American Civil Liberties Union v. Central Intelligence Agency , 710 F.3d 422 ( 2013 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued September 20, 2012 Decided March 15, 2013
No. 11-5320
AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL
LIBERTIES UNION FOUNDATION,
APPELLANTS
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:10-cv-00436)
Jameel Jaffer argued the cause for appellants. With him on
the briefs were Ben Wizner and Arthur B. Spitzer.
Ranjana Natarajan was on the brief for amici curiae The
Bureau of Investigative Journalism, et al. in support of
appellants.
Stuart F. Delery, Acting Assistant Attorney General, U.S.
Department of Justice, argued the cause for appellee. With him
on the brief were Ronald C. Machen Jr., U.S. Attorney, Beth S.
Brinkmann, Deputy Assistant Attorney General, and Matthew
M. Collette and Catherine Y. Hancock, Attorneys. Douglas N.
Letter and Sharon Swingle, Attorneys, entered appearances.
2
Before: GARLAND, Chief Judge, and TATEL and GRIFFITH,
Circuit Judges.
Opinion for the Court filed by Chief Judge GARLAND.
GARLAND, Chief Judge: The plaintiffs filed a Freedom of
Information Act request for records held by the Central
Intelligence Agency pertaining to the use of unmanned aerial
vehicles (“drones”) to carry out targeted killings. The Agency
issued a so-called Glomar response, refusing to confirm or deny
that it had any such records. The district court affirmed the
Agency’s response and granted summary judgment in its favor.
The question on appeal is whether the Agency’s Glomar
response was justified under the circumstances of this case. We
conclude that it was not justified and therefore reverse and
remand for further proceedings.
I
On January 13, 2010, the American Civil Liberties Union
and American Civil Liberties Union Foundation (collectively,
the ACLU) submitted a Freedom of Information Act (FOIA)
request to the Central Intelligence Agency (CIA), seeking
“records pertaining to the use of unmanned aerial vehicles
(‘UAVs’) -- commonly referred to as ‘drones’ . . . -- by the CIA
and the Armed Forces for the purpose of killing targeted
individuals.” FOIA Request 2 (J.A. 48); see 5 U.S.C. § 552(a).
The CIA responded with what is commonly known as a
“Glomar response,” declining either to confirm or deny the
existence of any responsive records.1 The CIA’s Agency
1
The name is derived from the facts of Phillippi v. CIA, in which
this court addressed the CIA’s refusal to confirm or deny whether it
had documents relating to Howard Hughes’ ship, the Glomar Explorer,
3
Release Panel accepted an administrative appeal, but failed to
make a determination within twenty days as FOIA requires. See
5 U.S.C. § 552(a)(6)(A)(ii). The ACLU then filed suit against
the CIA in the United States District Court for the District of
Columbia, seeking the immediate processing and release of the
requested records. See id. § 552(a)(4)(B).
The CIA moved for summary judgment. It asserted that the
answer to the question of whether it possessed responsive
records was itself exempt from disclosure under FOIA
Exemptions 1 and 3. See id. § 552(b)(1), (3). And it rejected
the ACLU’s contention that there had been official public
acknowledgments that warranted overriding the Agency’s
exemption claims. In support of those arguments, the CIA
submitted the affidavit of Mary Ellen Cole, the Information
Review Officer for the Agency’s National Clandestine Service,
who explained at some length why the CIA believed its Glomar
response was justified. See Declaration of Mary Ellen Cole
(Cole Decl.).
On September 9, 2011, the district court granted the CIA’s
motion for summary judgment. Am. Civil Liberties Union v.
Dep’t of Justice, 808 F. Supp. 2d 280, 284 (D.D.C. 2011). The
court agreed with the CIA that the existence vel non of
responsive records was exempt under both Exemptions 1 and 3,
and that there had been no official acknowledgment sufficient to
override those exemptions. As a consequence, the court held,
the CIA was not required to confirm or deny that it had any
responsive records, let alone describe any specific documents it
might have or explain why any such documents were exempt
from disclosure. The ACLU filed a timely appeal.
which had reputedly been used in an attempt to recover a lost Soviet
submarine. 546 F.2d 1009 (D.C. Cir. 1976); see Military Audit
Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981).
