National Security Archive v. CIA

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 20, 2023 Decided June 7, 2024

No. 23-5017

NATIONAL SECURITY ARCHIVE,

APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:21-cv-02857)

Hilary T. Jacobs argued the cause for appellant. With her

on the briefs was John S. Guttmann.

Lewis S. Yelin, 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, and Sharon Swingle, Attorney.

Before: RAO and CHILDS, Circuit Judges, and GINSBURG,

Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge CHILDS.

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CHILDS, Circuit Judge: In 1983, during the Cold War,

Leonard H. Perroots, then an Assistant Chief of Staff for

Intelligence in the United States Air Forces in Europe,

allegedly recommended a course of action to his Commander

in response to an elevated alert status demonstrated by the

military forces of the Union of Soviet Socialist Republics

(“Soviet Union”), which helped avert a nuclear crisis.

Subsequently, in January 1989, Lieutenant General Perroots

wrote an End of Tour Report Addendum (“Perroots Memo”) to

detail the “chain of events” from 1983 to help the U.S.

Intelligence Community learn lessons “as relates to our

[Indications and Warning] capability and exercise planning.”

JA250, JA278.

Approximately thirty-two years later, a non-governmental

research institute known as The National Security Archive

(“Archive”) submitted a Freedom of Information Act (“FOIA”)

request to the Central Intelligence Agency (“CIA”) seeking

disclosure of the Perroots Memo. The CIA produced the

Memo’s cover letter but did not provide any further substance

of the Perroots Memo’s text. Thereafter, the Archive sued the

CIA seeking to compel disclosure of the Perroots Memo under

FOIA. The district court granted summary judgment in favor

of the CIA because the Archive conceded that the response was

justified under FOIA Exemptions 1 and 3, 5 U.S.C.

§§ 552(b)(1) and (6), and the CIA had not waived its right to

claim the exemptions. Nat’l Sec. Archive v. CIA, C/A No. 21-

2857, 2022 WL 5062523, at *5 (D.D.C. Oct. 4, 2022). The

district court denied the Archive’s motion to amend judgment

as well. Nat’l Sec. Archive v. CIA, C/A No. 21-2857, 2022 WL

18493099, at *1 (D.D.C. Nov. 16, 2022). The Archive appeals

both decisions. Upon de novo review, we affirm.

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I.

The Archive is an “independent non-governmental

research institute and library” that “promote[s] research and

public education about the U.S. governmental and national

security decision-making process.” Compl. ¶ 4 (JA002). The

Archive operates as a “repository of government records on a

wide range of topics pertaining to the national security, foreign,

intelligence, and economic policies of the United States.” Id.

In February 2021, the United States Department of State

(“DOS”) published a transcribed version of the Perroots Memo

in a volume of the Foreign Relations of the United States

(“FRUS”) series documenting 1981–1988. The FRUS is a

statutorily mandated “official documentary historical record of

major U.S. foreign policy decisions and significant diplomatic

activity.” Office of the Historian, U.S. Dep’t of State, About

the Foreign Relations of the United States Series,

https://history.state.gov/historicaldocuments/about-frus,

archived at https://perma.cc/3RQZ-DVPM; 22 U.S.C.

§ 4351(a). Publication in the FRUS generally requires the DOS

to obtain the respective agency’s declassification of any

relevant documents needed for publishing. See 22 U.S.C.

§ 4353(b)(1) (Any document published in the FRUS “shall be

submitted to the respective originating agency for

declassification review.”). Accordingly, the FRUS cites to a

CIA source and thanks CIA staff “for arranging full access to

CIA records,” JA269, and states that “[t]he declassification

review of this volume . . . began in 2015 and was completed in

2019,” JA135.

Six months after the FRUS’s release of Volume IV: Soviet

Union, January 1983–March 1985, the Archive submitted a

FOIA request to the CIA for the Perroots Memo. The CIA

acknowledged but did not substantively respond to the

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Archive’s request. Consequently, in October 2021, the

Archive filed suit in the D.C. District Court to compel

disclosure of the Memo. In April 2022, as its “final response”

to the Archive’s FOIA request, see JA248, the CIA provided

Perroots’ cover letter and a completely redacted copy of the

Memo, citing FOIA Exemptions 1 and 3 to justify the

redactions.

