United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 16, 2011 Decided December 20, 2011
No. 10-5248
THOMAS E. MOORE, III,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:09-cv-01363)
David L. Sobel argued the cause for the appellant.
Jane M. Lyons, Assistant United States Attorney, argued
the cause for the appellee. Ronald C. Machen Jr., United
States Attorney, and R. Craig Lawrence, Assistant United
States Attorney, were on brief.
Before: HENDERSON, TATEL and GRIFFITH, Circuit
Judges.
2
Opinion for the Court filed by Circuit Judge HENDERSON.
KAREN LECRAFT HENDERSON, Circuit Judge: This case
arises under the Freedom of Information Act (FOIA), 5
U.S.C. § 552. Appellant Thomas E. Moore, III (Moore)
challenges the Central Intelligence Agency’s (CIA or
Agency) Glomar response to his request for “all information
or records relevant to . . . Sveinn B. Valfells” (Valfells Sr.), in
which response the Agency neither confirmed nor denied
whether it maintained any such records.1 Specifically, Moore
argues that the CIA has already “officially acknowledged”
that at least some “CIA-originated information” was redacted
from a Federal Bureau of Investigation (FBI) report dated
February 1956 entitled “Sveinn B. Valfells” (FBI Report or
Report) and, under our holding in Wolf v. CIA, 473 F.3d 370
(D.C. Cir. 2007), the Agency can no longer deny that it
maintains that information. In our view and that of the district
court, Moore has failed to meet his burden to demonstrate that
the CIA has officially acknowledged any record responsive to
his FOIA request. Although the CIA confirmed that some
unspecified “CIA-originated information” was redacted from
the FBI Report, Moore cannot isolate any specific CIA record
that has been officially acknowledged by the CIA. See id. at
378-79. Accordingly, we affirm the district court’s grant of
summary judgment to the CIA.
I. BACKGROUND
The relevant facts in this case are undisputed. By letters
dated November 19, 2007, Moore submitted a series of FOIA
1
A Glomar answer is one that, for national security reasons,
neither confirms nor denies the existence of certain requested
agency records. The term Glomar comes from our opinion in
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), which involved a
FOIA request for information regarding the “Hughes Glomar
Explorer,” a deep-sea exploratory vessel.
3
requests to the United States Department of Justice (DOJ), the
CIA and the United States Department of State on behalf of
his client, Sveinn Valfells (Valfells). The requests sought
information regarding Valfells’ grandfather, Valfells Sr., an
Icelandic textile merchant who spent time in the United States
during the 1940s and 1950s and who allegedly had ties to the
Icelandic Communist Party (ICP).
On December 17, 2007, the CIA responded to Moore’s
request, stating that “the CIA can neither confirm nor deny
the existence or nonexistence of records responsive to this
part of your request.” Letter from Scott Koch to Moore at 1
(Dec. 17, 2007). The CIA relied on FOIA exemptions (b)(1)
and (b)(3) to support its response.2
2
Exemption (b)(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). Pursuant to Executive Order 12,958, an agency may
withhold information if its disclosure could reasonably be expected
to reveal classified intelligence sources or methods or otherwise
damage the foreign relations of the United States. See Exec. Order
No. 12,958, 70 Fed. Reg. 21,609 (Apr. 21, 2005).
Exemption (b)(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) (effective Nov. 27, 2002 to Dec.
30, 2007). The National Security Act of 1947, as amended,
mandates that the Director of National Intelligence protect
intelligence sources and methods from unauthorized disclosure. See
50 U.S.C. § 403g; id. § 403-1(i)(1). In his appeal, Moore does not
challenge whether the CIA appropriately asserted its (b)(1) and
(b)(3) exemptions.
4
In April 2008, in response to Moore’s request to the DOJ,
the FBI referred three pages of its Report to the CIA for
coordination.3 The CIA responded that certain CIA-originated
information in that document should be withheld to protect
classified intelligence sources and methods. The FBI
subsequently released a redacted version of the Report to
Moore on May 9, 2008. The Report states that, in January
1956, “T-1, an agency of the U. S. Government which
conducts intelligence investigations,” furnished the FBI with
information indicating that Valfells Sr. had ties to the ICP.
