Leopold v. Cent. Intelligence Agency

987 F.3d 163

Jason LEOPOLD and BuzzFeed, Inc., Appellees

v.CENTRAL INTELLIGENCE AGENCY, Appellant

No. 20-5002

United States Court of Appeals, District of Columbia Circuit.

Argued November 12, 2020

Decided February 9, 2021

Joseph F. Busa, Attorney, U.S. Department of Justice, argued the cause for appellant. With him on the briefs was Sharon Swingle, Attorney.

Jeffrey L. Light, Washington, DC, argued the cause and filed the brief for appellee.

Before: Wilkins and Katsas, Circuit Judges, and Randolph, Senior Circuit Judge.

Randolph, Senior Circuit Judge:

Jason Leopold and BuzzFeed¹ requested the Central Intelligence Agency to disclose certain records. The Agency declined. The case is here on the Agency's appeal from the district court's order requiring it to confirm or deny whether it has the records.

I

The plaintiffs based their request on the Freedom of Information Act. The Act compels disclosure of government records. 5 U.S.C. § 552(a)(3)(A). There are nine exemptions. 5 U.S.C. § 552(b). Two matter here.

Exemption 1 covers "matters"² that are "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and ... are in fact properly classified pursuant to such Executive order[.]" 5 U.S.C. § 552(b)(1). Thus, properly classified records are exempt from disclosure. See Exec. Order No. 13,526, 75 Fed. Reg. 707 (Jan. 5, 2010) (governing the classification of national security information).

Exemption 3 covers "matters" that are "specifically exempted from disclosure by statute[.]" 5 U.S.C. § 552(b)(3). Relevant here, the National Security Act of 1947 "qualifies as a withholding statute under Exemption 3," CIA v. Sims , 471 U.S. 159, 167, 105 S.Ct. 1881, 85 L.Ed.2d 173 (1985), and directs the Director of National Intelligence to "protect intelligence sources and methods from unauthorized disclosure." 50 U.S.C. § 3024(i)(1). By delegation, the Director of the Central Intelligence Agency must do the same. DiBacco v. U.S. Army , 795 F.3d 178, 196–99 (D.C. Cir. 2015).

The absence of particular evidence may sometimes provide clues as important as the presence of such evidence. In literature, a common way of expressing this truth, although not always accurately, is to refer to the dog that did not bark.³ In Freedom of Information Act law, a similar concept justifies what has become known as the Glomar response.

Our court has long recognized that the existence of agency records relating to a subject, or the absence of such agency records, may reveal information falling within one of these exemptions. See Am. C.L. Union v. CIA , 710 F.3d 422, 426 (D.C. Cir. 2013) ( "ACLU" ); Wolf v. CIA , 473 F.3d 370, 374 (D.C. Cir. 2007) ; Phillippi v. CIA , 546 F.2d 1009, 1013–14 (D.C. Cir. 1976). If so, an agency "may refuse to confirm or deny the existence of records" — a Glomar response.⁴ Wolf , 473 F.3d at 374 (quoting Gardels v. CIA , 689 F.2d 1100, 1103 (D.C. Cir. 1982) ). A requester can overcome an agency's otherwise valid Glomar response by showing that the agency has officially and publicly acknowledged the records’ existence. ACLU , 710 F.3d at 427 ; Wolf , 473 F.3d at 378 (quoting Fitzgibbon v. CIA , 911 F.2d 755, 765 (D.C. Cir. 1990) ; Afshar v. Dep't of State , 702 F.2d 1125, 1133 (D.C. Cir. 1983) ).⁵

Against this backdrop, we address the impact of President Trump's "tweet"⁶ on July 24, 2017, stating: "The Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad....." Donald J. Trump (@realDonaldTrump), Twitter (July 24, 2017, 10:23 PM).⁷

Shortly thereafter, Jason Leopold and BuzzFeed (collectively, "BuzzFeed") requested the Central Intelligence Agency's records about Agency "payments to Syrian rebels fighting Assad." J.A. 45. The Agency issued a Glomar response, supported by a sworn declaration, invoking Exemptions 1 and 3. BuzzFeed sued, arguing that President Trump's tweet had officially acknowledged the existence of Agency payments to Syrian rebels. Leopold v. CIA , 380 F. Supp. 3d 14, 22 (D.D.C. 2019) ( "Leopold I" ). Both parties sought summary judgment. Id .

In Leopold I , the district court granted summary judgment to the Agency, explaining that "the President's tweet did not mention the [Agency] or create any inference that such a program would be linked to or run by the [Agency]." Id. at 25. The district court reasoned that "[t]he President might have acknowledged the existence of ‘massive, dangerous, and wasteful’ payments to Syrian rebels, but he did not mention from which branch of government such payments would have originated." Id .

