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1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF CALIFORNIA

LARRY BERMAN, 

Plaintiff,

v.

CENTRAL INTELLIGENCE AGENCY, 

Defendant. 

 CIV-S-04-2699 DFL-DAD

MEMORANDUM OF OPINION 

AND ORDER

Plaintiff Larry Berman (“Berman”) brings this suit to

challenge defendant Central Intelligence Agency’s (“CIA”) denial

of his request under the Freedom of Information Act (“FOIA”), 5

U.S.C. § 552, for two editions of the President’s Daily Briefs

(“PDB”). The parties have filed cross-motions for summary

judgment. For the reasons given below, the court GRANTS summary

judgment in favor of the CIA. 

I. 

Berman is a professor of political science at the University

of California, Davis and a historian of the American presidency

and the Vietnam war. (Pl.’s Mot. at 2.) On March 2, 2004,

Berman requested disclosure of four PDBs from President Lyndon B.

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 In the FOIA request, Berman sought disclosure of four 1

PDB’s, including March 31, 1968 and August 8, 1965. He has not

included the August 8, 1965 PDB, if any, in the present

complaint. As to the March 31, 1968 request, the CIA has stated

that no PDB was prepared for that day. (Buroker Decl. ¶ 9.) 

Accordingly, there are only two PDBs still at issue in this suit:

the PDBs of August 6, 1965 and April 2, 1968.

 The first incarnation of the PDB was called the 2

President’s Intelligence Checklist. (Buroker Decl. ¶ 17.) It

was renamed the PDB during the Johnson Administration. (Id. ¶

18.) In this opinion, the court will refer to both documents as

PDBs. 

2

Johnson’s term of office. (Id.) By letter dated April 15, 2004,

the CIA denied the request based on FOIA Exemptions 1, 3, and 5. 

(Id.) After exhausting available administrative appeals, Berman

brings this suit seeking disclosure of two of the PDBs, dated

August 6, 1965 and April 2, 1968. (Id. at 3.) 1

The PDB is a “unique intelligence document prepared

specifically for the President of the United States and his most

senior advisors.” (Buroker Decl. ¶ 16.) Although its format has

changed slightly since its inception during the Kennedy

Administration, its general purpose has always been to “to select

the most sensitive data and provide the best intelligence

judgments available in order to give the President and his top

advisors the most accurate, comprehensive, and timely information

needed to make national defense and foreign policy decisions for

the country.” (Id. ¶ 17.) 2

The contents of the PDB are determined by the leadership of

the CIA and reflect an ongoing dialogue between the President and

the CIA concerning national security. (Id. ¶¶ 18, 19.) The PDB

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 Berman contends that, unlike other presidents, a 3

“briefer” from the CIA was not physically present when President

Johnson read the PDBs. (Pl.’s Mot. at 3.) From this absence,

Berman concludes that the CIA did not receive questions and

comments from President Johnson in the manner generally described

by Buroker’s declaration. (Id.) However, the documentation

submitted by Berman shows that President Johnson did regularly

communicate his reactions, criticisms, and requests concerning

the PDBs to the CIA through one of his top aides. (Blanton Decl.

Ex. 3.) Thus, the PDBs did reflect an on-going dialogue between

the CIA and the President, even during the Johnson

Administration. 

3

prompts the President and his senior advisors to ask for further

information, and these inquiries in turn affect the content of

future PDBs as well as the CIA’s conduct of intelligence “on a

daily and long-term basis.” (Id. ¶¶ 19, 35-37.) 3

Because of its limited distribution, the PDB contains more

immediate and restricted information than is included in other

national security documents. (Id. ¶ 21.) For instance, PDBs

include: (1) “raw operational information, sometimes including

true names of sources” that has not been disseminated to other

intelligence agencies; (2) sensitive information that is 

restricted at the “very highest levels of human and technical

source intelligence gathering”; (3) information from covert 

operations; and (4) information derived from CIA-only methods. 

(Id.) 

Although the vast majority of the PDBs have not been

released by the CIA, several sanitized PDBs, or portions thereof,

have been released to the public in various forms. (Buroker

Decl. Ex. ¶ 14.) Specifically, twelve PDBs were released either

at the direction of an Executive Order (in the case of the two

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PDBs released at the request of the 9/11 Commission) or pursuant

to the John F. Kennedy Assassination Records Collection Act of

1992. (Id. ¶ 30 n.4.) Additionally, at least six other PDBs

have been released by mistake. (Id.) Berman asserts that the

number of released PDBs is somewhat higher, at about 35. (Pl.’s

Mot. at 4.) He includes as exhibits copies of 16 PDBs from the

Johnson Administration that have been released, including the

PDBs dated a day after (August 7, 1965) and a day before (April

1, 1968) the two PDBs requested in this case. (Id.; Blanton

Decl. Exs. 4-5.) 