4
II
This appeal concerns the intersection of two lines of FOIA
cases. The first is the Glomar line, which permits an agency to
“refuse to confirm or deny the existence of records” in limited
circumstances. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007).
“Because Glomar responses are an exception to the general rule
that agencies must acknowledge the existence of information
responsive to a FOIA request and provide specific,
non-conclusory justifications for withholding that information,
they are permitted only when confirming or denying the
existence of records would itself ‘cause harm cognizable under
an FOIA exception.’” Roth v. U.S. Dep’t of Justice, 642 F.3d
1161, 1178 (D.C. Cir. 2011) (quoting Wolf, 473 F.3d at 374)
(citation and internal quotation marks omitted); see, e.g., Miller
v. Casey, 730 F.2d 773, 775-78 (D.C. Cir. 1984); Gardels v.
CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). Accordingly, “[i]n
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.” Wolf, 473 F.3d at
374; see, e.g., Gardels, 689 F.2d at 1103-07.
The second line of cases is the “official acknowledgment”
line, which provides that when an agency has officially
acknowledged otherwise exempt information through prior
disclosure, the agency has waived its right to claim an
exemption with respect to that information. In other words,
“‘when information has been “officially acknowledged,” its
disclosure may be compelled even over an agency’s otherwise
valid exemption claim.’” Wolf, 473 F.3d at 378 (quoting
Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). A
plaintiff mounting an official acknowledgment argument “must
bear the initial burden of pointing to specific information in the
public domain that appears to duplicate that being withheld.” Id.
5
(quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.
Cir. 1983)).
These two lines of cases converge when a plaintiff seeks to
rebut a Glomar response by establishing official
acknowledgment. In the Glomar context, the “specific
information” at issue is not the contents of a particular record,
but rather “the existence vel non” of any records responsive to
the FOIA request. Id. at 379 (emphasis omitted); see id. at 380.
Accordingly, the plaintiff can overcome a Glomar response by
showing that the agency has already disclosed the fact of the
existence (or nonexistence) of responsive records, since that is
the purportedly exempt information that a Glomar response is
designed to protect. See id. at 379-80; Marino v. DEA, 685 F.3d
1076, 1081 (D.C. Cir. 2012). As we have explained, “in the
context of a Glomar response, the public domain exception is
triggered when ‘the prior disclosure establishes the existence (or
not) of records responsive to the FOIA request,’ regardless
whether the contents of the records have been disclosed.”
Marino, 685 F.3d at 1081 (quoting Wolf, 473 F.3d at 379).
“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.”
Wolf, 473 F.3d at 374. However, “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
Miller, 730 F.2d at 776) (internal quotation marks omitted).
“Ultimately, an agency’s justification for invoking a FOIA
exemption,” whether directly or in the form of a Glomar
response, “is sufficient if it appears ‘logical’ or ‘plausible.’” Id.
at 374-75; see Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931
(D.C. Cir. 2012); Am. Civil Liberties Union v. U.S. Dep’t of
Def., 628 F.3d 612, 619 (D.C. Cir. 2011); see also CIA Br. 19
6
(acknowledging that “[t]he same standard applies when the
Government issues a Glomar response”).
In the district court, the CIA argued that it could neither
confirm nor deny that it had responsive documents because
confirming that it did would reveal that the CIA was either
involved in, or interested in, drone strikes (while denying that it
did would reveal the opposite). According to the Agency, its
involvement or interest in such strikes is exempt from disclosure
under FOIA Exemptions 1 and 3.2 On behalf of the Agency,
Mary Ellen Cole declared that “[a]n official CIA
acknowledgment that confirms or denies the existence or
nonexistence of records responsive to Plaintiffs’ FOIA request
would reveal, among other things, whether or not the CIA is
involved in drone strikes or at least has an intelligence interest
in drone strikes.” Cole Decl. ¶ 12; see id. ¶ 19. “[T]he existence
or nonexistence of CIA records responsive to this request,” she
continued, “is a currently and properly classified fact, the
disclosure of which reasonably could be expected to cause
damage to the national security.” Id. ¶ 15. And she further
averred that, “[c]ontrary to Plaintiffs’ suggestion, no authorized
CIA or Executive Branch official has disclosed whether or not
2
Exemption 1 permits the government to withhold information
“specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign
policy,” if that information has been “properly classified pursuant to
such Executive order.” 5 U.S.C. § 552(b)(1). Exemption 3 permits
the government to withhold information “specifically exempted from
disclosure by statute,” if such statute either “requires that the matters
be withheld from the public in such a manner as to leave no discretion
on the issue” or “establishes particular criteria for withholding or
refers to particular types of matters to be withheld.” Id. § 552(b)(3).
