storage and retrieval system, the searches conducted, and why further searches would be difficult”). The lack of detail manifests in other ways. Plaintiffs posit that some of the missing documents cited were likely to exist in paper or archival form, or likely existed in the personal files of retired employees. The CIA responds to these objections by claiming that its searches of these additional offices were in fact “inclusive of the archives,” and “inclusive of [the former employee’s] files.” ECF 29 at 9, 11. But these facts are stated in the CIA’s summary judgment briefs without citation to the record, and support for these details appear nowhere in the CIA’s declarations. This attempt to backfill detail through the summary judgment briefs about the nature of the searches of these offices and the types of records systems involved further highlights the deficiencies in the initial description of its search. Because the submitted declarations do not describe, with respect to the “supplemental searches” of the “directorates or offices” outside of RDINet, ECF 25-1 at 5, “the systems of 9 records” those offices “maintain[], [or] detail[] the method of retrieving records” from those offices, “[t]he Court . . . cannot evaluate the adequacy and reasonableness of the searches,” Jefferson v. Bureau of Prisons, No. 05-cv-848, 2006 WL 3208666, at *7 (D.D.C. Nov. 7, 2006). The Court therefore denies the CIA’s motion for summary judgment on the adequacy of its search of locations outside of RDINet. See Truitt v. Dep’t of State, 897 F.2d 540, 542 (D.C. Cir. 1990) (“If . . . the record leaves substantial doubt as to the sufficiency of the search, summary judgment for the agency is not proper.”). The Government “might resolve those issues either by filing a more detailed declaration or conducting a supplemental search.” 2 Nat’l Ass’n of Crim. Def. Laws. v. Fed. Bureau of Prisons, No. 18-cv-2399, 2025 WL 3240789, at *4 n.3 (D.D.C. Nov. 20, 2025); Aguiar, 865 F.3d at 739. Given this disposition, Plaintiffs are also not entitled to summary judgment at this time. See NYC Apparel FZE v. U.S. Customs & Border Prot., No. 04-cv-2105, 2006 WL 167833, at *8 (D.D.C. Jan. 23, 2006). Plaintiffs raise several other arguments as to why, separate from the lack of detail for searches of non-RDINet locations, the CIA has performed an inadequate search. As a threshold matter, while Court finds the CIA’s declarations insufficient as to the searches of the other offices, it finds them to be “reasonably detailed” with respect to the searches made of RDINet such that they afford a presumption of adequacy to the search of this database. Riccardi v. U.S. Dep’t of Just., 32 F. Supp. 3d 59, 63 (D.D.C. 2014). This is because they identify the location searched (the RDINet database) and the search terms used for documents (terms appearing in the document title or, in the case of cables, the cable citations). See id. Plaintiffs do not appear to challenge the CIA’s 2 Because the Court is requiring the CIA to provide more documentation regarding its searches, or alternatively, conduct a supplemental search, the Court need not address at this time Plaintiffs’ contention that the CIA failed to search in all locations reasonably likely to identify the paper sought in footnote 131. The CIA’s declaration stated that when a document was not found in RDINet, the Agency searched in “other appropriate offices,” ECF 25-1 at 5, and it is possible that additional detail regarding exactly which offices were searched will resolve whether the Agency reviewed documents in any of the locations that Plaintiffs suggest should have been searched, see ECF 31 at 11–13. Plaintiffs may reiterate their arguments following the CIA’s updated submissions, should they remain relevant. 10 details regarding “by whom” RDINet was searched, Steinberg, 23 F.3d at 552, and the Court thus finds the CIA’s description adequate under “the circumstances of the case,” Weisberg v. U.S. Dep’t of Just., 705 F.2d 1344, 1351 (D.C. Cir. 1983); see also ECF 25-1 at 4 (noting that CIA “search experts” conducted the searches of RDINet). Most of Plaintiffs’ objections do not raise the “substantial doubt” required to undermine this presumption that the searches of RDINet were adequate. Valencia-Lucena, 180 F.3d at 326. Plaintiffs seize on the CIA’s statement that it was unable to find one document listed in footnote 131 because the scant details included in the citation left “the Agency with little to no information upon which to search.” ECF 26-4 at 3. They read this statement as an admission that “no search was performed for this specific document.” ECF 31 at 11. But Plaintiffs misconstrue this statement, which is not a concession that the CIA did not look for the document in RDINet or elsewhere. Rather, the quoted language is the CIA’s proffered explanation for why its searches may not have yielded any results given the limited data the Agency’s searchers had to work with. See ECF 26-4 at 2–3. The statement does not contradict the other statements in the declaration that the Agency conducted searches for all documents in RDINet using the search terms available to them. As for Plaintiffs’ contention that the CIA should have used more targeted search terms to identify the document, described in the Executive Summary and Plaintiffs’ request as “CIA paper entitled ‘Abu Zubaydah,’ dated March 2005,” ECF 25-1 at 60; ECF 26-3 at 17, the Court disagrees. Searching with the “terms appearing in the document title,” which included Abu Zubaydah’s name, ECF 25- 1 at 5, was “reasonably calculated to uncover” the paper regarding Abu Zubaydah. Weisberg, 705 F.2d at 1351. 