F-2015-02398 SHINER DECLARATION 03/01/2017

• Document Type: FOIA
• Collection: FOIA Collection
• Document Number (FOIA) /ESDN (CREST): 06672504
• Release Decision: RIFPUB
• Original Classification: U
• Document Page Count: 13
• Document Creation Date: July 13, 2023
• Document Release Date: November 7, 2022
• Case Number: F-2017-01848
• Publication Date: March 1, 2017

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF WASHINGTON
AT TACOMA
LESLIE
G. KINNEY,
)
)
Plaintiff,
)
)
v.
)
Civil Action
3:16-cv-5777
(BHS)
)
Central
Intelligence Agency,
)
)
Defendant.
)
)
DEC TION OF ANTOINETTE B. SHINER
INFORMATION REVIEW OFFICER
FOR THE LITIGATION INFORMATION REVIEW OFFICE
CENTRAL INTELLIGENCE AGENCY
I, ANTOINETTE B. SHINER, hereby declare and state:.
I. INTRODUCTION
1. I currently serve as the Information Review Officer
("IRO") for the Litigation Information Review Office ("LIRO") at
the Central Intelligence Agency ("CIA" or "Agency"). I assumed
this position in January 2016.
2. Prior to becoming the IRO for LIRO, I served as the
IRO for the Directorate of Support for over sixteen months. In
that capacity, I was responsible for making classification and
release determinations for information originating within the
Directorate of Support. Prior to serving in the Directorate of
Support, I was the Deputy IRO for the Director's Area of the CIA
("DIR Area") for over three years. In that role, I was
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responsible for making classification and release determinations
for information originating within the DIR Area, which included,
among other offices, the Office of the Director of the CIA, the
Office of Congressional Affairs, the Office of Public Affairs,
and the Office of General Counsel. I have held other
administrative and professional positions within the CIA since
1986, and have worked in the review and release field since
2000.
3. I am a senior CIA official and hold original
classification authority at the TOP SECRET level under written
delegation of authority pursuant to section 1.3(c) of Executive
Order 13526, 75 Fed. Reg. 707 (Jan. 5, 2010). This means that I
am authorized to assess the current, proper classification of
CIA information, up to and including TOP SECRET information,
based on the classification criteria of Executive Order 13526
and applicable regulations.
4. Among other things, I am responsible for the
classification review of CIA documents and information that may
be the subject of court proceedings or public requests for
information under the Freedom of Information Act ("FOIA"), 5
U.S.C. � 552, and the Privacy Act of 1974, 5 U.S.C. � 552a.
5. Through the exercise of my official duties, I have
become familiar with this civil action and the underlying FOIA
request. I make the following statements based upon my personal
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knowledge and information made available to me in my official
capacity. The purpose of this declaration is to explain and
justify, to the greatest extent possible on the public record,
the CIA's actions in responding to Plaintif s FOIA request.
II. PLAINTIFF'S FOIA REQUEST
6. By letter dated 3 August 2015, the Plaintiff, Leslie
Kinney, submitted a FOIA request to the CIA seeking "the
personnel file, and any and all other documents related to James
Harold Nichols." Plaintiff states that James Harold Nichols,
"worked for the Office of Strategic Services (OSS)' during World
War II." The Agency received the request on 18 August 2015. A
copy of the letter is attached as Exhibit A.
7. By letter dated 3 September 2015, the CIA provided a
final response to Plaintiff's request. The Agency processed the
request, searching for records that would reveal an openly
acknowledged, unclassified affiliation between the subject of
the request and the Agency. The CIA did not find any responsive
records as a result of that search. With respect to records
that would reveal a classified connection to the Agency, the CIA
issued a "Glomar".response,2 indicating that the CIA could
f'
1 The OSS was the predecessor organization to the Central Intelligence Agency.
The OSS was abolished in 1945.
2 The origins of the Glomar response date back to the D.C. Circuit's decision
in Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), which affirmed the CIA's
use of the "neither confirm nor deny" response to a FOIA request for records
concerning the CIA's reported contacts with the media regarding Howard
HugheS' ship the Hughes' Clomar Explorer.
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neither confirm nor deny the existence or nonexistence of
records responsive to the request, as the fact of the existence
or nonexistence of records was properly classified and protected
from disclosure under FOIA exemptions (b)(1) and (b) (3). The
letter also stated that CIA maintains a copy of the roster of
OSS personnel and Mr. Nichols' name did not appear on the list.
A copy of the letter is attached as Exhibit B.
8. On 15 September 2015, Plaintiff filed an
administrative appeal requesting clarification of CIA's final
response; specifically, whether a conclusive search of both CIA
and OSS records was conducted and the results from that search
were negative. A copy of the letter is attached as Exhibit C.