The request from Leopold I is not at issue. BuzzFeed later sent another request, this time seeking nine broad categories of Agency records. Although the first request sought Agency records relating to Agency payments to Syrian rebels, the second request sought Agency records relating to payments to Syrian rebels. Compare J.A. 45, with J.A. 24.

Again, the Agency issued a Glomar response. In another sworn declaration, the Agency asserted that a response would reveal whether it had an intelligence interest in, intelligence sources about, and connection to payments or programs related to Syrian rebels — information exempt from disclosure under Exemptions 1 and 3. No one disputes the validity of the exemptions. Oral Arg. 31:43–31:53. And again, BuzzFeed sued, alleging that the President's tweet had officially acknowledged the existence of such records. Both sides moved for summary judgment. Leopold v. CIA , 419 F. Supp. 3d 56, 63 (D.D.C. 2019) ( "Leopold II" ).

This time around, the district court granted summary judgment to BuzzFeed, holding that President Trump's tweet had officially acknowledged "the government's intelligence interest in the broader categories of records that BuzzFeed has requested." Id. at 68. Having overcome the Agency's Glomar response, the district court ordered the Agency to respond. Id. at 68–69. The Agency appealed.

II

We first address our appellate jurisdiction. The district court's order may not be a "final decision" appealable under 28 U.S.C. § 1291. See Jud. Watch, Inc. v. Dep't of Energy , 412 F.3d 125, 128 (D.C. Cir. 2005) (citing Se. Fed. Power Customers, Inc. v. Harvey , 400 F.3d 1, 4 (D.C. Cir. 2005) ). But it is an appealable order under 28 U.S.C. § 1292(a)(1), which extends our jurisdiction to include "[i]nterlocutory orders of the district courts ... granting ... injunctions[.]" Id.

There is no doubt that orders requiring "the disclosure of documents" are appealable injunctions. See, e.g. , Jud. Watch, Inc. v. Dep't of Energy , 412 F.3d at 128 ; Citizens for Resp. & Ethics in Wash. v. U.S. Dep't of Homeland Sec. , 532 F.3d 860, 863 (D.C. Cir. 2008) (" CREW " ). BuzzFeed claims the order here is different because the district court did not require the Agency to disclose any documents. This misses the point. What matters for jurisdictional purposes under 28 U.S.C. § 1292(a)(1) is whether the district court has issued an injunction, not whether the injunction requires documents to be disclosed.

CREW is not to the contrary. There, the Secret Service refused to produce visitor logs because it believed that the logs did not qualify as agency records. 532 F.3d at 862. Rejecting that argument, the district court ordered the Secret Service to "process [CREW]'s Freedom of Information Act request and produce all responsive records that are not exempt from disclosure[.]" Id. We lacked interlocutory jurisdiction because "the Secret Service may yet be entitled to withhold some or all of the documents under one or more of [the Act's] nine exemptions." Id. at 863 ; see Green v. Dep't of Com. , 618 F.2d 836, 839 (D.C. Cir. 1980). In other words, the consequences of the district court's order would not be known until the Secret Service processed CREW's request. The court put it this way: "Under the court's order, the Secret Service will have to search for and locate any responsive documents and claim any exemptions it believes applicable. At that point, the court may agree with the agency, allowing it to withhold the requested records, in which case the government would have no cause to appeal. Or alternatively, ‘the issues might be sufficiently narrowed to permit the parties to reach a settlement.’ In either case, appellate review at this stage is premature." Id. at 864 (quoting Green , 618 F.2d at 839 ).

An order denying a Glomar response and requiring the agency to reveal whether it holds particular records is not comparable. The appeal from such an order is by no means "premature." If the order goes into effect and forces the agency to reveal whether it possessed the records, any later agency appeal would be fruitless. See Wolf , 473 F.3d at 379. That cat would be out of the bag, regardless whether any relevant documents the agency might possess would be exempt from disclosure.

Here, the records’ existence (or not) is a properly classified fact and one that would reveal intelligence sources and methods. As our court stated in the original "Glomar " case: "In effect, the situation is as if [the plaintiff] had requested and been [granted] permission to see a document which says either ‘Yes, we have records relating to contacts with the media concerning the Glomar Explorer’ or ‘No, we do not have any such records.’ " Phillippi , 546 F.2d at 1012.

To sum up, the contents of the records (if any) may be exempt from disclosure. See Wolf , 473 F.3d at 380. But the district court has ordered the release of information "for which the [Agency] claim[s] no basis for non-disclosure beyond the argument already rejected." Jud. Watch , Inc. v. U.S. Dep't of Energy , 412 F.3d at 128. As such, the court's order is injunctive in nature and appealable under 28 U.S.C. § 1292(a)(1).

III

We would uphold the district court's ruling, even on de novo review, if President Trump's tweet officially acknowledged the existence of Central...