Connell v. Central Intelligence Agency

110 F.4th 256

James G. CONNELL, III, Appellant v. CENTRAL INTELLIGENCE AGENCY, Appellee.

No. 23-5118

United States Court of Appeals, District of Columbia Circuit

Argued April 9, 2024

Decided August 6, 2024

Appeal from the United States District Court for the District of Columbia (No. 1:21-cv-00627)

Brett Max Kaufman argued the cause for appellant. With him on the briefs was Arthur B. Spitzer.

Thomas G. Pulham, Attorney, U.S. Department of Justice, argued the cause for appellee. With him on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Sharon Swingle, Attorney.

Before: Childs and Garcia, Circuit Judges, and Ginsburg, Senior Circuit Judge.

Concurring opinion filed by Senior Circuit Judge Ginsburg.

Garcia, Circuit Judge:

In 2014, the Senate Select Committee on Intelligence released a report that referred to the CIA's "operational control" over fourteen CIA detainees transferred in September 2006 to the U.S. military base at Guantanamo Bay, Cuba. Based on that reference, a lawyer representing one of the detainees requested records from the CIA under the Freedom of Information Act about the CIA's "operational control" at Guantanamo from September 2006 through January 2007. After searching a database of records cleared for public release or previously released, the CIA identified three documents. As to any classified or otherwise unacknowledged connection between the CIA and the topic of the request, however, the agency declared that it could neither confirm nor deny the existence of such records without revealing classified intelligence sources and methods information. The sole issue in this appeal is whether the CIA can rely on such a response to the records request here. We conclude that it can.

I

The Freedom of Information Act ("FOIA") provides for disclosure of agency records to the public subject to nine exemptions. 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). As in this case, agencies sometimes respond to FOIA requests by declaring that they can neither confirm nor deny the existence of records responsive to the request. This kind of response is known as a Glomar response based on a case permitting the CIA to refuse to confirm or deny whether it had records about a ship named the Glomar Explorer. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).

In 2009, the Senate Select Committee on Intelligence ("SSCI") began to investigate the CIA's post-9/11 detention and interrogation program. The SSCI investigation included reviewing CIA documents. In 2012, the Committee sent drafts of the resulting report and executive summary to the Executive Branch for comment, which the CIA submitted. The Committee then requested that the executive summary be declassified, a process involving a review by the Director of National Intelligence and the CIA. The executive summary was released in redacted form in 2014. The full, unredacted report remains classified.

The SSCI executive summary states that fourteen CIA detainees were transferred "to Department of Defense custody at Guantanamo Bay" in September 2006. J.A. 114.¹ According to the executive summary, the detainees "remained under the operational control of the CIA." Id. Footnote 977 cited a document titled "CIA Background Memo for CIA Director visit to Guantanamo, December [ ], 2006, entitled Guantanamo Bay High-Value Detainee Detention Facility." J.A. 114 n.977. And a footnote on an earlier page cited a "September 1, 2006, Memorandum of Agreement Between the Department of Defense (DOD) and the Central Intelligence Agency (CIA) Concerning the Detention by DOD of Certain Terrorists at a Facility at Guantanamo Bay Naval Station." J.A. 112 n.848.

These unredacted references formed the basis for the records request at issue in this case. Appellant James G. Connell III is a lawyer who represents one of the fourteen detainees transferred to Guantanamo in September 2006. In May 2017, citing the SSCI executive summary's reference to "operational control," Connell submitted a FOIA request to the CIA for "any and all information that relates to such 'operational control' of the CIA over Guantanamo Bay detainees including but not limited to the document cited in the footnote 977." J.A. 58. The CIA asked Connell to clarify the scope of his request. Connell's response specified an interest in records that shed light on the meaning and extent of the CIA's "operational control" over a specific part of Guantanamo called Camp 7 from September 1, 2006 to January 31, 2007. J.A. 63. Connell also listed "[b]y way of example and not limitation," seven "possible topics," including whether any "operational control" included facilities other than Camp 7, what organization had decisionmaking authority over Camp 7, whether CIA "operational control" ended before or after January 31, 2007, whether "operational control" involved CIA personnel, any detainee records maintained by the CIA during such a period, how other agencies could access detainees during such a period, and how the facilities transitioned from CIA to DOD "operational control." Id.

