DECLARATION OF TERRY N. BUROKER CENTRAL INTELLIGENCE AGENCY

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 0001218355
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 39
• Document Creation Date: June 23, 2015
• Document Release Date: October 13, 2010
• Case Number: F-2010-00465
• Publication Date: June 20, 2005

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION
H. RAY LAHR,
Plaintiff,
V.
NATIONAL TRANSPORTATION )
SAFETY BOARD and CENTRAL )
INTELLIGENCE AGENCY,
Defendants.
DECLARATION OF TERRY N. BUROKER
CENTRAL INTELLIGENCE AGENCY
I, TERRY N. BUROKER, hereby declare and
1. I am the Information Review Officer (IRO)
for the Directorate of Intelligence (DI) of the
Central Intelligence Agency (CIA). I have held
this position since April 5, 2004. I have held
various administrative and professional positions
within the CIA since October 17, 1971.
APPROVED FOR
RELEASE^ DATE:
17-Sep-2010
 2. The DI is the organization within the CIA
responsible for the production of finished
intelligence. Finished intelligence is the
analytic product created by professional
intelligence analysts based upon their review and
analysis of all source intelligence reporting and
other information that may be available. These
sources may include, among other things, articles
in the foreign press, liaison exchanges with
foreign intelligence services, sophisticated
technical platforms, or human sources.
3. As the DI/IRO, I am responsible for the
final review of records and information originated
by offices in the DI, or that contain DI
information or equities, that may be responsive to
Freedom of Information Act (FOIA), 5 U.S.C. ? 552,
or other requests for public disclosure. As part
of my review of DI information, I ensure any
determinations as to the release or withholding of
such information are proper and do not jeopardize
 national security, including CIA interests,
functions, personnel, or facilities. As part of my
official duties, I also task and coordinate record
searches within the DI and ensure that all DI
record systems and files reasonably likely to
contain information responsive to FOIA and other
requests are searched.
4. Through the exercise of my official
duties, I am familiar with the above-captioned
litigation and Plaintiff's FOIA request that is the
subject of this case. I make the following
statements based upon my personal knowledge and
information made available to me in my official
capacity.
5. I have determined, after carefully
reviewing the information at issue, that the CIA
documents described in the attached index must be
either withheld in full, or in part, because:
(a) the information concerns the
organization, functions, names, official titles,
salaries or numbers of personnel employed by the
CIA, all of which are protected from disclosure
 under ? 6 of the CIA Act of 1949, 50 U.S.C. ? 403g,
and is therefore exempt from disclosure pursuant to
FOIA exemption (b)(3), 5 U.S.C. ? 552(b)(3); and/or
(b) the information withheld is sensitive
commercial or financial information that is
privileged or confidential and is therefore exempt
from disclosure pursuant to FOIA exemption (b)(4),
5 U.S.C. ? 552(b)(4); and/or
(c) the information withheld is
deliberative process, e.g., it consists of
preliminary thoughts and assessments, reflects the
candid exchange of ideas, and/or consists of
uncoordinated intra- and inter-agency draft(s) and
is therefore exempt from disclosure pursuant to
FOIA exemption (b)(5), 5 U.S.C. ? 552(b)(5); and/or
(d) the information contains third-party
names and/or other identifying information that if
disclosed, would constitute a clearly unwarranted
invasion of personal privacy and is therefore
exempt from disclosure pursuant to FOIA exemption
(b)(6), 5 U.S.C. ? 552(b)(6); and/or
(e) the information withheld was compiled
for law enforcement purposes the release of which
could reasonably be expected to constitute an
unwarranted invasion of personal privacy and is
therefore exempt from disclosure pursuant to FOIA
exemption (b) (7) (C) , 5 U.S.C. ? 552(b) (7) (C) .
6. The CIA reviewed carefully all of the
documents containing information responsive to
Plaintiff's request to determine what information,
if any, could be released to Plaintiff. As of the
 date of this Declaration, the CIA has released to
Plaintiff all reasonably segregable, non-exempt
information that is responsive to Plaintiff's
request.
