United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued October 16, 2006 Decided January 16, 2007
Nos. 05-5394 and 06-5072
PAUL WOLF,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY AND
FEDERAL BUREAU OF INVESTIGATION,
APPELLEES
Appeals from the United States District Court
for the District of Columbia
(No. 01cv00729)
Paul Wolf, pro se, argued the cause for the appellant.
Alan Burch, Assistant United States Attorney, argued the
cause for the appellees. Kenneth L. Wainstein, United States
Attorney at the time the brief was filed, and R. Craig Lawrence
and Diane M. Sullivan, Assistant United States Attorneys, were
on brief for the appellees. Michael J. Ryan, Assistant United
States Attorney, entered an appearance.
Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit
Judges.
Opinion for the court filed by Circuit Judge HENDERSON.
2
KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,
Paul Wolf (Wolf), filed a Freedom of Information Act (FOIA),
5 U.S.C. §§ 552 et seq., request with the Central Intelligence
Agency (CIA or Agency), seeking all records related to Jorge
Eliecer Gaitan (Gaitan), a former (and deceased) Colombian
politician. After the CIA refused to either confirm or deny the
existence of such records, Wolf filed this suit. The CIA
subsequently moved for summary judgment on the basis of two
FOIA exemptions. In response, Wolf asserted that the Agency
waived the exemptions through official acknowledgment of
records regarding Gaitan during a 1948 congressional hearing.
The district court rejected Wolf’s official acknowledgment
argument and upheld the CIA’s exemption claims, granting
summary judgment to the Agency. Wolf appeals. We affirm
the district court except to the extent the Agency officially
acknowledged the existence of records before the Congress in
1948; as to the latter, we remand to the district court for further
proceedings.
I.
On April 9, 1948, Gaitan, a former Colombian presidential
candidate, was assassinated in Bogota, Colombia. In the wake
of his assassination, riots erupted in Bogota which prompted a
congressional investigation into the alleged failure of the CIA to
predict such unrest. At the hearing, then-CIA Director Admiral
R. K. Hillenkoetter (Hillenkoetter) testified that the Agency had
in fact predicted the explosive situation brewing in Bogota in
1948. A half century later, Wolf, a historical researcher
interested in the life and death of Gaitan, submitted a FOIA
request to the CIA seeking “all records about Jorge Eliecer
3
Gaitan.” Reprinted at Appellant’s App. at 2.1 On September 22,
2000, the CIA issued a Glomar response2 to Wolf’s request,
neither confirming nor denying the existence of records
regarding Gaitan. Following an unsuccessful administrative
appeal, Wolf filed suit in April 2001 seeking to compel the CIA
to release responsive documents.
Before the district court, the CIA submitted the affidavit of
Kathryn Dyer (Dyer Affidavit), the Agency’s Information and
Privacy Coordinator, in support of its Glomar response. See
Dyer Affidavit, reprinted in Appellee’s App. at 28. The Dyer
Affidavit explained that official confirmation or denial of the
existence of such records might damage both national security,
through revelation of intelligence sources or methods, and
foreign relations. More specifically, according to the Dyer
Affidavit, acknowledgment of such records could disclose the
identities of individuals, or categories of individuals, “in which
the CIA is interested and upon which it focuses its methods and
resources,” thereby allowing foreign intelligence services to
more effectively implement countermeasures to CIA
information-gathering. Id. at 38–39. Moreover, the Agency
asserted that acknowledgment of such records could upset
diplomatic relations with foreign governments whose citizens
had CIA files. As a consequence, the CIA claimed that the
existence of records regarding a foreign national constitutes
1
Wolf made a similar request for records of the Federal Bureau of
Investigation (FBI), which failed to respond until after Wolf filed suit.
That request is not part of this appeal.
2
See infra p. 5.
