Am. Civil Liberties Union v. Cent. Intelligence Agency

• Decision Date: 15 March 2013
• Docket Number: No. 11–5320.,11–5320.
• Citation: 710 F.3d 422
• Parties: AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Appellants v. CENTRAL INTELLIGENCE AGENCY, Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

710 F.3d 422

AMERICAN CIVIL LIBERTIES UNION and American Civil Liberties Union Foundation, Appellants

v.CENTRAL INTELLIGENCE AGENCY, Appellee.

No. 11–5320.

United States Court of Appeals, District of Columbia Circuit.

Argued Sept. 20, 2012.

Decided March 15, 2013.

Appeal from the United States District Court for the District of Columbia (No. 1:10–cv–00436).

Jameel Jaffer argued the cause for appellants. With him on the briefs were Ben Wizner and Arthur B. Spitzer.

Ranjana Natarajan was on the brief for amici curiae The Bureau of Investigative Journalism, et al. in support of appellants.

Stuart F. Delery, Acting Assistant Attorney General, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Ronald C. Machen Jr., U.S. Attorney, Beth S. Brinkmann, Deputy Assistant Attorney General, and Matthew M. Collette and Catherine Y. Hancock, Attorneys. Douglas N. Letter and Sharon Swingle, Attorneys, entered appearances.

Before: GARLAND, Chief Judge, and TATEL and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge:

The plaintiffs filed a Freedom of Information Act request for records held by the Central Intelligence Agency pertaining to the use of unmanned aerial vehicles (“drones”) to carry out targeted killings. The Agency issued a so-called Glomar response, refusing to confirm or deny that it had any such records. The district court affirmed the Agency's response and granted summary judgment in its favor. The question on appeal is whether the Agency's Glomar response was justified under the circumstances of this case. We conclude that it was not justified and therefore reverse and remand for further proceedings.

I

On January 13, 2010, the American Civil Liberties Union and American Civil Liberties Union Foundation (collectively, the ACLU) submitted a Freedom of Information Act (FOIA) request to the Central Intelligence Agency (CIA), seeking “records pertaining to the use of unmanned aerial vehicles (‘UAVs')—commonly referred to as ‘drones' ...—by the CIA and the Armed Forces for the purpose of killing targeted individuals.” FOIA Request 2 (J.A. 48); see5 U.S.C. § 552(a). The CIA responded with what is commonly known as a “ Glomar response,” declining either to confirm or deny the existence of any responsive records.¹ The CIA's Agency Release Panel accepted an administrative appeal, but failed to make a determination within twenty days as FOIA requires. See5 U.S.C. § 552(a)(6)(A)(ii). The ACLU then filed suit against the CIA in the United States District Court for the District of Columbia, seeking the immediate processing and release of the requested records. See id. § 552(a)(4)(B).

The CIA moved for summary judgment. It asserted that the answer to the question of whether it possessed responsive records was itself exempt from disclosure under FOIA Exemptions 1 and 3. See id. § 552(b)(1), (3). And it rejected the ACLU's contention that there had been official public acknowledgments that warranted overriding the Agency's exemption claims. In support of those arguments, the CIA submitted the affidavit of Mary Ellen Cole, the Information Review Officer for the Agency's National Clandestine Service, who explained at some length why the CIA believed its Glomar response was justified. See Declaration of Mary Ellen Cole (Cole Decl.).

On September 9, 2011, the district court granted the CIA's motion for summary judgment. Am. Civil Liberties Union v. Dep't of Justice, 808 F.Supp.2d 280, 284 (D.D.C.2011). The court agreed with the CIA that the existence vel non of responsive records was exempt under both Exemptions 1 and 3, and that there had been no official acknowledgment sufficient to override those exemptions. As a consequence, the court held, the CIA was not required to confirm or deny that it had any responsive records, let alone describe any specific documents it might have or explain why any such documents were exempt from disclosure. The ACLU filed a timely appeal.

II

This appeal concerns the intersection of two lines of FOIA cases. The first is the Glomar line, which permits an agency to “refuse to confirm or deny the existence of records” in limited circumstances. Wolf v. CIA, 473 F.3d 370, 374 (D.C.Cir.2007). “Because Glomar responses are an exception to the general rule that agencies must acknowledge the existence of information responsive to a FOIA request and provide specific, non-conclusory justifications for withholding that information, they are permitted only when confirming or denying the existence of records would itself ‘cause harm cognizable under an FOIA exception.’ ” Roth v. U.S. Dep't of Justice, 642 F.3d 1161, 1178 (D.C.Cir.2011) (quoting Wolf, 473 F.3d at 374) (citation and internal quotation marks omitted); see, e.g., Miller v. Casey, 730 F.2d 773, 775–78 (D.C.Cir.1984); Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982). Accordingly, “[i]n determining whether the existence of agency records vel non fits a FOIA exemption, courts apply the general exemption review standards established in non- Glomar cases.” Wolf, 473 F.3d at 374;see, e.g., Gardels, 689 F.2d at 1103–07.

