Case 1:12-cv-00049-RC Document 20 Filed 12/03/12 Page 1 of 17

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, and CENTRAL INTELLIGENCE AGENCY, Defendants.

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Civil Action No. 1:12-cv-00049-RC

DEFENDANTS REPLY IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT INTRODUCTION This Freedom of Information Act (FOIA) case has narrowed substantially since its inception. Plaintiff Judicial Watchs FOIA request sought from the Central Intelligence Agency (CIA) and Department of Defense (DoD) all records of communications between the agencies and the filmmakers Mark Boal and Kathryn Bigelow (the filmmakers) concerning a planned film about the killing of Osama bin Laden. The responsive records produced by the agencies were largely unredacted, included a 16-page transcript of a background interview between the filmmakers and Under Secretary of Defense Mike Vickers, and revealed that the agencies assisted the filmmakers to ensure the accuracy of the film. After the Governments production of responsive records, counsel for the parties negotiated plaintiffs challenges to the Governments redactions. In its opposition brief and cross-motion for summary judgment, plaintiff has now further narrowed its challenges. Plaintiff is now challenging only the withholding of the true first names of four undercover CIA officers

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who were involved in the planning for the raid that resulted in bin Ladens death and who met with the filmmakers, and the full name and rank of a DoD individual, also involved in the planning for the raid, who Under Secretary Vickers suggested the filmmakers talk to. Plaintiffs Memorandum of Law in Opposition to Defendants Motion for Summary Judgment and in Support of Plaintiffs Cross-Motion for Summary Judgment at 4, 6 (ECF No. 18) (Pl.s Opp.). Plaintiff has abandoned its challenge to the withholding of the last name of one of the four undercover CIA officers and the pseudonyms for two CIA undercover officers. Id. See also id. at 5-6 (plaintiff does not challenge the governments withholding of any classified information or seek its release in this lawsuit.). It has also dropped its challenge to the names in the DoD transcript that were suggested by one of the filmmakers, not by DoD. Id. at 6. Since DoD did not provide those names to the filmmakers, it could not have waived any exemptions for them. Defendants Motion for Summary Judgment at 11 (ECF No. 16) (Defs. Mtn.). Moreover, plaintiff concedes that the names it continues to challenge fall within FOIAs exemption (b)(3), but claims that the Government waived the protection of this exemption by sharing the names with the filmmakers. Id. at 7-8. With respect to exemption (b)(6), plaintiff argues that the CIA and DoD names fail the balancing test under exemption (b)(6) and that the CIA officers waived their privacy interests in their names by meeting with the filmmakers. Id. at 15-19. Thus, the only issues before the Court are whether the CIA and DoD waived the right to protect the names of the CIA and DoD officers from public disclosure by providing them to the filmmakers for the limited purpose of meeting with the officers, whether the CIA officers waived exemption (b)(6) by meeting with the filmmakers, and whether the CIA and DoD officers

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privacy interests outweigh any public interest in the disclosure of their names. The Government did not waive exemption (b)(3) because, under the well-established D.C. Circuit public domain test, the CIA and DoD did not disclose the names to the public and preserve them in a permanent public record. Nor did the CIA officers waive their privacy intereststhe release plaintiff points to was a draft, not signed by any of the officers, nor is there any support for plaintiffs rank speculation that the movie will reveal the officers identity. And the CIA and DoD officers strong privacy interests in their names easily outweigh the nonexistent public interest in their names. Those names provide the public with no substantive information that it does not already have. Despite plaintiffs exaggerated rhetoric, these are the only issues before the Court. This case does not involve, for instance, the public interest in learning more details about the raid that killed Osama bin Laden, the propriety of the CIA and DoDs assisting the filmmakers, what other information not at issue here may or may not have been revealed to the filmmakers, what the CIA or DoDs policies are or should be on sharing information with filmmakers, or whether those policies were followed here. The material facts are undisputed and the legal questions straightforward. Plaintiffs waiver theories fail, and the CIA and DoD are entitled to the protection of the claimed exemptions. The Court should grant summary judgment in favor of the CIA and DoD. ARGUMENT I. THE CIA AND DOD DID NOT WAIVE THE PROTECTION OF EXEMPTION (B)(3) BY MAKING A LIMITED DISCLOSURE TO THE FILMMAKERS. In our opening brief, we showed that under a clear line of D.C. Circuit case law, in order to prevail on its waiver claim, plaintiff must establish that the CIA and DoD already made the 3

