Knight First Amendment Inst. at Columbia Univ. v. CIA, No. 20-5045, 2021 WL 3821864 (D.C. Cir. Aug. 27, 2021) (Katsas, J.)

Knight First Amendent Inst. at Columbia Univ. v. CIA, No. 20-5045, 2021 WL 3821864 (D.C. Cir. Aug. 27, 2021) (Katsas, J.)

Re:  Request for records concerning whether four United States intelligence agencies knew of impending threat to Jamal Khashoggi

Disposition:  Affirming district court's grant of government agencies' motion for summary judgment and denial of requester's motion for summary judgment

• Exemption 1, Waiver of Exemption 1 Protection:  The Court of Appeals for the District of Columbia Circuit "agree[s] with the intelligence agencies that an official acknowledgment by the State Department cannot bind them."  The court relates that "[the requester] invokes the State Department's assertion that 'the United States' had no advance knowledge of Khashoggi's 'disappearance' or of a threat to his life."  "[The court] will assume that the State Department's assertion that the United States had no prior knowledge of the attack matched an assertion that the intelligence agencies have no responsive records, and that it did so with the requisite degree of specificity."  "[The court] will further assume that statements made in a press conference are sufficiently formal and considered to constitute 'official' acknowledgment by the agency making the statements."  The court finds that "'[d]isclosure by one federal agency does not waive another agency's right to assert a FOIA exemption.'"  The court relates that "[a]lthough the State Department is outside the chain-of-command of the other four agencies, [the requester] seeks to link all of them through the intelligence community."  "[The court] decline[s] to extend official acknowledgement so far."  "For one thing, [the requester's] theory cannot be reconciled with [the court's] precedent."  But, "[e]ven putting [that precedent] aside, [the requester's] theory would substantially expand official acknowledgment."  "[The court] see[s] little basis for a rule permitting so many agencies to make official acknowledgments extending across large swaths of the entire Executive Branch."  "Moreover, the rationale for not imputing statements by one agency to another applies with greater force, not lesser, in the intelligence context."  "Outside observers may ascribe more weight to an authoritative statement by the CIA itself, and its confirmation or denial may remove any lingering doubts and create further diplomatic problems."
   
• Exemption 1, Glomar Response:  The Court of Appeals for the District of Columbia Circuit finds that "the intelligence agencies have logically and plausibly explained why the existence or nonexistence of responsive records is classified information."  "The four declarations express the same concerns."  "The existence of responsive records would show that the United States had an intelligence interest in, and the ability to gather information about, a particular person (Khashoggi) at a particular time (shortly before his murder), which could tend to reveal against whom and how surveillance might have been conducted."  The court relates that "[the requester] disputes the 'logical or plausible' standard."  "[The requester] cites cases stating that a Glomar response is appropriate only where confirming or denying the existence of responsive records 'would' – not could – 'itself cause harm cognizable under [a] FOIA exception' . . . ."  The court finds that "[the requester's] legal analysis is flawed in several respects."  "To begin, it reads too much into our passing use of 'would.'"  "None of [the requester's] cited cases mentions or turns on the difference between 'would' and 'could.'"  "But those same cases do make clear that, in the Glomar context, 'courts apply the general exemption review standards established in non-Glomar cases.'"  "In non-Glomar cases, the applicability of Exemption 1 turns on whether disclosure of the record at issue 'could reasonably be expected' to harm national security."  "Moreover, in the national-security context, [the court's] precedents assess only whether the government's prediction of harm appears logical or plausible, taking into account the deference due to the Executive Branch in this area."  Finally, the court relates that "[the requester] argues that the declarations here were not specific enough to support the Glomar responses."  "[The court] disagree[s]."  "In the national-security context, agency declarations need only 'explain[ ] the justifications for nondisclosure with reasonably specific detail,' . . . which means enough detail to permit 'meaningful' judicial review . . . ."  "As [the court's] discussion above makes clear, the agencies readily satisfied that modest requirement."