Case Summary and Outcome

The District of Columbia Court of Appeals held that a Glomar response by intelligence agencies requires no degree of certainty and can be issued when there is a logical or plausible reason for the response. The case concerned an information request issued by the Knight First Amendment Institute at Columbia University and the Committee to Protect Journalists (“CPJ”) inquiring about records related to Saudi national and journalist Jamal Khashoggi who was murdered inside the Saudi consulate in Istanbul on October 2, 2018. The applicants filed separate Freedom of Information Act (“FOIA”) requests to five federal agencies seeking records about their duty under Intelligence Community Directive 191 to warn a person when a known threat against them is identified by an intelligence community agency. Each of the agencies, apart from the State Department, made Glomar responses, which neither confirm nor deny the existence of documents responsive to the request. They claimed the Glomar response was protected by exemption 1 of the FOIA. The Court held that a statement by the U.S. Department of State was not binding on the intelligence agencies. The Glomar response was justified since confirming or denying the existence of such records could compromise national security and foreign policy.

Facts

On October 2, 2018, Jamal Khashoggi, a prominent critic of the Saudi Government, was murdered inside the Saudi consulate in Istanbul. Both the CIA and the United Nations investigated the murder. “On December 4, 2018, the CIA briefed Senate leaders. Shortly thereafter, Congress passed a joint resolution stating its belief that the Saudi Crown Prince had ordered the murder” [p. 4].

At a press conference held on October 10, 2018,  a State Department spokesman, responded to a question on the murder stating: ““[A]lthough I cannot comment on intelligence matters, I can say definitively the United States had no advanced knowledge of Jamal Khashoggi’s disappearance” [p. 4].

The Knight First Amendment Institute submitted FOIA requests to the Department of State and several intelligence-community agencies, which included the CIA, the NSA, the FBI, and the Office of the Director of National Intelligence (“ODNI”), requesting records concerning the duty imposed upon the intelligence community, under Intelligence Community Directive 191. Under the Directive, any intelligence community agency with credible information on an impending threat of killing, bodily injury or kidnapping has a duty to warn the intended victim. The Knight institute and CPJ requested “[a]ll records concerning the duty to warn under Directive 191 as it relates to Jamal Khashoggi” [p. 6]. Neither organization received a response, which prompted them to sue.

All intelligence agencies except for the state department issued Glomar responses, refusing to confirm or deny the existence or non-existence of responsive records. The agencies argued that the existence or non-existence of responsive records is classified information protected by Exemption 1 of the FOIA. Exemption 1 authorizes agencies not to disclose records “specifically authorized under criteria established by an Executive order to be kept in secret in the interest of national defense or foreign policy” (5 U.S.C. § 552(b)(1)).

Subsequently, the Knight Institute voluntarily dismissed its claims, while CPJ and the four remaining agencies cross-moved to summary judgment. The United States District Court for the district of Columbia upheld the Glomar responses issued by the agencies, thus denying the requests made by Knight and CPJ.

CPJ appealed the decision to the US Court of Appeals, arguing that the State Department had already officially “acknowledged that no responsive records exist, thus precluding the intelligence agencies from making a Glomar Response.” It also argued that “Exemption 1 does not cover the existence or nonexistence of responsive records.” [p. 7].

Close to three dozen media and press organisations and ten human rights organisations signed the amicus briefs submitted to the court, in support of CPJ. The brief submitted by the Reporters Committee for Freedom of the Press and signed by 32 organizations, including Columbia Global Freedom of Expression, argued that Glomar responses undermine the legislative purpose of the FOIA and impinge on the State’s duty to warn journalists on the impending threat to their safety. For this reason, a Glomar response by an agency requires rigorous judicial oversight. The brief submitted by Human Rights Watch and signed by nine other human rights organisations argued that Glomar responses should be allowed only when detailed declarations are submitted since they undermine the international principles ensuring citizens in a democratic society have the national security information required for meaningful self-rule and the agencies duty to warn as set out under the Intelligence Community Directive 191.

Decision Overview

Circuit Judge Katsas delivered the opinion for the U.S. Court of Appeals for the District of Columbia Circuit. There were two main issues before the Court. First, whether the State’s acknowledgment of the lack of responsive records waived the right of the intelligence agencies to issue a Glomar response. Second, whether the existence (or non-existence) of the responsive records was classified information protected by Exemption 1.

On the first issue, the Court held that the intelligence agencies have not waived their right to a Glomar response as the acknowledgment by the State official did not bind them. Citing Fitzgibbon v. CIA, 911 F.2d 755 (D.C. Cir. 1990), the court held that to establish official acknowledgment, the information in the public domain must match the information requested, be as specific as the information requested, and should be made public through an official and documented disclosure.

Following Frugone v. CIA F.3d 772 (D.C. Cir. 1999), the court held that an official disclosure has to be made by the agency from which the information is being sought. Recognising the impact a disclosure from intelligence agencies can have on foreign relations, the Court reiterated the general rule set out in Mobley v. CIA, 806 F.3d 568 (D.C. Cir. 2015) that disclosures by one federal agency do not waive the right of another agency to assert a FOIA exemption. Further, since the FBI, CIA, NSA, or the ODNI are not subordinate entities of the State Department, the statement by the State authority cannot be considered an official statement from the agencies.

On the second issue, the court held that the Glomar responses are protected under Exemption 1 of the FOIA.

Citing Miller v. Casey, 730 F.2d 773, 776 (D.C. Cir. 1984) the court held that a reasonable specific nondisclosure not contestable with bad faith or contrary evidence warrants a summary judgment. It followed the rule set out in Wolf v. CIA, 473 F.3d 370 (D.C. Cir. 2011) that since a declaration by an agency describes potential future harm, it will by nature, be speculative to some extent. Thus, it will be considered a sufficient justification if it appears logical or plausible.

Applying this test, the court found that the intelligence agencies met this standard since they explained why confirming existence or non-existence of a responsive records is classified information in a sufficiently logical or plausible way. While existence of responsive records would reveal details on whom and how surveillance might have been conducted, the non-existence of responsive records could reveal a blind spot in US intelligence. Either way, foreign adversaries could gather substantial information that could compromise national security.

The CPJ contested the standard applied by the court. It argued that the “logical or plausible standard” applied only when intelligence agencies show that the declaration “would necessarily harm national security in every reasonably possible circumstance.” The Court rejected this argument, relying on precedents including Wolf to hold that “in the national-security context, our precedents assess only whether the government’s prediction of harm appears logical or plausible, taking into account the deference due to the Executive Branch in this area” [p. 15].

Rejecting CPJ’s argument that the declarations made by the intelligence agencies were not specific enough to support Glomar responses, the Court relied on Freedom Watch, Inc. v. NSA, 783 F.3d 1340 (D.C. Cir. 2015) and Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981) to hold that in the national security context, the justifications for non-disclosure do not require a degree of specificity and only require reasonably specific detail.

Accordingly, the Court upheld the decision made by the lower court and reaffirmed that the Glomar responses are protected under Exemption 1 of the FOIA.