3 3 The same goes for the document described in footnote 1943, which is titled in the footnote text as “CIA Notes (DTS #2009-2024),” and was also not found by the CIA. ECF 25-1 at 100. Plaintiffs argue that the CIA’s method of searching by terms in the document’s title would not be reasonably calculated to produce or identify this document, 11  Finally, the CIA’s search failed to find documents listed in footnotes 45, 722, 1746. The CIA suggested that this failure was due to the fact that the descriptions in these footnotes of the Executive Summary were “heavily redacted.” ECF 26-4 at 3. Plaintiffs argue that in the face of these redactions, the CIA was obligated to consult an unredacted copy of the Executive Summary or even the Full Report in order to identify more information about the underlying documents cited. ECF 26 at 7; ECF 31 at 8–9. In essence, Plaintiffs argue that when applied to these specific footnotes, the CIA’s method of searching by the document title as described in the redacted footnote was not “reasonably calculated to uncover all relevant documents.” Aguiar, 865 F.3d at 738. The Court disagrees in part with the Plaintiffs. The CIA’s search is not inadequate because it failed to consult the Full Report or any draft copies of the Executive Summary. As to the draft or final versions of the Full Report, Plaintiffs offer only mere speculation that these documents— which are not the same as the Executive Summary—would provide additional search term information regarding the specific footnotes in question. Further, a declaration submitted by Plaintiffs regarding the CIA’s treatment of the Full Report indicates that the CIA was limited by agreement with the Committee as to the proper uses of the report and its drafts, and that internal use of the Full Report was “tightly controlled by [the] CIA” for specific internal reference purposes, including for “review[ing] the document and provid[ing] comments” during the SSCI’s given the generic nature of the footnote text, and argue that the CIA should have instead conducted a search by date. ECF 31 at 14. “In general, a FOIA petitioner cannot dictate the search terms for his or her FOIA request,” Bigwood v. U.S. Dep’t of Def., 132 F. Supp. 3d 124, 140 (D.D.C. 2015), and where the “agency’s search terms are reasonable, the Court will not second guess the agency regarding whether other search terms might have been superior,” Liberation Newspaper v. U.S. Dep’t of State, 80 F. Supp. 3d 137, 146–47 (D.D.C. 2015). If anything, using the terms in the footnote would have resulted in an overinclusive search, which is not in itself an indication of an inadequate search. See Young v. U.S. Dep’t of Just., No. 21-cv-739, 2022 WL 17668806, at *2 (D.D.C. Dec. 14, 2022) (“[B]road, overinclusive search terms would not limit the responsive records produced by the agency; indeed, they would only generate more of them.”). 12 drafting process. ECF 26-3 at 13. 4 Given the limitations on the Full Report’s use, the failure to consult the Full Report does not undermine the adequacy of the CIA’s search. The same goes for the 2012 draft version of the Executive Summary, which was provided for the “limited purpose of providing comments in response to the Study.” ECF 26-3 at 10. But the case is different for the unredacted version of the Executive Summary. Recall that Plaintiffs’ FOIA request sought the “specific records identified and discussed in the Executive Summary.” ECF 25-1 at 36. Given the CIA’s stated belief that redactions in the public Executive Summary “le[ft] the Agency few leads” regarding certain footnotes, ECF 26-4 at 3, if the Agency did have access to an unredacted version of the Executive Summary, it stands to reason that review of that version would have provided those leads, see Kowalczyk v. Dep’t of Just., 73 F.3d 386, 389 (D.C. Cir. 1996) (requiring an agency to follow “a lead that is both clear and certain”). In response, the CIA appears to dispute that it had access to an unredacted version of the Executive Summary to cross-reference. It claims that when it responded to Plaintiffs’ FOIA request, it “consulted the version of the Executive Summary that it has”—implying that the CIA had access to only one version, the redacted document. ECF 29 at 9; see also ECF 26-4 at 3 (discussing only the redacted footnotes). However, the CIA cites to no record evidence for the claim that it had access to only the redacted version of the Executive Summary. On the other side of the ledger, Plaintiffs argue that the Court should infer that the CIA had access to this document. The declaration submitted by Plaintiffs from a CIA employee states that the document was sent to the President and subsequently declassified by the “Director of National Intelligence,” but does not mention any role of the CIA 4 Although not discussed in the record in this litigation, it appears that in early 2015, the SSCI revoked use of the Final Report entirely and sought return of the document from the Executive Branch. Musgrave v. Warner, No. 21-cv-2198, 2022 WL 4245489, at *2 (D.D.C. Sep. 15, 2022) (noting that, by 2022, only limited copies of the Full Report existed within the Executive Branch, with none of the locations being the CIA), aff’d on other grounds, 104 F.4th 355 (D.C. Cir. 2024). 