Wolf v. C.I.A.

• Decision Date: 16 January 2007
• Docket Number: Nos. 05-5394, 06-5072.,s. 05-5394, 06-5072.
• Citation: 473 F.3d 370
• Parties: Paul WOLF, Appellant v. CENTRAL INTELLIGENCE AGENCY and FEDERAL BUREAU OF INVESTIGATION, Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 370

473 F.3d 370

Paul WOLF, Appellant v. CENTRAL INTELLIGENCE AGENCY and FEDERAL BUREAU OF INVESTIGATION, Appellees.

Nos. 05-5394, 06-5072.

United States Court of Appeals, District of Columbia Circuit.

Argued October 16, 2006.

Decided January 16, 2007.

COPYRIGHT MATERIAL OMITTED

Appeals from the United States District Court for the District of Columbia (No. 01cv00729).

Paul Wolf, pro se, argued the cause for the appellant.

Alan Burch, Assistant United States Attorney, argued the cause for the appellees. Kenneth L. Wainstein, United States Attorney at the time the brief was filed, and R. Craig Lawrence and Diane M. Sullivan, Assistant United States Attorneys, were on brief for the appellees. Michael J. Ryan, Assistant United States Attorney, entered an appearance.

Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit Judges.

Opinion for the court filed by Circuit Judge HENDERSON.

KAREN LECRAFT HENDERSON, Circuit Judge:

The appellant, Paul Wolf (Wolf), filed a Freedom of Information Act (FOIA), 5 U.S.C. §§ 552 et seq., request with the Central Intelligence Agency (CIA or Agency), seeking all records related to Jorge Eliecer Gaitan (Gaitan), a former (and deceased) Colombian politician. After the CIA refused to either confirm or deny the existence of such records, Wolf filed this suit. The CIA subsequently moved for summary judgment on the basis of two FOIA exemptions. In response, Wolf asserted that the Agency waived the exemptions through official acknowledgment of records regarding Gaitan during a 1948 congressional hearing. The district court rejected Wolf's official acknowledgment argument and upheld the CIA's exemption claims, granting summary judgment to the Agency. Wolf appeals. We affirm the district court except to the extent the Agency officially acknowledged the existence of records before the Congress in 1948; as to the latter, we remand to the district court for further proceedings.

I.

On April 9, 1948, Gaitan, a former Colombian presidential candidate, was assassinated in Bogota, Colombia. In the wake of his assassination, riots erupted in Bogota which prompted a congressional investigation into the alleged failure of the CIA to predict such unrest. At the hearing, then-CIA Director Admiral R.K. Hillenkoetter (Hillenkoetter) testified that the Agency had in fact predicted the explosive situation brewing in Bogota in 1948. A half century later, Wolf, a historical researcher interested in the life and death of Gaitan, submitted a FOIA request to the CIA seeking "all records about Jorge Eliecer Gaitan." Reprinted at Appellant's App. at 2.¹ On September 22, 2000, the CIA issued a Glomar response² to Wolf's request, neither confirming nor denying the existence of records regarding Gaitan. Following an unsuccessful administrative appeal, Wolf filed suit in April 2001 seeking to compel the CIA to release responsive documents.

Before the district court, the CIA submitted the affidavit of Kathryn Dyer (Dyer Affidavit), the Agency's Information and Privacy Coordinator, in support of its Glomar response. See Dyer Affidavit, reprinted in Appellee's App. at 28. The Dyer Affidavit explained that official confirmation or denial of the existence of such records might damage both national security, through revelation of intelligence sources or methods, and foreign relations. More specifically, according to the Dyer Affidavit, acknowledgment of such records could disclose the identities of individuals, or categories of individuals, "in which the CIA is interested and upon which it focuses its methods and resources," thereby allowing foreign intelligence services to more effectively implement countermeasures to CIA information-gathering. Id. at 38-39. Moreover, the Agency asserted that acknowledgment of such records could upset diplomatic relations with foreign governments whose citizens had CIA files. As a consequence, the CIA claimed that the existence of records regarding a foreign national constitutes classified information, making its Glomar response appropriate under FOIA Exemptions 1 and 3.³