The government relies on the National Security Act of 1947 and the
Central Intelligence Agency Act of 1949 as the relevant withholding
statutes under Exemption 3. See 50 U.S.C. §§ 403-1(i)(1), 403g.
7
the CIA possesses records regarding drone strikes or whether or
not the CIA is involved in drone strikes or has an interest in
drone strikes.” Id. ¶ 43; see id. ¶ 45.
In response, the ACLU argued both that: (1) the mere
existence or nonexistence of records responsive to its requests
was not exempt under FOIA Exemption 1 or 3; and (2) even if
it were, the existence of such records had already been officially
acknowledged by prior disclosure. The district court rejected
both arguments. See Am. Civil Liberties Union, 808 F. Supp. 2d
at 287-93, 298-301; id. at 293-98. On appeal, the ACLU
pursues only the second argument. Accordingly, that is the only
argument we consider, and we consider it de novo. See Elec.
Privacy Info. Ctr., 678 F.3d at 930.
III
For reasons that will become clear in a moment, the CIA
did not justify its Glomar response by contending that it was
necessary to prevent disclosing whether or not the United States
engages in drone strikes. Rather, as we have noted, the response
was justified on the ground that it was necessary to keep secret
whether the CIA itself was involved in, or interested in, such
strikes. Although the Agency’s brief repeatedly emphasizes the
first prong of this justification -- protecting whether the CIA
operates drones -- that is not the issue before us on this appeal.
The plaintiffs requested the release of ten categories of
documents pertaining to drone strikes, each of which sought
documents about drones, but none of which was limited to
drones operated by the CIA. FOIA Request 5-8 (J.A. 51-54);
see Cole Decl. ¶ 7 (noting that plaintiffs’ request sought
“records pertaining to the use of . . . ‘drones’ . . . by the CIA and
8
the Armed Forces” (emphasis added)).3 Nor was the CIA’s
Glomar response limited to documents about drones operated by
the Agency. Rather, the CIA asserted and the district court
upheld a sweeping Glomar response that ended the plaintiffs’
lawsuit by permitting the Agency to refuse to say whether it had
any documents at all about drone strikes. See Am. Civil
Liberties Union, 808 F. Supp. 2d at 287, 301.
The CIA has proffered no reason to believe that disclosing
whether it has any documents at all about drone strikes will
reveal whether the Agency itself -- as opposed to some other
U.S. entity such as the Defense Department -- operates drones.4
There is no doubt, however, that such disclosure would reveal
whether the Agency “at least has an intelligence interest in drone
strikes.” Cole Decl. ¶ 12; see id. ¶ 19. The question before us,
then, is whether it is “logical or plausible,” Wolf, 473 F.3d at
375 (internal quotation marks omitted), for the CIA to contend
that it would reveal something not already officially
acknowledged to say that the Agency “at least has an
3
See ACLU Reply Br. 1 n.1 (confirmation by plaintiffs that their
FOIA request was for documents relating to the use of drones to carry
out targeted killings, not only for documents relating to the use of such
drones by the CIA); Oral Arg. Tr. 17.
4
There might be a reason if it were unlikely that any entity other
than the CIA operates drones. But the CIA does not make that
argument. To the contrary, the Agency itself notes the possibility that
official acknowledgments of U.S. drone strikes may refer to operations
of “another federal entity such as the Department of Defense.” CIA
Br. 40. See also Robert M. Gates, Remarks by Secretary Gates at the
United States Air Force Academy, U.S. DEP’T OF DEF. (Mar. 4, 2011),
http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4779
(“The Air Force now has 48 Predator and Reaper combat air patrols
currently flying . . . and is training more pilots for advanced UAVs
than for any other single weapons system.”).
9
intelligence interest” in such strikes. Given the extent of the
official statements on the subject, we conclude that the answer
to that question is no.