7. With regard to six documents that the CIA
has withheld in full, I have determined that no
reasonably segregable, non-exempt portion of those
documents could be released. My determination of
segregability was made based upon a careful review
of the documents in this case, both individually
and as a whole. When reviewing individual
documents, a line-by-line review was conducted of
each document at issue to identify and release
reasonably segregable, non-exempt portions of
documents.
8. The purpose of this Declaration is to
explain the CIA's responses to Plaintiff's request
for information under the FOIA. For the Court's
convenience, I have divided this Declaration into
three parts:
 a. In Part I, I will briefly
summarize Plaintiff's FOIA request and its
procedural history.
b. In Part II, I will describe the
CIA's search for information responsive to
Plaintiff's request.
c. In Part III, I will describe the
applicable FOIA exemptions (b)(3), (b)(4),
(b) (5) , (b) (6) and (b) (7) (C) invoked to
withhold certain information contained in
records responsive to Plaintiff's request and
explain why this information is exempt from
disclosure.
Finally, I have attached a Vaughn index that
describes the individual documents, lists the
applicable FOIA exemptions, and identifies the
categories of exempt information discussed in part
III contained in each.
 I. SUMMARY OF PLAINTIFF'S FOIA REQUEST
9. By letter dated October 8, 2003, after
noting that in November 1997, "the NTSB and FBI
released the CIA-produced video-animation of Flight
800 continuing to fly, over 3,000 up," after nose
separation, Mr. Lahr requested "all records upon
which this publicly released aircraft flight path
climb conclusion was based, and the 105 FOIA
requests are itemized in the enclosed Excel
printout" (30 pages). Plaintiff did not request
expedited processing or identify any exceptional
need or urgency in processing. (A true and exact
copy of the Lahr FOIA request is attached as
Exhibit 1.)
10. By letter dated October 20, 2003, the CIA
acknowledged receipt (by facsimile and regular
mail) of Mr. Lahr's request and assigned it
reference number F-2004-00078 for identification
purposes. The letter went on to inform Mr. Lahr
that "[O]ur analysts will review your request, and
 we will advise you of any problems. . .or whether we
can search without any additional information." (A
true and exact copy of CIA's letter, dated October
20, 2003, is attached as Exhibit 2.)
11. On November 6, 2003, Plaintiff filed the
instant complaint with the Court. The CIA
subsequently filed a motion to stay the proceedings
to allow for the orderly processing of Plaintiff's
request in accordance with Agency regulations
employing "first in, first out" processing of FOIA
requests. The Court granted the Agency's motion to
stay the proceedings on May 13, 2004, and directed
the CIA inter alia to complete "its processing of
CIA-originated records (not requiring third agency
coordination)", and to "provide a written response
to plaintiff" by February 28, 2005.1
12. By letter dated February 28, 2005, the
CIA informed Plaintiff that a thorough search for
' In addition, the CIA was directed to file a status report with the
Court on March 14, 2005, "as to the status of ... any records where
coordination with other agencies was necessary if such coordination was
not completed by February 28, 2005," and to propose "the date by which
the Vaughn index will be filed."
 records responsive to his request had been
conducted and that "processing included a search
for records in existence as of October 8, 2003."
The CIA enclosed with this letter 42 documents, 27
of which were released in their entirety, and 15
(including two located by the National
Transportation Safety Board and referred to CIA),2
which were released in segregable form with
deletions made on the basis of FOIA exemptions
(b) (3) , (b) (6) , and/or (b) (7) (C) . The CIA also
informed requester that additional material had
been located which required the CIA to consult with
other federal agencies or to refer documents to the
originating agencies for their review and direct
response to him. (A true and exact copy of the
CIA's letter, dated February 28, 2005, is attached
as Exhibit 3.)
13. On March 14, 2005, in accordance with the
Court's May 14, 2004 Order, the CIA filed a status
2 In response to Mr. Lahr's FOIA request to the NTSB (Request #2004-
0027) that agency located two CIA-originated records which it referred
to the CIA for review and direct response to the requester. These
documents were included with the CIA's 28 February 2005 response.
 report addressing the status of records in
coordination as of February 28, 2005. At that
time, the CIA proposed filing, on or before June
20, 2005, a Vaughn index covering such records ("if
the coordination process has been completed as to
those records by the time the indices are filed")
as well as those "records released by CIA with
redactions on February 28, 2005, and the record
originated by Boeing."