In addition to the PDBs, the CIA also prepares a daily

Central Intelligence Bulletin (“CIB”). (Buroker Supp. Decl. ¶

4.) Unlike the PDB, the CIB is prepared for senior policy and

security officials throughout the government and is not

necessarily directed to the President’s current priorities. 

(Id.) Several thousand CIBs have been released by the CIA in

redacted form. (Pl.’s Mot. at 5.) 

II. 

The FOIA requires disclosure of government records unless

the requested information falls within one of nine enumerated

exemptions. 5 U.S.C. § 552(b). As to its decision to withhold

the two PDBs, the CIA relies principally on the interaction

between the National Security Act and Exemption 3 which exempts

information “specifically exempted from disclosure by statute” if

the statute “leave[s] no discretion on the issue,” “establishes

particular criteria for withholding” the information, or “refers

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 The CIA also asserts that the requested PDBs are covered 4

by Exemptions 1 and 5 of the FOIA. The court finds it

unnecessary to examine the arguments on Exemption 1. 

 In their papers, the parties agree that these are the 5

relevant statutes because they were the ones in effect at the

time Berman’s FOIA request was made. Since then, the

responsibility to protect intelligence methods and sources

against unauthorized disclosures has been transferred to the

Director of National Intelligence. See Intelligence Reform and

Terrorism Prevention Act of 2004, Pub. L. No. 108-458, § 1011,

118 Stat. 3638 (2004). 

5

to particular types of matters to be withheld.” 5 U.S.C. §

552(b)(3). Under the National Security Act, the Director of 4

Central Intelligence is responsible for “protecting intelligence

sources and methods from unauthorized disclosure.” 50 U.S.C. §§ 

403-3(c)(7), 403g (2004). In CIA v. Sims, 471 U.S. 159, 167, 5

105 S.Ct. 1881 (1985), the Court held that this statutory

language “clearly ‘refers to particular types of matters,’ . . .

and thus qualifies as a withholding statute under Exemption 3.” 

The CIA contends that because the release of the requested PDBs

would reveal information about intelligence sources and methods,

the release is prohibited by the National Security Act and hence

covered by Exemption 3 of the FOIA. (Def.’s Mot. at 8.)

The CIA bears the burden of proving that the withheld

information falls within the Exemption. Minier v. CIA, 88 F.3d

796, 800 (9th Cir. 1996). However, the CIA’s judgment that the

disclosure of certain information could reveal intelligence

sources and methods is entitled to great deference. The National

Security Act in tandem with Exemption 3 of the FOIA provide “very

broad authority to protect all sources of information from

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disclosure.” Hunt v. CIA, 981 F.2d 1116, 1119 (9th Cir. 1992). 

Indeed, the authority to protect sources and methods is so broad

that it amounts to a “‘near-blanket FOIA exemption [for the

CIA],’ which is ‘only a short step [from] exempting all CIA

records from FOIA.” Minier, 88 F.3d at 801 (quoting Hunt, 981

F.2d at 1119-20). The court must defer to the CIA’s conclusion

that the release of certain information could impair its mission

by revealing its sources and methods: “[I]t is the

responsibility of the Director of Central Intelligence, not that

of the judiciary, to weigh the variety of subtle and complex

factors in determining whether disclosure of information may lead

to an unacceptable risk of compromising the Agency’s

intelligence-gathering process.” Sims, 471 U.S. at 180.

To justify invocation of Exemption 3, the Agency “may meet

its burden by submitting a detailed affidavit showing that the

information ‘logically falls within the claimed exemptions.’” 

Minier, 88 F.3d at 800 (quoting Hunt, 981 F.2d at 1119). The

affidavit is entitled to “substantial weight,” provided that the

affidavit: (a) describes the documents and the justifications for

nondisclosure with reasonably specific detail; (b) demonstrates

that the information withheld falls within the claimed exemption;

and (c) is not controverted either by contrary evidence in the

record or by evidence of agency bad faith. Hunt, 981 F.2d at

1119 (citing Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.

