344 F. Supp. 3d 396
D.C. Cir.2018Background
- BuzzFeed and two journalists submitted a FOIA request seeking flight logs and evidence logs (Aug 15, 2015–present) for 27 aircraft identified by tail numbers and geographic sightings (DC/Baltimore, California, New York).
- The FBI issued a Glomar response: it refused to confirm or deny whether records exist for the listed tail numbers, invoking FOIA Exemptions 7(A) and 7(E).
- Plaintiffs appealed administratively, exhausted remedies, and filed suit; parties filed cross-motions for summary judgment.
- The FBI submitted public and classified declarations explaining that confirming or denying record existence would (a) reveal agency ownership/use of specific aircraft and investigative interest in particular areas, (b) risk interference with pending investigations, and (c) disclose law‑enforcement techniques enabling circumvention.
- Plaintiffs argued exemptions did not apply because the FBI failed to identify specific proceedings and because prior public disclosures (ACLU FOIA production, FAA records, press reports) allegedly put the information in the public domain.
- The Court reviewed the declarations (including in camera material), concluded the FBI satisfied the Glomar/Exemption standards, and held the prior public disclosures did not officially acknowledge the specific existence (or nonexistence) of records tied to the 27 tail numbers.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FBI may issue a Glomar response under Exemption 7(A) | Comey’s/general acknowledgments insufficient; FBI failed to identify specific proceedings | Confirming/denying existence would interfere with pending or reasonably anticipated law‑enforcement proceedings by revealing investigative focus | Held: FBI met burden — Exemption 7(A) applies; Glomar justified |
| Whether Exemption 7(E) permits Glomar response (risk of circumvention) | Public knowledge and prior releases eliminate any circumvention risk | Confirmation would reveal aircraft ownership, deployment patterns, and enable circumvention or countermeasures | Held: Exemption 7(E) applies; FBI demonstrated logical risk of circumvention |
| Whether prior public disclosures (ACLU production, FAA/press) waived Glomar (official‑acknowledgment/public‑domain) | Prior FOIA releases and public records show the information is already public; waiver | Prior disclosures did not officially acknowledge existence of records tied to these specific tail numbers; non‑FBI sources cannot waive FBI Glomar | Held: No waiver; disclosures did not match the specific information and were not official acknowledgments by the FBI |
| Standard of review for agency Glomar declarations | N/A — plaintiffs challenging sufficiency of declarations | Agency declarations entitled to presumption of good faith; classified declarations may be considered in camera to explain harm | Held: Court credited public and classified declarations; summary judgment for DOJ appropriate |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (limits on confirming or denying existence of records; Glomar framework)
- Citizens for Responsibility & Ethics in Wash. v. DOJ, 746 F.3d 1082 (D.C. Cir. 2014) (requirements for Exemption 7(A): interference with pending or anticipated proceedings)
- Blackwell v. FBI, 646 F.3d 37 (D.C. Cir. 2011) (Exemption 7(E) requires a logical demonstration of risk of circumvention)
- Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011) (strict official‑acknowledgment test for overcoming Glomar)
- Marino v. DEA, 685 F.3d 1076 (D.C. Cir. 2012) (Glomar inquired into how prior acknowledgments operate for existence questions)
- ACLU v. U.S. Dep't of Def., 628 F.3d 612 (D.C. Cir. 2011) (official‑acknowledgment doctrine permitting disclosure despite exemptions)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) (three‑part test for official acknowledgment)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (presumption of good faith accorded to agency affidavits)