14. By letter dated June 17, 2005, the CIA
provided to Plaintiff fifteen documents, of which
six were released in their entirety, and nine were
released in segregable form. The CIA also
determined that six documents were exempt from
release pursuant to FOIA exemptions (b)(3), (b)(4),
(b) (5) , (b) (6) and/or (b) (7) (C) . In addition, the
CIA informed requester that additional material
requiring consultation with other federal agencies
 had been subsequently identified.3 A true and
exact copy of the June 17, 2005, letter is attached
hereto as Exhibit 4.
II. CIA'S SEARCH FOR RESPONSIVE RECORDS
15. The purpose of this part of the
Declaration is to explain the CIA's records systems
and the administrative processing of FOIA requests
and hereby assure this Court that the CIA conducted
an adequate search in response to Plaintiff's
request.
16. The CIA's records systems are designed to
support the CIA's intelligence activities and
responsibilities. In short, they are diverse,
decentralized and compartmented. The CIA's ability
to retrieve data from a given records system
depends upon the type of information stored in that
system and the way the system is designed to
3 Seven documents are currently in coordination with other agencies. As
noted in this letter, a number of documents were inadvertently not
addressed in earlier response [or, as a result, in the March status
report]. Also, additional responsive documents were identified as a
result of the review or coordination process.
 retrieve that information. Records systems and
indexing systems vary among CIA components because
they must reflect, and respond to, the established
responsibilities and needs of those individual CIA
components. For example, various CIA records
systems are organized to facilitate the collection
of intelligence and others to facilitate the
analysis of intelligence information, depending on
the missions of the particular CIA component.
17. In addition, prudence dictates that an
intelligence agency take appropriate
counterintelligence and security precautions to
minimize the potential damage to national security
that could result from a spy in its midst or other
hostile intrusion. One way to minimize such damage
is strictly to limit the amount of information to
which any particular employee has access by
employing a "need-to-know" policy, i.e., an
employee only has access to that information
required to perform his/her duties. The CIA
 implements this policy, and also seeks to minimize
the risks of technical penetration, by
decentralizing and compartmenting its records
systems. However, improved counterintelligence and
security comes with some tradeoffs, namely, that
records search and retrieval processes are
inherently complex and not always a model of
efficiency.
18. All CIA records are maintained by one of
four directorates and the independent offices and
other entities under the Director, Central
Intelligence Agency (D/CIA): the Directorate of
Intelligence (DI), the Directorate of Operations
(DO), the Directorate of Science and Technology
(DS&T), the Directorate of Support (DS), and the
D/CIA Area.
19. The CIA has the following established
procedures for processing FOIA requests. The
Public Information Programs Division (PIPD) in the
office of Information Management Services is the
 initial reception point in the Agency for all FOIA
requests received by the CIA. Experienced
information management professionals in PIPD
analyze each request and determine which
directorates of the CIA might reasonably be
expected to possess records that may be responsive
to a particular request. PIPD then forwards copies
of the requester's letter to each such component
with instructions that a search be conducted for
any responsive documents. Components then conduct
searches among all of their respective indices that
might reasonably be expected to have any
information relating to the subject(s) of the
request. Component personnel responsible for
carrying out these searches are information
management professionals who conduct all CIA
searches, whether they are for another component of
the Agency, the Director, the Department of
Justice, Congress, or in response to a FOIA or PA
request.
 20. The CIA processed Plaintiff's request
following the same procedures as set forth above.
That is, the request was received by PIPD, reviewed
by PIPD personnel expert in the tasking of record
searches, and tasked to the component(s) reasonably
likely to have responsive records.
21. In the instant case, the search focused
on the one directorate -the DI-- determined to be
reasonably likely to have records responsive to the
Plaintiff's request. Given the nature of their
respective missions, functions, and records
systems,4 as well as the nature of the information
sought, i.e., the underlying information on which a
DI analytic product was based, no other directorate
4 The DO is the CIA component responsible for the clandestine collection
of foreign intelligence information from human sources. The DO system
of records contains information on persons who are of foreign
intelligence or counterintelligence interest to the CIA and other U.S.