1982)). Of course, the affidavit “need not specify its

objections [to disclosure] in such detail as to compromise the

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secrecy of the information.” Lewis v. IRS, 823 F.2d 375, 378

(9th Cir. 1987). 

In this case, the CIA has submitted a forty-page declaration

from Terry Buroker (“Buroker”), the Information Review Officer

for the CIA, in support of its summary judgment motion. The sole

question is whether, in light of the declaration, the CIA’s

conclusion that disclosure of the two requested PDBs could reveal

CIA intelligence sources or methods “survives the test of

reasonableness, good faith, specificity, and plausibility in the

field of foreign intelligence in which the CIA is expert and

given by Congress a special role.” Gardels, 689 F.3d at 1105. 

The CIA asserts that the release of the requested PDBs would

reveal important information about U.S. intelligence sources and

methods in three ways. (Def.’s Mot. at 8.) First, the requested

PDBs contain information that, by itself or in connection with

other information, could expose the existence of sensitive

sources and methods of intelligence collection, including human

sources, foreign liaison sources, and technical collection

methods. (Buroker Decl. ¶ 34.) For instance, the CIA states

that the requested PDBs contain “explicit references to

information provided by foreign officials as well as other

information that may incorporate information from foreign liaison

relationships.” (Id. ¶¶ 49, 54.) Additionally, the CIA claims

that release of the PDBs would disclose specific intelligence

methods, including technical collection methods. (Id. ¶ 59.) 

Second, the CIA argues that the PDB itself is an

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 “If significant numbers of individual editions of the PDB 6

(no matter how old) were publicly disclosed, even after redaction

of the obvious revelations of specific collection methods and

sources, due to regular or even sporadic disclosure (by CIA

policy or court order), patterns of application of intelligence

methods including those by which the U.S. sets priorities,

collects intelligence, and analyzes it would emerge.” (Id. ¶

38.)

8

intelligence method. (Id. ¶¶ 35-37.) The CIA considers the PDB 

an integral part of the process by which the CIA advises the

President and his most senior advisors regarding the subject

areas most important to them and then receives guidance on where

to focus its resources and energy. (Id.) In this way, it

argues, the PDB is no less an intelligence method than the CIA

budget, which has been held exempt from disclosure as an

intelligence method. See Aftergood v. CIA, 355 F.Supp.2d 557,

562 (D.D.C. 2005). 

Third, the CIA relies on the “mosaic theory,” a method by

which all intelligence agencies collect “seemingly disparate

pieces of information and assembl[e] them into a coherent

picture.” (Buroker Decl. ¶ 27). The CIA argues that disclosure

of the information in the requested PDBs, in addition to any

other PDBs released in the future, would allow enemies of the

United States to construct an accurate picture of U.S.

intelligence sources, methods, targeting priorities, and

capabilities. (Id. ¶¶ 38-39.) The unique nature of the PDB 6

makes it an especially large piece of any “mosaic” because it is

the only finished intelligence product that synthesizes all of

the best available intelligence on topics that the President, his

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 As an initial matter, Berman contends that Buroker is not 7

competent to testify regarding the mosaic theory because such a

theory depends on an understanding of the information already

available to foreign governments and how that information could

be used by foreign governments to discover sources of

intelligence methods. (Pl.’s Reply at 3.) However, this

contention runs counter to the numerous cases allowing an agency

to submit a declaration from an agency official with

responsibility for coordinating the agency’s decisions on FOIA

requests where that official has personal knowledge of the

procedures used in handling the FOIA request at issue and is

familiar with the documents in question. See Spannaus v. DOJ,

813 F.2d 1285, 1289 (4th Cir. 1987). Buroker is the Information

Review Officer for the Director of Intelligence (“DI”). In that

capacity, he is responsible for the final review of documents

containing information implicating DI interests when such

documents are requested under the FOIA. (Buroker Decl. ¶¶ 1-2.) 

The court finds Buroker competent to testify on these issues. 

9

top advisors, and the leadership of the CIA have determined to be

the most important foreign policy issues facing the country at a

given time. (Id.) 

Berman challenges the CIA’s declaration on several grounds.7

He attacks the specificity of the Buroker declaration, arguing

that the declaration is overly general because it fails to

articulate exactly how the requested PDBs will reveal an

intelligence source or method. (Pl.’s Mot. at 9-10.) However,

this level of specificity is not required by Exemption 3 and the

case law interpreting it. Given that Buroker’s declaration is

part of the public record, it must necessarily claim the

Exemption in terms that are general and that do not reveal either

specific intelligence information or the particular aspect of the

PDBs that is of concern to the Agency. See Lewis, 823 F.2d at

378 (agency “need not specify its objections [to disclosure] in

such detail as to compromise the secrecy of the information”). 

