Florez v. Cent. Intelligence Agency

• Decision Date: 14 July 2016
• Docket Number: No. 15-1055-cv,August Term, 2015,15-1055-cv
• Citation: 829 F.3d 178
• Parties: Sergio Florez, Plaintiff–Appellant, v. Central Intelligence Agency, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

829 F.3d 178

Sergio Florez, Plaintiff–Appellant

v.Central Intelligence Agency, Defendant–Appellee.

No. 15-1055-cv

August Term, 2015

United States Court of Appeals, Second Circuit.

Argued: January 11, 2016

Decided: July 14, 2016

David E. McCraw, (Jeremy A. Kutner, on the brief), New York, NY, for Sergio Florez.

Jessica Jean Hu (Christopher Connolly, on the brief), Assistant United States Attorneys, for Preet Bharara, United States Attorney for the Southern District of New York, New York, NY.

Before: Straub, Livingston and Chin, Circuit Judges.

Judge LIVINGSTON

dissents in a separate opinion.

Straub

, Circuit Judge:

This appeal arises from a request submitted to Defendant–Appellee Central Intelligence Agency (“CIA”) by Plaintiff–Appellant Sergio Florez (“Mr. Florez”), pursuant to the Freedom of Information Act (“FOIA”). See 5 U.S.C. § 552 et seq .

Mr. Florez's request, dated November 3, 2013, sought “the disclosure and release of any and all records between 1958 and 1990 related to and or mentioning [his] father, Armando J. Florez” (“Dr. Florez”). Joint App'x at 62. During the 1960s, Dr. Florez served in several high-level diplomatic roles on behalf of the Republic of Cuba, including as chargé d'affaires¹ in Washington, D.C. He defected to the United States in 1968, became an American citizen in 1979, and died in October 2013.

On November 20, 2013, the CIA answered Mr. Florez's request with a so-called Glomar response,² stating that it “can neither confirm nor deny the existence or nonexistence of records responsive to [Mr. Florez's] request.” Id . at 70. It asserted that the existence or nonexistence of such records “is currently and properly classified and is intelligence sources and methods information” that is exempt from disclosure under FOIA. Id . On December 4, 2013, Mr. Florez timely filed an administrative appeal with the CIA's Agency Release Panel.³

On February 18, 2014, while Mr. Florez's administrative appeal was pending, Mr. Florez timely filed the underlying action.⁴ The CIA and Mr. Florez filed cross-motions for summary judgment. On April 22, 2014, while the motions underwent briefing, the Agency Release Panel denied Mr. Florez's administrative appeal.

On February 19, 2015, the United States District Court for the Southern District of New York (Sidney H. Stein, Judge ) granted summary judgment in favor of the CIA and denied Mr. Florez's cross-motion for summary judgment, holding that “the CIA's Glomar response was justified and the existence of any records is exempt from disclosure under FOIA Exemption 1 (for classified national defense or foreign policy secrets) and Exemption 3 (for matters specifically exempted from disclosure by statute).” Florez v. CIA , No. 14–cv–1002, 2015 WL 728190, at *1 (S.D.N.Y. Feb. 19, 2015)

. This timely appeal followed.

During the pendency of this appeal, pursuant to a separate FOIA request, the Federal Bureau of Investigation (“FBI”) released several declassified documents pertaining to Dr. Florez on June 23, 2015, and one additional such document on July 24, 2015 (collectively, “FBI Disclosures”). Mr. Florez requested that the CIA revise its response to his FOIA request in light of the FBI Disclosures. The CIA reviewed the FBI Disclosures, but declined to alter its position that a Glomar response is supportable in these circumstances. See Letter from Preet Bharara, United States Attorney for the Southern District of New York, to Catherine O'Hagan Wolfe, Clerk of Court at 1, Florez v. CIA , No. 15–1055-cv (2d Cir. Dec. 18, 2015), ECF No. 57-1 [hereinafter “CIA Ltr.”].

DISCUSSION

Mr. Florez challenges the CIA's Glomar response as inadequate under the FOIA, but we do not reach the merits of his challenge at this time. Because we find the FBI Disclosures relevant to the issues presented, we remand for the District Court to pass on the import of those documents in the first instance.

I. Standard of Review

By statute, a district court must review de novo an agency's determination to withhold information requested under the FOIA, see 5 U.S.C. § 552(a)(4)(B)

; Main St. Legal Servs., Inc. v. Nat'l Sec. Council , 811 F.3d 542, 542 (2d Cir.2016), and we subsequently review de novo the district court's ruling, see

Ctr. for Constitutional Rights v. CIA , 765 F.3d 161, 166 (2d Cir.2014), cert. denied , ––– U.S. ––––, 135 S.Ct. 1530, 191 L.Ed.2d 559 (2015). “The government bears the burden of demonstrating that an exemption applies to each item of information it seeks to withhold, and all doubts as to the applicability of the exemption must be resolved in favor of disclosure.” Ctr. For Constitutional Rights , 765 F.3d at 166 (internal citations and quotation marks omitted). Such “[e]xceptions to FOIA's general principle of broad disclosure of Government records have consistently been given a narrow compass.” Id . (internal quotation marks and ellipsis omitted).