Government agencies. The DS&T is the R&D arm of the CIA; it creates
and applies technology in support of the intelligence collection
mission. The DS&T also houses the Foreign Broadcast Information
Service, which publishes foreign media reports. The DS is the
principal administrative and support arm of the CIA. It maintains,
inter alia, records on all current and former employees of the CIA as
well as other individuals for whom security processing or evaluation
was required, property of the CIA and financial operations. The D/CIA
Area encompasses the Office of the Director and independent offices and
components, such as the Offices of General Counsel, Inspector General,
Congressional Affairs, and Public Affairs, which report to the
Director.
 would be reasonably likely to possess responsive
records. Accordingly, PIPD tasked the DI, i.e.,
Plaintiff's request was sent to me as the DI/IRO,
to oversee the search and to ensure that all
appropriate records searches were conducted.
22. As noted above, the DI is the CIA
component that analyzes, interprets, and forecasts
foreign intelligence issues and world events of
importance to the United States. It is responsible
for the production of finished intelligence reports
for dissemination to policymakers in the United
States government. The DI is the component within
the CIA that produced the video referenced in
Plaintiff's FOIA request.
23. DI personnel trained to conduct FOIA
searches and other record searches, and who conduct
such searches as part of their regular
responsibilities, conducted a thorough and diligent
search of the automated DI records system. No
 responsive information was located in the automated
records systems at the directorate level.
24. Because searches of the DI automated
records system had located no responsive
information (and due to the atypical nature of the
project),5 my office tasked the request to the
Office of Transnational Issues in the DI.6 Under
the direction of a senior OTI weapons analyst (who
was one of the principal analysts on the TWA-800
team), office and individual analyst files,
including local databases, e-mail, and desk files,
were searched for information on the TWA-800
5 At the request of the FBI and in accordance with its charter
(international terrorism is an authorized CIA area of analysis), CIA
weapons analysts in the Office of Weapons, Technology and Proliferation
(and, following a reorganization, the Office of Transnational Issues or
OTI) focused on determining whether the eyewitnesses saw a missile,
i.e., determining what the eyewitnesses had seen. The CIA inquiry was
very limited in scope, i.e., explain what the eyewitnesses saw (not
what happened to the aircraft). The CIA is not an investigative body
and was not the investigating the accident. Federal investigators
considered three possibilities for the cause of the crash: mechanical
failure, a bomb and a missile. The possibility that a missile caused
the crash was considered seriously because many eyewitnesses described
what could have been a missile ascending toward the aircraft.
Accordingly, the FBI sought the assistance of the CIA to determine what
the eyewitnesses had seen, i.e., whether or not it was a missile (as
part of the FBI's investigation into whether or not the crash was the
result of a criminal act).
6 As noted in the April 2004 Tate Declaration (paragraph 13), when a
request, such as the Plaintiff's, "seeks underlying information, which
is not readily identified", the only option may be manual searches of
individual analyst "shoe-box" files (or the equivalent thereof), if
indeed, such searches are even feasible.
 project as a whole. Once assembled, these records
were then forwarded to my office, where members of
my staff who were familiar with Plaintiff's
request, then manually searched the TWA-800
"collection" for information responsive to
Plaintiff's request, i.e., "records upon which this
publicly released aircraft flight path climb
conclusion was based." This material was
specifically searched for information describing,
calculating, or analyzing the climb of the
aircraft.
25. All reasonable efforts were made to
identify, retrieve, and process the records
responsive to Plaintiff's FOIA request.' In fact,
members of my staff followed up on information that
surfaced as a result of review and/or coordination,
and completed a second pass through the TWA-800
records, which subsequently identified additional
7 The members of my staff were familiar with Plaintiff's request,
general as well as specific; however, the specifically enumerated
items did not add anything to the general request or alter the
parameters of the search. Moreover, most of the specifically
enumerated items were unintelligible, did not reasonably describe
records in terms of the CIA, or sought records, which if they existed,
could only be located at the NTSB.
 responsive material. In all, approximately 100
responsive records were located. Fifty-seven
records were released to Plaintiff in whole or in
part (with minimal information redacted) and six
were withheld in full. Thirty-two documents were
referred to other agencies8 for their review and
direct response to requester.