The CIA deemed this an amended FOIA request and responded in September 2020. It produced in partially redacted form the itinerary and background memo cited in footnote 977 of the SSCI executive summary, which had been previously released. The CIA stated that it could neither confirm nor deny the existence of any other responsive records. Connell filed an administrative appeal. The CIA failed to timely respond, and Connell filed his complaint in this suit in district court on March 8, 2021.

In July 2021, the CIA provided a final response to Connell's FOIA request. As CIA Information Review Officer Vanna Blaine later explained in a declaration in this case, see Blaine Decl. (J.A. 33-57), the CIA searched for records "that would reveal an unclassified or openly acknowledged association between the Agency and the subject of [Connell]'s Amended FOIA request," id. ¶ 16 (J.A. 38-39); see also J.A. 73, in a database of "all Agency records that have been reviewed and/or compiled for potential release, or that have been previously disclosed to the public," Blaine Decl. ¶ 20 (J.A. 40-41).

That search located three documents. Two were released with redactions: another version of the itinerary and background memo in footnote 977 that the CIA had previously produced, and the Memorandum of Agreement ("MOA") between the DOD and CIA cited in footnote 848. The CIA identified a third document but withheld it in full.²

As to any other records, the CIA stated that "it could neither confirm nor deny the existence of records that may reveal a classified connection between the Agency and the subject of [Connell]'s Amended FOIA request because confirming or denying the existence or nonexistence of such records would reveal classified intelligence sources and methods information that is protected from disclosure" under FOIA Exemptions 1 and 3. Id. ¶ 26 (J.A. 43); see also J.A. 74. According to the agency, responding otherwise could "reveal sensitive details about CIA's intelligence sources and methods and jeopardize the safety of... CIA employees and the employees of other agencies" or "provide adversaries with insight into the CIA's priorities, resources, capabilities, and relationships with other agencies." Blaine Decl. ¶ 34 (J.A. 47).

The CIA moved for summary judgment, relying on Blaine's declaration. Connell opposed, arguing that the CIA could not refuse to confirm or deny the existence or nonexistence of further responsive records in light of the documents it had produced, the SSCI executive summary, and other non-CIA documents which, according to Connell, indicated that the CIA had records about its "operational control" of Camp 7 during the specified time period.

The district court granted summary judgment in favor of the CIA, concluding that the CIA adequately justified its Glomar response to show entitlement to summary judgment and had not otherwise waived such a response. Connell timely appealed.

II

We review de novo a district court's grant of summary judgment in favor of an agency that invokes a FOIA exemption, including when the agency has issued a Glomar response. See Montgomery v. IRS, 40 F.4th 702, 709 (D.C. Cir. 2022). Whether the CIA is entitled to summary judgment here depends on two inquiries —whether the CIA waived its ability to assert a Glomar response through official acknowledgment and, if not, whether the CIA's justification for its Glomar response was sufficient to show it was entitled to summary judgment. We address each inquiry in turn.

A

"[A]n agency can waive a Glomar response through official acknowledgment," Mobley v. CIA, 806 F.3d 568, 584 (D.C. Cir. 2015), because "[o]nce an agency has officially acknowledged that records exist, there is no value in a Glomar response. The secret is out." Leopold v. CIA, 987 F.3d 163, 167 n.5 (D.C. Cir. 2021).

To show such a waiver, a plaintiff must "identify information in the public domain that (1) matches the information requested, (2) is as specific, and (3) has 'been made public through an official and documented disclosure.'" Knight First Amend. Inst. v. CIA, 11 F.4th 810, 815 (D.C. Cir. 2021) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). To satisfy the first two requirements in "the Glomar context, the prior disclosure must confirm the existence or nonexistence of records responsive to the FOIA request." Id. at 813. These requirements are exacting: "Prior disclosure of similar information does not suffice; instead, the specific information sought by the plaintiff must already be in the public domain by official disclosure." Wolf, 473 F.3d at 378. In cases like this one, this "insistence on exactitude recognizes 'the Government's vital interest in information relating to national security and foreign affairs.'" Id. (quoting Pub. Citizen v. Dep't of State, 11 F.3d 198, 203 (D.C. Cir. 1993)).

Crucially for this case, the third...