9. By letter dated 21 April 2016, CIA's Agency Release
Panel (ARP) issued a final response to Plaintiff's appeal,
denying it in full. The ARP determined a reasonable search had
been conducted to "uncover material responsive to the request
and was unable to locate any responsive records." In addition,
the ARP upheld the Agency's initial action to neither confirm
nor deny the existence or nonexistence of other records that
might reveal a classified connection to the CIA. A copy of the
letter is attached as Exhibit D.
10. On 12 September 2016, Plaintiff filed the instant
complaint.
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III. CIA'S SEARCH FOR UNCLASSIFIED RECORDS
11. The CIA's search was limited to records that would
reveal an open or acknowledged relationship between James
Harold Nichols and the CIA. Given that plaintiff indicated
that he believed that the subject of his request, James Harold
Nichols, worked for the OSS, the Agency looked to its
historical holdings. The CIA has transferred all of its OSS
personnel records to the National Archives and Records
Administration (NARA), but maintains a copy of the OSS
personnel list. The CIA reviewed the OSS list and confirmed
that Mr. Nichols' name did not appear.
12. The CIA also conducted a search of records that would
indicate that Mr. Nichols maintained an unclassified
association with the Agency. The CIA employees who performed
the necessary searches have access to the pertinent records,
are qualified to search those records and regularly search
those records in the course of their professional duties.
13. First, the Agency searched for any previously released
records on Mr. Nichols and found no responsive records.
Second, based upon this search, and analysis of the subject
matter of the request, the Agency determined the Directorate of
Operations (D0)3 and the Director of the CIA's Area (DIR)4 were
3 The DO is the organization within the CIA responsible for the clandestine
collection of foreign intelligence from human sources.
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the directorates most likely to maintain records responsive to
the request because they were the most likely to maintain
records reflecting an overt employment or contractual
relationship between Mr. Nichols and the CIA.
14. The search was conducted using the name "James Harold
Nichols", "James H. Nichols," and "James Nichols" as search
terms, but, ultimately, no responsive records were found.
However, with regard to any records responsive to Plaintiff's
FOIA request that would reveal a classified connection to the
CIA, the Agency invoked the Glomar response, refusing to
confirm or deny the existence or nonexistence of such records.
As discussed in more detail below, the existence or
nonexistence of records revealing a classified connection to
the CIA is itself a properly and currently classified fact that
could reveal clandestine CIA intelligence activities, sources
and methods.
IV. EXEMPTIONS CLAIMED
15. As explained below, the CIA can neither confirm nor
deny the existence or nonexistence of records responsive to
Plaintiff's FOIA request pursuant to FOIA Exemptions (b)(1) and
(b)(3).
4 The DIR area is a cluster of offices under the Director of the CIA, such as
the Office of General Counsel, the Office of Public Affairs and the Office of
Inspector General.
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A. FOIA Exemption (b)(1)
16. Exemption (b) (1) provides that FOIA does not require
the production of records 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. � 552(b)(1). Here, Executive Order
13526 is the operative executive order that governs
classification.
17. Pursuant to a written delegation of authority in
accordance with Executive Order 13526, I hold original
classification authority at the TOP SECRET level. Therefore, I
am authorized to conduct classification reviews and to make
original classification decisions. Consistent with section
1.1(a) and 3.6(a) of Executive Order 13526,5 and as described
below, I have determined that the fact of the existence or
nonexistence of the requested records is currently and properly
classified.
18. I further note that the Agency's response in this
matter has not been made to conceal violations of law,
inefficiency, or administrative error; to prevent embarrassment
5 Section 1.1(a) sets forth procedural standards for classification, which
have been satisfied in this case. Section 3.6(a) provides that, "[a]n agency
may refuse to confirm or deny the existence or nonexistence of requested
records whenever the fact of their existence or nonexistence is itself
classified under this order or its predecessors."
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to a person, organization, or agency; to restrain competition;
or to prevent or delay the release of information that does not
require protection in the interests of national security.
19. As explained below, the Agency refuses to confirm or
deny maintaining records that would show a classified
association with the CIA in conjunction with Exemptions 1 and 3,6
because disclosing that fact would tend to reveal "intelligence
activities (including covert action), [or] intelligence sources
or methods" within the meaning of section 1.4(c) and "foreign
relations or foreign activities of the United States" of the
Executive Order.
20. In the normal course, upon receiving a FOIA request,
'federal agencies conduct searches for responsive documents in
their holdings and provide the requester with any non-exempt
information contained in those records. However, given the
CIA's mandate to collect and analyze foreign intelligence and to
conduct counterintelligence, there are many instances where the
Agency cannot reveal whether or not it possesses responsive
records -- particularly where responding to a request would show
the CIA's intelligence interest in, or clandestine connection
to, a particular individual or activity. A defining
characteristic of the CIA's intelligence activities is that they
6 Exemption 3 protects information whose disclosure is specifically exempted
by statute. The CIA's assertion of the Glomar response in connection with
the National Security Act is discussed below.