III. APPLICABLE FOIA EXEMPTIONS AND
JUSTIFICATIONS
A. FOIA Exemption (b)(3)
26. Many of the instances where information
has been withheld (numerous instances, but minimal
redactions) concern CIA organizational, functional,
8 As the CIA previously indicated in the 14 March 2005 status report
required by the Court's May 13, 2004 order, 30 documents were referred
to other agencies for their review and direct response to requester.
Upon further review, additional documents were identified that required
referral to or coordination with other agencies. As was stated in the
CIA produced video and discussed at some length in the 84-page
"Transcript of the CIA Briefing to the Witness Group", April 30, 1999,
NTSB Docket No. SA-516, Appendix FF, (available on the NTSB public web
site), the principal underlying sources of information utilized by CIA
were eyewitness reports, radar tracking data, and certain NTSB
observations regarding the cockpit voice recorder and flight data
recorder, which were provided to CIA by the FBI (see pages 4-5, of
aforementioned CIA Briefing). This both accounts for the relatively
high proportion of records requiring coordination or referral, and it
also explains CIA's response in January 2001 to Mr. Lahr's earlier
request, wherein he was referred to the FBI and NTSB (and may also
explain NTSB's subsequent negative response to Plaintiff since the NTSB
information used by CIA in the production of the video was originally
provided to CIA by the FBI and not directly by NTSB.)
 and personnel information and is thus exempt from
disclosure pursuant to FOIA exemption (b)(3).
Exemption (b)(3) states that the FOIA does not
apply to matters that are:
Specifically exempted from disclosure from
disclosure by statute (other than ?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.
27. Certain information was withheld from
disclosure pursuant to FOIA Exemption (b)(3) and
the Central Intelligence Agency Act of 1949, 50
U.S.C.A. 403(g) (West Supp. 2004). Section 6.of
this Act9 provides that the CIA shall be exempt
from the provision of any other law requiring the
publication or disclosure of information regarding
the organization, functions, names, official
titles, salaries, or numbers of personnel employed
9 Section 6 provides in part that "... in order to further implement
Section 103(c)(7) of the National Security Act of 1947 [re the
protection of intelligence sources and methods from unauthorized
disclosure] ... the Agency shall be exempted from ... the provisions of
any other laws which require the publication or disclosure...." Both
statutes have been held to meet the requirements of ? 552(b)(3).
 by the CIA. Accordingly, CIA employees names and
personal identifiers (e.g., employee signatures or
initials), titles, functional information,
including an intelligence method, and internal
organizational data, have been deleted from the
documents at issue.
28. The names of CIA employees are withheld
because the Agency does not routinely disclose the
identity and affiliation of its employees who may
come into public view during the course of their
duties. Such employees may have in the past served
under cover or in sensitive positions or
operations, may be doing so now, or may do so in
the future. Revelation of their affiliation with
the CIA could compromise past, present, or future
intelligence operations or activities, identify
them as targets for recruitment by hostile
intelligence services, impair the usefulness of
such individuals to the Agency, or place their
lives, the lives of members of their families, and
 the lives of intelligence sources they have worked
with, in jeopardy. This rationale also applies to
other information that would tend to identify a CIA
officer, such as signatures and initials. The
nature and extent of this information is clearly
evident on the face of the released documents from
the surrounding context, e.g., addresses/senders,
"to" and "from" lines, and recipients of "cc" email
messages.
29. Generally, intelligence methods are the
means by which, and the manner in which, an
intelligence agency accomplishes its mission, i.e.,
carries out its functions. Some intelligence
methods are commonly utilized in intelligence work;
other methods may be uniquely employed by an
intelligence agency. Often, the fact that a
particular intelligence method is utilized, as well
as the details of its use, must be protected from
unauthorized disclosure.