4
classified information, making its Glomar response appropriate
under FOIA Exemptions 1 and 3.3
The CIA moved for summary judgment on the strength of
the Dyer Affidavit. Wolf responded by filing a cross-motion for
summary judgment, contending that the Agency waived the
exemptions as a result of Hillenkoetter’s 1948 congressional
testimony. During his testimony, Wolf alleged, Hillenkoetter
read from official CIA dispatches referencing Gaitan, thereby
acknowledging that the CIA had responsive records.
Concluding that the Dyer Affidavit explained in reasonably
specific detail the danger to intelligence sources and methods if
the existence of responsive records were disclosed, the district
court held that Exemptions 1 and 3 applied. Because the district
court found “no indication from the transcript [of the
congressional hearing] that the CIA director was reading from
anything more than a prepared statement for the hearing,” Wolf
v. CIA, 357 F. Supp. 2d 112, 118 (D.D.C. 2004), the court held
that the Agency did not waive the FOIA exemptions through
official acknowledgment of records regarding Gaitan. As a
result, the district court granted the CIA’s motion for summary
judgment. Wolf now appeals.
3
Exemption 1 permits an agency to withhold “matters” from FOIA
disclosure if such matters are “(A) specifically authorized under
criteria established by an Executive order to be kept secret in the
interest of national defense or foreign policy and (B) are in fact
properly classified pursuant to such Executive order.” 5 U.S.C.
§ 552(b)(1). Exemption 3 shields matters “specifically exempted from
disclosure by statute . . ., provided that such statute (A) requires that
the matters be withheld from the public in such a manner as to leave
no discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld.”
5 U.S.C. § 552(b)(3).
5
II.
The FOIA mandates broad disclosure of government records
to the public, CIA v. Sims, 471 U.S. 159, 166 (1985), subject to
nine enumerated exemptions. See 5 U.S.C. § 552(b). Given the
FOIA’s broad disclosure policy, the United States Supreme
Court has “consistently stated that FOIA exemptions are to be
narrowly construed.” U.S. Dep’t of Justice v. Julian, 486 U.S.
1, 8 (1988). Nevertheless, the CIA “may refuse to confirm or
deny the existence of records where to answer the FOIA inquiry
would cause harm cognizable under an FOIA exception.”
Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982); see also
Miller v. Casey, 730 F.2d 773, 776–77 (D.C. Cir. 1984);
Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. Cir. 1976). Such an
agency response is known as a Glomar response and is proper
if the fact of the existence or nonexistence of agency records
falls within a FOIA exemption. See, e.g., Hunt v. CIA, 981 F.2d
1116, 1118 (9th Cir. 1992); Phillippi, 546 F.2d at 1011
(acknowledging CIA refusal to confirm or deny existence of
records regarding activities of ship named Hughes Glomar
Explorer). In determining whether the existence of agency
records vel non fits a FOIA exemption, courts apply the general
exemption review standards established in non-Glomar cases.
See, e.g., Gardels, 689 F.2d at 1103–05.4
4
Wolf challenges the general concept of a Glomar response,
claiming that de novo review of the Agency’s response requires the
district court to order the Agency to search for responsive records and
to submit a Vaughn index. See Appellant’s Brief at 9; Vaughn v.
Rosen, 484 F.2d 820 (D.C. Cir. 1973). His argument misunderstands
the nature of a Glomar response, which narrows the FOIA issue to the
existence of records vel non. Indeed, “[w]hen the Agency’s position
is that it can neither confirm nor deny the existence of the requested
records, there are no relevant documents for the court to examine other
6
Under the FOIA, “the burden is on the agency to sustain its
action,” 5 U.S.C. § 552(a)(4)(B), and we review de novo the
agency’s use of a FOIA exemption to withhold documents.
Miller, 730 F.2d at 776. Yet in conducting de novo review in
the context of national security concerns, courts “must ‘accord
substantial weight to an agency’s affidavit concerning the details
of the classified status of the disputed record.’” Id. (quoting
Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.
