JASON LEOPOLD AND BUZZFEED, INC. v. CENTRAL INTELLIGENCE AGENCY
No. 20-5002
Unitеd States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided February 9, 2021
Argued November 12, 2020
Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Sharon Swingle, Attorney.
Jeffrey L. Light argued the cause and filed the brief for appellee.
Before: WILKINS and KATSAS, Circuit Judges, and RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge RANDOLPH.
I
The plaintiffs based their requеst on the Freedom of Information Act. The Act compels disclosure of government records.
Exemption 1 covers “matters”2 that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and . . . are in fact properly classified pursuant to such Executive order[.]”
Exemption 3 covers “matters” that are “specifically exempted from disclosure by statute[.]”
The absence of particular evidencе may sometimes provide clues as important as the presence of such evidence. In literature, a common way of expressing this truth, although not always accurately, is to refer to the dog that did not bark.3 In Freedom of Information Act law, a similar concept justifies what has become known as the Glomar response.
Our court hаs long recognized that the existence of agency records relating to a subject, or the absence of such agency records, may reveal information falling within one of these exemptions. See Am. C.L. Union v. CIA, 710 F.3d 422, 426 (D.C. Cir. 2013) (”ACLU“); Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007); Phillippi v. CIA, 546 F.2d 1009, 1013-14 (D.C. Cir. 1976). If so, an agency “may refuse to confirm or deny the existence of records” - a Glomar response.4 Wolf, 473 F.3d at 374 (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)). A requester can overcome an agency‘s otherwise valid Glomar response by showing thаt the agency has officially and publicly acknowledged the records’ existence. ACLU, 710 F.3d at 427; Wolf, 473 F.3d at 378 (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990); Afshar v. Dep‘t of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)).5
Against this backdrop, we address the impact of President Trump‘s “tweet”6 on July 24, 2017, stating: “The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.....” Donald J. Trump (@realDonaldTrump), Twitter
Shortly thereafter, Jason Leopold and BuzzFeed (collectively, “BuzzFeed“) requested the Central Intelligence Agency‘s records about Agency “payments to Syrian rebels fighting Assad.” J.A. 45. The Agency issued a Glomar response, supported by a sworn declaration, invoking Exemptions 1 and 3. BuzzFeed sued, arguing that President Trump‘s tweet had officially acknowledged the existence of Agency payments to Syrian rebels. Leopold v. CIA, 380 F. Supp. 3d 14, 22 (D.D.C. 2019) (”Leopold I“). Both parties sought summary judgment. Id.
In Leopold I, the district court granted summary judgment to the Agency, explaining that “the President‘s tweet did not mention the [Agency] or create any inference that such a program would be linked to or run by the [Agency].” Id. at 25. The district court reasoned that “[t]he President might have acknowledged the existence of ‘massive, dangerous, and wasteful’ payments to Syrian rebels, but he did not mention from which branch of government such payments would have originated.” Id.
The request from Leopold I is not at issue. BuzzFeed later sent another request, this time seeking nine broad categories of Agency records. Although the first request sought Agency records relating to Agency payments to Syrian rebels, the second request sought Agency records relating to payments to Syrian rebels. Compare J.A. 45, with J.A. 24.
This time around, the district court grantеd summary judgment to BuzzFeed, holding that President Trump‘s tweet had officially acknowledged “the government‘s intelligence interest in the broader categories of records that BuzzFeed has requested.” Id. at 68. Having overcome the Agency‘s Glomar response, the district court ordered the Agency to respond. Id. at 68-69. The Agency appealed.
II
We first address our appellate jurisdiction. The district court‘s order may not be a “final decision” appealable under
There is no doubt that orders requiring “the disclosure of documents” are appealable injunctions. See, e.g., Jud. Watch, Inc. v. Dep‘t of Energy, 412 F.3d at 128; Citizens for Resp. & Ethics in Wash. v. U.S. Dep‘t of Homeland Sec., 532 F.3d 860, 863 (D.C. Cir. 2008) (”CREW“). Buzzfeed claims the order
CREW is not to the contrary. There, the Secret Service refused to produce visitor logs because it believed that the logs did not qualify as agency records. 532 F.3d at 862. Rejecting that argument, the distriсt court ordered the Secret Service to “process [CREW]‘s Freedom of Information Act request and produce all responsive records that are not exempt from disclosure[.]” Id. We lacked interlocutory jurisdiction because “the Secret Service may yet be entitled to withhold some or all of the dоcuments under one or more of [the Act‘s] nine exemptions.” Id. at 863; see Green v. Dep‘t of Com., 618 F.2d 836, 839 (D.C. Cir. 1980). In other words, the consequences of the district court‘s order would not be known until the Secret Service processed CREW‘s request. The court put it this way: “Under the court‘s order, the Secret Service will have to search for and locate any responsive documents and claim any exemptions it believes applicable. At that point, the court may agree with the agency, allowing it to withhold the requested records, in which case the government would have no cause to appeal. Or alternatively, ‘the issues might be sufficiently narrowed to permit the parties tо reach a settlement.’ In either case, appellate review at this stage is premature.” Id. at 864 (quoting Green, 618 F.2d at 839).
An order denying a Glomar response and requiring the agency to reveal whether it holds particular records is not comparable. The appeal from such an order is by no means “premature.” If the order goes into effect аnd forces the agency to reveal whether it possessed the records, any later agency appeal would be fruitless. See Wolf, 473 F.3d at 379. That cat
Here, the records’ existence (or not) is a prоperly classified fact and one that would reveal intelligence sources and methods. As our court stated in the original “Glomar” case: “In effect, the situation is as if [the plaintiff] had requested and been [granted] permission to see a document which says either ‘Yes, we have records relating to contacts with the media concerning the Glomar Explorer’ or ‘No, we do not have any such records.‘” Phillippi, 546 F.2d at 1012.
