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DC Circuit issues two notable FOIA decisions

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  1. Freedom of Information
One case involved records related to the Intelligence Community’s duty to warn Jamal Khashoggi about impending threats to his life.

Last week, the U.S. Court of Appeals for the District of Columbia Circuit issued decisions in two cases involving the government’s withholding of records or information under the Freedom of Information Act. While the government’s asserted rationale for withholding in each of the two cases differed, in both instances the appellate court affirmed holdings in the U.S. District Court for the District of Columbia finding that the information in question could be withheld.

In the first of the decisions, issued last Tuesday, the appellate court upheld the National Security Agency’s withholding of a 2017 memorandum memorializing a conversation between former President Donald Trump and NSA Director Michael Rogers in a FOIA lawsuit brought by Protect Democracy. The court found the memo properly withheld under the FOIA exemption incorporating executive privilege, and refused to recognize a “misconduct” exception advanced by plaintiffs.

The second decision involved the government’s use of so-called Glomar responses under the FOIA exemption permitting the government to withhold classified information. In response to requests by The Knight First Amendment Institute at Columbia University and the Committee to Protect Journalists for records related to the Intelligence Community’s duty to warn former Washington Post Global Opinions contributing columnist Jamal Khashoggi about impending threats to his life, four intelligence agencies — the CIA, the Office of the Director of National Intelligence, the NSA and the FBI — asserted that the existence or non-existence of any such records was itself classified information. Knight and CPJ sued (Knight later voluntarily dismissed its claims), and the district court upheld the withholdings.

CPJ appealed the district court decision (and the Reporters Committee submitted a friend-of-the-court brief in support of CPJ).  But last Friday, the D.C. Circuit affirmed the district court’s decision. The court rejected arguments raised by CPJ that the State Department had independently confirmed that no responsive records existed.

The panel declined to impute the State Department’s disclosures to the Intelligence Community agencies under the “official acknowledgment doctrine,” despite the inclusion of a State Department agency (the Bureau of Intelligence and Research) within the Intelligence Community, reasoning that the State Department is not a parent to any of the Intelligence Community agencies in question. CPJ’s argument that the agencies had failed to assert sufficient evidence that Glomar responses were necessary to protect the national security interests purportedly at stake was likewise rejected by the court, which held that agencies need only “explain[] the justifications for nondisclosure with reasonably specific detail.”

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The Technology and Press Freedom Project at the Reporters Committee for Freedom of the Press uses integrated advocacy — combining the law, policy analysis, and public education — to defend and promote press rights on issues at the intersection of technology and press freedom, such as reporter-source confidentiality protections, electronic surveillance law and policy, and content regulation online and in other media. TPFP is directed by Reporters Committee attorney Gabe Rottman. He works with Stanton Foundation National Security/Free Press Legal Fellow Grayson Clary.

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