Jason Leopold v. CIA ( 2021 )

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 12, 2020 Decided February 9, 2021
No. 20-5002
JASON LEOPOLD AND BUZZFEED, INC.,
APPELLEES
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLANT
Appeal from the United States District Court
for the District of Columbia
(No. 1:19-cv-00978)
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 argued the cause and filed the brief for
appellee.
Before: WILKINS and KATSAS, Circuit Judges, and
RANDOLPH, Senior Circuit Judge.
Opinion for the Court filed by Senior Circuit Judge
RANDOLPH.
2
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 (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
1
Buzzfeed “is a social news and entertainment company.” J.A.
4.
2
While § 552(a)(3)(A) provides for the disclosure of “records,”
the exemptions of § 552(b) cover “matters.”
3
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
3
The idiom is derived from Arthur Conan Doyle’s Silver Blaze
(1892), reprinted in II THE ANNOTATED SHERLOCK HOLMES 261
(1967, Wm. S. Baring-Gould ed.).
A famous race horse – “Silver Blaze” – has disappeared the night
before an important race and the horse’s trainer has been killed. The
following dialog concerns a dog kept at the stable. Colonel Ross, the
owner of “Silver Blaze,” questions Sherlock Holmes about the
progress of his investigation (id. at 277):
Colonel Ross: “Is there any other point to which you would wish
to draw my attention?”
Sherlock Holmes: “To the curious incident of the dog in the
night-time.”
Colonel Ross: “The dog did nothing in the night-time.”
Sherlock Holmes: “That was the curious incident.”
Holmes solves the mystery and explains the clue: because the
dog had not barked, “the midnight visitor [to the stable] was someone
whom the dog knew well.” Id. at 280.
4
(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
4
The name comes from the Central Intelligence Agency’s refusal
to confirm or deny the existence of records about a ship named the
Hughes Glomar Explorer, which reportedly engaged in a covert
mission to raise “a sunken Soviet submarine” from the depths of the
Pacific Ocean. Mil. Audit Project v. Casey, 656 F.2d 724, 728 (D.C.
Cir. 1981); Phillippi, 546 F.2d at 1010–11.
5
Once an agency has officially acknowledged that records exist,
there is no value in a Glomar response. The secret is out. But if the
existence is still a mystery and the court agrees with the Glomar
response, the case is at an end. The agency does not need to claim
exemptions for the contents of the records (if any). See Moore v. CIA,
666 F.3d 1330, 1333–34 (D.C. Cir. 2011).
6
“Tweeting” is the act of posting a character-limited message (a
“tweet”) on Twitter, a social media and micro-blogging service.
United States v. Feng Ling Liu, 69 F. Supp. 3d 374, 376 n.1 (S.D.N.Y.
2014).
5
(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.
7
The tweet does not identify the Washington Post article, but
Buzzfeed claims it was an article by Greg Jaffe and Adam Entous
entitled Trump Ends Covert CIA Program to Arm Anti-Assad Rebels
in Syria, a Move Sought by Moscow, Wash. Post (July 19, 2017).
6
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
7
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
8
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 Intelligence Agency
records (and, therefore, intelligence interest and capabilities)
about payments to Syrian rebels.8 To find official
8
We do not address BuzzFeed’s argument that the President’s
interview with the Wall Street Journal was also an official
acknowledgment. BuzzFeed did not raise this claim in the district
court. See Pls.’ Cross Mot. for Summ. J., ECF No. 12 at 1 n.1 (“[T]he
only question the Court needs to address is the impact of the tweet on
what would otherwise have been a valid Glomar response.”); Potter
v. District of Columbia, 558 F.3d 542, 547 (D.C. Cir. 2009). Buzzfeed
9
acknowledgment, under our precedents, three prerequisites must
be met: “the information requested must be as specific as the
information previously released,” “match the information
previously disclosed,” and “already have been made public
through an official and documented disclosure.” Fitzgibbon,
911 F.2d at 765 (quoting Afshar, 702 F.2d at 1133). “In the
Glomar context, then, if the prior disclosure establishes the
existence (or not) of records responsive to the [information]
request, the prior disclosure necessarily matches both the
information at issue . . . and the specific request for that
information.” Wolf, 473 F.3d at 379. This test is “strict.”
Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (citing
Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009)).
The initial burden rests with the requester, who must
“point[] to specific information in the public domain that
appears to duplicate that being withheld.” ACLU, 710 F.3d at
427 (quoting Wolf, 473 F.3d at 378). “An agency’s official
acknowledgment . . ., however, cannot be based on mere public
speculation, no matter how widespread.” Wolf, 473 F.3d at 378
(citing Afshar, 702 F.2d at 1130). And for good reason: “it is
one thing for a reporter or author to speculate or guess that a
thing may be so . . .; it is quite another thing for one in a position
to know of it officially to say that it is so.” Fitzgibbon, 911 F.2d
at 765 (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362,
did argue in the district court that the President’s interview with the
Wall Street Journal bolsters Buzzfeed’s interpretation of the tweet as
disclosing the existence of payments to Syrian rebels. See Pls.’ Cross
Mot. for Summ. J. at 6. But for the reasons given infra and in N.Y.
