OPINION AND ORDER Raymond Bonner, an investigative journalist and author preparing a documentary in connection with the twentieth anniversary of the September 11, 2001 terrorist attacks, sues the Central Intelligence Agency (“CIA”) under the Freedom of Information Act (“FOIA”), 5 U.S.C. §552. He seeks records relating to the “Manchester Manual,” an al Qaeda training manual that law enforcement recovered from the home of an al Qaeda suspect in Manchester, England, in 2000, and the CIA later used in developing the “enhanced interrogation techniques” it applied to certain detainees following the September 11th attacks. The CIA identified sixty-six documents as responsive to Bonner’s FOIA request, of which it released twenty-eight in part and withheld thirty-eight in full. Only three documents remain in dispute, two of which the CIA withholds primarily on national security grounds and one of which the CIA withholds exclusively on the basis of the deliberative process privilege. Upon review of cross-motions for summary judgment, the Court approves the CIA’s withholding of the first two documents but finds that its invocation of the deliberative process privilege as to the third is without basis. LEGAL STANDARDS “The basic purpose of FOIA is to ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). To that end, “virtually every document generated by [a government] agency is available to the public in one form or another, unless it falls within one of [FOIA's] nine exemptions.” ACLU v. Nat’l Sec. Agency (“ACLU IV”), 925 F.3d 576, 588 (2d Cir. 2019) (internal quotation marks omitted). The exemptions are “narrowly construed,” and the agency “bears the burden of demonstrating that any claimed exemption applies.” Nat’l Council of La Raza v. Dep’t of Just., 411 F.3d 350, 356 (2d Cir. 2005). The exemptions notwithstanding, an agency must produce any non-exempt portions of a record that are “reasonably segregable” from portions that are exempt. 5 U.S.C. §552(b). Further, as amended in 2016, FOIA now provides that “[a]n agency shall…withhold information…only if…the agency reasonably foresees that disclosure would harm an interest protected by an exemption,” unless the information is prohibited from disclosure by law or otherwise exempt from disclosure by statute. 5 U.S.C. §552(a)(8)(A). As this Court has previously held, that provision “imposes an independent and meaningful burden on agencies” as to discretionary withholdings. NRDC v. U.S. Env’t Prot. Agency (“NRDC II”), No. 17-CV-5928 (JMF), 2019 WL 4142725, at *5 (S.D.N.Y. Aug. 30, 2019) (cleaned up), reconsideration denied, 2019 WL 6467497 (S.D.N.Y. Dec. 2, 2019). Three exemptions are relevant here. First, Exemption 1 protects materials “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and…in fact properly classified pursuant to such Executive order.” 5 U.S.C. §552(b)(1)(A). As relevant here, Executive Order 13,526 provides such protection for certain information pertaining to “intelligence activities (including covert action)” or “intelligence sources or methods.” Exec. Order No. 13,526, 75 Fed. Reg. 707, 708 (Jan. 5, 2010). Second, Exemption 3 shields materials “specifically exempted from disclosure by statute,” provided that the withholding statute “requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue[] or…establishes particular criteria for withholding or refers to particular types of matters to be withheld.” 5 U.S.C. §552(b)(3). As relevant here, the National Security Act of 1947 (“National Security Act”), as amended, mandates that “[t]he Director of National Intelligence shall protect intelligence sources and methods from unauthorized disclosure.” 50 U.S.C. §3024(i)(1); see C.I.A. v. Sims, 471 U.S. 159, 167-68 (1985) (holding that “§102(d)(3) qualifies as a withholding statute under Exemption 3″). Thus, “[f]or information which may disclose intelligence sources and methods, Exemption 3 and the National Security Act provide overlapping protection with Exemption 1.” ACLU v. F.B.I. (“ACLU I”), 59 F. Supp. 3d 584, 594 (S.D.N.Y. 2014) (cleaned up) (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 736 n.39 (D.C. Cir. 1981)). Third and finally, Exemption 5 protects “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency.” 5 U.S.C §552(b)(5). “This exemption incorporates into…FOIA all the normal civil discovery privileges, including traditional common law privileges against disclosure such as the…deliberative process privilege[].” ACLU IV, 925 F.3d at 589 (cleaned up). The deliberative process privilege protects documents that are both “(1) ‘predecisional,’ i.e., prepared in order to assist an agency decisionmaker in arriving at his decision, and (2) ‘deliberative,’ i.e., actually related to the process by which policies are formulated.” Nat’l Council of La Raza v. Dep’t of Just., 411 F.3d 350, 356 (2d Cir. 