The CIA moved for summary judgment on the strength of the Dyer Affidavit. Wolf responded by filing a cross-motion for summary judgment, contending that the Agency waived the exemptions as a result of Hillenkoetter's 1948 congressional testimony. During his testimony, Wolf alleged, Hillenkoetter read from official CIA dispatches referencing Gaitan, thereby acknowledging that the CIA had responsive records. Concluding that the Dyer Affidavit explained in reasonably specific detail the danger to intelligence sources and methods if the existence of responsive records were disclosed, the district court held that Exemptions 1 and 3 applied. Because the district court found "no indication from the transcript [of the congressional hearing] that the CIA director was reading from anything more than a prepared statement for the hearing," Wolf v. CIA, 357 F.Supp.2d 112, 118 (D.D.C.2004), the court held that the Agency did not waive the FOIA exemptions through official acknowledgment of records regarding Gaitan. As a result, the district court granted the CIA's motion for summary judgment. Wolf now appeals.

II.

The FOIA mandates broad disclosure of government records to the public, CIA v. Sims, 471 U.S. 159, 166, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985), subject to nine enumerated exemptions. See 5 U.S.C. § 552(b). Given the FOIA's broad disclosure policy, the United States Supreme Court has "consistently stated that FOIA exemptions are to be narrowly construed." U.S. Dep't of Justice v. Julian, 486 U.S. 1, 8, 108 S.Ct. 1606, 100 L.Ed.2d 1 (1988). Nevertheless, the CIA "may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under an FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982); see also Miller v. Casey, 730 F.2d 773, 776-77 (D.C.Cir.1984); Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C.Cir.1976). Such an agency response is known as a Glomar response and is proper if the fact of the existence or nonexistence of agency records falls within a FOIA exemption. See, e.g., Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir.1992); Phillippi, 546 F.2d at 1011 (acknowledging CIA refusal to confirm or deny existence of records regarding activities of ship named Hughes Glomar Explorer). In 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. See, e.g., Gardels, 689 F.2d at 1103-05.⁴

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. Miller, 730 F.2d at 776. Yet 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 Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C.Cir.1981)) (emphasis in original); see also Krikorian v. Dep't of State, 984 F.2d 461, 464 (D.C.Cir.1993) (noting deference to expertise of agencies engaged in national security and foreign policy). Indeed, "[s]ummary judgment is warranted on the basis of agency affidavits when the affidavits describe `the justifications for nondisclosure with reasonably specific detail ... and are not controverted by either contrary evidence in the record nor by evidence of agency bad faith.'" Miller, 730 F.2d at 776 (quoting Military Audit Project, 656 F.2d at 738). Moreover, a reviewing court "must take into account ... that any affidavit or other agency statement of threatened harm to national security will always be speculative to some extent, in the sense that it describes a potential future harm." Halperin v. CIA, 629 F.2d 144, 149 (D.C.Cir.1980). Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears "logical" or "plausible." See Gardels, 689 F.2d at 1105; Hayden v. NSA, 608 F.2d 1381, 1388 (D.C.Cir.1979).

III.

The CIA submitted the Dyer Affidavit to support its refusal to either confirm or deny the existence of records pertaining to Jorge Gaitan. The question, then, is whether the existence of Agency records regarding an individual foreign national constitutes information itself protected by either FOIA Exemption 1 or Exemption 3. Proper invocation of, and affidavit support for, either Exemption, standing alone, may justify the CIA's Glomar response. See Miller, 730 F.2d at 775; Gardels, 689 F.2d at 1107 (noting Exemptions 1 and 3 may be invoked independently).

A.

The Agency justifies its Glomar response under Exemption 1 based on the classification criteria of Executive Order 12958.⁵ See Appellee's Brief at 7; 60 Fed. Reg. 19,825 (Apr. 17, 1995). Executive Order 12958 permits an original classification authority to classify information only if "the original classification authority determines that the unauthorized disclosure of the information reasonably could be expected to result in damage to the national security ... and ... is able to identify or describe the damage." 60 Fed.Reg. at 19,826 § 1.2(a)(4). Such damage to national security may be claimed only with respect to certain categories of information, specifically information that "concerns ... intelligence sources or methods" or the "foreign relations ... of the United States." Id. at 19, 827 § 1.5(c)-(d). Further, the Supreme Court has recognized the broad sweep of "intelligence sources" warranting protection in the interest of national security. See Fitzgibbon v. CIA, 911 F.2d 755, 760-63 (D.C.Cir.1990) (including "unsuspecting," "potential" and past sources of information) (emphasis in original) (citing Sims, supra).

The Dyer Affidavit asserts that confirmation or denial of the existence of records regarding a foreign national could reasonably be expected to damage national security or...