Court: U.S. Court of Appeals for the District of Columbia Circuit
Date Filed: July 23, 2020
Update: On Aug. 27, 2021, the U.S. Court of Appeals for the District of Columbia Circuit affirmed the district court’s decision in favor of the government.
Background: In 2018, the Committee to Protect Journalists and the Knight First Amendment Institute separately submitted Freedom of Information Act requests to five federal agencies related to the Saudi Arabian government’s execution of journalist Jamal Khashoggi.
The two organizations sought records about the duty to warn a person about a known threat, under Intelligence Community Directive 191, and specifically about the duty to warn Khashoggi prior to his murder.
After all of the agencies failed to respond to the FOIA requests, the Knight Institute filed a lawsuit, which CPJ joined. During litigation, each of the agencies except the State Department responded to the request by invoking the Glomar doctrine, claiming that acknowledging the existence or non-existence of documents responsive to the requests would compromise national security. Subsequently, the Knight Institute voluntarily dismissed its claims, leaving CPJ as the sole plaintiff. The U.S. District Court for the District of Columbia upheld the Glomar responses, granting summary judgment for the government.
CPJ then appealed to the U.S. Court of Appeals for the District of Columbia Circuit.
Our Position: The D.C. Circuit should reverse the district court’s decision that the intelligence agencies adequately justified their Glomar responses to the FOIA requests.
- Glomar responses demand careful judicial scrutiny, especially when records of fundamental public concern are at stake.
- Glomar responses are badly overused, and the trend is getting worse.
- The interaction between the Glomar doctrine and overclassification poses particular problems for government transparency.
- The government’s duty to warn is a press freedom issue.
Quote: “Given the unbridled growth of Glomar responses across federal agencies, the pernicious way in which overclassification of documents interacts with the Glomar doctrine, and the press freedoms implicated by the records at issue, district courts should be required to apply a heightened standard of proof in this case and others like it would bring the doctrine back in line with the language and purpose of the [Freedom of Information] Act.”
Related: In 2019, a D.C. district court ruled that the FBI could not invoke the Glomar doctrine in response to a FOIA request about the agency’s impersonation of documentary filmmakers. The Reporters Committee filed suit after the agency invoked the doctrine to avoid searching for records related to agents’ impersonation of a documentary film crew to investigate Nevada rancher Cliven Bundy and his followers after a 2014 armed standoff between Bundy and the U.S. Bureau of Land Management.
In 2016, a New York appeals court allowed the New York City Police Department to invoke the Glomar doctrine in response to a FOIA request about the department’s surveillance of two Muslim men. The Reporters Committee and 20 media organizations submitted a friend-of-the-court brief in the case, arguing that the doctrine cannot be invoked by a state.