 30. Detailed knowledge of the methods and
practices of an intelligence agency must be
protected from disclosure because such knowledge
would be of material assistance to those who would
seek to penetrate, detect, prevent, or damage the
intelligence operations of the United States. The
result of disclosure of a particular intelligence
method can lead to the neutralization of that
method, whether the intelligence methods are those
used for the collection of intelligence
information, the conduct of clandestine activities,
or those techniques utilized in the analysis and
evaluation of intelligence information. That is,
public disclosure of information concerning
intelligence methods would allow anyone in the
public to pinpoint the actual intelligence methods
at issue, thereby possibly compromising the past
and future value of the particular methods.
31. Additionally, the titles or other
organizational identifiers and filing instructions
 of CIA internal organizational components have been
deleted.
32. The aforementioned information has been
withheld to prevent detailed knowledge of CIA
personnel, structure, organization, functions,
including the means to carry out those functions,
and procedures from becoming publicly available and
possibly used as a tool for hostile penetration or
manipulation. Such information falls under the CIA
Act of 1949, 50 U.S.C.A. ? 403g, and is, therefore,
properly exempt from disclosure pursuant to FOIA
Exemption (b) (3) .
B. FOIA Exemption (b)(4)
33. FOIA Exemption (b)(4), 5 U.S.C.
?552(b)(4) protects (1)"trade secrets" and
(2)"commercial or financial information obtained
from a person [that is] privileged or
confidential." This exemption is intended to
protect the interests of both the government and
the submitters of information. Commercial or
 financial information is confidential if its
disclosure is likely (1) to impair the government's
ability to obtain necessary information in the
future or (2) cause substantial competitive harm to
the submitter of the information.
34. Certain information in this case was
withheld because it is commercial or financial
information which was identified as proprietary
information and voluntarily submitted by a person,
i.e., the Boeing Company, and is privileged or
confidential, i.e., of a kind that would not
customarily be released to the public by the
submitter. Business information obtained by the
CIA from a submitter, "any person or entity who
provides confidential commercial information to the
United States Government" shall not be disclosed
pursuant to a FOIA request except in accordance
with 32 C.F.R. ? 1900.31, which requires notice to
the submitter (with limited exception).10
10 Notice to such submitters is also required by Executive order 12600,
52 Fed. Reg. 23781 (June 23, 1987).
 35. Accordingly, by letters dated February 24,
2005 and March 1, 2005, the CIA provided notice to
the Boeing Company of Plaintiff's request and
identified the responsive information. With one
exception, Boeing through its counsel reiterated
the confidential, proprietary nature of the
information it had previously submitted,
identifying "trade secrets" and/or "confidential
business and technical information" regarding the
baseline mass properties, aerodynamic and engine
characteristics of the Boeing Model 747-100
aircraft" and detailing the substantial competitive
harm that it would suffer if the information were
to be disclosed. Attached hereto as Exhibit 5 is a
true and exact copy of the declaration from Richard
S. Breuhaus, Chief Engineer of Air Safety
Investigation for the Boeing Company" attesting to
11 The records to which Mr. Breuhaus
attached. The referenced documents
trade secrets or confidential commercial
be exempt from release pursuant to other
specific MORI numbers to which he refers
step in administrative processing, i.e.,
made, and the MORI number of record
affixed.
refers by "MORI number" are not
contain information (other than
information) which is or may
FOIA exemptions. Also, the
are preliminary until the last
the final release decision is
 the preceding and certifying the protections Boeing
takes to ensure such information is not disclosed
publicly.
36. I have reviewed the documents12 in
question, the correspondence from counsel for the
Boeing Company, and the Declaration of Mr.
Bruehaus. As a result, I have determined that
certain information responsive to this request
consists of trade secrets or confidential business
information, voluntarily submitted to the U.S.
Government, by a person and is therefore
appropriately withheld pursuant to FOIA exemption
(b) (4) .
C. FOIA Exemption (b)(5)
37. FOIA Exemption (b)(5), 5 U.S.C.
? 552(b)(5), provides that the FOIA does not apply
to matters that are "inter-agency or intra-agency
12 Eight documents identified in the accompanying index were withheld in
whole or in part pursuant to FOIA exemption (b)(4). Two records were
originated and transmitted by Boeing to the U.S. Government: one was
released in full and one was withheld in its entirety. The remaining
documents were originated by the CIA and contained information provided
by Boeing to the U. S. Government.
 memorandums or letters which would not be available
by law to a party other than an agency in
litigation with the agency." The scope of
Exemption (b)(5) is quite broad, incorporating
virtually all civil discovery privileges, including
specifically the deliberative process privilege.
