380 F. Supp. 3d 14
D.C. Cir.2019Background
- Buzzfeed and reporter Jason Leopold submitted a FOIA request seeking CIA records about an alleged covert program to pay/arm Syrian rebels and any CIA records referencing President Trump's July 24, 2017 tweet responding to a Washington Post article.
- CIA issued a Glomar response (refusing to confirm or deny existence of records) invoking FOIA Exemptions 1 and 3 for the covert-program-related parts, but searched limited CIA offices for records responsive to the tweet and produced two redacted emails.
- Buzzfeed sued after the CIA failed to timely respond and cross-moved for summary judgment only on whether the Glomar response was improper because the President’s tweet (and related public statements) had already officially acknowledged the program.
- The sole disputed legal question was whether the July 24, 2017 tweet (alone or with contemporaneous statements) constituted an "official acknowledgment" that waived the CIA’s Glomar refusal.
- The district court concluded the tweet and related statements did not officially acknowledge a CIA-run covert payments program, upheld the CIA’s Glomar response under Exemptions 1 and 3, and found the limited search and redactions adequate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether President Trump's July 24, 2017 tweet (and related statements) constitutes an official acknowledgment that a CIA covert payments program existed, defeating the CIA's Glomar response | Tweet (and context) permits a reasonable person to infer the existence of massive government payments and, given the Post article, that CIA ran the program, so Glomar is waived | Tweet is vague/ambiguous, doesn't identify the program or CIA involvement; public statements lack the specificity required to force disclosure | Court held the tweet and related statements did not officially acknowledge a CIA-run program; Buzzfeed failed to meet the initial burden to point to specific public information duplicating the withheld fact |
| Whether the CIA’s Glomar response is justified under FOIA Exemption 1 (classified national-security information) | (No separate challenge) | Disclosure of the existence/nonexistence of responsive records would reveal classified intelligence activities/covert action and could harm national security | Court upheld the Glomar response under Exemption 1 as logical and plausibly supported by agency declaration |
| Whether the CIA’s Glomar response is justified under FOIA Exemption 3 (statutory bar under the National Security Act and related statutes) | (No separate challenge) | Exemption 3 covers intelligence sources and methods; the fact of CIA covert action/exercise of covert authorities falls within that protection | Court held Exemption 3 applies and supports the Glomar response |
| Whether the CIA’s limited search for records responsive to the tweet (part 4) and its redactions were adequate | (No challenge to adequacy or redactions) | CIA searched agreed custodians with relevant terms, reviewed hits page-by-page, and redacted under Exemptions 3 and 6 | Court found the search reasonably calculated to find responsive docs and approved the redactions under Exemptions 3 (agency IDs) and 6 (reporters' contact info) |
Key Cases Cited
- Am. Civil Liberties Union v. CIA, 710 F.3d 422 (D.C. Cir. 2013) (official-acknowledgment doctrine and when prior disclosure defeats Glomar)
- Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2007) (Glomar standard; existence vel non of records is the cognizable withheld fact)
- Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990) (three-part test for official disclosure: specificity, match, and official/documented disclosure)
- FBI v. Abramson, 456 U.S. 615 (U.S. 1982) (FOIA's purpose of broad disclosure)
- Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) (application of official-acknowledgment/Fitzgibbon framework)