Seth Hettena v. CIA (PUBLIC REISSUED OPINION)

J!lnitrb �tatrs ©nurt of �pprals

FOR THE DISTRICT OF COLUMBlA CIRCUIT

Argued February 4, 2025 Decided July 22, 2025

Reissued July 31, 2025

No. 24-5119

SETH HETTENA,

APPELLANT

V.

CENTRAL INTELLIGENCE AGENCY,

APPELLEE

Appeal from the United States District Coutt

for the District of Columbia

(No. 1 :22-cv-00877)

Stephen Stich Match argued the cause for appellant. With

him on the briefs was Matthew Topic.

Kevin B. Soter, Attorney, U.S. Department of Justice,

argued the cause for appellee. With him on the brief were

Brian M Boynton, Principal Deputy Assistant Attorney

General, at the time the brief was filed, and Sharon Swingle,

Attorney.

Before: PILLARD and GARCIA, Circuit Judges, and

ROGERS, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge GARCIA.

2

GARCIA, Circuit Judge: Seth Hettena submitted a

Freedom of Information Act request to the CIA for a report

about an Iraqi national who died in CIA custody at the Abu

Ghraib prison. The CIA disclosed parts of the report but

redacted most of it. This appeal concerns whether the C1A's

redactions comply with FOIA. The district couti held that they

do. Because the record does not adequately support that

conclusion, we vacate and remand.

I

In 2003, the United States captured Manacle! al-Jamaidi­

an Iraqi national suspected of carrying out a terrorist attack in

Baghdad-and moved him to the Abu Ghraib prison in Iraq.

Hours later, al-Jamaidi died while being interrogated by CIA

officers. A medical examiner ruled his death a homicide.

The CIA's Office oflnspector General (OIG) investigated

al-Jamaidi's death, including "allegations of impropriety" on

the part of C1A officers. I.A. 166. In 2005, the OIG

finalized-but did not publicly release-a repoti describing its

findings.1

In 2021, Hettena, an investigative journalist, asked the

CIA to disclose the report under FOIA. FOIA generally

requires federal agencies to disclose government records upon

request. See 5 U.S.C. § 552(a), (b). After the CIA did not

timely respond, Hettena sued.

The lawsuit prompted the CIA to release parts of the

report, including a general summary of the events surrounding

1

In the years since al-Jamaidi's death, the CIA has disclosed

several materials related to his capture and interrogation, including

the results of the medical examiner's autopsy and several

investigative reports swnma.rizing interviews with anonymous CIA

witnesses. But by 2021, it had not disclosed the repo,i.

3

al-Jamaidi's death. The report states that a "hood" was :;placed

over" al-Jamaidi 's head and neck during the interrogation. J.A.

384. The report elsewhere refers to a ::head cover.' J.A. 403;

I.A. 405. The disclosures also contained a list of federal

criminal laws that '"could apply to the actions of CIA officers"

under investigation. J.A. 413. Most of those laws make it a

crime to defraud the federal government or obstruct a federal

investigation. See I.A. 413-14 (citing 18 U.S.C. §§ 371, 1001,

1519).

onetheless, the bulk of the report-including the OIG's

conclusions and recommendations-remained redacted. This

case requires us to decide whether those redactions comply

with FOIA.

In responding to a FOIA request, an agency may withhold

information that falls into any of the statute's enumerated

exemptions. See 5 U.S.C. § 552(b). The agency cannot,

however, withhold an entire record simply because it contains

some exempt information. See Mead Data Cent., Inc. v. Dep 't

of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). FOIA

requires agencies to "take reasonable steps necessary to

segregate and release nonexempt information." 5 U.S.C.

§ 552(a)(8)(A)(ii)(II). So if an agency can disclose additional

ainformation content" without :,indirectly reveal[ing]" any

protected material, it must do so. Mead Data, 566 F.2d at 261

& n.55. The agency, moreover, waives the right to withhold

any material that it has already ::officially acknowledged"

through a prior disclosure. Fitzgibbon v. CIA, 911 F.2d 755,

765 (D.C. Cir. 1990) (citation modified). Through it all, the

agency bears the burden of proving that it has disclosed all it

must under FOIA. 5 U.S.C. § 552(a)(4)(B).