The President of the United States has himself publicly
acknowledged that the United States uses drone strikes against
al Qaeda. In response to a question about drone strikes on a live
internet video forum, the President said:
I think that we have to be judicious in how we use
drones. But understand that probably our ability to
respect the sovereignty of other countries . . . is
enhanced by the fact that we are able to pinpoint-strike
an al Qaeda operative in a place where the capacities of
th[e] military in that country may not be able to get
them. So obviously a lot of these strikes have
been . . . going after al Qaeda suspects who are up in
very tough terrain along the border between
Afghanistan and Pakistan.5
Similarly, in a speech at the Woodrow Wilson International
Center, the President’s counterterrorism advisor, then-Assistant
to the President for Homeland Security and Counterterrorism
John Brennan, said:
So let me say it as simply as I can. Yes, in full
accordance with the law . . . the United States
Government conducts targeted strikes against specific
5
President Obama Hangs out with America, WHITE HOUSE BLOG
(Jan. 30, 2012), http://www.whitehouse.gov/blog/2012/01/30/
president-obama-hangs-out-america; The White House, Your
Interview with the President - 2012, YOUTUBE, at 28:37-29:23 (Jan.
30, 2012), http://www.youtube.com/watch?v=eeTj5qMGTAI; see id.
at 26:20-30:18.
10
al-Qaida terrorists, sometimes using remotely piloted
aircraft, often referred to publicly as drones. And I’m
here today because President Obama has instructed us
to be more open with the American people about these
efforts.6
Although these statements do not acknowledge that the CIA
itself operates drones, they leave no doubt that some U.S.
agency does. The CIA does not dispute that these statements
qualify as official acknowledgments of at least that much. Oral
Arg. Tr. 25-26. To the contrary, it concedes that “Mr. Brennan
officially acknowledged that the United States conducts drone
strikes,” albeit without “reveal[ing] whether the CIA (as opposed
to another federal entity such as the Department of Defense) is
involved in these drone strikes.” CIA Br. 40.7
6
John O. Brennan, The Ethics and Efficacy of the President’s
Counterterrorism Strategy, WILSON CENTER (Apr. 30, 2012),
http://www.wilsoncenter.org/event/the-efficacy-and-ethics-us-
counterterrorism-strategy [hereinafter Wilson Center Speech]; see id.
(“The United States is the first nation to regularly conduct strikes
using remotely piloted aircraft in an armed conflict.”)
7
We have permitted agencies to give a Glomar response despite
the prior disclosure of another, unrelated agency. See, e.g., Frugone
v. CIA, 169 F.3d 772, 774-75 (D.C. Cir. 1999) (upholding the CIA’s
ability to make a Glomar response despite official disclosure of the
same information by the Office of Personnel Management). That rule
does not apply, however, where the disclosures are made by an
authorized representative of the agency’s parent. See Marino, 685
F.3d at 1082 (disallowing a Glomar response by the DEA where a
U.S. Attorney released documents because both are “component[s]
within the Department of Justice”); see id. (noting the court’s holding
in Davis v. Department of Justice that “the FBI -- likewise part of DOJ
-- could not withhold the specific portions of recordings that the
plaintiff showed were played in federal court” by a federal prosecutor)
11
Given these official acknowledgments that the United States
has participated in drone strikes, it is neither logical nor
plausible for the CIA to maintain that it would reveal anything
not already in the public domain to say that the Agency “at least
has an intelligence interest” in such strikes, Cole Decl. ¶ 12.
The defendant is, after all, the Central Intelligence Agency. And
it strains credulity to suggest that an agency charged with
gathering intelligence affecting the national security does not
have an “intelligence interest” in drone strikes, even if that
agency does not operate the drones itself.
But there is more. Counterterrorism advisor Brennan did
not merely acknowledge that the United States “regularly
conduct[s] strikes using remotely piloted aircraft.” Wilson
Center Speech. He also stated that, in deciding whether to carry
out a strike, “[w]e . . . draw[] on the full range of our
intelligence capabilities” and “may ask the intelligence
community to . . . collect additional intelligence or refine its
analysis so that a more informed decision can be made.” Id.
