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US Court of Appeals Upholds CIA Glomar Response
The United States Court of Appeals for the District of Columbia Circuit affirmed in December 2011 the grant of summary judgment by the U.S. District Court for the District of Columbia in favor of the Central Intelligence Agency in a Glomar issue. Appellant Thomas E. Moore III brought suit against the CIA pursuant to the federal Freedom of Information Act (FOIA) to obtain “all information or records relevant to... Sveinn B. Valfells.” The CIA, invoking Glomar in the interest of national security, neither confirmed nor denied the existence of such material.
Beginning in November 2007, Moore submitted to the CIA a series of requests for materials relating to Valfells. In April 2008 Moore requested the same information of the FBI. That agency, per standing executive order, referred three pages of a report they were sending Moore to the CIA. The CIA replied with information they wanted redacted from those pages.
The CIA remained steadfast behind its Glomar shield. Moore filed suit in July 2009 challenging the Glomar assertion. In a motion to dismiss, a CIA Information Review Officer provided a declaration in support. Among other things, the officer confirmed that in April 2008 the CIA asked the FBI to withhold certain information from the three pages the FBI was going to send Moore. That admission, Moore asserted, confirmed the existence of the records and thus waived Glomar. The district court disagreed, noting that the report released by the FBI did not constitute CIA confirmation, and also Moore’s acceptance of the redacted report unchallenged implied that all reasonably segrable information had already been released to Moore. The court granted the CIA summary judgment.
In analysis, the Court of Appeals noted that “a strict test applies to claims of official disclosure,” namely the requesting plaintiff must pinpoint an agency record that both matches the plaintiff’s request – point to specific information in the public domain that appears to duplicate that being withheld- and was officially acknowledged as released by the agency. The court held that Moore’s argument did not come up to this standard and thus ruled that the CIA properly responded to Moore’s FOIA request with a Glomar response. See: Moore v. C.I.A., 666 F.3d 1330, (D.C. Cir. 2011).
Beginning in November 2007, Moore submitted to the CIA a series of requests for materials relating to Valfells. In April 2008 Moore requested the same information of the FBI. That agency, per standing executive order, referred three pages of a report they were sending Moore to the CIA. The CIA replied with information they wanted redacted from those pages.
The CIA remained steadfast behind its Glomar shield. Moore filed suit in July 2009 challenging the Glomar assertion. In a motion to dismiss, a CIA Information Review Officer provided a declaration in support. Among other things, the officer confirmed that in April 2008 the CIA asked the FBI to withhold certain information from the three pages the FBI was going to send Moore. That admission, Moore asserted, confirmed the existence of the records and thus waived Glomar. The district court disagreed, noting that the report released by the FBI did not constitute CIA confirmation, and also Moore’s acceptance of the redacted report unchallenged implied that all reasonably segrable information had already been released to Moore. The court granted the CIA summary judgment.
In analysis, the Court of Appeals noted that “a strict test applies to claims of official disclosure,” namely the requesting plaintiff must pinpoint an agency record that both matches the plaintiff’s request – point to specific information in the public domain that appears to duplicate that being withheld- and was officially acknowledged as released by the agency. The court held that Moore’s argument did not come up to this standard and thus ruled that the CIA properly responded to Moore’s FOIA request with a Glomar response. See: Moore v. C.I.A., 666 F.3d 1330, (D.C. Cir. 2011).
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Related legal case
Moore v. C.I.A.
| Year | 2011 |
|---|---|
| Cite | 666 F.3d 1330 (D.C. Cir. 2011). |
| Level | Court of Appeals |