“An agency may carry its burden by submitting declarations giving reasonably detailed explanations why any withheld documents fall within an exemption, and such declarations are accorded a presumption of good faith.” Id .

(internal quotation marks omitted). We find a Glomar response justified only in “unusual circumstances, and only by a particularly persuasive affidavit.” N.Y. Times Co. v. Dep't of Justice , 756 F.3d 100, 122 (2d Cir.2014) (internal quotation marks omitted); see also

Halpern v. FBI , 181 F.3d 279, 295 (2d Cir.1999) (“[T]he good faith presumption that attaches to agency affidavits only applies when accompanied by reasonably detailed explanations of why material was withheld. Absent a sufficiently specific explanation from an agency, a court's de novo review is not possible and the adversary process envisioned in FOIA litigation cannot function.”).

II. FOIA Exemptions 1 and 3

On the merits, which we do not reach in this opinion, this appeal presents an ordinary Glomar inquiry: whether the existence or nonexistence of documents, within the CIA's possession and responsive to Mr. Florez's request, is itself a fact exempt from disclosure under one of two FOIA exemptions. Because the relevancy of the FBI Disclosures is determined by the scope of the claimed exemptions, we briefly describe the two exemptions at issue.

The CIA relies upon FOIA Exemptions 1 and 3 to support its Glomar response. FOIA Exemption 1 “exempts from disclosure records that are ‘specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy,’ and ‘are in fact properly classified pursuant to such Executive order.’ ” Ctr. for Constitutional Rights , 765 F.3d at 164

(quoting 5 U.S.C. § 552(b)(1) ). The agency asserts that the existence or nonexistence of responsive records is information properly classified pursuant to § 1.1(4) of Executive Order 13,526, which permits classification of information that, if disclosed, “reasonably could be expected to result in damage to the national security, which includes defense against transnational terrorism, and the original classification authority is able to identify or describe the damage.” 75 Fed. Reg. 707, 707 (Dec. 29, 2009)

.⁵

FOIA Exemption 3 “permits the Government to withhold information from public disclosure provided that: (1) the information is ‘specifically exempted from disclosure by statute’; and (2) the exemption 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.’ ” ACLU v. Dep't of Justice , 681 F.3d 61, 72 (2d Cir.2012)

(quoting 5 U.S.C. § 552(b)(3) ). Here, the CIA invokes Section 6 of the CIA Act of 1949, 50 U.S.C. § 3507 (exempting the CIA from any law that “require[s] the publication or disclosure of the organization, functions, names, official titles, salaries, or numbers of personnel employed by the Agency”), and Section 102A(i)(l) of the National Security Act of 1947, 50 U.S.C. § 3024(i)(1) (protecting “intelligence sources and methods from unauthorized disclosure”).

III. FBI Disclosures

During the pendency of this appeal, the FBI Disclosures were brought to our attention by Mr. Florez and submitted to us by the CIA. Our threshold inquiry in this appeal is whether the FBI Disclosures should be considered in adjudicating this case. Mr. Florez, on one hand, urges us to consider the documents ourselves and conclude that “the FBI release thoroughly undermine[s] the CIA's position.” Letter from David E. McCraw, Attorney for Sergio Florez, to Catherine O'Hagan Wolfe, Clerk of Court at 1, Florez v. CIA , No 15–1055–cv (2d Cir. Dec. 18, 2015), ECF No. 53. The CIA, on the other hand, urges us to evaluate its response to Mr. Florez's FOIA request “as of the time it was made and not at the time of [our] review,” CIA Ltr. at 1 (internal quotation marks omitted), and therefore ignore the FBI Disclosures in our analysis of the merits. If, however, we “determine that the FBI disclosures are relevant to the issues on appeal, the CIA respectfully requests that this case be remanded to the district court to allow the CIA to submit additional declarations addressing the FBI disclosures.” Id . at 3 n. 2. Accordingly, we first address whether the FBI Disclosures are relevant to the case. Answering that question in the affirmative, we next consider whether we should ignore the disclosures—resolving the merits based on the record as it existed at the time of Mr. Florez's FOIA request—or remand the case to allow the District Court to weigh the significance of the documents in the first instance. Our precedent, judicial efficiency, and common sense all militate towards the latter and we therefore remand the case to the District Court.

A. Relevance

Due to issues of timing, the District Court below never had the opportunity to weigh the significance of the FBI Disclosures and, accordingly, on appeal, “we lack the benefit of an evaluation of this issue by the district...