“We listen to departments and agencies across our national
security team,” he said, and “don’t just hear out differing views,
we ask for them and encourage them.” Id. Needless to say, by
statutory definition the Central Intelligence Agency is part of
“the full range” of the nation’s “intelligence capabilities.” See
50 U.S.C. §§ 403-4, 403-4a.
And there is still more. In 2009, then-Director of the CIA
Leon Panetta delivered remarks at the Pacific Council on
International Policy. In answer to a question about “remote
(citing Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279-82 (D.C.
Cir. 1992)). A disclosure made by the President, or by his
counterterrorism advisor acting as “instructed” by the President, falls
on the “parent agency” side of that line.
12
drone strikes” in the tribal regions of Pakistan, Director Panetta
stated:
[O]bviously because these are covert and secret
operations I can’t go into particulars. I think it does
suffice to say that these operations have been very
effective because they have been very precise in terms
of the targeting and it involved a minimum of collateral
damage. . . . I can assure you that in terms of that
particular area, it is very precise and it is very limited
in terms of collateral damage and, very frankly, it’s the
only game in town in terms of confronting and trying
to disrupt the al-Qaeda leadership.8
It is hard to see how the CIA Director could have made his
Agency’s knowledge of -- and therefore “interest” in -- drone
strikes any clearer. And given these statements by the Director,
the President, and the President’s counterterrorism advisor, the
Agency’s declaration that “no authorized CIA or Executive
Branch official has disclosed whether or not the CIA . . . has an
interest in drone strikes,” Cole Decl. ¶ 43; see CIA Br. 43, is at
this point neither logical nor plausible.
It is true, of course, that neither the President nor any other
official has specifically stated that the CIA has documents
relating to drone strikes, as compared to an interest in such
strikes. At this stage of this case, however, those are not distinct
issues. The only reason the Agency has given for refusing to
disclose whether it has documents is that such disclosure would
reveal whether it has an interest in drone strikes; it does not
8
Director’s Remarks at the Pacific Council on International
Policy, CENT. INTELLIGENCE AGENCY (May 19, 2009),
https://www.cia.gov/news-information/speeches-testimony/
directors-remarks-at-pacific-council.html.
13
contend that it has a reason for refusing to confirm or deny the
existence of documents that is independent from its reason for
refusing to confirm or deny its interest in that subject. And
more to the point, as it is now clear that the Agency does have
an interest in drone strikes, it beggars belief that it does not also
have documents relating to the subject.9
But again, there is more. In the above-quoted excerpt from
the CIA Director’s Pacific Council remarks, the Director spoke
directly about the precision of targeted drone strikes, the level of
collateral damage they cause, and their usefulness in comparison
to other weapons and tactics. Given those statements, it is
implausible that the CIA does not possess a single document on
the subject of drone strikes. Unless we are to believe that the
Director was able to “assure” his audience that drone strikes are
“very precise and . . . very limited in terms of collateral damage”
without having examined a single document in his agency’s
possession, those statements are tantamount to an
acknowledgment that the CIA has documents on the subject. In
short, although the President and Messrs. Brennan and Panetta
did not say that the CIA possesses responsive documents, what
they did say makes it neither “logical” nor “plausible” to
maintain that the Agency does not have any documents relating
to drones.10
9
Compare Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011), which
upheld the CIA’s Glomar response to a request for “all information or
records relevant to . . . Sveinn B. Valfells,” notwithstanding the CIA’s
official acknowledgment that it “asked the FBI to redact some ‘CIA-
originated information’” from a report on Valfells, because the
plaintiff could not “show that the redacted information even relates to
Valfells.” Id. at 1331, 1333-34.
10
Although the statements by the President and Mr. Brennan
postdated the district court’s grant of summary judgment, the CIA
does not argue that we may not take judicial notice of them on appeal.
14
The Glomar doctrine is in large measure a judicial
construct, an interpretation of FOIA exemptions that flows from
their purpose rather than their express language. In this case, the
CIA asked the courts to stretch that doctrine too far -- to give
their imprimatur to a fiction of deniability that no reasonable
person would regard as plausible. “There comes a point
where . . . Court[s] should not be ignorant as judges of what
[they] know as men” and women. Watts v. Indiana, 338 U.S.
49, 52 (1949) (opinion of Frankfurter, J.). We are at that point
with respect to the question of whether the CIA has any
documents regarding the subject of drone strikes.
