EDDINGTON v. U.S. DEPARTMENT OF JUSTICE
1:19-cv-01991
| D.D.C. | Jan 25, 2022Background
- Patrick Eddington (Cato Institute policy analyst) filed a FOIA request to DOJ/NSD for all NSD records mentioning Amir Mohamed Meshal (detained in Kenya/Ethiopia in 2006–2007).
- NSD released some records, withheld two under Exemption 5, and issued Glomar (neither confirm nor deny) responses for: (a) Office of Intelligence (FISA-related materials) and (b) Counterterrorism Section investigative files.
- Eddington sued, challenging the Glomar responses and arguing the government had already officially acknowledged the existence of responsive records (via Meshal’s Bivens litigation, press statements, and communications with family/officials).
- DOJ defended the Glomar responses under FOIA Exemption 1 (classification/FISA), Exemption 7(A) (interference with law‑enforcement proceedings), and Exemptions 6/7(C) (privacy/stigma).
- Court applied the D.C. Circuit’s strict official‑acknowledgment test and national‑security/deference standards, found the official‑acknowledgment exception inapplicable, and upheld DOJ’s Glomar invocations.
- Result: Court granted DOJ summary judgment and denied Eddington’s partial summary judgment; Glomar responses sustained.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior public statements amount to an "official‑acknowledgment" that NSD investigated Meshal (thus defeating Glomar) | Meshal Bivens opinion, FBI media statement, and communications to family/Rep. Holt show the government has publicly acknowledged investigations or interviews, so existence of NSD records is already official and public | No NSD official ever disclosed that NSD investigated or prosecuted Meshal; prior disclosures are generalized or from non‑official sources and do not match the specific information sought | Official‑acknowledgment test not met; Glomar survives (no waiver) |
| Whether Glomar for Office of Intelligence is proper under Exemption 1 (classified/FISA materials) | Plaintiff: DOJ already revealed enough facts; requests for NSD records should be disclosed | DOJ: existence/nonexistence of FISA‑related records is properly classified; acknowledging existence would reveal targets/methods and harm national security | Exemption 1 applicable; Glomar for Office of Intelligence upheld |
| Whether Glomar for Counterterrorism Section is proper under Exemption 7(A) (interference with enforcement) | Plaintiff: public record implies investigations, so confirming/denying cannot interfere | DOJ: confirming/denying would reveal prosecutorial knowledge and could impede ongoing or reasonably anticipated terrorism enforcement efforts | Exemption 7(A) justification adequate; Glomar for investigative files upheld |
| Whether Glomar for Counterterrorism Section is proper under Exemptions 6/7(C) (privacy/stigma) and whether public interest outweighs privacy | Plaintiff: Meshal and news coverage minimized privacy concerns; public interest in DOJ role and possible constitutional violations is high | DOJ: confirming/denying would stigmatize Meshal or third parties and invade privacy; plaintiff cannot waive third‑party privacy; public interest does not outweigh privacy here | Exemption 7(C) (and 6) protect against disclosure; privacy outweighs public interest; Glomar upheld |
Key Cases Cited
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (articulates Glomar/official‑acknowledgment framework and deference in national‑security context)
- ACLU v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (official‑acknowledgment exception requires specific, official prior disclosure)
- Meshal v. Higgenbotham, 804 F.3d 417 (D.C. Cir. 2015) (Bivens appeal providing background facts about Meshal’s detention and interrogations)
- SafeCard Servs., Inc. v. SEC, 926 F.2d 1197 (D.C. Cir. 1991) (names/addresses in law‑enforcement files are protected absent necessity to confirm/refute agency illegality)
- People for the Ethical Treatment of Animals v. NIH, 745 F.3d 535 (D.C. Cir. 2014) (confirming existence of investigations associates individual with criminal inquiry and is protected by Exemption 7(C))
- Davis v. DOJ, 968 F.2d 1276 (D.C. Cir. 1992) (balancing test for public interest against privacy under Exemption 7(C))