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Moreover, unlike declarations that have been found inadequate in

other cases, the Buroker declaration is not fairly described as

“boilerplate,” as involving “categorical indication[s] of

anticipated consequences of disclosure,” or as making no effort

to “tailor the explanation to the specific document withheld.” 

Wiener v. FBI, 943 F.2d 972, 978-79 (9th Cir. 1991). For

instance, in Wiener, the court found the declaration’s sole

statement that “disclosure of [the withheld] portions reasonably

could be expected to lead to identification of the source of

information” to be insufficiently specific to support an

Exemption 3 claim because it failed to discuss the facts or

reasoning upon which the agency based its conclusions. Id. at

983. See also Allen v. CIA, 636 F.2d 1287, 1294 (D.C. Cir. 1980)

(finding CIA declaration insufficient to support Exemption 3

claim because declarations were “conclusory” and “do little more

than parrot the language of [the statute] by stating that

‘intelligence sources and methods’ will be compromised if the

document is disclosed”). By contrast, Buroker’s declaration

articulates three specific ways in which the release of the

requested PDBs will reveal intelligence sources and methods and

describes the rationale behind these assertions in reasonable

detail. Accordingly, the court finds the CIA’s declaration

sufficiently specific. 

Berman also takes issue with the substance of the Buroker

declaration and the persuasiveness of the CIA’s claim that the

PDBs could reveal intelligence sources and methods. His basic

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argument is that the CIA’s reasons for withholding the two PDBs

are implausible given the numerous PDBs and CIBs that have

already been released. (Pl.’s Mot. at 3.) Berman contends that

the release of these other PDBs undercuts the CIA’s contention

that release of the requested PDBs will reveal the secret of the

PDB as an intelligence method, as any “secret” has already been

released. (Id.) Moreover, Berman asserts that the significant

amount of information already released by the CIA concerning its

intelligence assessments during the Vietnam war -- including the

PDBs from a day before and a day after the requested PDBs and

thousands of CIBs from the Johnson Administration -- contradicts

the CIA’s claim that release of two additional PDBs could

disclose any source or method not already disclosed. (Pl.’s

Reply at 4.) 

Berman has a formidable burden in challenging the CIA’s

evaluation of the “variety of subtle and complex factors in

determining whether disclosure” may damage its intelligencegathering process. See Sims, 471 U.S. at 180. Whether to

disclose further information of a certain kind, when there has

been some disclosure already, whether intentional or

unintentional, is precisely the sort of judgment call that the

statute reposes in the Director of the CIA. Moreover, Berman’s

evidence of other PDB and CIB disclosures does not demonstrate

that the Agency’s conclusion is implausible or unreasonable. The

CIA states that the requested PDBs contain information different

from that contained in previously disclosed PDBs. (Buroker Decl.

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¶ 62; Buroker Supp. Decl. ¶¶ 3-4.) Additionally, the CIA

maintains that PDBs are significantly different than CIBs, and

that a comparison between the two is not appropriate. (Buroker

Supp Decl. ¶ 4.) Specifically, the CIA notes that the CIB is not

prepared exclusively for the President and his top advisors and

does not contain raw intelligence or direct source information. 

(Id.) Finally, that some PDBs have been released, whether

deliberately or by mistake, does not undercut the CIA’s claim

that each additional disclosure puts foreign intelligence

agencies in a better position to understand the PDB process. 

PDBs are not uniform in their format or structure. (Buroker

Decl. ¶ 19.) Accordingly, release of some PDBs does not

necessarily reveal the entire “method” of the PDB or require that

all PDBs must now be released. For these reasons, the court

finds that Berman’s evidence does not cast the CIA’s position as

unreasonable, implausible, or in bad faith.

Berman’s argument is essentially one of waiver: by

releasing other PDBs and CIBs, the CIA has waived its right to

withhold any PDBs, including the present documents. However,

courts have rejected similar arguments where the requested

documents contain information not included in the released

documents. Sims, 471 U.S. at 180. As the Court held in Sims, 

Congress did not mandate the withholding of information

that may reveal the identity of an intelligence source;

it made the Director of Central Intelligence

responsible only for protecting against unauthorized

disclosures. The national interest sometimes makes it

advisable, or even imperative, to disclose the

information that may lead to the identity of

intelligence sources. And it is the responsibility of

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the Director of Central Intelligence, not that of the

judiciary, to weigh [these various factors].