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information plaintiff seeks public, such that plaintiff would receive no more than what is publicly available. Cottone v. Reno, 193 F.3d 550, 555 (D.C. Cir. 1999). To be in the public domain for purposes of waiver, the information must be disclosed and preserved in a permanent public record. Id. at 554. See also, e.g., Students Against Genocide v. Dept. of State, 257 F.3d 828, 836 (D.C. Cir. 2001); Niagara Mohawk Power Corp. v. Dept of Energy, 169 F.3d 16, 19 (D.C. Cir. 1999); Public Citizen v. Dept of State, 11 F.3d 198, 201 (D.C. Cir. 1993). The CIA and DoD both released the names plaintiff seeks to the private filmmakers only, not to the public, and only for the limited purpose of facilitating meetings. DoD specifically instructed the filmmakers not to reveal the name it provided. The agencies clearly did not reveal the names to the public, and they certainly did not disclose and preserve them in a permanent public record. Plaintiffs waiver claim therefore fails. Plaintiffs response to this controlling, dispositive precedent is to make up their own outcome-determinative tests for when the Government waives a FOIA exemption. Relying on Watkins v. U.S. Bureau of Customs & Border Prot., 643 F.3d 1189 (9th Cir. 2011), plaintiff claims that the test for waiver is whether the Government imposes legally binding restrictions on how the information may be used by the third party who received it. Pl.s Opp. at 8-9. Plaintiffs theory seems to be that, without the imposition of such a legal restriction, disclosure to a third party is a de facto disclosure to the public and satisfies the public domain doctrine. There are multiple reasons for rejecting this argumentfirst and foremost being that it is not the controlling test in this circuit. Watkins adopted a new test for waiver in which the court specifically rejected the D.C. Circuits public domain test. Watkins, 643 F.3d at 1197 (noting that the public domain test articulated by the D.C. Circuit should not be the only test for

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government waiver); id. at 1199 (Rymer, J., concurring and dissenting) (disagreeing with the majoritys retreat from D.C. Circuits public domain test and noting that the majority opinion is at odds with other circuits). See also Patrick Lightfoot, Comment, Waiving Goodbye to Nondisclosure Under FOIAs Exemption 4: The Scope and Applicability of the Waiver Doctrine, 61 Cath. U. L. Rev. 807, 808-09 (Summer, 2012) ([T]he Ninth Circuits decision in Watkins constitutes a puzzling departure from the well-settled public domain test, the prevailing rule among the circuit courts of appeal). This Court is obviously bound by the D.C. Circuit public domain test and is not at liberty to follow Watkins. The second problem with plaintiffs argument is that Watkins did not announce the test plaintiff claims it did. The Ninth Circuit held that when the Government discloses to a trademark owner information protected by the trade secrets exemption to FOIA (exemption (b)(4)) without imposing any restrictions on the owners use of the information, it waives exemption (b)(4). Watkins, 643 F.3d at 1197. The court referred to this as a no-strings-attached disclosure. Id. No where in the decision did the court mention, let alone require, the imposition of legally binding restrictions on further disclosurethat formulation of the standard, which plaintiff repeatedly invokes, is plaintiffs alone. See Pl.s Opp. at 8-11. That the court did not require legally binding restrictions is clear from its discussion of the facts of Students Against Genocide. The Court explained that the Governments displaying certain classified photos to members of the United Nations Security Council, but not distributing or turning them over to the members possession, was the kind of restriction it found lacking in the disclosures to trademark owners. Watkins, 643 F.3d at 1197. There was nothing legally binding about this procedure. Presumably, plaintiff heightens the Watkins standard to require legally binding

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restrictions because the CIA and DoD did restrict the filmmakers use of the names: DoD specifically told the filmmakers not to reveal the name it provided, and the CIA provided the officers first names only for the purpose of facilitating meetings with them and authorized no broader release. Defs. Mtn. at 13-14. These facts are uncontroverted. Plaintiffs Response to Defendants Statement of Material Facts Not in Dispute, at 17-19 (ECF No. 18) (Pl.s Resp. to Defs. Statement of Mat. Facts).1 Thus, under the test actually articulated in Watkins, there has been no waiver.2 The third problem with applying Watkins here is that the Watkins court explicitly limited its holding to cases not involving requests for sensitive information in matters of national security. 643 F.3d at 1197. The court noted that in cases where such sensitive information is at issue, the presumption in favor of disclosure must yield to overriding concerns for public safety

