The U.S. Circuit Court of Appeals in Washington, D.C. ruled yesterday that the CIA could refuse to confirm or deny the existence of records in response to a federal Freedom of Information request – issuing what is referred to as a Glomar response – and rejected a claim that the agency had waived its right to do so.
In 2007, attorney Thomas Moore III submitted three FOIA requests– one each to the U.S. Department of Justice, the CIA, and the U.S. Department of State – on behalf of a client who sought information on his grandfather, Sveinn B. Valfells.
“My client’s grandfather was excluded from being able to travel to the United States and no one really knew why, and so it’s in part an unraveling of a family mystery,” said Moore. Valfells was an Icelandic textile merchant who had spent time in the U.S. in the 1940s and 1950s and allegedly had connections to the Icelandic Communist Party.
The CIA issued a Glomar response, citing national security-related FOIA exemptions under exemptions 1 and 3 in support of its refusal to reveal whether the agency possessed any responsive records. The FBI, in responding to Moore’s Justice FOIA request, referred three pages of documents for processing to the CIA, as they contained certain classified information originating from the CIA.
When Moore sued the CIA to challenge its Glomar response, the agency submitted the declaration of a CIA information officer that, in part, acknowledged that the agency had asked the FBI to redact certain “CIA-originated information” from its response to Moore’s FOIA request. By submitting this declaration, Moore alleged, the CIA officially acknowledged that it did possess records responsive to Moore’s request, and thereby waived its right to invoke a Glomar response.
The court disagreed, holding that while an agency waives its right to issue a Glomar response if it has already officially acknowledged the existence of a specific record, the CIA had not done so here.
According to the court, Moore’s claim failed the “strict” test for a finding that official acknowledgement waived an agency’s right to issue a Glomar response: the information sought by the requester must be as specific as and must match the information previously released, and must have been made public through an official, documented release. That is, said the court, Moore had the burden “of pointing to specific information in the public domain that appears to duplicate that being withheld.”
Here, the court noted, since the CIA officer’s declaration did not specifically identify any records that matched Moore’s FOIA request – referring only to “CIA-originated information” – and because that information was redacted from the FBI’s released report, he could not prove the redacted information was even related to his client’s grandfather.
“Moore can only speculate as to what (if any) records the CIA might have about Valfells Sr.,” said the court. “In the highly sensitive context involving issues of national security, however, ‘[a]n agency’s official acknowledgement . . . cannot be based on . . . speculation, no matter how widespread.’”
Moore said the court’s ruling sets an “impossible bar” for FOIA plaintiffs.
“So we know – because the CIA admitted to it – that there are CIA documents,” said Moore, “but because they didn’t actually name the documents, they’re exempt . . . . Congress could have exempted the CIA when they enacted the Freedom of Information Act and they did not, so instead, the D.C. Circuit has done it for Congress.”
Attorney David Sobel, who represented Moore and also serves as counsel to the Electronic Frontier Foundation, said that in the 30 years he has handled FOIA litigation, “this case came as close as any I have ever seen in demonstrating that a Glomar response was inappropriate.”
“I think the court approached it in any overly formalistic way,” he said.
The U.S. Attorney’s Office declined to comment on the ruling.