Id. (emphasis in original); see also Aftergood, 355 F.Supp.2d at

563-64; Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir. 1990). 

Congress, the CIA, and the President have decided to release

certain PDBs for particular public policy reasons. It does not

follow that all PDBs should be released, and a court should

hesitate before embracing a logic that could harm the national

security, remove Agency discretion to disclose some information

without disclosing all other information of a similar kind, and

punish the Agency for making prior disclosures, when disclosure

is the very goal of the FOIA. For these reasons, Berman’s

argument is not persuasive that because other PDBs have been

released, so should the two at issue here.

Berman also challenges the sufficiency of the mosaic theory

relied on by the CIA as one of its three reasons for invoking

Exemption 3. Berman argues that reliance on the “mosaic theory”

is inadequate to support the claim that seemingly innocent

information, when viewed in conjunction with other information,

could reveal intelligence sources or methods. (Pl.’s Mot. at 11.) 

However, the case he relies on for this proposition, Detroit Free

Press v. Ashcroft, 303 F.3d 681 (6th Cir. 2002), is not an FOIA

case, but a deportation case involving First Amendment and

personal liberty interests. In contrast, numerous courts have

recognized the legitimacy of the mosaic theory in the context of

the FOIA. See Sims, 471 U.S. at 178 (“In this context, the very

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nature of the intelligence apparatus of any country is to try to

find out the concerns of others; bits and pieces of data ‘may aid

in piecing together bits of other information even when the

individual piece is not of obvious importance in itself.’”);

Hunt, 981 F.2d at 1119 (recognizing validity of mosaic theory);

Ctr. for Nat’l Sec. Studies v. DOJ, 331 F.3d 918, 928-29 (D.C.

Cir. 2003) (same). Again, deference to the Agency is required. 

There is no showing that the CIA’s decision that the PDBs contain

bits and pieces of information that could assist another

intelligence agency is made in bad faith or is unreasonable. 

In addition, Berman argues that the age of the requested

documents undercuts the CIA’s concern about possible disclosure

of intelligence sources and methods. (Pl.’s Mot. at 12.) 

However, Buroker specifically addresses the age of the documents

in his declaration. He states that intelligence information does

not automatically lose its need for protection after a period of

thirty years because sources may still be alive and in position. 

(Buroker Decl. ¶ 55.) Additionally, he asserts that, despite

their age, disclosure of the requested documents would reveal to

educated observers information about the application of

intelligence methods in use at the time of the requested PDBs and

thereafter. (Id. ¶ 62.) This is a plausible and reasonable

explanation that is entitled to deference. 

Moreover, courts have generally affirmed the CIA’s position

concerning the effect of age on intelligence information. Courts

have consistently held that the passage of time does not bear on

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 Berman incorrectly asserts that no court has applied the 8

mosaic theory to information over thirty years old. See

Aftergood, 355 F.Supp.2d at 563 (relying in part on the mosaic

theory in upholding the CIA’s refusal to disclose CIA budget

information from 1947 to 1970); Assassination Archives and

Research Ctr. V. CIA, 177 F.Supp.2d 1, 7-9 (D.D.C. 2001) (finding

CIA’s affidavit sufficient where it stated that release of a 1962

compendium of intelligence would endanger intelligence sources

and methods). 

15

the CIA’s entitlement to withhold documents under Exemption 3

based on the National Security Act. E.g., Fitzgibbon, 911 F.2d

at 764; Maynard v. CIA, 986 F.2d 547, 555 n.6 (1st Cir. 1993)

(involving thirty-year old documents). Recognizing that “courts

have generally rejected the contention that the mere age of

intelligence information rules out Exemption 3,” the Maynard

court explained that: 

[r]eluctance stems from recognition that it is

virtually impossible for an outsider to ascertain what

effect the passage of time may or may not have had to

mitigate the harm from disclosure of sources and

methods. . . . The CIA, not the judiciary, is better

able to weigh the risks that disclosure of such

information may reveal intelligence sources and methods

so as to endanger national security.

Maynard, 986 F.2d at 555 n.6.8

Finally, Berman submits several declarations from

knowledgeable persons who state their belief that disclosure of

historic PDBs would not reveal sources or methods, especially in

light of the other PDBs and CIBs that have already been released. 