The CIA next moved for summary judgment asserting that

it properly withheld the Perroots Memo under FOIA

Exemption 1, because the Memo contained “information that

would tend to reveal specific intelligence activities, sources,

and methods that are either still actively in use or which remain

viable for use today,” JA045–JA046; and under Exemption 3

in accordance with the National Security Act of 1947,

identified by the CIA as an appropriate Exemption 3 qualifying

statute, JA046. The Archive opposed the motion and argued

that because the Memo was published in the FRUS Volume IV:

Soviet Union, January 1983–March 1985, the exemptions were

inapplicable due to the official acknowledgment doctrine and

the public domain doctrine. The district court disagreed,

finding that the CIA was not properly involved in the disclosure

to the FRUS to establish either official acknowledgment or

public disclosure. Nat’l Sec. Archive, 2022 WL 5062523, at

*4. The district court granted the CIA’s motion for summary

judgment, concluding that the Perroots Memo was exempt

from disclosure under FOIA Exemptions 1 and 3. Id. at *5.

The district court then denied the Archive’s motion to amend

judgment, in which the Archive sought to have the court amend

its order to require the CIA “‘to subject the Perroots

Memorandum to a reclassification review under Executive

Order No. 13526,’ which governs agency efforts to reclassify

certain information.” Nat’l Sec. Archive, 2022 WL 18493099,

at *1. The Archive timely appealed the district court’s

decisions.

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II.

A.

We have appellate jurisdiction under 28 U.S.C. § 1291 and

review the district court’s grant of summary judgment in a

FOIA case de novo. Pavement Coatings Tech. Council v. U.S.

Geological Surv., 995 F.3d 1014, 1020 (D.C. Cir. 2021)

(citation omitted). In addition, our review of summary

judgment “‘[i]n the FOIA context . . . requires that we ascertain

whether the agency has sustained its burden of demonstrating

that the documents requested are . . . exempt from disclosure.’”

Id. (quoting ACLU v. DOJ, 655 F.3d 1, 5 (D.C. Cir. 2011)).

B.

Before turning to the merits, we first address the Archive’s

standing. “It is well established that a federal court cannot act

in the absence of jurisdiction,” and “[i]t is equally well

established that Article III standing is a prerequisite to federal

court jurisdiction.” Am. Libr. Ass’n v. FCC, 401 F.3d 489, 492

(D.C. Cir. 2005) (citations omitted). The Archive has standing

if it has (i) suffered “an ‘injury in fact,’” such that its interest is

“concrete and particularized” and “‘actual or imminent,’”

(ii) shown “a causal connection between the injury and the

conduct,” and (iii) a legally redressable injury. Lujan v. Defs.

of Wildlife, 504 U.S. 555, 560–61 (1992) (citations omitted).

Addressing the injury prong, the Supreme Court has held that

an informational injury is sufficient to satisfy standing under

FOIA. Pub. Citizen v. DOJ, 491 U.S. 440, 449 (1989). To

demonstrate a “‘sufficiently concrete and particularized

informational injury,’ the plaintiff must show that ‘(1) it has

been deprived of information that . . . a statute requires the

government . . . to disclose to it, and (2) it suffers, by being

denied access to that information, the type of harm Congress

6

sought to prevent by requiring disclosure.’” Elec. Priv. Info.

Ctr. v. Presidential Advisory Comm’n on Election Integrity,

878 F.3d 371, 378 (D.C. Cir. 2017) (citation omitted).

The Archive’s allegations establish informational standing

under our case law.1 First, as to the informational injury

components, and assuming for purposes of standing that the

Archive will prevail on the merits, FOIA provides the Archive

the right to seek the Perroots Memo because it is “designed ‘to

pierce the veil of administrative secrecy and to open agency

action to the light of public scrutiny.’” U.S. Dep’t of State v.

Ray, 502 U.S. 164, 173 (1991) (quoting Dep’t of Air Force v.

Rose, 425 U.S. 352, 361 (1976)); see also Maloney v.

Carnahan, 45 F.4th 215, 217 (D.C. Cir. 2022) (Millett, J.,

concurring) (FOIA is an “example[] of [a] statute[] that

create[s]” “an individual right to obtain information” and

“‘[a]nyone whose request for specific information has been

denied has standing to bring an action[.]’” (citation omitted)).

Second, we view the Archive’s stated injury resulting from the

inability to access the Perroots Memo as the type that FOIA’s

disclosure objectives directly prevent:

1

We note that in TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214

(2021), the Supreme Court observed that “[a]n ‘asserted

informational injury that causes no adverse effects cannot satisfy

Article III.’” We are bound by Supreme Court precedent, but

TransUnion does not expressly overrule Public Citizen. This Court

is charged with following case law that directly controls a particular

issue, “leaving to [the Supreme] Court the prerogative of overruling

its own decisions.” Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028,

2038 (2023) (cleaned up).

7

There is likely information of great historical

value to the Archive that was not included in the

[Perroots Memo’s] transcription, but may be in

the original form of the document. For instance,

original documents often list the offices within

specific agencies that received a document,

specific individual recipients, special security

designations, and individuals who were copied

on the correspondence — information that is not

necessarily captured in a transcription.