The CIA claims that the redactions satisfy FOIA because

most of the redacted material pertains to the Agency's

"intelligence activities," ,:sources," and "methods." That sort

4

of infonnation, the Agency argues, is covered by FOIA

Exemptions I and 3. 2 The CIA also insists that it cannot

disclose any additional "information content" from the report

without also revealing that protected material. To support these

assertions, the CIA has submitted a one-page Vaughn index and

a declaration from a FOIA officer. 3

Hettena does not dispute that the CIA may withhold

information about the Agency's •'intelligence activities,"

"sources," or "methods." See, e.g., Appellant's Brief 9.

Instead, he claims that the redactions must include material that

falls outside those protected categories of information­

specifically, statements relating to the OIG's investigation into

potential obstruction by CIA officers. And at least some of the

redactions, he speculates, cover infotmation that the CIA has

2 Exemption l covers any information that is "specifically

authorized under criteria established by an Executive order to be kept

secret in the interest of national defense or foreign policy" and is "in

fact properly classified pursuant to such Executive order." 5 U.S.C.

§ 5 52(b)( l ). The CIA has relied on Executive Order 13,526, which

covers (as relevant here) material pertaining to "intelligence

activities (including covert action)," "intelligence sources or

methods," and "foreign relations or foreign activities of the United

States." Classified National Security Information, Exec. Order No.

13,526 § t.4(c), (d), 75 Fed. Reg. 707, 709 (Dec. 29, 2009).

Exemption 3 applies to "matters" that are "specifically exempted

from disclosure" by a qualifying "statute." 5 U.S.C. § 552(b )(3). For

this exemption, the CIA has pointed to the National Security Act,

which likewise protects ;;intelligence sources and methods from

unauthorized disclosure." 50 U.S.C. § 3024(i)( !); see Leopold v.

CL4, 987 F.3d 163, 167 (D.C. Cir. 2021).

3

The Vaughn index describes the report and explains the ClA's

redactions. See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir.

1973). The declaration elaborates on the Agency's reasoning.

5

already ··officially acknowledged" in a prior disclosure,

including statements about a "hood" or "head cover."

After reviewing the CIA's evidence and the full report in

camera, the district court granted summary judgment in the

government's favor. See Hettena v. CIA, 2024 WL 1239705,

at *I (D.D.C. Mar. 22, 2024).4

II

We review the district court's decision de novo. Connell

v. CIA, I IO F.4th 256, 263 (D.C. Cir. 2024). At the parties'

invitation, we have also reviewed the full report in camera. See

5 U.S.C. § 552(a)(4)(B). We also conducted a classified, ex

parte hearing with the CIA's representatives.

We conclude-and Hettena does not doubt-that most of

the redactions comply with FOIA. As the CIA's declaration

describes, much of the report contains information about CIA

"covert personnel," "methods for collecting foreign

intelligence," "locations of Agency facilities," and the like.

J.A. 34-39. And as the declaration explains, disclosing this

sort of material would clearly reveal something new about the

CIA's intelligence activities, sources, and methods. Id.; see

also Hettena, 2024 WL l239705, at *4. Disclosing the

identities of covert personnel, for example, could "expose the

intelligence activities with which they have been involved and

the sources with whom they have had contact." J.A. 35. In

4

Before the district court, we note, the CIA also relied on other,

alternative grounds to justify the redactions. The district court did

not address these arguments. See Hettena v. CL4, 2024 WL 1239705,

at *3 (D.D.C. Mar. 22, 2024). So, for our purposes, the only ground

at issue here is the CIA's asse1tion that the redactions are necessary

to protect information about the Agency's "intelligence activities,"

"sources," and "methods."

6

offering these explanations, the CIA has adequately justified

most of its redactions.

But the CIA has not adequately justified every redaction.

The redactions also include the OIG's findings about whether

any CIA officers obstructed its internal investigation. We

cannot tell from the record, however, why those findings have

been withheld. As the CIA itself concedes, a ;'standalone

finding by the Inspector General regarding destruction of

evidence" would not .;necessarily contain classified

information regarding intelligence activities or methods."

Appellee' s Brief 21; see also Tr. of Oral Arg. 19-21.