(Pl.’s Mot. at 4-5.) Additionally, he notes that the CIA’s

Historical Advisory Committee and the U.S. State Department’s

Historical Advisory Committee on Diplomatic Documentation have

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recommended that historic PDBs, such as the ones here, be

reviewed for release to the public. (Id.) However, review is

not the same as release and the views of private citizens, even

of eminent and well informed persons, are not entitled to the

deference accorded to those who have the statutory duty to

protect intelligence sources and methods. See Assassination

Archives and Research Ctr v. CIA, 334 F.3d 55, 57-59 (D.C. Cir.

2003. 

In sum, in light of the deference that must be given to the

CIA’s judgment as to what is or could reveal an intelligence

source or method, the court finds that the CIA’s declaration is

as specific as it can be on the public record, provides

reasonable and plausible grounds for withholding the documents

under Exemption 3, and is not controverted by other evidence. 

The court therefore finds that the requested documents are

covered by Exemption 3. 

III.

The CIA also relies upon Exemption 5 which permits an agency

to withhold from the public “inter-agency or intra-agency

memorandums or letters which would not be available to a party by

law other than an agency in litigation with the agency.” 5

U.S.C. § 552(b)(5). This exemption shields “those documents, and

only those documents, normally privileged in the civil discovery

context.” NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 149, 95

S.Ct. 1504 (1975). The ability of any particular litigant to

override a privilege claim set up by the government is not

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 The CIA also invokes Exemption 5 based upon the 9

deliberative process privilege. Because the court finds that the

requested documents are covered by the presidential

communications privilege, it need not address the applicability

of the deliberative process privilege. 

17

relevant to Exemption 5 analysis; rather, “[t]he test under

Exemption 5 is whether the documents would be ‘routinely’ or

‘normally’ disclosed upon a showing of relevance.” FTC v.

Grolier Inc., 462 U.S. 19, 26, 103 S.Ct. 2209 (1983); Sears,

Roebuck & Co., 421 U.S. at 149 n.16. The CIA invokes Exemption 5

based on the presidential communications privilege. 

9

The court finds that the requested documents are covered by

Exemption 5 based on the presidential communications privilege. 

The Supreme Court has recognized a “presumptive privilege for

Presidential communications” founded on the “President’s

generalized interest in confidentiality.” United States v.

Nixon, 418 U.S. 683, 708, 711, 94 S.Ct. 3090 (1974) (“Nixon I”). 

The Court “found such privilege necessary to guarantee the candor

of presidential advisers and to provide ‘[a] President and those

who assist him . . . [with] free[dom] to explore alternatives in

the process of shaping policies and making decisions and to do so

in a way many would be unwilling to express except privately.” 

In re Sealed Case, 121 F.3d 729, 743 (D.C. Cir. 1997) (quoting

Nixon I, 418 U.S. at 708). 

The privilege applies to former, as well as current,

Presidents, but is “limited to communications ‘in performance of

[a President’s] responsibilities’ ‘of his office,’ and made ‘in

the process of shaping policies and making decisions.’” Nixon v.

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Adm’r of Gen. Servs., 433 U.S. 425, 449, 97 S.Ct. 2777 (1977)

(“Nixon II”). The privilege “applies to documents in their

entirety, and covers final and post-decisional materials as well

as pre-deliberative ones.” In re Sealed Case, 121 F.3d at 745. 

Here, the requested documents represent communications directly

to the President used in the conduct of his official duties. 

Therefore, the requested documents fall within this privilege. 

Berman challenges the CIA’s invocation of the presidential

communications privilege on three grounds. First, Berman argues

that the requested PDBs are not “inter-agency” or “intra-agency”

documents because they were prepared for the President, and the

President is not an “agency” for purposes of the FOIA. (Pl.’s

Mot. at 17.) The documents are not intra-agency documents,

Berman contends, because they were not addressed “both to and

from employees of a single agency.” (Id.) Likewise, the

documents are not inter-agency because the President is not an

agency and, therefore, communications from the CIA to the

President are not inter-agency. (Id.)

This argument has little merit. For one, Congress “did not

intend ‘inter-agency’ and ‘intra-agency’ to be rigidly exclusive

terms, but rather to include any agency document that is part of

the deliberative process.” Ryan v. DOJ, 617 F.2d 781, 790 (D.C.