13 specifically in that process. ECF 26-3 at 12. But the declaration also notes that when the SSCI sent the final version of the Executive Summary to the Executive Branch for declassification in 2014, the Executive Branch and the SSCI “had many discussions.” Id. at 11. Although the CIA is not mentioned as part of these discussions, one inference from the declarations is that the CIA, the subject of the Report, would have received a copy of the final Executive Summary in order to provide input as it did for the draft version. 5 However, even if the CIA did have a version of the unredacted final Executive Summary, the declarations also do not make clear whether the document was available to be used for these purposes. And a countervailing inference to be drawn from the statements regarding the strict limitations on the draft Executive Summary is that the copy shared for declassification was also subject to similar limitations. The present record lacks sufficient detail to resolve the factual dispute of whether the CIA received a version of the unredacted Executive Summary and whether it was available for the CIA to use in responding to this FOIA request. As a result, the Court will deny both sides’ motions for summary judgment on the issue of whether the CIA’s search was rendered inadequate by a failure to consult an unredacted version of the Executive Summary in locating the remaining documents. Here too, the CIA “might resolve those issues either by filing a more detailed declaration” regarding the availability of the unredacted Executive Summary for purposes of responding to FOIA requests “or conducting a supplemental search.” Nat’l Ass’n of Crim. Def. Laws, 2025 WL 3240789, at *4 n.3. 6 5 The Court notes, although does not weigh as evidence in making its determination on this factual dispute, that the D.C. Circuit in a separate FOIA case regarding the Executive Summary stated that the process of declassification of the Executive Summary “involv[ed] a review by the Director of National Intelligence and the CIA.” Connell, 110 F.4th at 261–62 (emphasis added). 6 Plaintiffs also argue that the CIA’s search was inadequate because it has failed to produce a signed version of document 25. ECF 26 at 34. They point to the fact that the SSCI report refers to a signed version of this document, while the version produced to Plaintiffs lacks any signatures. See ECF 26-3 at 25, 122. The CIA states, albeit without 14  B. Records Withheld or Redacted Under FOIA Exemption 5 Separate from the adequacy of the search, the Parties also challenge the propriety of certain CIA withholdings and redactions. “In responding to a FOIA request, an agency may withhold information that falls into any of the statute’s enumerated exemptions.” Hettena v. CIA, 145 F.4th 1354, 1356 (D.C. Cir. 2025). The Parties’ summary judgment motions regard 65 documents which the CIA withheld or redacted on the basis of Exemption 5, which protects from disclosure “inter- agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C. § 552(b)(5). This exemption “incorporates the privileges that the Government may claim when litigating against a private party, including the governmental attorney-client and attorney work product privileges, . . . and the deliberative process privilege.” Abtew v. U.S. Dep’t of Homeland Sec., 808 F.3d 895, 898 (D.C. Cir. 2015). To withhold a responsive record, an agency must show both that the record falls within a FOIA exemption, 5 U.S.C. § 552(b), and that the agency “reasonably foresees that disclosure would harm an interest protected by [the] exemption,” id. § 552(a)(8)(A)(i)(I). The D.C. Circuit has emphasized that “whether a requested record falls within an exemption and whether the disclosure of that record would foreseeably harm an interest protected by the exemption are distinct, consecutive inquiries.” Leopold v. U.S. Dep’t of Just., 94 F.4th 33, 37 (D.C. Cir. 2024).7 citation to the record, that “Document 25 was the only version of this document located.” ECF 29 at 33. Given that the Court is requiring the CIA to either supplement the record or perform an additional search, the Court will not address this argument on the present record and will consider this issue in light of the CIA’s renewed submissions. 