Florez v. Central Intelligence Agency
2016 U.S. App. LEXIS 12925
| 2d Cir. | 2016Background
- Sergio Florez filed a FOIA request to the CIA (Nov. 3, 2013) seeking records (1958–1990) mentioning his father, Dr. Armando J. Florez, a former Cuban diplomat who defected to the U.S.
- The CIA issued a Glomar response (neither confirm nor deny) asserting Exemptions 1 and 3 (classified national security information; statutes protecting intelligence sources/methods and CIA personnel information).
- Florez administratively appealed; while appeal was pending he sued in district court. The district court granted summary judgment to the CIA, upholding the Glomar response.
- During the appeal, the FBI released several declassified documents about Dr. Florez (FBI Disclosures). Florez argued these undermined the CIA’s Glomar rationale; the CIA reviewed the FBI material and reaffirmed its Glomar response.
- The Second Circuit found the FBI Disclosures relevant to assessing the sufficiency of the CIA’s Glomar justification and remanded to the district court (Jacobson remand) to evaluate the disclosures in the first instance rather than resolving the merits on the existing record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the FBI’s post-response disclosures are relevant to evaluating the CIA’s Glomar response | Florez: FBI disclosures undermine CIA’s claim that confirming existence/nonexistence would reveal intelligence interest; they bear on sufficiency of CIA affidavit | CIA: Evaluate CIA response as of time made; FBI disclosures by another agency do not require altering Glomar response; if relevant, remand to allow CIA to submit new declarations | The court held the FBI disclosures are relevant and remanded to the district court to assess their import and any post-remand submissions |
| Whether appeal should be decided based on record at time of FOIA response or include later public disclosures | Florez: Later disclosures that bear on the issues should be considered to avoid pointless reprocessing and delay | CIA: FOIA decisions evaluated as of the time made; later disclosures irrelevant; requested remand if court deems disclosures relevant | Court departed from the general-rule approach, remanding for district court consideration given relevance and judicial efficiency |
| Whether Glomar responses get special deference absent contradictory public evidence | Florez: Public disclosures by other agencies can call into question an agency affidavit’s plausibility | CIA: Substantial weight to agency affidavits unless contradicted; disclosures by third parties do not waive another agency’s right to Glomar | Court: Agency affidavits get weight but may be challenged by contradictory public evidence from other agencies; such evidence is relevant and merits district-court factfinding |
| Proper procedure for handling newly released, potentially relevant evidence on appeal | Florez: Allow court to consider disclosures or remand so district court can weigh them first | CIA: If disclosures relevant, request remand to district court to supplement record | Court: Ordered a limited Jacobson remand so district court can reconsider its prior ruling in light of FBI Disclosures; appellate process streamlined for return to this panel |
Key Cases Cited
- Ctr. for Constitutional Rights v. C.I.A., 765 F.3d 161 (2d Cir. 2014) (standards for agency affidavits and Glomar responses under FOIA)
- N.Y. Times Co. v. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (general rule: evaluate FOIA decision as of the time it was made; courts may consider later government disclosures in some circumstances)
- Wilner v. N.S.A., 592 F.3d 60 (2d Cir. 2009) (Glomar doctrine recognized; weight to agency affidavits unless contradicted by record)
- Gardels v. C.I.A., 689 F.2d 1100 (D.C. Cir. 1982) (test for reasonableness, good faith, specificity, and plausibility of CIA judgments about secrecy)
- Larson v. Dep’t of State, 565 F.3d 857 (D.C. Cir. 2009) (scope of Exemption 3 and deference to agency judgments about intelligence sources and methods)
- Frugone v. C.I.A., 169 F.3d 772 (D.C. Cir. 1999) (third-party disclosures generally do not oblige a separate agency to break silence; official-acknowledgment limits)
- Wolf v. C.I.A., 473 F.3d 370 (D.C. Cir. 2007) (importance of protecting confidentiality for intelligence sources; long-term nondisclosure justified)
- Halpern v. F.B.I., 181 F.3d 279 (2d Cir. 1999) (agency affidavits must provide reasonably detailed explanations for withholding to permit de novo review)
- Phillippi v. C.I.A., 546 F.2d 1009 (D.C. Cir. 1976) (origin of the Glomar response doctrine)