Cir. 1980). More importantly, under well established case law,

Exemption 5 has been applied to documents, like the ones here,

prepared by an agency addressed to the President. For example,

in EPA v. Mink, 410 U.S. 73, 93 S.Ct. 827 (1973), the Court found

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 Berman’s reliance on Dep’t of Interior v. Klamath Water 10

Users Protective Ass’n, 532 U.S. 1, 121 S.Ct. 1060 (2001), is not

persuasive. Klamath did not involve documents produced by an

agency for the benefit of the President. Rather, it involved

communications between an agency and a non-governmental entity

“representing interests of its own” in a negotiation with the

agency. Id. at 10-12. Klamath holds that the “intra-agency”

condition excludes communications to or from an interested,

outside party; it does not discuss whether documents produced by

an agency for the benefit of the President fall within Exemption

5. 

19

that “it was beyond question” that documents prepared by a

committee within the National Security Agency to aid the

President in making a certain decision “are ‘inter-agency or

intra-agency’ memoranda or ‘letters’.” Id. at 85; see also 10

Binion v. DOJ, 695 F.2d 1189, 1193 (9th Cir. 1983) (finding that

documents prepared for the President by the Office of the Pardon

Attorney fell within Exemption 5). Congress exempted the

President from the definition of an “agency” under FOIA because

it wanted to protect the President from the burdens and

intrusions of FOIA, not because it sought to deny the President

the protections afforded by the exemptions for information

communicated to the President but retained in an agency file. 

See, e.g., Armstrong v. Exec. Office of the President, 1 F.3d

1274, 1292 (D.C. Cir. 1993). 

Second, Berman asserts that the CIA lacks standing to assert

the presidential communications privilege, arguing that only the

President can assert this privilege. (Pl.’s Mot. at 22.) This

argument is also incorrect. Even assuming the President must

personally invoke the presidential communications privilege in

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 It is not clear that this is the law. In In re Sealed 11

Case, a non-FOIA case, the D.C. Circuit stated that the case law

“might suggest” that the President must assert the presidential

communications privilege personally. 121 F.3d at 745 n.16. 

However, it did not decide the issue because the record indicated

that the President invoked the privilege in that case. Id. 

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civil discovery, this requirement should not be imported into 11

the FOIA context. See Lardner v. DOJ, No. 03-0180, 2005 WL

758267 (D.D.C. March 31, 2005). 

Most importantly, Berman’s argument is at odds with the

established principle that Exemption 5 protects from disclosure 

documents that “fall within the ambit of a privilege” such that

they would not be “routinely or normally” disclosed in civil

discovery upon a showing of relevance. Dep’t of Interior v.

Klamath Water Users Protective Ass’n, 532 U.S. 1, 7, 121 S.Ct.

1060 (2001). This principle creates “a divide between the rules

of FOIA and civil discovery.” Lardner, 2005 WL 758267, at *6. 

Specifically, courts interpreting Exemption 5 focus on the

content or nature of the document, as opposed to the manner in

which the exemption is raised in a particular situation. See Dow

Jones & Co., Inc. v. DOJ, 917 F.2d 571, 575 (D.C. Cir. 1990)

(emphasizing that the application of Exemption 5 in the context

of the deliberative process privilege “depends on the factual

content and purpose of the requested document” as opposed to

other variables). Requiring the President personally to invoke

the presidential communications privilege in the Exemption 5

context would run counter to this focus on the content of the

document. 

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Second, “[t]here is no indication in the text of the statute

or elsewhere that Congress anticipated -- much less demanded --

that the decision to withhold documents under Exemption 5 would

need to be made personally by the head of the agency (in this

case the President). . . . The practice for decades has been

otherwise.” Lardner, 2005 WL 758267, at *8. For example,

although the deliberative process privilege requires invocation

by a high-level agency official in civil discovery, see Landry v.

FDIC, 204 F.3d 1125, 1135-36 (D.C. Cir. 2000), courts routinely

accept declarations from an employee at the agency other than a

high-level official as documentation of an Exemption 5 claim. 

See, e.g., Norwood v. FAA, 993 F.2d 570, 572 (6th Cir. 1993)

(assistant general counsel for litigation at the Department of

Transportation). 

Finally, requiring the President to personally examine the

documents and invoke the presidential communications privilege

every time a citizen seeks presidential records through the FOIA

would expose the President to considerable burden. Lardner, 2005

WL 758267, at *9. Congress would not have intended to impose

such a burden, given that it specifically intended the President

and his immediate staff to be immune from FOIA requests. See,

e.g., Kissinger v. Reporters Comm. for Freedom of the Press, 445

U.S. 136, 156, 100 S.Ct. 960 (1980) (holding that the

“legislative history is unambiguous” that the Office of the

President is not an agency and subject to FOIA). For the above

reasons, the court finds that the CIA may invoke the presidential

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communications privilege in the FOIA context. 