To sum up, the contents of the records (if any) may be exempt from disclosure. See Wolf, 473 F.3d at 380. But the district court has ordered the release of information “for which the [Agency] claim[s] no basis for non-disclosure beyond the argument already rejected.” Jud. Watch, Inc. v. U.S. Dep‘t of Energy, 412 F.3d at 128. As such, the court‘s order is injunctive in nature and appealable under
III
We would uphold the district court‘s ruling, even on de novo review, if President Trump‘s tweet officially acknowledged the existence of Central Intelligence Agency records (and, therefore, intelligence interest and capabilities) about payments to Syrian rebels.8 To find official
The initial burden rests with the requester, who must “point[] to specific information in the public domain that appears to duplicate that being withheld.” ACLU, 710 F.3d at 427 (quoting Wolf, 473 F.3d at 378). “An agency‘s official acknowledgment . . ., however, cannot be based on mere public speculation, no matter how widespread.” Wolf, 473 F.3d at 378 (citing Afshar, 702 F.2d at 1130). And for good reason: “it is one thing for a reporter or author to speculate or guess that a thing may be so . . .; it is quite another thing for one in a position to know of it officially to say that it is so.” Fitzgibbon, 911 F.2d at 765 (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362, 1370 (4th Cir. 1975)) (brackets omitted). “[I]n the absence of any official acknowledgment, . . . foreign governments would be left guessing[.]” Ameziane v. Obama, 699 F.3d 488, 492 (D.C. Cir. 2012). Here, the plaintiffs have failed to satisfy their burden.
The Agency claims that President Trump‘s tweet lacks sufficient specificity to qualify as an “official acknowledgment” that the records exist. BuzzFeed‘s contrary argument is two-tiered. The first is that the President‘s tweet officially acknowledged the existence of some program providing payments to Syrian rebels. BuzzFeed principally points to the tweet‘s adjectives (“massive, dangerous, and wasteful“) and the possessive “my” to support this reading. Second, because of that alleged disclosure, BuzzFeed asserts that it is an “ineluctable conclusion . . . that the [Agency] possesses records relating to such payments, or at least to the ending of such payments.” Appellee Br. 31.
Did President Trump‘s tweet officially acknowledge the existence of a program? Perhaps. Or perhaps not. And therein lies a problem. See Gardels, 689 F.2d at 1105 (“Official acknowledgment ends all doubt[.]“). Thе President‘s tweet is subject to several plausible interpretations. From the Agency‘s perspective, the tweet simply asserts that the Post fabricated facts, a rather common complaint. So what else is new? The Agency argues that the possessive “my” just refers to the accusations of the story and that the adjectives are the President‘s editorial interpretations. BuzzFeed asserts the opposite. Assuming arguendo that the President ended a program, it is not clear whose program the President ended. “[M]y ending” could refer to the President terminating, directly or indirectly, the program of a foreign government or even a non-state actor. Oral Arg. 9:20-11:59. The tweet sheds little, if any, light. But we do not have to resolve this quеstion.
Our opinion in ACLU does not say otherwise. ACLU concerned whether the Agency could maintain a Glomar response about the Agency‘s interest in drone strikes following three official acknowledgments. 710 F.3d at 428-30. There, President Obama had “himself publicly acknowledged that the United States uses drone strikes against al Qaeda . . . on a live internet video forum.” Id. at 429. President Obama‘s counterterrorism advisor went further, stating that “in deciding whether to carry out а strike, we draw on the full range of our intelligence capabilities and may ask the intelligence community to collect additional intelligence[.]” Id. at 430 (internal quotation marks and alterations omitted). The disclosures continued. The Director of the CIA stated in public remarks that “I can assure you that in terms of that partiсular area, it is very precise and it is very limited in terms of collateral damage[.]” Id. at 430. As we noted then, “[i]t is hard to see how the CIA Director could have made his Agency‘s knowledge of - and therefore ‘interest’ in - drone strikes any clearer.” Id. “[T]hose statements are tantamount to an acknowledgment that the [Agency] has documents on the subject.” Id. at 431. Based on the totality of these collective acknowledgments, we held that it was “neither logical nor plausible” for the Agency to deny an interest in drone strikes. Id. at 430.
The case before us is not comparable. “[T]he pertinent official statements in ACLU were far more precise, thorough, and numerous than those found here.” N.Y. Times v. CIA, 965 F.3d 109, 119 (2d Cir. 2020). As we have discussed above, it is
For the foregoing reasons, we hold that President Trump‘s tweet was not an official acknowledgment of the existence (or not) of Agency records. Accordingly, the judgment of the district court is reversed.
So ordered.
Notes
A famous race horse - “Silver Blazе” - has disappeared the night before an important race and the horse‘s trainer has been killed. The following dialog concerns a dog kept at the stable. Colonel Ross, the owner of “Silver Blaze,” questions Sherlock Holmes about the progress of his investigation (id. at 277):
Colonel Ross: “Is there any other point to whiсh you would wish to draw my attention?”
Sherlock Holmes: “To the curious incident of the dog in the night-time.”
Colonel Ross: “The dog did nothing in the night-time.”
Sherlock Holmes: “That was the curious incident.”
Holmes solves the mystery and explains the clue: because the dog had not barked, “the midnight visitor [to the stable] was someone whom the dog knew well.” Id. at 280.