The New York Times v. Central Intelligence Agency, 965 F.3d 109

Background

On July 25, 2017 the New York Times and reporter Matthew Rosenberg submitted a FOIA request to the CIA seeking acknowledgement of records about an alleged covert program to arm and train Syrian rebels (they sought existence/nonexistence of records, not contents).
The request referenced President Trump’s July 24, 2017 tweet and his July 25 Wall Street Journal interview; General Raymond (Tony) Thomas also made public remarks about ending a covert program.
On August 23, 2017 the CIA issued a Glomar response (neither confirm nor deny) invoking FOIA Exemptions 1 (classified information) and 3 (statutory prohibition), supported by two declarations from CIA Information Review Officer Antoinette Shiner.
The Times sued; the district court granted summary judgment for the CIA, finding the Shiner affidavits adequate and that the President’s and General Thomas’s statements did not amount to official acknowledgment or declassification.
The Second Circuit affirmed: it held the CIA’s Glomar response was properly tethered to Exemptions 1 and 3, the public statements did not meet the strict Wilson test for official acknowledgement, and the President’s remarks did not declassify the existence of the program.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
1. Validity of CIA Glomar response tied to FOIA Exemptions 1 & 3	Times: CIA must disclose existence because public statements waive exemptions	CIA: Shiner declarations show confirming/denying would reveal classified sources/methods and is barred by statute	Held: Glomar valid; Shiner affidavits provide plausible, detailed justification for Exemptions 1 & 3
2. Whether President Trump’s statements officially acknowledged existence of covert program (waiver)	Times: tweet and interview publicly acknowledged the program and thus waive secrecy	CIA: statements are ambiguous, not specific, and did not officially or authoritatively match sought records	Held: No waiver—statements left lingering doubts and did not satisfy Wilson specificity/matching/officiality test
3. Whether the President’s statements declassified the program’s existence	Times: President can declassify by public statement; thus exemptions lost	CIA: declassification requires established procedures; Shiner says no declassification occurred	Held: Rejected—no evidence procedures were followed; courts decline to infer inadvertent declassification
4. Whether General Thomas’s statements independently confirmed program or waive secrecy	Times: Thomas’s comments corroborate and independently undermine Glomar	CIA: Thomas not authorized to speak for CIA; his remarks are ambiguous and insufficient	Held: Insufficient—statements by non-CIA official do not constitute official disclosure for CIA records

Key Cases Cited

Wilson v. Central Intelligence Agency, 586 F.3d 171 (2d Cir.) (sets strict three-part test for "official acknowledgement" to waive FOIA exemptions)
Wilner v. National Security Agency, 592 F.3d 60 (2d Cir. 2010) (Glomar may survive as to specific records even where general program existence is public)
American Civil Liberties Union v. Central Intelligence Agency, 710 F.3d 422 (D.C. Cir. 2013) (official statements can be sufficiently detailed to defeat Glomar for drone program)
Wolf v. Central Intelligence Agency, 473 F.3d 370 (D.C. Cir. 2007) (CIA director’s congressional testimony constituted official acknowledgement limited to the matters disclosed)
Florez v. Central Intelligence Agency, 829 F.3d 178 (2d Cir. 2016) (official disclosure doctrine limited to disclosures by the same agency providing Glomar response)
Phillippi v. Central Intelligence Agency, 546 F.2d 1009 (D.C. Cir. 1976) (origin of the Glomar doctrine)
New York Times Co. v. U.S. Dep’t of Justice, 756 F.3d 100 (2d Cir. 2014) (applied Wilson test to OLC/DOD memorandum and official disclosures)
Department of the Navy v. Egan, 484 U.S. 518 (1988) (presidential authority over classification and national security matters)