The second line of cases is the “official acknowledgment” line, which provides that when 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. In other words, “ ‘when information has been “officially acknowledged,” its disclosure may be compelled even over an agency's otherwise valid exemption claim.’ ” Wolf, 473 F.3d at 378 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir.1990)). A plaintiff mounting an official acknowledgment argument “must bear the initial burden of pointing to specific information in the public domain that appears to duplicate that being withheld.” Id. (quoting Afshar v. Dep't of State, 702 F.2d 1125, 1130 (D.C.Cir.1983)).

These two lines of cases converge when a plaintiff seeks to rebut a Glomar response by establishing official acknowledgment. In the Glomar context, the “specific information” at issue is not the contents of a particular record, but rather “the existence vel non ” of any records responsive to the FOIA request. Id. at 379 (emphasis omitted); see id. at 380. Accordingly, the plaintiff can overcome a Glomar response by showing that the agency has already disclosed the fact of the existence (or nonexistence) of responsive records, since that is the purportedly exempt information that a Glomar response is designed to protect. See id. at 379–80;Marino v. DEA, 685 F.3d 1076, 1081 (D.C.Cir.2012). As we have explained, “in the context of a Glomar response, the public domain exception is triggered when ‘the prior disclosure establishes the existence (or not) of records responsive to the FOIA request,’ regardless whether the contents of the records have been disclosed.” Marino, 685 F.3d at 1081 (quoting Wolf, 473 F.3d at 379).

“Under the FOIA, ‘the burden is on the agency to sustain its action,’ 5 U.S.C. § 552(a)(4)(B), and we review de novo the agency's use of a FOIA exemption to withhold documents.” Wolf, 473 F.3d at 374. However, “in conducting de novo review in the context of national security concerns, courts ‘must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record.’ ” Id. (quoting Miller, 730 F.2d at 776) (internal quotation marks omitted). “Ultimately, an agency's justification for invoking a FOIA exemption,” whether directly or in the form of a Glomar response, “is sufficient if it appears ‘logical’ or ‘plausible.’ ” Id. at 374–75;see Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931 (D.C.Cir.2012); Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 619 (D.C.Cir.2011); see also CIA Br. 19 (acknowledging that “[t]he same standard applies when the Government issues a Glomar response”).

In the district court, the CIA argued that it could neither confirm nor deny that it had responsive documents because confirming that it did would reveal that the CIA was either involved in, or interested in, drone strikes (while denying that it did would reveal the opposite). According to the Agency, its involvement or interest in such strikes is exempt from disclosure under FOIA Exemptions 1 and 3.² On behalf of the Agency, Mary Ellen Cole declared that “[a]n official CIA acknowledgment that confirms or denies the existence or nonexistence of records responsive to Plaintiffs' FOIA request would reveal, among other things, whether or not the CIA is involved in drone strikes or at least has an intelligence interest in drone strikes.” Cole Decl. ¶ 12; see id. ¶ 19. “[T]he existence or nonexistence of CIA records responsive to this request,” she continued, “is a currently and properly classified fact, the disclosure of which reasonably could be expected to cause damage to the national security.” Id. ¶ 15. And she further averred that, “[c]ontrary to Plaintiffs' suggestion, no authorized CIA or Executive Branch official has disclosed whether or not the CIA possesses records regarding drone strikes or whether or not the CIA is involved in drone strikes or has an interest in drone strikes.” Id. ¶ 43; see id. ¶ 45.

In response, the ACLU argued both that: (1) the mere existence or nonexistence of records responsive to its requests was not exempt under FOIA Exemption 1 or 3; and (2) even if it were, the existence of such records had already been officially acknowledged by prior disclosure. The district court rejected both arguments. See Am. Civil Liberties Union, 808 F.Supp.2d at 287–93, 298–301;id. at 293–98. On appeal, the ACLU pursues only the second argument. Accordingly, that is the only argument we consider, and we consider it de novo. See Elec. Privacy Info. Ctr., 678 F.3d at 930.

III

For reasons that will become clear in a moment, the CIA did not justify its Glomar response by contending that it was necessary to...