38. The deliberative process privilege
protects the internal deliberations of the
government by exempting from release
recommendations, analyses, speculation and other
non-factual information prepared in anticipation of
or as part of decision-making, i.e., predecisional.
Exemption 5 allows for the withholding of material
that contains or was prepared in connection with
the formulation of opinions, advice, evaluations,
deliberations, policy formulation, proposals,
conclusions, or recommendations, i.e., reflect the
give and take of the consultative or decisionmaking
process. Release of this type of information would
 have an inhibitive effect upon the development of
policy and administration in the government.
39. Certain information withheld from release
in this case is protected by the deliberative
process privilege, i.e., it is information
representing recommendations or opinions of agency
personnel on matters preceding final agency action.
The information consists of candid internal
discussions and judgments, including e-mail
messages between analysts reflecting the candid
"give-and-take" inherent in any collaborative,
analytic process, draft memorandum, preliminary
assessments, and recommendations and proposed
statements and answers addressing various options
and issues, and reflect in some instances internal
CIA, and in others inter-agency, deliberations.
This information is properly withheld pursuant to
FOIA Exemption (b)(5).
40. Factual material was examined carefully
to determine whether it could be segregated and
 released. However, in some instances given the
nature of underlying event and the analytic effort
to determine what the eye witnesses saw, what
constitutes "facts" in this scenario has become the
warp and woof of deliberative process, i.e., is an
integral part of the deliberative process itself.
And, in some instances, the facts are so
inextricably intertwined with privileged
deliberations that they cannot reasonably be
segregated and released.
41. Because Plaintiff's request seeks
information about an analytic process, which is
inherently deliberative, much of the underlying
documentation contains information which qualifies
for withholding under FOIA exemption (b)(5). While
preliminary analyses and/or reflections of
analytical "give-and take" would be validly exempt,
in several instances the CIA determined that there
was no significant harm in releasing certain e-mail
 and analytic notes, and accordingly made
discretionary releases.
42. Notwithstanding the preceding, I have
determined that all other material that is pre-
decisional deliberative information, consisting
largely of uncoordinated or draft memorandums and
other documentation reflecting candid exchanges,
e.g., e-mail, analyst notes, etc., and
deliberations within, between and among agencies,
is appropriately withheld pursuant to Exemption
(b) (5) .
D. FOIA Exemption (b)(6)
43. FOIA Exemption (b)(6), 5 U.S.C.
552(b)(6), provides that FOIA does not apply to
matters that are "personnel and medical files and
similar files, the disclosure of which would
constitute a clearly unwarranted invasion of
personal privacy." The CIA has withheld certain
information on the grounds that the information, if
disclosed, would constitute a clearly unwarranted
 invasion of the personal privacy of third parties.
Specifically, the information withheld would reveal
the names and other identifying information about
these third parties.
44. The threshold question for invoking FOIA
Exemption (b)(6) is whether the particular
information in question qualifies as "personnel,"
"medical," or "similar" files. Information that
applies to or describes a particular individual
meets the threshold requirement for FOIA Exemption
(b)(6) protection. Here, the information at issue
identifies the names of, and/or identifying
information, about specific individuals, including
CIA employees and other Federal employees as well
as private citizens. Certain of this information,
i.e., names or identifying information of
eyewitnesses and FBI special agents and other
investigative and support personnel is also
withheld at the request of the FBI. (As discussed
below, such information is also withheld pursuant
 to FOIA exemption (b)(7)(C).) I have therefore
determined that the names of the third parties
and/or their identifying information qualify as
"similar" files and are thus amenable to (b)(6)
protection.
45. Once the threshold issue of "similar"
files has been met, one must balance the interests
between the safeguarding of an individual's private
affairs from unnecessary public scrutiny against
the public's right to government information. In
each instance where information was withheld, it
was determined that that'the individual did have a
privacy right and that the individual's privacy
interest was not outweighed by any public interest.
