IV. Official Acknowledgement
Where “information has been ‘officially acknowledged,’ its disclosure may be compelled even over an agency's otherwise valid exemption claim.”38 To show that the government “officially acknowledged” information — and must therefore release it — you must establish that the information you seek 1) “is as specific as the information previously released,” 2) “match[es] the information previously disclosed,” and (3) “ha[s] already been made public through an official and documented disclosure.”39 This standard generally arises where a requester seeks classified information under Exemptions 1 and/or 3.40
This test is strictly applied, as it was designed to address waiver arguments in the context of requests for information “relating to national security and foreign affairs,”41 so you must make a strong showing on each point. As one court explained, “[u]nofficial leaks and public surmise can often be ignored by foreign governments that might perceive themselves to be harmed by disclosure of their cooperation with the CIA, but official acknowledgment may force a government to retaliate.”42
Due to these concerns, the “official acknowledgement” test often requires the requester to meet a higher burden than simply showing that information is in the public domain. This point was illustrated in an Exemption 7(C) case, where a court held that an agency waived its right to withhold the names of certain sources under that exemption by providing their names in a court document, even though the agency claimed it had done so “inadvertently.”43 The court explained that “[t]his is not a situation, as may be true in the national security context, where inadvertent disclosure of information — and a concomitant absence of official acknowledgement — renders inapplicable the public domain exception.”44
38 Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990).
39 Am. Immigration Lawyers Ass’n v. U.S. Dep’t of Homeland Sec., No. 10-1224 (EGS), 2012 WL 1066499 at *5 (D.D.C. 2012) (citing Fitzgibbon, 911 F.2d at 765).
40 See, e.g Am. Civil Liberties Union v. Dep’t of Justice, 808 F.Supp.2d 280, 293-97 (D.D.C. 2011); Afshar v. Dep’t of State, 702 F.2d 1125, 1130-31 (D.C. Cir. 1983). See also N.Y. Civil Liberties Union v. Dep’t of Homeland Sec., 771 F.Supp.2d 289, 291 n.3 (S.D.N.Y. 2011) (“the Court will assume that identical information that entered the public domain without an ‘official’ disclosure could require FOIA disclosure despite an otherwise valid claim that exemption 7 applies”);Chesapeake Bay Found., Inc., 722 F.Supp.2d at 72 n.3.
41 See Am. Civil Liberties Union, 808 F.Supp.2d at 293 (quoting Am. Civil Liberties Union v. U.S. Dep’t of Def., 628 F.3d 612, 621 (D.C. Cir. 2011)).
42 Afshar, 702 F.2d at 1131-32.
43 Chesapeake Bay Found., Inc., 722 F.Supp.2d at 72 n.3.
44 Id.
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