7 Leopold was decided after the briefing in this case was completed, but the Court is bound to apply it and other recent precedents in deciding the current dispute. See, e.g., Rudometkin v. United States, 140 F.4th 480 (D.C. Cir. 2025). Although the Court acknowledges that the foreseeable harm doctrine has been further explained by the D.C. Circuit since the briefing in this case was completed, the CIA has had the opportunity to try to meet the legal standard set by the D.C. Circuit in Reporters Committee for Freedom of the Press v. FBI, 3 F.4th 350 (D.C. Cir. 2021). That case was decided before the Parties submitted a supplemental round of briefs specifically addressing the foreseeable harm requirement, and the Parties in fact addressed Reporters Committee in their supplemental memoranda. See ECF 33; ECF 34. Moreover, the Parties’ approach to the foreseeable harm analysis was consistent with the instruction in Reporters Committee, as reiterated in Leopold, that the foreseeable harm requirement is an “independent and 15 An agency “must specifically and thoughtfully consider foreseeable harm from disclosure of otherwise-exempt information, including whether partial disclosure of information is possible.” Id. at 38. The CIA has claimed the deliberative process, attorney-client, and attorney work product privileges over these records, withholding them either in full or in part. Plaintiffs contest many of the withholdings as insufficiently supported. The CIA has justified withholding the majority of the documents in question. However, there are a substantial number of documents for which the Court lacks sufficient detail to determine the applicability of each privilege or the existence of foreseeable harm. The Court will thus deny both Parties’ summary judgment motions with respect to those records and require the CIA to provide further justifications regarding its withholdings. Should the CIA believe that it can still support Exemption 5 withholdings, it must provide supplemental declarations or Vaughn indices. The Parties may then move once more for summary judgment. 1. Deliberative Process Privilege The deliberative process privilege protects from disclosure “documents reflecting advisory opinions, recommendations, and deliberations that are part of a process by which government decisions and policies are formulated.” Reps. Comm., 3 F.4th at 361. To invoke the privilege, the CIA must show that the documents are both “predecisional and deliberative.” Id. at 362. “A document is predecisional if it was generated before the agency’s final decision on the matter,” and it is “deliberative” if it was “prepared to help the agency formulate its position” and “reflects the give-and-take of the consultative process.” Id. The privilege thus protects records that contain information that comprises “part of a process by which governmental decisions and policies are formulated.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 150 (1975). meaningful burden” considered separately from and sequentially to the issue of whether an exemption applies. Leopold, 94 F.4th at 38 (citing Reps. Comm., 3 F.4th at 369)). 16  “[T]he foreseeable harm requirement applies with particular force in the context of the deliberative process privilege.” Friends of the River v. U.S. Army Corps of Eng’rs, No. 16-cv- 2327, 2023 WL 4105168, at *4 (D.D.C. June 21, 2023). It is not enough for an agency to provide a “perfunctory statement that disclosure of all the withheld information—regardless of category or substance—would jeopardize the free exchange of information.” Reps. Comm., 3 F.4th at 370. The agency must provide “a focused and concrete demonstration of why disclosure of the particular type of material at issue will, in the specific context of the agency action at issue, actually impede those same agency deliberations going forward.” Id. But an agency need not provide a separate explanation for each individual record; it may take a “categorical approach,” so long as the categories it defines are specific enough so that the explanation provided would “characteristically” apply to each document therein. Rosenberg v. U.S. Dep’t of Def., 342 F. Supp. 3d 62, 78–79 (D.D.C. 2018); see also Reps. Comm., 3 F.4th at 369. Second, in the absence of a focused and concrete agency explanation, the Court may nonetheless find that the foreseeable harm requirement is satisfied based on the “context and purpose” of the withheld information. Reps. Comm., 3 F.4th at 372; see also Reps. Comm. for Freedom of the Press v. U.S. Customs & Border Prot., 567 F. Supp. 3d 97, 110 (D.D.C. 2021). The CIA has submitted declarations and a Vaughn index to substantiate its claims of the deliberative process privilege. ECF 25-1; ECF 33-1. In doing so, the Agency has divided the documents in question into the following broad categories: (a) Drafts, (b) Talking Points, (c) Cables, (d) Memoranda for the Record, (e) Other Internal Memoranda and Emails, and (f) Office of Inspector General Reports. Plaintiffs raise objections to the CIA’s categorical approach and to the treatment of specific documents within those categories. The Court will address each in turn. 17  (a) Drafts The CIA has sought to withhold documents 2, 4, 18, 20, 27, 35, 36, 44, and 55 on the grounds that they are draft documents which “reflect information at the interim stages and are associated with a given deliberation concerning how to handle different policies and/or procedures related to the former detention and interrogation program.” ECF 25-1 at 7; see ECF 33-1 ¶ 7 (listing these documents within the draft document category). 8 While a document’s labeling as a d