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are typically carried out through clandestine means, and
therefore they must remain secret in order to be effective.
Responding to the substance of the request could jeopardize the
clandestine nature of the Agency's intelligence activities or
otherwise reveal previously undisclosed information about CIA
sources, capabilities, authorities, interests, relationships
with domestic or foreign entities, strengths, weaknesses, and/or
resources.
21. A primary function of the CIA is to gather
intelligence from around the world that can be used by the
President and other Government officials in making important
decisions. To fulfill this responsibility, the Agency depends
upon human sources to collect intelligence, identify or provide
access to others who may have intelligence information, and
.support CIA intelligence-gathering activities. Conversely, the
CIA also targets certain individuals as part of its foreign
intelligence collection efforts. Revealing the identity of a
confidential source or a target of collection could cause the
exposure of Agency tradecraft, other human sources, specific
intelligences interests and activities. Human sources can be
expected to furnish information to the CIA only when they are
confident that the CIA can and will do everything in its power
to prevent the public disclosure of their cooperation. In the
case of a person who has been cooperating with the CIA, official
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confirmation of that cooperation could cause the targets to take
retaliatory action against that person or against his family or
friends. It also places in jeopardy every individual with whom
the individual has had Contact. Thus, the indiscretion of one
source in a chain of intelligence sources can ravage an entire
spectrum of sources. As such, confirming or denying the
existence of records on a particular individual, like
Mr. Nichols, reasonably could be expected to cause serious
damage to U.S. national security by indicating whether or not
CIA maintained any human intelligence sources related to an
interest in the subject of the request.
22. I note that Plaintiff's request indicates that
Mr. Nichols lived from 1899 until 1960. Despite the fact that
any records about him would likely be older than 50 years old,
the harms outlined above still hold true. Although Executive
Order 13526 requires the automatic declassification of certain
records due to age, in recognition of the sensitivity of
sources, Section 3.3(h) (1) explicitly exempts information that
would "clearly and demonstrably be expected to reveal . . . the
identity of a confidential human source or a human intelligence
source" from the 50-year declassification provision.
Consistent with Section 3.3(h), I have determined that, in this
instance, any responsive records that contain information which
would reveal a classified connection with the Agency are exempt
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from automatic declassification and the Glomar response must be
asserted.
B. FOIA Exemption (b)(3)
23. FOIA exemption (b)(3) provides that 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. � 552(b)(3).
24. Section 102A(i)(1) of the National Security Act of
1947, as amended, 50 U.S.C. � 3024(i)(1) (the "National Security
Act"), provides that the Director of National Intelligence
("DNI"), "shall protect intelligence sources and methods from
unauthorized disclosure." Accordingly, the National Security
Act constitutes a federal statute which, "requires that the
matters be withheld from the public in such a manner as to leave
no discretion on the issue." 5 U.S.C. �552(b)(3). Under the
direction of the DNI pursuant to section 102A, and consistent
with section 1.6(d) of Executive Order 12333, the CIA is
authorized to protect CIA sources and methods from unauthorized
disclosure. Acknowledging the existence or nonexistence of
records reflecting a classified connection to the CIA in this
matter would reveal information that concerns intelligence
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sources and methods, which the National Security Act is designed
to protect.
25. Therefore, the fact of the existence or nonexistence of
records that would reflect a classified connection to the CIA is
exempt from disclosure under FOIA exemption (b)(3) pursuant to
the National Security Act. In contrast to Exemption (b)(1),
this statute does not require the CIA to identify and describe
the damage to the national security that reasonably could be
expected to result should the CIA confirm or deny the existence
or nonexistence of the records. Nonetheless, I refer the Court
to the paragraphs above for a description of the damage to the
national security should anything other than a Glomar response
be required of the CIA in this case. FOIA exemptions (b)(1) and
(b)(3) thus apply independently and co-extensively to the aspect
of plaintiff's request that would show a classified association
with the Agency.
V. CONCLUSION
26. In this case, the CIA conducted a thorough search for
responsive records reflecting an open or otherwise unclassified
connection to the subject of Plaintiff's request, Mr. Nichols,
and no records were found. For records that would reveal a
classified connection between Mr. Nichols and the CIA, the fact
of the existence or nonexistence of such records is itself a
properly classified fact and, as explained above, is intertwined
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with intelligence activities, sources, and methods such that
this fact is, and must remain, classified and protected by
statute. Accordingly, I have determined the only appropriate
response is for the CIA to neither confirm nor deny the
existence or nonexistence of the requested records under FOIA
exemptions (b)(1) and (b)(3).
I hereby declare under penalty of perjury that the
foregoing is true and correct.
Executed this day of March 2017.
Antoinette B. Shiner,
Information Review Officer,
Litigation Information Review Office,
Central Intelligence Agency
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