Plaintiffs response to paragraphs 17 and 18 of Defendants Statement of Material Facts, that it lacks sufficient knowledge to confirm or deny these facts, may be sufficient in an answer to a complaint but is surely insufficient to carry plaintiffs burden at summary judgment of controverting these facts with evidence. Plaintiff does not contest paragraph 19 of Defendants Statement of Material Facts. Plaintiffs reliance on McKinley v. Board of Governors of Fed. Res. Sys., 849 F. Supp. 2d 47, 60 (D.D.C. 2012), for plaintiffs manufactured legal restrictions test is even shakier. Pl.s Opp. at 11. In McKinley, the court rejected the argument that the Board of Governors of the Federal Reserve System waived FOIA exemptions by disclosing the records to a Congressional committee. While the court mentioned the fact that the records were provided under a written confidentiality agreement, the courts reason for denying the plaintiffs waiver claim was that [d]isclosures to Congress are not official disclosures within the meaning of FOIA and do not waive an agencys FOIA exemptions. 849 F. Supp. 2d at 60. To find a waiver would frustrate public policy encouraging broad congressional access to governmental information because agencies would invariably become more cautious in furnishing sensitive information to the legislative branch. Id. (internal quotations and citation omitted). Even if the records were provided without the confidentiality agreement, that would not have changed the outcome of the case, because it still would have been a disclosure to Congress and therefore not an official disclosure. The presence of a written confidentiality agreement was not, therefore, a legally significant fact in the case, nor did it form a key part of the holding. Pl.s Opp. at 11. 6
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and national securityconcerns not relevant to the case at bar. Id. The instant case is just such a case, involving a request for the names of officers who were involved in the planning for the raid that killed Osama bin Laden.3 Ultimately, there is no support for the presumption that plaintiff asks the Court to draw: that because the names were provided to the filmmakers to make a major motion picture, they should be deemed irretrievably in the public domain. Pl.s Opp. at 11. In fact, the opposite conclusion is warranted. Because the names were provided to the filmmakers for the limited purpose of facilitating meetings with the officers, because the filmmakers use of the names was restricted, and because there is no evidence that the filmmakers have disclosed or will disclose the names, there is no reason to think there has been any disclosure to the public. See Muslim Advocates v. DOJ, 833 F. Supp. 2d 92, 100-01 (D.D.C. 2011) (plaintiff produced no evidence that the requested documents, disclosed to certain civil rights groups, are, in fact, in the public domain); plaintiffs Ex. R ([Mark] Boal refuses to disclose any of the sources for his screenplay . . . .). Plaintiff flips the burden of proof by suggesting that it is for the Government to submit evidence that the names have been used in the filmmakers film. Pl.s Opp. 15-16. That is plaintiffs burden in proving its waiver theory. Def.s Mtn. at 13. Plaintiffs second test for waiver is as contrived as the first. Plaintiff posits that the public domain test is somehow dependent on there being an important governmental purpose behind the disclosure to a third party. Pl.s Opp. at 12-14. To come up with this test, plaintiff

For this reason, among others, this case is not analogous to a hypothetical case where the government shared new engine technology with Ford but not Chrysler, and then tried to exempt that information from FOIA. Pl.s Opp. at 2. In addition, plaintiffs hypothetical posits the disclosure of substantive information, not mere identifying information in which the individuals privacy interest outweighs the nonexistent public interest. 7

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stretches Students Against Genocide, Muslim Advocates, and Prison Legal News v. Exec. Office for U.S. Attorneys, 628 F.3d 1243, 1249 (10th Cir.), cert. denied, 132 S. Ct. 473 (2011), beyond recognition. Plaintiff claims that just because the Government made the disclosures in these cases for what plaintiff considers to be an important governmental purpose, that fact was somehow dispositive to the courts analysis. That is simply not true. The reasoning of all three courts was that the records at issue were not disclosed to the general public, so there was no waiver under the public domain doctrine. For instance, the penultimate paragraph of Students Against Genocide is: The photographs in question here plainly do not fall within [the public domain] doctrine. They were not released to the general public; only the [United Nations] Security Council delegates saw them. In fact, the photographs were not released at all. Although Ambassador Albright displayed them to the delegates, she retained custody, and none left the U.N. chamber. . . . Hence, there is no permanent public record of the photographs. 257 F.3d at 836 (internal citations omitted). Plaintiff misreads the case by claiming that [a]