Report at 11. Although the Report does not specifically state
that T-1 is the CIA, in a section entitled “Administrative
Data,” the Report identifies the CIA as a source of
information contained in the Report: “This report is being
designated ‘SECRET’ inasmuch as the file in the Security
Office of the U. S. State Department and the information from
CIA, which has been set forth in the body of this report[,] was
so classified.” Report at 12.
On July 23, 2009, after Moore’s efforts to obtain the
requested records from the CIA failed, Moore filed suit in the
district court challenging its Glomar response. The CIA
moved to dismiss or, in the alternative, for summary judgment
and submitted the declaration of CIA Information Review
Officer Ralph DiMaio (DiMaio) in support of its motion. In
his declaration, DiMaio confirmed inter alia that in April
2008 the CIA “ask[ed] the FBI to withhold certain CIA-
originated information [from the FBI Report] . . . in order to
3
The coordination was completed pursuant to Executive Order
12,958, section 3.6(b), which requires an agency that receives a
request for documents containing information that was originally
classified by another agency to refer copies of the request and the
pertinent documents to the originating agency for processing. Exec.
Order. No. 12,958, 60 Fed. Reg. 19,825 (Apr. 17, 1995), amended
by Exec. Order No. 13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003).
5
protect intelligence sources and methods.” Moore
subsequently cross-moved for partial summary judgment,
arguing that, given DiMaio’s acknowledgment, the CIA had
waived its right to issue a Glomar response.
The district court disagreed and, on June 17, 2010, it
granted summary judgment to the CIA and denied Moore’s
cross-motion. Valfells v. CIA, 717 F. Supp. 2d 110 (D.D.C.
2010). First, the court noted that the FBI lacked the authority
to make an official acknowledgment on behalf of the CIA;
thus, the release of the Report by the FBI had no bearing on
the CIA’s ability to issue a Glomar response. Id. at 118.
Second, the court found that, although DiMaio’s declaration
made clear that some CIA-originated information had been
withheld from the FBI Report, his declaration officially
acknowledged, at most, the specific information redacted
from the Report. Id. at 120. Because Moore did not challenge
the redactions, the court held that all reasonably segregable
information had already been released to Moore. Id. Moore
now appeals.
II. ANALYSIS
“[A]n agency may refuse to confirm or deny the
existence of records where to answer the FOIA inquiry would
cause harm cognizable under a FOIA exception.” Gardels v.
CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). Such a
response—commonly known as a Glomar response—is
proper if the existence vel non of an agency record is itself
exempt from disclosure. Wolf, 473 F.3d at 374 (citing Hunt v.
CIA, 981 F.2d 1116, 1118 (9th Cir. 1992); Phillippi v. CIA,
546 F.2d 1009, 1011 (D.C. Cir. 1976)). If, however, the
agency has officially acknowledged the existence of the
record, the agency can no longer use a Glomar response, id. at
378, and instead must either: (1) disclose the record to the
requester or (2) establish that its contents are exempt from
6
disclosure and that such exemption has not been waived, id. at
379-80.
In his appeal, Moore does not challenge the CIA’s
reliance on exemptions (b)(1) and (b)(3) nor does he dispute
that a Glomar response is proper where the existence or
nonexistence of an agency record falls within a FOIA
exemption. Instead, Moore argues that the CIA has officially
acknowledged that it maintains information responsive to
Moore’s FOIA request and, therefore, can no longer use a
Glomar answer in responding to his request. Specifically,
Moore points to the October 8, 2008 DiMaio declaration in
which DiMaio recited that the CIA asked the FBI to redact
some “CIA-originated information” from the Report in order
to protect CIA intelligence sources and methods. In our view,
the DiMaio declaration does not constitute an official
acknowledgment sufficient to waive Glomar.4
“[W]hen information has been ‘officially acknowledged,’
its disclosure may be compelled even over an agency’s
otherwise valid exemption claim.” Fitzgibbon v. CIA, 911
F.2d 755, 765 (D.C. Cir. 1990). But “[a] strict test applies to
claims of official disclosure.” Wilson v. CIA, 586 F.3d 171,
186 (2d Cir. 2009). To be officially disclosed: “(1) the
information requested must be as specific as the information
previously released; (2) the information requested must match
the information previously disclosed; and (3) the information
requested must already have been made public through an
official and documented disclosure.” Am. Civil Liberties
4
Additionally, to the extent Moore suggests that the release of
the Report by the FBI constitutes an official acknowledgment by the
CIA, his argument is foreclosed by our precedent. “[W]e do not
deem ‘official’ a disclosure made by someone other than the agency
from which the information is being sought.” Frugone v. CIA, 169
F.3d 772, 774 (D.C. Cir. 1999). Thus, “only the CIA can waive its
right to assert an exemption to the FOIA.” Id. at 775.