Third, Berman argues that the requested documents are not

protected by the presidential communications privilege because

the passage of time has abrogated any such privilege. (Pl.’s

Mot. at 22-23.) This argument is also unconvincing. The Supreme

Court has stated that the expectation of the confidentiality of

executive communications is subject to erosion over time after an

administration leaves office. Nixon II, 433 U.S. at 451. 

However, no court has put a specific time limit on this

privilege. “[T]here is no fixed number of years that can measure

the duration of the privilege.” Nixon v. Freeman, 670 F.2d 346,

356 (D.C. Cir. 1982). “The confidentiality necessary to [a

President’s] exchange cannot be measured by the few months or

years between the submission of the information and the end of

the President’s tenure; the privilege is not for the benefit of

the President as an individual, but for the benefit of the

Republic.” Nixon II, 433 U.S. at 449. Berman has cited no case,

nor could the court find one, where documents within the scope of

the presidential communications privilege have been released in

civil discovery due to their age. 

Furthermore, the presidential communications privilege is a

qualified privilege, assessed on the basis of a variety of

factors, only one of which is age. In re Sealed Case, 121 F.3d

at 753-55. In the context of civil discovery, a court must also

assess the “public interests at stake in determining whether the

privilege should yield in a particular case” and “must

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specifically consider the need of the party seeking privileged

evidence.” Id. at 746. Given the nature and purpose of the PDB,

the public’s interest in protecting frank exchange between the

leadership of the CIA and the President could not be greater. 

Thus, as the court in Lardner notes: 

even if there were support for the argument that the

executive privilege for a document significantly erodes

after 15 years, that would not end the Exemption 5

inquiry. Plaintiff would still need to demonstrate that

the privilege erodes to such a degree that -- even after

one sets the age of the document alongside all of the

other factors that bear on the assessment of the

privilege -- the documents would still “normally” or

“routinely” be disclosed.

Lardner, 2005 WL 758267, at *13. Berman has not shown that the

age of the two PDBs is such that the presidential communication

privilege would normally and routinely be disallowed in civil

discovery despite all other considerations that might support the

privilege. 

For these reasons, the court finds that these documents are

normally or routinely covered by the presidential communications

privilege and exempt from FOIA under Exemption 5. 

IV.

The FOIA requires that “[a]ny reasonably segregable portion

of a record shall be provided to any person requesting such

record after deletion of the portions which are exempt.” 5

U.S.C. § 552(b). “It is reversible error for the district court

to simply approve the withholding of an entire document without

entering a finding of segregability, or the lack thereof, with

respect to that document.” Wiener, 943 F.2d at 988 (internal

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citations omitted). “[A]gencies are required to provide the

court with facts which will enable it to make that

determination.” Bay Area Lawyers Alliance for Nuclear Arms

Control v. Dep’t of State, 818 F.Supp. 1291, 1300 (N.D. Cal.

1992) (emphasis in original omitted). Courts have found CIA

affidavits insufficient where the affidavits fail to address

whether the disclosure of substantive information may be possible

without the disclosure of a source or method. Ray v. Turner, 587

F.2d 1187, 1196 (D.C. Cir. 1978) 

Berman argues that the CIA’s declaration lacks sufficient

detail to establish that no segregable portions of the requested

documents exist. (Pl.’s Mot. at 26.) The court disagrees. 

First, because the PDB is itself an intelligence method, the

release of any portion of the requested PDBs necessarily

constitutes information about the application of an intelligence

method. (Def.’s Reply at 24.) Second, any intelligible

information that is not classified is nevertheless part of a

mosaic of PDB information that could provide damaging insight

into how the CIA conducts its intelligence business. (Id.) 

Finally, the presidential communications privilege applies to

documents in their entirety. In re Sealed Case, 121 F.3d at 745. 

Therefore, the court finds that the requested documents are not

segregable and are exempt from FOIA in their entirety. 

///

///

///

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V. 

The court finds that the requested PDBs are excluded from

the FOIA under Exemptions 3 and 5. Accordingly, the court GRANTS

the CIA’s motion for summary judgment and DENIES Berman’s summary

judgment motion. The clerk shall enter judgment. 

 IT IS SO ORDERED.

Dated: 7/11/2005

DAVID F. LEVI

Chief United States District Judge

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