key part of the courts reasoning . . . was the finding that the government had legitimate foreign policy reasons supporting its decision to show surveillance photographs of Serbian war crimes to some foreign diplomats, but not to others. Pl.s Opp. at 12. The court discussed the possible reasons behind the Governments disclosure in rejecting the plaintiffs argument that the Government had let the cat out of the bag by showing the photographs to the members of the Security Council and that no further damage could be done by releasing them to the plaintiff, not as part of its reasoning for finding no waiver under the public domain doctrine, which was as quoted above. Plaintiff similarly distorts the courts reasoning in Muslim Advocates by claiming that [t]he court found that a disclosure [of certain chapters of a FBI operations guide] to civil rights 8

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groups, for the purpose of getting feedback on the FBIs own civil rights concerns, justified selective release of the information . . . . Pl.s Opp. at 13. The Governments purpose for the disclosure had nothing to do with the courts reasoning as to why the public domain doctrine did not apply. As in Students Against Genocide, that reasoning was that the disputed chapters were not released to the general public; rather, they were only shown to a select group of organizationspersonally invited by the FBIat FBI headquarters. [And because] none of the disputed chapters left FBI headquarters, the Court finds that there is no permanent public record of the disputed chapters in the public domain. Muslim Advocates, 833 F. Supp. 2d at 100. Likewise, in Prison Legal News the necessity of using the photographs and video at issue during a criminal trial had nothing to do with the courts decision that the materials were not in the public domain for purposes of waiver. That decision instead turned on the limited nature of the disclosurei.e., that the images were no longer available to the public, that they were displayed only twice, that only those physically present in the courtroom viewed the images, and that the images were never reproduced for public consumption. Prison Legal News, 628 F.3d at 1249-50. Not only is plaintiffs important governmental purpose test a complete fabrication, it suffers from the same additional flaw as plaintiffs reliance on Watkinsthere was an important governmental purpose behind the disclosure of the names to the filmmakers, and so the test, if it in fact existed, is met here. As plaintiff itself acknowledges, the defendant agencies worked with the filmmakers to ensure an accurate portrayal of the facts and people involved in the raid. Pl.s Opp. at 9, citing plaintiffs Exs. L-O. This is an entirely legitimate, important governmental purpose, one that is a function of public affairs offices across the Government. To say that it is

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less important than, for example, getting feedback from civil rights groups about a draft FBI policy, as plaintiff does, is wholly subjective. Nor does plaintiff offer any standard by which to make this judgment.4 Lastly, the Court should reject plaintiffs conclusory argument that it has satisfied its burden of proof under the public domain test. Pl.s Opp. at 14-15. Plaintiff correctly notes that it is its burden to establish that the precise information it has requested is in the public domain; it is not the Governments burden to prove a negativethat the requested information has not been disclosed to the public. See Def.s Mtn. at 13. Plaintiff is incorrect, however, in baldly asserting that it has shown that the withheld names are in the public domain. Plaintiff has not shown that the names were disclosed to the public, or that they were preserved in a permanent public record, for all of the reasons set forth in the Governments opening brief and herein. The CIA and DoD properly withheld the names from internal email chains and a transcript under well-established FOIA exemptions, and the agencies have not waived those exemptions. II. THE NAMES OF CIA AND DOD PERSONNEL WHO WERE INVOLVED IN PLANNING THE BIN LADEN RAID WERE PROPERLY WITHHELD UNDER EXEMPTION (B)(6) TO PROTECT THE PRIVACY OF THOSE INDIVIDUALS, AND THOSE INDIVIDUALS DID NOT WAIVE THAT PROTECTION. In our opening brief, we established that (1) there is zero public interest in revealing the mere first names of the four CIA individuals and the full name of the DoD individual provided

Plaintiff claims that the CIA and DoD gave these filmmakers special access, and that this undermines the legitimacy of the governmental purpose. See, e.g., Pl.s Opp. at 12, 14. As an initial matter, a number of plaintiffs own exhibits indicate that the Government has assisted other filmmakers, authors, reporters, and the like, negating plaintiffs selectivity argument. See plaintiffs Exs. E, G, M, N, O. But even if any of the assistance was specific to Mr. Boal and Ms. Bigelow, that does not make the need to ensure that their film accurately portrayed the agencies any less important. 10