1981)) (emphasis in original); see also Krikorian v. Dep’t of
State, 984 F.2d 461, 464 (D.C. Cir. 1993) (noting deference to
expertise of agencies engaged in national security and foreign
policy). Indeed, “[s]ummary judgment is warranted on the basis
of agency affidavits when the affidavits describe ‘the
justifications for nondisclosure with reasonably specific detail
. . . and are not controverted by either contrary evidence in the
record nor by evidence of agency bad faith.’” Miller, 730 F.2d
at 776 (quoting Military Audit Project, 656 F.2d at 738).
Moreover, a reviewing court “must take into account . . . that
any affidavit or other agency statement of threatened harm to
national security will always be speculative to some extent, in
the sense that it describes a potential future harm.” Halperin v.
CIA, 629 F.2d 144, 149 (D.C. Cir. 1980). Ultimately, an
agency’s justification for invoking a FOIA exemption is
sufficient if it appears “logical” or “plausible.” See Gardels,
689 F.2d at 1105; Hayden v. NSA, 608 F.2d 1381, 1388 (D.C.
Cir. 1979).
III.
The CIA submitted the Dyer Affidavit to support its refusal
to either confirm or deny the existence of records pertaining to
than the affidavits which explain the Agency’s refusal.” Phillippi, 546
F.2d at 1013.
7
Jorge Gaitan. The question, then, is whether the existence of
Agency records regarding an individual foreign national
constitutes information itself protected by either FOIA
Exemption 1 or Exemption 3. Proper invocation of, and
affidavit support for, either Exemption, standing alone, may
justify the CIA’s Glomar response. See Miller, 730 F.2d at 775;
Gardels, 689 F.2d at 1107 (noting Exemptions 1 and 3 may be
invoked independently).
A.
The Agency justifies its Glomar response under Exemption
1 based on the classification criteria of Executive Order 12958.5
5
Executive Order 12958 provides agency heads with original
classification authority. See Exec. Order No. 12,958, 60 Fed. Reg.
19,825, 19,827 § 1.4(a)(2) (Apr. 17, 1995); see also Exec. Order No.
13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (amending, in other
respects, Executive Order 12958). Classification authority may also
be exercised by subordinate officials to whom such authority is
delegated, 60 Fed. Reg. at 19,827 § 1.4(a)(3), by an agency head, id.
§ 1.4(c)(2)–(3), in writing, id. § 1.4(c)(4). Through an internal
Agency memorandum, the Director of the CIA delegated original
classification authority to the Director of Information Management
(Director). See Admin. Rec. 70-3, Annex A, Original Classification
Authorities at 1, 3 (June 3, 1997). Further, the Director chairs the
Agency Release Panel (ARP), 32 C.F.R. § 1900.41(c)(1) (2006),
which makes final determinations regarding administrative appeals
under the FOIA. See 32 C.F.R. § 1900.41(a)–(c)(2). In this case, the
ARP, chaired by the Director, determined that the existence or
nonexistence of records responsive to Wolf’s FOIA request is
classified information that would tend to reveal intelligence sources
and methods. Appellee’s App. at 30–31. Dyer, as Information and
Privacy Coordinator, serves as the ARP Executive Secretary. 32
C.F.R. § 1900.41(c)(2). Thus, the Dyer Affidavit reflects personal
knowledge, obtained in Dyer’s official capacity, regarding the
8
See Appellee’s Brief at 7; 60 Fed. Reg. 19,825 (Apr. 17, 1995).
Executive Order 12958 permits an original classification
authority to classify information only if “the original
classification authority determines that the unauthorized
disclosure of the information reasonably could be expected to
result in damage to the national security . . . and . . . is able to
identify or describe the damage.” 60 Fed. Reg. at 19,826 §
1.2(a)(4). Such damage to national security may be claimed
only with respect to certain categories of information,
specifically information that “concerns . . . intelligence sources
or methods” or the “foreign relations . . . of the United States.”