Disclosing whether obstruction occurred would not necessarily

reveal, for instance, any of the categories of information

discussed in the CIA' s declaration (such as "covert personnel,"

;.methods for collecting foreign intelligence," and so on). And

to the extent any obstruction-related findings refer to specific

pieces of classified evidence, the CIA could presumably

disclose the OIG's high-level conclusions about whether

obstruction occurred without divulging any of the details (such

as which specific individuals or pieces of evidence were

involved). For the CIA to adequately justify its redactions, it

would need to grapple with these basic points.

The CIA has not done that. It insists that, even if findings

about obstruction are not always exempt, the specific findings

in this repo1i are. But we see nothing in the record to suppo1i

that assertion. Neither the declaration nor the Vaughn index,

as we've noted, addresses findings related to obstruction. And,

based on our review, there are obstruction-related findings that

can seemingly be separated from the remainder of the repo1i in

a way that produces meaningful ;.infotmation content." Mead

Data, 566 F.2d at 261 n.55. As a result, we are left to wonder

how the disclosure of those findings would, directly or

indirectly, reveal anything new about the CIA's intelligence

activities, sources, or methods. Without more from the

7

Agency, we see no basis in the record to conclude that such

statements are protected under FOIA. Cf Wolf v. CIA, 473

F.3d 370, 374-75 (D.C. Cir. 2007) (requiring that agency

affidavits in the FO IA context justify any withholdings in

"reasonably specific detair' and that any justification ';appears

logical or plausible" (citation modified)).

Likewise, factual questions remain over Hettena's

challenge that the redactions contain information that the CIA

has already ·•officially acknowledged." For the most part, we

agree with the CIA that it has not publicly acknowledged any

of the statements it has redacted. But one issue-whether the

report's now-public references to a ·'hood" or "head cover"

require further disclosures-poses a trickier question. On one

level, we agree with the CIA: By revealing the existence of a

.;hood" or .;head cover," the CIA did not make every statement

about a ··hood" or "head cover" subject to disclosure under this

cou1i' s official-acknowledgment doctrine. See Fitzgibbon, 911

F.2d at 765 (applying the doctrine only when "the information

requested" is --as specific as the information previously

released"). At the same time, we cannot tell whether every

redacted statement about a "hood" or "head cover" reveals

something new about the CIA's intelligence activities, sources,

or methods. Nothing in the CIA's evidence, again, speaks to

this specific issue. So, as things stand, we cannot conclude that

the redactions fully comply with FOIA's "official

acknowledgment" doctrine.

Finally, a word about what happens next. We think it best

to give the CIA another chance to explain itself on remand,

especially in view of the national-security interests at stake.

See 28 U.S.C. § 2106. The district court may therefore further

develop the record to resolve the factual issues we have

identified, perhaps with the benefit of an ex parte declaration

8

from the CIA. Cf Arie.ff v. Dep 't of Navy, 712 F.2d 1462,

1470-71 (D.C. Cir. 1983).5

We appreciate that our analysis has been more abstract

than concrete. That is the reality of a case dealing with

sensitive materials in the national-security setting. To fill in

some of the details, with an eye toward guiding potential

review on remand, we have prepared a classified, ex parte

addendum identifying a representative (but not exhaustive) set

of redactions that the CIA has failed to adequately justify. To

be clear, we do not definitively hold that any of those

statements must be disclosed. We hold only that the statements

raise difficult questions that the CIA has not adequately

answered on this record.

The district couii,of course, could also seek to resolve this

case based on any of the other grounds invoked by the CIA.

For example, the CIA has also raised a separate and slightly

different Exemption 3 argument, based on the CIA Act. See

DiBacco v. Dep 't ofArmy, 926 F.3d 827,835 (D.C. Cir.2019).

It also claims that certain portions of the report are covered by

Exemption 5. The district court did not reach these alternative

arguments, and neither do we. See Liff v. Off ofInspector Gen.

for Dep 't ofLab., 881 F.3d 912, 919 (D.C. Cir. 20 I 8)(restating

the "general rule" that "a federal appellate couii does not

consider an issue not passed upon below" (citation modified)).

III

We vacate the district court's judgment and remand for

further proceedings consistent with this opinion.

So ordered.

5

Hettena's own reply brief, we note, likewise suggests that we

order the CIA to provide fwiher "clarification on remand" if

necessary. Reply Brief 8 n.2.