Indeed, the CIA itself now appears to have recognized the
indefensibility of its position. Shortly after filing its appellate
brief defending its Glomar response in this case, the Agency
filed pleadings in litigation in the Southern District of New York
acknowledging that it does have documents concerning targeted
killings. Declaration of John Bennett ¶¶ 17, 27, New York Times
Co. v. U.S. Dep’t of Justice, No. 11-cv-9336, 2013 WL 50209(S.D.N.Y. Jan. 3, 2013) (Bennett Decl.). It gave as examples
two public speeches on the subject, one by Attorney General
Eric Holder, and the other the remarks of counterterrorism
advisor John Brennan that we have quoted above. Id. ¶ 27.
Thereafter, the Agency filed a motion for remand in this case,
stating that the New York filing “officially acknowledges the
CIA’s possession of some records that could potentially be
responsive to plaintiffs’ FOIA requests in this case as well.”
Remand Mot. 4. The motion went on to hint that the Agency
might abandon its Glomar response in favor of something less
absolute, if only slightly less. See id. at 5.
The CIA’s New York filing was unclear as to whether it
was acknowledging that the Agency had anything responsive to
the requests in that case beyond the two public speeches it noted.
At oral argument in this case, CIA counsel appeared to
15
acknowledge that it did. Oral Arg. Tr. 33-35. Even if we are
overreading that acknowledgment, however, the official
statements of the President and Messrs. Brennan and Panetta
render it impossible to believe that those two speeches are the
only documents related to drone strikes in the Agency’s files.
Accordingly, the CIA’s broad Glomar response is untenable,
and we therefore reverse the district court’s judgment dismissing
the plaintiffs’ FOIA action.11
IV
The collapse of the CIA’s Glomar response does not mark
the end of this case. FOIA contains exemptions, including
particularly Exemptions 1 and 3, that the government argues
permit withholding. “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[,] . . . we [must] remand the case to the
district court” for further proceedings. Wolf, 473 F.3d at 380;
see Marino, 685 F.3d at 1082-83. With the failure of the CIA’s
broad Glomar response, the case must now proceed to the filing
of a Vaughn index or other description of the kind of documents
the Agency possesses, followed by litigation regarding whether
the exemptions apply to those documents. See generally
Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). This has not
occurred here because, by accepting the CIA’s Glomar response,
the district court permitted the Agency to end the litigation
11
Because the ACLU does not make the argument on appeal, we
do not consider whether -- in light of those official statements -- a
Glomar response would also be unwarranted on the ground that it is
implausible that revealing that the CIA merely has an interest in drone
strikes “would cause harm cognizable under [a] FOIA exception.”
Wolf, 473 F.3d at 374.
16
without acknowledging the existence of any responsive
documents, let alone indicating their nature or contents.
Just how detailed a disclosure must be made, even in an
index, is another matter. A Vaughn index indicates in some
descriptive way which documents the agency is withholding and
which FOIA exemptions it believes apply. As the plaintiffs
acknowledge, there is no fixed rule establishing what a Vaughn
index must look like, and a district court has considerable
latitude to determine its requisite form and detail in a particular
case. Oral Arg. Tr. 57-58 (plaintiffs’ acknowledgment that the
district court has “a lot of leeway” in determining the degree of
detail required in a Vaughn index); see Judicial Watch, Inc. v.
FDA, 449 F.3d 141, 145-46 (D.C. Cir. 2006); Tax Analysts v.
IRS, 214 F.3d 179, 185 (D.C. Cir. 2000). In the usual case, the
index is public and relatively specific in describing the kinds of
documents the agency is withholding. See Lykins v. U.S. Dep’t
of Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984); Hayden v.
NSA, 608 F.2d 1381, 1384-85 (D.C. Cir. 1979). But a Vaughn
index may also contain brief or categorical descriptions when
necessary to prevent the litigation process from revealing the
very information the agency hopes to protect. Judicial Watch,
449 F.3d at 146.12 “Indeed, an agency may even submit other
measures in combination with or in lieu of the index itself.
Among other things, the agency may submit supporting
affidavits or seek in camera review of some or all of the
documents.” Id. at 146 (citation omitted); see Tax Analysts, 214
F.3d at 185. And in some circumstances, the court may permit
12
See Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (“[T]he
government need not justify its withholdings document-by-document;
it may instead do so category-of-document by category-of-document,
so long as its definitions of relevant categories are sufficiently distinct
to allow a court to determine . . . whether the specific claimed
exemptions are properly applied.” (internal quotation marks omitted)).