Id. at 19, 827 § 1.5(c)–(d). Further, the Supreme Court has
recognized the broad sweep of “intelligence sources” warranting
protection in the interest of national security. See Fitzgibbon v.
CIA, 911 F.2d 755, 760–63 (D.C. Cir. 1990) (including
“unsuspecting,” “potential” and past sources of information)
(emphasis in original) (citing Sims, supra).
The Dyer Affidavit asserts that confirmation or denial of the
existence of records regarding a foreign national could
reasonably be expected to damage national security or foreign
relations. See Appellee’s App. at 29 (describing “conclusions
[Dyer] reached and determinations [she] made”). Consequently,
if the Dyer Affidavit plausibly explains the danger, the existence
of records vel non is properly classified under Executive Order
12958 and justifies the Agency’s invocation of Exemption 1.
See Gardels, 689 F.2d at 1105; Hayden, 608 F.2d at 1388.
Initially, Dyer describes the CIA’s interest in an individual
foreign national as an intelligence source or method, an interest
that could “be thwarted or made more difficult, reducing the
classified nature of information related to the existence or
nonexistence of records responsive to Wolf’s FOIA request.
Appellee’s App. at 29, 31.
9
CIA’s effectiveness,” upon disclosure that the Agency has such
records. See Appellee’s App. at 40–41. More specifically, Dyer
asserts that the Agency utilizes foreign nationals as sources in
order to carry out its intelligence-gathering duties and also
targets foreign nationals as subjects of surveillance. See id. at
34, 36–37. With regard to foreign nationals as sources of
information, “the Agency must often depend upon information
that can only be garnered from knowledgeable sources under an
arrangement of absolute secrecy.” Id. at 33. Indeed, human
resources abroad often refuse to aid the CIA absent assurances
of confidentiality because “official confirmation of [a source’s]
cooperation [with the Agency] could cause the target
government to take retaliatory action against that person, or, if
he is no longer alive, against his surviving family and friends.”
Id. at 34. Thus, the Dyer Affidavit explains, acknowledgment
that the Agency maintains contact with a specific foreign
national “would . . . seriously damage this nation’s credibility
with all other current intelligence sources and undermine CIA’s
ability to attract potential intelligence sources in the future.” Id.
at 35; see also id. (“If the U.S. Government were to breach this
confidentiality, whether three or 30 years later, present and
potential sources throughout the world could reasonably be
expected to conclude that the U.S. Government is unable to
maintain such confidentiality.”).
Moreover, the Dyer Affidavit explains that revealing that the
CIA maintains records regarding specific foreign nationals could
potentially reveal targets of CIA surveillance and, thus, CIA
methods. See id. at 38. According to the Agency, the existence
or nonexistence of records regarding a foreign national would
signal to a foreign intelligence service “the specific persons and
areas in which the CIA is interested and upon which it focuses
its methods and resources.” Id. Because “[e]very country or
group has limited resources[,] [t]he disclosure to a potential U.S.
10
intelligence target of the areas and persons of CIA interest
would indicate to that target how the CIA is allocating its
resources [and] [t]herefore, the target may array its
counterintelligence and security resources most efficiently to
frustrate the CIA.” Id. at 38–39.
In addition to the likely damage to intelligence sources and
methods, the Dyer Affidavit outlines the potential harm to
foreign relations that would reasonably result from confirming
or denying the existence of Agency records about a foreign
national. Id. at 41–42. Specifically, Dyer asserts that a foreign
government, “whether friend or adversary,” could construe the
fact “that the CIA maintains information concerning a covert
relationship with a particular foreign national” as evidence “that
the CIA has collected intelligence information on or recruited
one of its citizens or resident aliens.” Id. at 41. Not
surprisingly, the Agency asserts, “[s]uch a perception could be
expected to affect adversely U.S. foreign relations with that
nation[,] . . . especially . . . where U.S. allies are concerned.” Id.
