American Civil Liberties Union v. Central Intelligence Agency
404 U.S. App. D.C. 235
| D.C. Cir. | 2013Background
- ACLU FOIA request to CIA for records on drone strikes; CIA issued a Glomar response refusing to confirm or deny existence of responsive records.
- District court granted CIA summary judgment, holding existence of records exempt under Exemptions 1 and 3; no official acknowledgment sufficient to override exemptions.
- Appeal centers on whether CIA’s Glomar response was justified given public acknowledgments of drone strikes by the President and senior officials.
- CIA asserted that confirming/denying the existence of records would reveal CIA involvement or interest in drone strikes; district court accepted this rationale.
- Plaintiffs argued that official acknowledgments negate the Glomar defense and that some disclosure should be compelled; on appeal, the court considers official-acknowledgment theory de novo.
- Court remands for further proceedings, noting CIA later acknowledged possession of some drone-related documents in related NY litigation and that a Vaughn index or alternative description is required.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Glomar denial was justified | ACLU contends existence of records was not exempt; public acknowledgments negate Glomar. | CIA claims confirming/denying would reveal CIA involvement or interest in drone strikes. | Glomar denial not justified; remand for further proceedings. |
| Effect of official acknowledgment on exemptions | Official acknowledgments trigger disclosure despite exemptions. | Acknowledgments do not override exemptions in this case. | Acknowledgments undermine broad Glomar; issue discussed for remand. |
| Scope of destruction of Glomar in this case | Glomar should not bar all disclosure; project-wide denial was improper. | Glomar protects overall existence/absence of records. | CIA’s broad Glomar overbroad; not sustainable; remand. |
| Form of further proceedings on remand | A Vaughn index or equivalent description is required. | Any suitable disclosure mechanism acceptable; no index yet filed. | Remand to develop Vaughn index or alternative proper submission. |
| District court error in summary judgment | Should not have granted summary judgment while Glomar unresolved. | Glomar justified at summary judgment stage. | Summary judgment vacated; remand mandated. |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (Glomar and exemption standards; de novo review with respect for national security affidavits)
- Roth v. U.S. Dep’t of Justice, 642 F.3d 1161 (D.C. Cir. 2011) (GLomar requires harm cognizable under FOIA exemptions)
- Miller v. Casey, 730 F.2d 773 (D.C. Cir. 1984) (early Glomar guidance on when denial is appropriate)
- Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982) (exemption review standards in non-Glomar contexts)
- Marino v. DEA, 685 F.3d 1076 (D.C. Cir. 2012) (public-domain disclosures can defeat Glomar under official acknowledgment theory)
- Afshar v. Dep’t of State, 702 F.2d 1125 (D.C. Cir. 1983) (initial burden on plaintiffs to show in public domain information)
- Gallant v. NLRB, 26 F.3d 168 (D.C. Cir. 1994) (agency may categorize disclosures in a Vaughn-style index to justify withholdings)
- Fluro, — (—) (Not included due to lack of official reporter citation)