2005) (cleaned up). To establish that a document is predecisional, an agency “need not show ex post that a decision was made” in connection with or reliance on the document, but “it must be able to demonstrate that, ex ante, the document for which executive privilege is claimed related to a specific decision facing the agency.” Tigue v. U.S. Dep’t of Just., 312 F.3d 70, 80 (2d Cir. 2002) (Sotomayor, J.) (citing NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 n.18 (1975)). “[A] document which is merely peripheral to actual policy formation” is not predecisional for purposes of the deliberative process privilege; instead, to fall within the ambit of the privilege, “the record must bear on the formulation or exercise of policy-oriented judgment.” Grand Cent. P’ship, Inc. v. Cuomo, 166 F.3d 473, 482 (2d Cir. 1999) (internal quotation marks omitted). Meanwhile, to determine whether a record is “deliberative,” courts consider “whether the document (i) formed an essential link in a specified consultative process, (ii) reflects the personal opinions of the writer rather than the policy of the agency, and (iii) if released, would inaccurately reflect or prematurely disclose the views of the agency.” Id. (cleaned up). Even when otherwise properly invoked, FOIA’s exemptions are not absolute. As relevant here, “[w]hen an agency has officially acknowledged otherwise exempt information through prior disclosure, the agency has waived its right to claim an exemption with respect to that information.” N.Y. Times v. C.I.A., 965 F.3d 109, 115-16 (2d Cir. 2020) (internal quotation marks omitted). In the Second Circuit, a “precise and strict test” applies to such claims of official acknowledgement with respect to classified information. Id. at 116. “Classified information that a party seeks to obtain or publish is deemed to have been officially disclosed only if it (1) is as specific as the information previously released, (2) matches the information previously disclosed, and (3) was made public through an official and documented disclosure.” Wilson v. C.I.A., 586 F.3d 171, 186 (2d Cir. 2009) (cleaned up).1 The “specificity and matching prongs” of the test “work together to form the crux of the official disclosure doctrine: disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure.” Osen, 969 F.3d at 110 (internal quotation marks omitted). In general, FOIA actions filed in court are resolved through summary judgment motion practice. See, e.g., Long v. Off. of Pers. Mgmt., 692 F.3d 185, 190-91 (2d Cir. 2012) (quoting Carney v. U.S. Dep’t of Just., 19 F.3d 807, 812 (2d Cir. 1994)). “In resolving summary judgment motions in a FOIA case, a district court proceeds primarily by affidavits in lieu of other documentary or testimonial evidence…. ” Id. at 190. As the Second Circuit has explained, “ [s]ummary judgment is warranted…when the affidavits describe the justifications for nondisclosure with reasonably specific detail, demonstrate that the information withheld logically falls within the claimed exemption, and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.” Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009) (quoting Larson v. Dep’t of State, 565 F.3d 857, 862 (D.C. Cir. 2009)). Although the agency’s determination that requested information falls within a FOIA exemption is reviewed de novo, see 5 U.S.C. §552(a)(4)(B); Dep’t of Air Force v. Rose, 425 U.S. 352, 379 (1976), the affidavits submitted by the agency in support of its determination “are accorded a presumption of good faith,” Carney, 19 F.3d at 812 (internal quotation marks omitted). This is particularly true in the national security context, where courts are to give the affidavits or declarations “substantial weight.” Osen, 969 F.3d at 115. Ultimately, “the agency’s justification” for whatever information was withheld “is sufficient if it appears logical and plausible.” ACLU v. U.S. Dep’t of Def. (“ACLU III”), 901 F.3d 125, 133-34 & n.9 (2d Cir. 2018), as amended (Aug. 22, 2018). BACKGROUND On May 15, 2019, Bonner submitted FOIA requests to the CIA and the Federal Bureau of Investigation (“FBI”) seeking “[a]ll [CIA and FBI] records — including, but not limited to, all cables, emails, memoranda, and other communications — pertaining to the al Qaeda Manual (also known as the Manchester Manual).” ECF No. 7 (“Compl.”),
13, 18. On May 22, 2019, the FBI informed Bonner that the agency had “conducted a search of the places reasonably expected to have records” and was “unable to identify law enforcement and/or administrative records responsive to the request.” Id. 19 (brackets omitted). On June 13, 2019, the CIA responded that Bonner’s request did not meet the criteria for expedited processing. Id. 15. On October 22, 2019, after exhausting his administrative remedies, Bonner filed this action against the CIA and the FBI. Id.
