Florez v. CIA, No. 15-1055, 2016 WL 3769948 (2d Cir. July 14, 2016) (Straub, J.)

Thursday, July 14, 2016

Florez v. CIA, No. 15-1055, 2016 WL 3769948 (2d Cir. July 14, 2016) (Straub, J.)

Re: Request for certain records concerning requester's father

Disposition: Remanding case for further proceedings

  • Exemptions 1 & 3, Glomar: The Court of Appeals for the Second Circuit "remand[s] for the District Court to pass on the import of [recent FBI disclosures concerning the requester's father] in the first instance." The court relates that "the CIA answered [the requester's] request with a so-called Glomar response, stating that it 'can neither confirm nor deny the existence or nonexistence of records responsive to [the requester's] request.'" The court notes that "[t]he CIA relies upon FOIA Exemptions 1 and 3 to support its Glomar response." Regarding Exemption 3, the court relates that defendant relied specifically on "Section 6 of the CIA Act of 1949 . . . and Section 102A(i)(l) of the National Security Act of 1947." The court "conclude[s] that the FBI Disclosures are relevant to the present Glomar inquiry." "At minimum, the FBI Disclosures are germane to the CIA's asserted rationale for asserting a Glomar response, which is that confirming the existence or non-existence of responsive records would confirm either the Agency's interest or disinterest in [the requester's father] as an intelligence asset." "Though the FBI Disclosures do not reveal the CIA's activities or involvement, they appear to suggest that multiple government departments and agencies were investigating, monitoring, and had an intelligence interest in [the requester's father], and that the FBI cultivated informants to gather information about him." "This now-public information may bear on the CIA's position that the mere acknowledgement that it does or does not have possession of documents that reference [the requester's father] would harm the national security, or otherwise disclose Agency methods, functions, or sources." The court also finds that "proceeding to decision while willfully ignoring relevant materials would breed judicial inefficiency and produce an outcome contrary to that which might result from consideration of additional materials that – through no fault of [the requester's] – were unavailable to him at the time the FOIA request was made."

    The court also argues that "the Dissent fixates on the fact that the disclosures emanate from the FBI, rather than the CIA." "[T]he Dissent essentially argues that, under the official acknowledgment doctrine, the disclosures of other federal agencies – regardless of the extent to which they bear on the validity of another agency’s Glomar rationale – are never relevant and must be wholly disregarded." "This conclusion confuses the act of waiver – which [the court] uniformly recognize[s] as a privilege reserved to the agency asserting a Glomar response – with an agency's independent obligation to 'carry its burden by submitting declarations giving reasonably detailed explanations why any withheld documents fall within an exemption.'"

    Judge Livingston, writing to dissent, states that, "for substantially the reasons set out in the district court's careful and thorough opinion, . . . the CIA met its burden in justifying its Glomar response." "[Judge Livingston] can discern no basis on which the FBI disclosures draw into question the CIA's explanations as to why information regarding the existence or nonexistence of records in its possession is exempted from disclosure by FOIA." Judge Livingston states that "[t]he majority cannot explain how these FBI documents, which do not even mention the CIA, much less any relationship between the CIA and [the requester's father], are relevant to assessing the logic and plausibility of the Agency's justification for its Glomar response."
Court of Appeals
Exemption 1
Exemption 3
Updated January 17, 2017