17
in camera submission of the index itself. See Hayden, 608 F.2d
at 1385 (finding in camera review appropriate where “public
itemization and detailed justification would compromise
legitimate secrecy interests”). In short, “‘[t]he materials
provided by the agency may take any form so long as they give
the reviewing court a reasonable basis to evaluate the claim of
privilege.’” Gallant, 26 F.3d at 173 (quoting Delaney, Migdail
& Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir.
1987)).
In the New York litigation, the CIA said that it did not want
to file a Vaughn index at all, but instead submit what it called a
“no number, no list” response -- acknowledging that it had
responsive documents, but declining to “further describe or even
enumerate on the public record the number, types, dates, or
other descriptive information about these responsive records.”
Bennett Decl. ¶ 28. Although the CIA’s New York filings speak
as if the notion of a “no number, no list” response is well-
established, it has not previously been considered by this court.
Indeed, at the time of those filings, there were only two
previously reported instances of such a response: it was briefly
mentioned in one district court case in this circuit, Jarvik v. CIA,
741 F. Supp. 2d 106, 123 (D.D.C. 2010), and was litigated once
before the Seventh Circuit, Bassiouni v. CIA, 392 F.3d 244, 246-
47 (7th Cir. 2004). There are now two more reported instances:
another brief mention by a district court in this circuit, Nat’l Sec.
Counselors v. CIA, No. 11-443, 2012 WL 4903377, at *38
(D.D.C. Oct. 17, 2012), and the district court’s recent grant of
summary judgment in favor of the CIA in the New York
litigation, New York Times Co. v. U.S. Dep’t of Justice, No. 11-
cv-9336, 2013 WL 50209 (S.D.N.Y. Jan. 3, 2013).
Citing the Seventh Circuit’s view that a “no number, no
list” response is “legally identical” to a Glomar response,
Bassiouni, 392 F.3d at 247, the plaintiffs argue that, if the CIA
18
is not entitled to make a Glomar response in this case, it is also
not entitled to make a “no number, no list” response. Pls.-
Appellants’ Opp’n to Remand Mot. 4-5. At least in a case like
this, however, there is a material difference between a “no
number, no list” response and a Glomar response. A Glomar
response requires the agency to argue, and the court to accept,
that the very fact of the existence or nonexistence of responsive
records is protected from disclosure. That is conceptually
different from conceding (or being compelled by the court to
concede) that the agency has some documents, but nonetheless
arguing that any description of those documents would
effectively disclose validly exempt information. There may be
cases where the agency cannot plausibly make the former
(Glomar) argument with a straight face, but where it can
legitimately make the latter.
Indeed, a “no number, no list” response might be viewed as
a kind of Vaughn index, albeit a radically minimalist one. Such
a response would only be justified in unusual circumstances, and
only by a particularly persuasive affidavit. Nor is there any
reason to regard this approach as subject to an on/off switch. As
we have just noted, once an agency acknowledges that it has
some responsive documents, there are a variety of forms that
subsequent filings in the district court may take. A pure “no
number, no list” response is at one end of that continuum; a
traditional Vaughn index is at the other. Not quite as minimalist
as a pure “no number, no list” response might be a “no number,
no list” response (or even a Glomar response) with respect to a
limited category of documents, coupled with a Vaughn index for
the remainder.
But we are getting ahead of ourselves. None of these issues
has been litigated in this case, either in this court or in the
district court, because summary judgment was granted in the
19
face of an unqualified, across-the-board Glomar response.13 No
government affidavit has yet been filed in this case that even
attempts to justify a “no number, no list” response. And neither
a traditional Vaughn index nor affidavits justifying an alternative
submission have been filed. Accordingly, all such issues remain
open for the district court’s determination upon remand.
V
For the foregoing reasons, we reverse the judgment of the
district court and remand the case for further proceedings
consistent with this opinion.
So ordered.
13
For this reason, we also do not decide whether the government
would be warranted in making a more limited Glomar response to one
or more of the specific categories of documents “pertaining to drone
strikes” included in the plaintiffs’ FOIA request.