United States District Court, Northern District of Illinois, Eastern Division
March 6, 2003
MAHMOUD CHERIF BASSIOUNI, PLAINTIFF,
CENTRAL INTELLIGENCE AGENCY, DEFENDANT.
The opinion of the court was delivered by: Charles Ronald Norgle, Sr., District Judge
Before the court is Plaintiff's Motion to Compel Production of Vaughn
Index [8-1]. For the following reasons, the motion is denied.
Plaintiff, Mahmoud Cherif Bassiouni ("Bassiouni"), seeks documents that
may be in the possession of the Central Intelligence Agency ("CIA"). The
court takes judicial notice that Bassiouni is employed as a professor at
the DePaul University College of Law, where he is held out by that
institution as an expert in human rights, terrorism, international law
and Middle East issues. See DePaul University website available at
http://www.depaul.edu. Bassiouni's biography, as indicated by DePaul
University, indicates that "[h]e is one of the world's leading
authorities on terrorism and international human rights law and the
author of two books on terrorism. Bassiouni was also involved with the
first U.S. terrorism study in 1978, and he currently serves as a
consultant on terrorism for the U.S. Department of State." DePaul
University Experts Guide, available at http
On November 22, 1999, Bassiouni sent a letter to the CIA requesting
that the agency provide him with records pertaining to himself, pursuant
to the Freedom of Information Act ("FOIA") and the Privacy Act,
5 U.S.C. § 552a. (See Pl.'s Compl., ¶ 6). In response, on June
7, 2000, the CIA denied Bassiouni's request, invoking FOIA exemptions
5 U.S.C. § 522(b)(1) and (b)(3) and Privacy Act exemptions
5 U.S.C. § 522a(j)(1) and (k)(1). See id. at ¶ 7 and Ex. A). On
July 19, 2000, Bassiouni sent an appeal letter to the CIA and requested a
reconsideration of the initial denial. (See id. at ¶ 8 and Ex. B).
On November 17, 2000, the CIA responded to Bassiouni's requested
reconsideration and again denied the request, based on the same rationale
as indicated in the initial response. (See id. at ¶ 9 and Ex. C).
On June 6, 2002, Bassiouni filed the present suit, seeking declaratory
and injunctive relief, pursuant to FOIA and the Privacy Act. (See Pl's
Compl. [1-1]). On July 12, 2002, the CIA answered Bassiouni's complaint.
(See Def's Answer [7-1]). Shortly thereafter, on August 5, 2002,
Bassiouni filed a motion to compel production of a Vaughn index (see
Pl.'s Mot. [8-1]), which is fully briefed.
Bassiouni argues that it is well-established that a plaintiff in a FIOA
case is entitled to a Vaughn index. The CIA argues that a Vaughn index is
not necessary in every FOIA case, may not be required in the present
case, and if required, need not be produced until it files dispositive
In general, the FOIA envisions a policy favoring disclosure of federal
agency records. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). However, the FOIA also envisions that certain federal agency
records should not be subject to public disclosure, and provided nine
exemptions. See 5 U.S.C. § 522(b). In the present case, what have
been termed Exemptions 1 and 3 are at issue. Exemption 1 provides that
the FOIA does not apply to matters that are "(A) specifically authorized
under criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order."
5 U.S.C. § 522(b)(1). Exemption 3 provides that the FOIA does not
apply to matters that are
specifically exempted from disclosure by statute
(other than section 552b of this title), provided that
such statute (A) requires that the matters be withheld
from the public in such a manner as to leave no
discretion on the issue, or (B) establishes particular
criteria for withholding or refers to particular types
of matters to be withheld.
5 U.S.C. § 522(b)(3).
At the present stage of this litigation, it is inappropriate to compel
the CIA to produce a Vaughn index. "[C]ourts have not universally
required agencies to produce detailed Vaughn indexes in response to every
FOIA request." Wright v. OSHA, 822 F.2d 642, 645-46 (7th Cir. 1987); see
also Minier v. CIA, 88 F.3d 796, 804 (9th Cir. 1996). "`When . . . a
claimed FOIA exemption consists of a generic exclusion, dependent upon
the category of records rather than the subject matter which each
individual record contains, resort to a Vaughn index is futile.'" Solar
Sources, Inc. v. United States, 142 F.3d 1033, 1039 (7th Cir. 1998)
(citing Church of Scientology v. IRS, 792 F.2d 146, 152 (D.C. Cir.
1986)). Furthermore, the CIA need not produce a Vaughn index if
sufficiently detailed affidavits or declarations will achieve the same
purpose. See, Snyder v. CIA, 230 F. Supp.2d 17, 21-22 (D.D.C. 2002); see
also 50 U.S.C. § 432(f) (2002) (indicating limitations upon judicial
review of a claim that the CIA has improperly withheld records). This may
certainly be the case; however, neither parties' briefs addressed the
specific issues that pertain when the CIA is a defendant in a FOIA case.
Central Intelligence Agency Information Act of 1984,
50 U.S.C. § 431-32 (2002); see also Sullivan v. CIA, 992 F.2d 1249,
1251 (1st Cir. 1993) (indicating that Congress passed the Central
Intelligence Agency Information Act "[t]o curb the inefficiencies
inherent in applying standard FOIA requirements to the arcane realm of
Additionally, the court is mindful of the United States Supreme Court's
admonition in CIA v. Sims, 471 U.S. 159, 169-70 (1985), where, in the
course of discussing Exemption 3 of the FOIA, the Court indicated:
Congress vested in the Director of Central
Intelligence very broad authority to protect all
sources of intelligence information from disclosure.
[N]arrowing of this authority not only contravenes the
express intention of Congress, but also overlooks the
practical necessities of modern intelligence gathering
— the very reason Congress entrusted this Agency
with sweeping power to protect its `intelligence
sources and methods.'
Therefore, given that the present case is only in the initial stages of
litigation and the attendant legal issues that pertain when the CIA is a
defendant in a FOIA case, and the parties' dearth of development of this
point, the court concludes that it is inappropriate to compel the CIA to
produce a Vaughn index at this time.
For the foregoing reasons, Plaintiff's motion is denied.
IT IS SO ORDERED
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