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by the CIA and DoD to the filmmakers; (2) these individuals, all involved in the planning of the raid that resulted in the killing of Osama bin Laden, have a strong privacy interest in their names and identities; and (3) the names were therefore properly withheld pursuant to FOIAs exemption (b)(6). Defs. Mtn. at 10-11. Plaintiffs arguments in responsethat because there is enormous public interest in the Governments assisting the filmmakers and in the raid in general, and because the individuals waived their privacy interests by talking with the filmmakersare patently meritless, and should be rejected. It is only by defining the public interest at the high level of generality of the Governments assisting the filmmakers and the raid in general that plaintiff can argue that there is any public interest in disclosing the names at issue here. But this is a specious argument, because the balancing required by exemption (b)(6) is the individuals right to privacy against the publics interest in disclosure of the specific information requested, not in the general topic that it relates to. There is no public interest in knowing the first names of the CIA individuals and the full name of the DoD individual who the CIA and DoD suggested the filmmakers meet with. In part because of the disclosures that the Government has made in this very case, the public already knows that the CIA and DoD assisted these filmmakers. Those disclosures also reveal discussions about the assistance as well as what was said, verbatim, when Under Secretary Vickers met with Mark Boal. Revealing the names at issue tells the public nothing of substance it doesnt already know. Plaintiffs attempt to find a public interest in the names themselves, as opposed to the larger topics of assisting the filmmakers and the raid, is feeble indeed. Plaintiff claims there is great public interest in knowing the governments choice of personnel appointments for this

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filmmaking detail. The names (most of them first names only) will not, however, reveal the individuals positions, duties, or specific role in the raid, and so their disclosure will not in fact reveal anything about how the government decided who should inform the details of the cinematic portrayal of the Abbottabad raid. Nor does Judicial Watch spell out what exactly the public interest is in knowing this, and it is not readily apparent. Just because Judicial Watch is curious about how the government decided who should inform the details of the cinematic portrayal of the Abbottabad raid does not make it something the public is interested in. The cases plaintiff cites, Schmidt v. United States Air Force, Case No. 06-3069, 2007 U.S. Dist. LEXIS 69584, 2007 WL 2812148 (C.D. Ill. Sept. 20, 2007), and Chang v. Dept of the Navy, 314 F. Supp. 2d 35 (D.D.C. 2004), are clearly inapposite and, by contrast, demonstrate the absence of any public interest in the names here. See Pl.s Opp. at 17-18. In Schmidt, the court upheld the disclosure under exemption (b)(6) of a pilots reprimand that he received as a result of his role in a friendly-fire incident that killed and injured several people. The court found a great public interest in the disclosure of the pilots discipline, given that the deadly friendlyfire incident garnered significant public and media attention and that the release of the reprimand gave the public insight into the way in which the Government was holding its pilot accountable for the incident. 2007 WL 2812148, at * 11. The reprimand was a substantive release, unlike the mere names involved here. In contrast to the reprimand, the names provide no insight into how the Government conducts its business. The fact that the court also upheld the release of the pilots identifying information is also distinguishable from the instant case, because there were only two individuals charged following the friendly-fire incident, and their identities were known to the public. Id. Nor does this case involve any claim that the CIA officers who met

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with the filmmakers failed to carry out their duties in an efficient and law-abiding manner, whatever plaintiff may think about the propriety of the agencys giving the filmmakers their names. Pl.s Opp. at 18 (quoting Chang, 314 F. Supp. 2d at 44). Like Schmidt, Chang involved the substantive release of disciplinary actions taken against the commander of a ship that had been in a high-profile collision. The court emphasized the plaintiffs position as the commander of the ship, as opposed to a lower-level officeranother circumstance not present here. Chang, 314 F. Supp. 2d at 44-45. See also Declaration of Mark Herrington at 7 (Ex. 2 to Defs Mtn.). Plaintiffs response to the significant privacy interests the CIA and DoD individuals have in not revealing their connection to the raid that resulted in the killing of Osama bin Laden is to speculate that their identities will be revealed in the movie and to claim that the individuals therefore waived their privacy interests by merely meeting with the filmmakers. It is pure conjecture on plaintiffs part that characters in the movie will in fact be based on these individuals, and in such a way that reveals their identities. Plaintiffs statement that [o]nce the film is released, it is hard to imagine that anyone believes these individuals names are likely to remain a secret for long once their actions or likenesses are portrayed by Hollywood actors, Pl.s Opp. at 20, is completely unsupported and wholly speculative.5 Plaintiff submits no evidence to dispute the CIA and DoDs declarations attesting to the facts that the CIA and DoD individuals played a role in the planning for the Osama bin Laden