In all such instances, I was unable to identify any
overriding public interest that would require
disclosing the names of affected third parties or
other identifying information about them.
46. Even if some minuscule public interest
would be served by the disclosure of the third
 party information withheld in this case, the
balance would still tilt dramatically against
disclosure of the information. The nature of this
information -- the names of and identifying
information about third parties, in this case, CIA
employees, FBI special agents, and private
citizens, i.e., Boeing employees13 and eyewitnesses
-- is such that disclosure would clearly violate
the personal privacy of the third parties. At the
very least, all of these individuals have a privacy
interest in not being subjected to unofficial
questioning about the analytic project or
investigation at issue and in avoiding annoyance or
harassment in their official, business, and private
lives.
47. Consequently, because privacy interests
clearly outweigh the negligible public interest
arguably served by disclosure of the information, I
13 In addition, names of and identifying information about Boeing
employees is also protected under FOIA exemption (b)(4) in that these
individuals have access to or knowledge of commercially valuable
proprietary data that may be of interest to the public in general and
to economic competitors in particular.
 have determined that this third party information
is properly exempt under FOIA exemption (b)(6).
E. FOIA Exemption (b)(7)(C)
48. FOIA Exemption (b)(7)(C), 5 U.S.C. ?552
(b)(7)(C), authorizes the Government to withhold
records or information "compiled for law
enforcement purposes" if the production of such law
enforcement records or information "could
reasonably be expected to constitute an unwarranted
invasion of personal privacy."
49. A balancing test is applied when asserting
exemption (b)(7)(C), which requires an agency to
identify and evaluate the privacy interest, if any,
implicated in the requested records. When a
personal privacy interest is identified, the second
step in the balancing process requires an
assessment of the public interest in disclosure.
When both the privacy interest at stake and the
public interest in disclosure have been
ascertained, it must be determined which is the
 greater result of disclosure: harm to personal
privacy or the benefit to the public. The only
FOIA-recognized public interest is that which sheds
light on the operations and activities of the
federal government.
50. The information at issue in this case was
clearly compiled for law enforcement purposes. The
possibility that the explosion of TWA Flight 800
with the loss of all 230 passengers and crew on
board may have been the result of a criminal act
precipitated what was at that time the most
expensive criminal investigation in U.S. history.
Of particular concern to FBI investigators were the
reports they compiled from dozens of eyewitnesses
who reported seeing on the evening of July 17,
1996, a "flare or firework" ascend and culminate in
an explosion. Thus, it was as part of this
investigation that the FBI requested the assistance
 of CIA weapons analysts in determining what these
eyewitnesses saw.14
51. Certain information contained in CIA
records was withheld at the request of the FBI,
i.e., names and identifying information of FBI
special agents and employees as well as other
government officers and private citizens who were
eyewitnesses interviewed by the FBI as part of its
criminal investigation.
52. The privacy interests of these
individuals are detailed above (see paragraphs 35-
37). As also discussed above, disclosure of the
identities of these individuals would shed no light
on the operations or activities of the FBI or the
federal government. Consequently, because privacy
interests clearly outweigh the negligible public
interest that might arguably be served by the
14 Not only were the individual eyewitness reports and other information
provided by the FBI to CIA complied for law enforcement purposes, but
the records at issue in this case as a whole could be considered an
part of the FBI's criminal investigation inasmuch as the CIA's
assistance was requested by the FBI as part of its criminal
investigation.
 disclosure of this information, which was compiled
for law enforcement purposes, I have determined
that the information should not be disclosed
pursuant to FOIA exemption (b)(7)(C).
53. At the time of this Declaration, there
are approximately seven records in coordination
with other Executive Branch departments or
agencies. Once the consultation process is
complete, we will provide a supplemental response
to the Plaintiff.
54. The attached Document Disposition Index
addresses the thirty documents which have been
withheld in whole or in part. Each entry contains a
brief description of the document, a listing of the
exemptions claimed, and a description of the
information withheld.
 '6-17-205 1_08PM FROM
I declare under penalty of perjury that the
foregoing is true and correct.
Executed this 22 day of June 2005.
'Terry N. Buroker
Information Review Officer,
Directorate of Intelligence,
Central Intelligence Agency