Times v. CIA, 965 F.3d 109, 118 (2d Cir. 2020), we find that even
considered alongside the President’s interview with the Wall Street
Journal, the President’s tweet lacks the requisite specificity to
constitute an official acknowledgment of the Agency’s intelligence
interest in payments or programs related to Syrian rebels.
10
1370 (4th Cir. 1975)) (brackets omitted). “[I]n the absence of
any official acknowledgment, . . . foreign governments would be
left guessing[.]” Ameziane v. Obama, 699 F.3d 488, 492 (D.C.
Cir. 2012). Here, the plaintiffs have failed to satisfy their
burden.
The Agency claims that President Trump’s tweet lacks
sufficient specificity to qualify as an “official acknowledgment”
that the records exist. BuzzFeed’s contrary argument is two-
tiered. The first is that the President’s tweet officially
acknowledged the existence of some program providing
payments to Syrian rebels. BuzzFeed principally points to the
tweet’s adjectives (“massive, dangerous, and wasteful”) and the
possessive “my” to support this reading. Second, because of
that alleged disclosure, BuzzFeed asserts that it is an
“ineluctable conclusion . . . that the [Agency] possesses records
relating to such payments, or at least to the ending of such
payments.” Appellee Br. 31.
Did President Trump’s tweet officially acknowledge the
existence of a program? Perhaps. Or perhaps not. And therein
lies a problem. See Gardels, 689 F.2d at 1105 (“Official
acknowledgment ends all doubt[.]”). The President’s tweet is
subject to several plausible interpretations. From the Agency’s
perspective, the tweet simply asserts that the Post fabricated
facts, a rather common complaint. So what else is new? The
Agency argues that the possessive “my” just refers to the
accusations of the story and that the adjectives are the
President’s editorial interpretations. BuzzFeed asserts the
opposite. Assuming arguendo that the President ended a
program, it is not clear whose program the President ended.
“[M]y ending” could refer to the President terminating, directly
or indirectly, the program of a foreign government or even a
non-state actor. Oral Arg. 9:20–11:59. The tweet sheds little,
if any, light. But we do not have to resolve this question.
11
Even if the President’s tweet revealed some program, it did
not reveal the existence of Agency records about that alleged
program. BuzzFeed has failed to point to specific information
that matches the information sought — the existence of Agency
records and, therefore, its intelligence interest and capabilities.
See Wolf, 473 F.3d at 378.
Our opinion in ACLU does not say otherwise. ACLU
concerned whether the Agency could maintain a Glomar
response about the Agency’s interest in drone strikes following
three official acknowledgments. 710 F.3d at 428–30. There,
President Obama had “himself publicly acknowledged that the
United States uses drone strikes against al Qaeda . . . on a live
internet video forum.” Id. at 429. President Obama’s
counterterrorism advisor went further, stating that “in deciding
whether to carry out a strike, we draw on the full range of our
intelligence capabilities and may ask the intelligence community
to collect additional intelligence[.]” Id. at 430 (internal
quotation marks and alterations omitted). The disclosures
continued. The Director of the CIA stated in public remarks that
“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[.]”
Id. at 430. As we noted then, “[i]t is hard to see how the CIA
Director could have made his Agency’s knowledge of — and
therefore ‘interest’ in — drone strikes any clearer.” Id.
“[T]hose statements are tantamount to an acknowledgment that
the [Agency] has documents on the subject.” Id. at 431. Based
on the totality of these collective acknowledgments, we held that
it was “neither logical nor plausible” for the Agency to deny an
interest in drone strikes. Id. at 430.
The case before us is not comparable. “[T]he pertinent
official statements in ACLU were far more precise, thorough,
and numerous than those found here.” N.Y. Times v. CIA, 965
F.3d 109, 119 (2d Cir. 2020). As we have discussed above, it is
12
not clear what, if anything, this short, informal post disclosed.
The tweet never mentions the Agency at all, let alone its
intelligence interest in, or capabilities to gather intelligence
about, payments to Syrian rebels. See Donald J. Trump
(@realDonaldTrump), Twitter (July 24, 2017, 10:23 PM).
Whereas ACLU, 710 F.3d at 431, relied on specific statements
revealing the Agency’s interest, the district court here simply
assumed that “it seems wildly unlikely that, in the eight and a
half years since the Syrian civil war began, the Central
Intelligence Agency has done no intelligence-gathering that
produced a single record even pertaining to payments [to]
Syrian rebels[.]” Leopold II, 419 F. Supp. 3d at 67. One would
hope that the district court’s assumption is accurate but who
knows for sure? To establish official acknowledgment our
precedents require certainty, not assumptions of this sort. See
Ameziane, 699 F.3d at 492; Afshar, 702 F.2d at 1130. Whereas
the official acknowledgments in ACLU, 710 F.3d at 430, could
hardly have been “any clearer” about the Agency’s intelligence
interest, the tweet here leaves too much doubt. The district court
erred in concluding otherwise.
For the foregoing reasons, we hold that President Trump’s
tweet was not an official acknowledgment of the existence (or
not) of Agency records. Accordingly, the judgment of the
district court is reversed.
So ordered.