In light of the substantial weight accorded agency assertions
of potential harm made in order to invoke the protection of
FOIA Exemption 1, the Dyer Affidavit both logically and
plausibly suffices. See Gardels, 689 F.2d at 1105; Hayden, 608
F.2d at 1388. It is plausible that either confirming or denying an
Agency interest in a foreign national reasonably could damage
sources and methods by revealing CIA priorities, thereby
providing foreign intelligence sources with a starting point for
applying countermeasures against the CIA and thus wasting
Agency resources. See Gardels, 689 F.2d at 1106 (“The CIA
has the right to assume that foreign intelligence agencies are
zealous ferrets.”). Indeed, “‘[w]e must take into account . . . that
each individual piece of intelligence information, much like a
piece of jigsaw puzzle, may aid in piecing together other bits of
11
information.’” Fitzgibbon, 911 F.2d at 763 (quoting Gardels,
689 F.2d at 1106) (alteration in original).
Moreover, it is logical to conclude that the need to assure
confidentiality to a foreign source includes neither confirming
nor denying the existence of records even decades after the
death of the foreign national. For example, in Fitzgibbon we
recognized that the passage of thirty years from the individual’s
death failed to negate the necessity of confidentiality because
“the Government has a compelling interest in protecting . . . the
appearance of confidentiality so essential to the effective
operation of our foreign intelligence service.” See id. at 763–64
(emphasis in original) (internal quotation omitted).
Accordingly, we conclude that the existence or nonexistence of
Agency records regarding Gaitan is properly classified
information and therefore shielded from disclosure under
Exemption 1.
B.
The CIA invokes Exemption 3 as an alternative basis of its
Glomar response. As noted earlier, Exemption 3 permits an
agency to withhold information “specifically exempted from
disclosure by statute.” 5 U.S.C. § 552(b)(3). In this regard, the
CIA maintains that the existence or nonexistence of records
about a foreign national is protected from disclosure under the
National Security Act, 50 U.S.C. §§ 401 et seq. See, e.g.,
Krikorian, 984 F.2d at 465; Gardels, 689 F.2d at 1103.
Specifically, the National Security Act makes the CIA Director
responsible for “protect[ing] intelligence sources and methods
from unauthorized disclosure.” 50 U.S.C. § 403-3(c)(6) (2000).6
6
The structure and responsibilities of the United States intelligence
community have undergone reorganization in recent years. As a
consequence, the duties of the CIA Director are described as they
12
Indeed, information is exempt under section 403-3(c)(6) if the
Agency “demonstrates that an answer to the query can
reasonably be expected to lead to unauthorized disclosure.”
Gardels, 689 F.2d at 1103 (internal quotation omitted).
The Supreme Court gives even greater deference to CIA
assertions of harm to intelligence sources and methods under the
National Security Act. See Sims, 471 U.S. at 168–69 (“The
plain meaning . . . of the National Security Act . . . indicates that
. . . Congress entrusted [the CIA] with sweeping power to
protect its ‘intelligence sources and methods.’”). Because “the
purpose of national security exemptions to the FOIA is to
protect intelligence sources before they are compromised and
harmed, not after,” Halperin, 629 F.2d at 149, “the Director of
Central Intelligence may protect all intelligence sources,
regardless of their provenance,” Fitzgibbon, 911 F.2d at 762. As
with Exemption 1, the Agency relies on the Dyer Affidavit to
establish that disclosure of information regarding whether or not
CIA records of a foreign national exist would be unauthorized
under Exemption 3 because it would be reasonably harmful to
intelligence sources and methods. See Gardels, 689 F.2d at
1103–04. As discussed earlier, Dyer’s detailing of harm
satisfies the requirements of Exemption 1 and, coupled with the
greater deference afforded the Agency under the National
Security Act, we believe that the CIA also properly invoked
Exemption 3 in support of its Glomar response.
existed at the time of Wolf’s FOIA request in 2000. Under the
Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L.