7
Union v. U.S. Dep’t of Def., 628 F.3d 612, 620-21 (D.C. Cir.
2011). Thus, “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 v. Dep’t of State, 702 F.2d 1125,
1130 (D.C. Cir. 1983).
In Wolf v. CIA, where we first addressed the official
acknowledgment doctrine in the Glomar context, we again
applied it strictly. There, we made plain that, in order to
overcome an agency’s Glomar response based on an official
acknowledgment, the requesting plaintiff must pinpoint an
agency record that both matches the plaintiff’s request and
has been publicly and officially acknowledged by the agency.
See Wolf, 473 F.3d at 378-79; see also Wilner v. Nat’l Sec.
Agency, 592 F.3d 60, 70 (2d Cir. 2009) (agency only
“precluded from making a Glomar response if the existence
or nonexistence of the specific records sought by the FOIA
request has been the subject of an official public
acknowledgment” (citing Wolf, 473 F.3d at 378-79; Hudson
River Sloop Clearwater, Inc. v. Dep’t of the Navy, 891 F.2d
414, 421 (2d Cir. 1989) (emphasis added))).
In Wolf, the plaintiff, a historical researcher, requested
“all records about Jorge Eliecer Gaitan” (Gaitan), a
Colombian presidential candidate who was assassinated in
Bogota, Colombia in 1948. 473 F.3d at 372-73 (internal
quotation marks omitted). After the CIA issued a Glomar
answer to Wolf’s request, Wolf filed suit. He claimed that the
CIA had waived its right to issue a Glomar response because
former CIA director Admiral R.K. Hillenkoetter
(Hillenkoetter) publicly acknowledged the existence of CIA
records regarding Gaitan nearly 50 years before Wolf’s
request. Specifically, Wolf pointed to Hillenkoetter’s
congressional testimony shortly after Gaitan’s assassination in
1948, during which testimony Hillenkoetter read excerpts
8
from CIA dispatches referencing Gaitan, his associates and
their ties to the communist party in Colombia. The district
court rejected Wolf’s official acknowledgment argument and
granted summary judgment to the Agency.
We reversed the district court, holding, in light of
Hillenkoetter’s congressional testimony, that “the Agency’s
Glomar response [did] not suffice regarding the dispatch
excerpts that reference Gaitan because the same ‘officially
acknowledge’ the fact that CIA records ‘about Jorge Eliecer
Gaitan’ exist.” Id. at 379. Although we concluded that the
Agency had waived its Glomar response as to those officially
acknowledged dispatches, we also held that it had not waived
its Glomar response as to all records about Gaitan. Instead,
Wolf was entitled to disclosure of “the existence of CIA
records about Gaitan that have been previously disclosed (but
not any others).” Id. (emphasis added). We thus remanded the
case to the district court to “determine whether the contents—
as distinguished from the existence—of the officially
acknowledged records” were exempt from disclosure. Id. at
380 (emphasis removed).
Unlike in Wolf, DiMaio’s declaration does not identify
specific records or dispatches matching Moore’s FOIA
request. Indeed, because the CIA-originated information was
redacted before the FBI released its Report to him, Moore
cannot show that the redacted information even relates to
Valfells Sr. All Moore can establish is that some unspecified
“CIA-originated information” was redacted from the Report.
Whereas Wolf identified specific records that had been
officially acknowledged by Hillenkoetter’s testimony quoting
therefrom, Moore can only speculate as to what (if any)
records the CIA might have about Valfells Sr. In the highly
sensitive context involving issues of national security,
however, “[a]n agency’s official acknowledgment . . . cannot
be based on . . . speculation, no matter how widespread.” Id.
9
at 378. As we noted in Wolf, “[t]he insistence on exactitude
recognizes ‘the Government’s vital interest in information
relating to national security and foreign affairs.’ ” Id. at 378
(quoting Pub. Citizen v. Dep’t of State, 11 F.3d 198, 203
(D.C. Cir 1993)). The CIA has properly answered Moore’s
FOIA request with a Glomar response.
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.