Because plaintiff does not know the names at issue, any speculation about connections between the names and characters in the movie will continue to be speculation after the movies release. Therefore, the CIA and DoD disagree with plaintiffs implication that the Court needs to view the movie to decide this case. Pl.s Opp. at 7 n.4. The CIA and DoD therefore would oppose any additional attempts by plaintiff to extend the briefing of this case until the movies release. 13

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raid, that some are undercover, and that by virtue of their involvement in this highly sensitive mission, these individuals have a strong privacy interest in their names and identities, which would be threatened if their names (even the first names of undercover officers) were revealed. Pl.s Resp. to Defs. Statement of Mat. Facts, at 15 (ECF No. 18). Plaintiffs response that it disputes these assertions, without providing any contradictory evidence, is of course insufficient at summary judgment. Moreover, the fact that plaintiff contends that it does not seek any other identifying information about these individuals (Pl.s Opp. at 19) does not prevent it from doing so in the future, or another requestor from doing so in the future, nor does it in any way controvert the agencies assessment of the threat posed to the individuals from the disclosure of their first names. The legal release form provided to the CIA by the filmmakers and disclosed by the CIA in this case does not support plaintiffs theory that the individuals waived their privacy interests. Id. at 20. That document is a draftthere is no indication that any of the CIA officers whose names are at issue (or anyone else for that matter) signed such a document. Plaintiffs Ex. T. Thus, even if the document suggests that the filmmakers contemplated that these CIA interviews would be about developing dramatic characters for portrayal in Zero Dark Thirty, id., as plaintiff posits, there is no evidence that the CIA officers contemplated this such that a waiver of their privacy interests can be implied from their meeting with the filmmakers. Moreover, in making the argument that the CIA officers waived their privacy interests, plaintiff concedes that the privacy interests at stake belong to the individuals, not the Government, and that the CIA could not have waived those interests for them by giving the filmmakers their names. Pl.s Opp. at 19-21. Thus, plaintiff is specifically not arguing that the

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Government waived exemption (b)(6). Id. See also Defs. Mtn. at 11-12. CONCLUSION For all of the foregoing reasons and those set forth in Defendants Motion for Summary Judgment, defendants respectfully request that the Court enter summary judgment in their favor on all of plaintiffs claims. Respectfully Submitted, STUART F. DELERY Principal Deputy Assistant Attorney General JOHN R. TYLER Assistant Director, Federal Programs Branch

/s/ Marcia Berman MARCIA BERMAN Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7132 Washington, D.C. 20530 Tel.: (202) 514-2205 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov Attorneys for Defendants.

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JUDICIAL WATCH, INC., Plaintiff, v. U.S. DEPARTMENT OF DEFENSE, and CENTRAL INTELLIGENCE AGENCY, Defendants.

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Civil Action No. 1:12-cv-00049-RC

DEFENDANTS RESPONSE TO PLAINTIFFS STATEMENT OF MATERIAL FACTS NOT IN DISPUTE Pursuant to Local Civil Rule 7(h) of the Rules of the United States District Court for the District of Columbia, defendants hereby submit the following response to Plaintiffs Statement of Material Facts Not in Dispute in Support of Cross-Motion for Summary Judgment (ECF No. 18). 1. Admitted that the true first names of four CIA officers may have been shared with

the filmmakers, for the sole purpose of facilitating meetings with them, in accordance with the guidance provided by the CIA. Declaration of Martha M. Lutz, Information Review Officer, Directors Area, Central Intelligence Agency, at 12, 14-16 (ECF No. 16-2). Admitted that DoD provided the full name and rank of an individual to Mark Boal, for the sole purpose of facilitating a meeting between the individual and Mr. Boal. Declaration of Mark Herrington, at 7 & Ex. C thereto (ECF No. 16-1). 2-4. Admitted but immaterial. Respectfully Submitted, STUART F. DELERY Principal Deputy Assistant Attorney General

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JOHN R. TYLER Assistant Director, Federal Programs Branch

/s/ Marcia Berman MARCIA BERMAN Senior Trial Counsel United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Avenue N.W. Room 7132 Washington, D.C. 20530 Tel.: (202) 514-2205 Fax: (202) 616-8470 Email: marcia.berman@usdoj.gov Attorneys for Defendants.