No. 108-458, the new Director of National Intelligence is similarly
required to “protect intelligence sources and methods from
unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1).
13
IV.
Although the CIA properly invoked Exemptions 1 and 3,
Wolf asserts that the Agency waived both of them by officially
acknowledging the existence of records regarding Gaitan during
the 1948 congressional testimony of then-CIA Director
Hillenkoetter. Indeed, “when information has been ‘officially
acknowledged,’ its disclosure may be compelled even over an
agency’s otherwise valid exemption claim.” Fitzgibbon, 911
F.2d at 765. An agency’s official acknowledgment of
information by prior disclosure, however, cannot be based on
mere public speculation, no matter how widespread. Afshar v.
Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983) (rejecting
suggestion that public speculation about CIA liaison with
Iranian government constituted prior disclosure). Instead, an
official acknowledgment must meet three criteria:
First, the information requested must be as specific as
the information previously released. Second, the
information requested must match the information
previously disclosed . . . . Third, . . . the information
requested must already have been made public through
an official and documented disclosure.
Fitzgibbon, 911 F.2d at 765; see also Public Citizen v. Dep’t of
State, 11 F.3d 198, 202 (D.C. Cir. 1993); Afshar, 702 F.2d at
1133. Thus, the fact that information exists in some form in the
public domain does not necessarily mean that official disclosure
will not cause harm cognizable under a FOIA exemption. See
Fitzgibbon, 911 F.2d at 766.
As a consequence, “a plaintiff asserting a claim of prior
disclosure must bear the initial burden of pointing to specific
information in the public domain that appears to duplicate that
being withheld.” Afshar, 702 F.2d at 1130. Prior disclosure of
similar information does not suffice; instead, the specific
14
information sought by the plaintiff must already be in the public
domain by official disclosure. Public Citizen, 11 F.3d at 201,
203. The insistence on exactitude recognizes “the Government’s
vital interest in information relating to national security and
foreign affairs.” Id. at 203; see also Military Audit Project, 656
F.2d at 752–53 (rejecting claim that public disclosure of some
information overlapping with content of requested material
results in waiver as to all information).
While FOIA requesters often invoke agency waiver in order
to overcome FOIA exemptions, the “official acknowledgment”
standard has not yet been applied in the context of a Glomar
response. In most waiver cases, the inquiry turns on the match
between the information requested and the content of the prior
disclosure. For instance, in Fitzgibbon we rejected the
plaintiff’s argument that congressional testimony establishing
the existence of a CIA station in the 1960s waived Exemption
3's protection of records about the station in the 1950s because
the time period specified in the plaintiff’s FOIA request did not
match the time period of the prior disclosure. See 911 F.2d at
765–66.
Wolf requested “[a] copy of all records about Jorge Eliecer
Gaitan.” Appellee’s App. at 29. The CIA’s Glomar response
pinpointed the “specific information at issue” as the existence of
Agency “records about Jorge Eliecer Gaitan” vel non. Id. In the
Glomar context, then, if the prior disclosure establishes the
existence (or not) of records responsive to the FOIA request, the
prior disclosure necessarily matches both the information at
issue—the existence of records—and the specific request for
that information.
Wolf asserts that former CIA Director Hillenkoetter’s
testimony before the Congress in 1948 established the existence
of Agency “records about” Gaitan. See Appellant’s Br. at 23.
15
The district court rejected this contention, concluding that “there
is no indication from the transcript that the CIA director was
reading from anything more than a prepared statement for the
hearing. Moreover, Admiral Hillenkotter [sic] never made a
specific reference in his testimony to reading from any report or
other official document.” Wolf, 357 F. Supp. 2d at 118. We do
not agree.
