987 F.3d 163
D.C. Cir.2021Background
- Requesters Jason Leopold and BuzzFeed sought CIA records about payments to Syrian rebels following President Trump’s July 24, 2017 tweet criticizing a Washington Post story as fabricating Trump’s "ending" of such payments.
- The CIA issued a Glomar response (refusing to confirm or deny existence of records), invoking FOIA Exemptions 1 (classified national security information) and 3 (statutory protection of intelligence sources/methods).
- In an earlier related suit (Leopold I) the district court upheld the CIA’s Glomar response; in a subsequent, broader request (Leopold II) the district court concluded the tweet officially acknowledged the existence of relevant CIA records and ordered the CIA to respond.
- The CIA appealed, arguing (1) the district court’s order denying the Glomar response is immediately appealable under 28 U.S.C. § 1292(a)(1), and (2) the tweet did not constitute the kind of "official acknowledgment" that defeats a Glomar response.
- The D.C. Circuit held the district court’s order was appealable and, on de novo review, reversed: the tweet did not meet the strict official-acknowledgment test and therefore did not defeat the CIA’s Glomar response.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether President Trump’s tweet constituted an "official acknowledgment" that CIA had records about payments to Syrian rebels, overcoming a Glomar response | The tweet ("my ending massive, dangerous, and wasteful payments") admitted existence of a U.S. program and thus necessarily implied CIA records; adjectives and "my" show executive admission | The tweet lacked specificity, never mentioned the CIA, could refer to foreign or nonstate programs, and did not reveal the CIA’s interest, sources, or methods | The tweet did not satisfy the strict Fitzgibbon/Afshar three-part test; it was ambiguous and did not officially acknowledge CIA records — reversal of district court |
| Whether the district court’s order denying the Glomar response was immediately appealable under 28 U.S.C. § 1292(a)(1) | Order not final but not premature because it effectively forces the agency to confirm/deny existence of records; denial of Glomar is injunctive and appealable | Same as above (Agency argued interlocutory appeal proper because denial would irreparably reveal classified facts) | The order was an appealable interlocutory injunction under § 1292(a)(1) because forcing confirmation/denial would irreparably disclose protected information |
Key Cases Cited
- CIA v. Sims, 471 U.S. 159 (1985) (National Security Act qualifies as an Exemption 3 withholding statute)
- Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976) (origin of Glomar doctrine and example of confirming/denying existence itself revealing protected information)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (agency may refuse to confirm or deny existence of records; official-acknowledgment standards)
- Am. Civil Liberties Union v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (collective, specific public disclosures can defeat Glomar)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) (three-part official-acknowledgment test: specificity, match, official/documented disclosure)
- Afshar v. Department of State, 702 F.2d 1125 (D.C. Cir. 1983) (official-acknowledgment doctrine; public speculation insufficient)
- Jud. Watch, Inc. v. Dep’t of Energy, 412 F.3d 125 (D.C. Cir. 2005) (orders compelling disclosure are interlocutory injunctions under § 1292(a)(1))
- Citizens for Responsibility & Ethics in Wash. v. U.S. Dep’t of Homeland Sec., 532 F.3d 860 (D.C. Cir. 2008) (discusses appealability of FOIA disclosure orders)
- Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011) (official-acknowledgment/Glomar principles and limits)