Although Hillenkoetter’s testimony appears to be a prepared
statement, see Special Subcommittee of the Committee on
Expenditures in the Executive Departments (April 15, 1948),
reprinted in Appellant’s App. at 28,7 the CIA Director also
explicitly “read some excerpts of dispatches relating to the[]
disturbances” that followed Gaitan’s assassination. Id. at 22
(reciting information “obtained by people working for Central
Intelligence” in Colombia). The excerpts included references to
Gaitan, his followers and their associates in connection with
possible communist activity in Colombia. See id. at 22–23
(reading report from January 2, 1948 describing “[a] professor
at the national university and a member of the Colombian Soviet
Cultural Exchange” who “is known to be close to and an advisor
of Gaitan”).8 Further, Hillenkoetter suggested that the
7
At one point during the hearing, Representative Clarence Brown
asked Hillenkoetter whether he had “conclude[d] [his] prepared
statement for the record.” Appellant’s App. at 28. Hillenkoetter
indicated that he had completed his prepared statement, thereby
opening the hearing to further questions. Id.
8
At oral argument, the CIA did not dispute that the references to
Gaitan in Hillenkoetter’s testimony constitute “records” about Gaitan
within the meaning of the FOIA. Cf. Tobey v. NLRB, 40 F.3d 469,
471 (D.C. Cir. 1994) (under Privacy Act definition of “record,” 5
U.S.C. § 552a(a)(4), inclusion of individual’s name in document does
16
dispatches were Agency documents containing sensitive
information typically passed on to the Department of State. Id.
at 28–29 (confirming that dispatches “[were] forwarded to the
State Department”). Because the “specific information at issue,”
Public Citizen, 11 F.3d at 203, is the existence vel non of
“records about Jorge Eliecer Gaitan,” Appellee’s App. at 29,
Hillenkoetter’s testimony confirmed the existence thereof.
Accordingly, the Agency’s Glomar response does not suffice
regarding the dispatch excerpts that reference Gaitan because the
same “officially acknowledge” the fact that CIA records “about
Jorge Eliecer Gaitan” exist.
We must now resolve the nature of the information to which
Wolf is entitled. The CIA’s official acknowledgment waiver
relates only to the existence or nonexistence of the records about
Gaitan disclosed by Hillenkoetter’s testimony. As a result, Wolf
is entitled to disclosure of that information, namely the existence
of CIA records about Gaitan that have been previously disclosed
(but not any others). Cf. Fitzgibbon, 911 F.2d at 765 (agency
may be compelled to disclose officially acknowledged
information) (citing Afshar, 702 F.2d at 1133). To determine
whether the contents—as distinguished from the existence—of
the officially acknowledged records may be protected from
disclosure by Exemptions 1 and 3 (or both), however, we
remand the case to the district court where the CIA must either
disclose any officially acknowledged records or establish both
that their contents are exempt from disclosure and that such
exemption has not also been waived by the 1948 congressional
testimony. See Am. Civil Liberties Union v. Dep’t of Def., 389
not constitute “information . . . ‘about’” individual and thus “record”
subject to disclosure); Doe v. FBI, 936 F.2d 1346, 1353 (D.C. Cir.
1991) (FOIA definition of “law enforcement record” applied to
Privacy Act in light of similarity of statutory language).
17
F. Supp. 2d 547, 566 (S.D.N.Y. 2005) (finding that government
officially acknowledged existence of memorandum and
requiring that government either produce document or “prove
that the [contents of related documents] are exempt from
production”).
V.
In sum, we affirm the district court’s holding that the
existence or nonexistence of records about Gaitan is itself
classified information and protected from disclosure by
Exemptions 1 and 3 of the FOIA. We reverse the district court,
however, to the extent that it held that the existence of Agency
records about Gaitan was not officially acknowledged by the
CIA in testimony before the Congress in 1948. We therefore
remand the case to the district court for proceedings consistent
with this opinion.
So ordered.