Compl. ¶ 25 (JA007). Accordingly, we find that the Archive

suffered a concrete injury when the CIA refused its FOIA

request for the Perroots Memo. Additionally, the Archive’s

injury is “‘fairly trace[able]’” to the CIA’s denial of its FOIA

request, and it is likely that the injury would be “redressed by

a favorable decision” by this Court. Lujan, 504 U.S. at 560–

61. For these reasons, we find that the Archive has standing,

and the Court has subject matter jurisdiction. We will now turn

to the merits.

C.

“Congress enacted . . . FOIA to pierce the veil of

administrative secrecy and open agency action to the light of

public scrutiny, and thereby to achieve greater transparency in

support of open government.” Insider Inc. v. GSA, 92 F.4th

1131, 1133 (D.C. Cir. 2024) (cleaned up). To facilitate that

objective, FOIA provides members of the public with the

ability to request records from federal agencies—which an

agency may only withhold by demonstrating the requested

documents fall within one of nine statutory exemptions. See

5 U.S.C. § 552(b)(1)–(9); Citizens for Resp. & Ethics in

Washington v. DOJ, 58 F.4th 1255, 1261 (D.C. Cir. 2023).

Here, in response to the Archive’s FOIA request for the

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Perroots Memo, the CIA invokes Exemptions 1 and 3, which

exempt from disclosure “matters that are—”

(1)(A) specifically authorized under criteria

established by an Executive order to be kept

secret in the interest of national defense or

foreign policy and (B) are in fact properly

classified pursuant to such Executive order; . . .

(3) specifically exempted from disclosure by

statute (other than section 552b of this title), if

that statute—

(A)(i) requires that the matters be

withheld from the public in such a

manner as to leave no discretion on the

issue; or

(ii) establishes particular criteria for

withholding or refers to particular types

of matters to be withheld.

5 U.S.C. § 552(b)(1), (3) (emphases added). The Archive does

not contest the applicability of Exemptions 1 and 3. Rather, it

contends the CIA waived its right to assert the exemptions

through application of the official acknowledgment and public

domain doctrines. We disagree.

1.

“The official acknowledgment doctrine holds 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.’”

Montgomery v. IRS, 40 F.4th 702, 710 (D.C. Cir. 2022)

(citation omitted); see also Knight First Amend. Inst. v. CIA, 11

F.4th 810, 813 (D.C. Cir. 2021) (“If an agency has ‘officially

acknowledged otherwise exempt information through prior

9

disclosure,’ it has ‘waived its right to claim an exemption with

respect to that information.’” (citation omitted)). Information

is considered “officially acknowledged” when it (1) is “as

specific as the information previously released”; (2) matches

“the information previously disclosed”; and (3) has already

“been made public through an official and documented

disclosure.” Fitzgibbons v. CIA, 911 F.2d 755, 765 (D.C. Cir.

1990) (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1133

(D.C. Cir. 1983)). With respect to the third element,

“[d]isclosure by one federal agency does not waive another

agency’s right to assert a FOIA exemption.” Mobley v. CIA,

806 F.3d 568, 583 (D.C. Cir. 2015) (citing Frugone v. CIA, 169

F.3d 772, 774–75 (D.C. Cir. 1999)); see also Knight First

Amend. Inst., 11 F.4th at 816 (“We do not ‘deem “official” a

disclosure made by someone other than the agency from which

the information is being sought.’” (citing Frugone, 169 F.3d at

774)).

The Archive contends that the official acknowledgment

doctrine is applicable to the Perroots Memo because “(1) . . .

the CIA was involved in the Perroots Memo transcription’s

publication, and (2) at least a portion of the text from the

Perroots Memo is unquestionably public.” Appellant’s Br. 11.

We reject these contentions because the record, as observed by

the district court, contains classified, supplemental, ex parte,

and in camera declarations which establish that the CIA was

not involved in the disclosure of the Perroots Memo. See Nat’l

Sec. Archive, 2022 WL 5062523, at *4 (JA086).

That the State Department thanked the CIA for its

contribution and acknowledged the CIA as the source of the

Perroots Memo in the FRUS’s Volume IV: Soviet Union,

January 1983–March 1985 is of no consequence: both were

actions taken by the DOS, not the CIA. For the same reason,

although the DOS is statutorily required to “submit[] to the

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respective originating agency for declassification review,” 22

U.S.C. § 4353(b)(1), its actions do not waive the CIA’s right to

assert FOIA Exemptions 1 and 3. Therefore, we affirm the

district court’s decision that the third element of the official

acknowledgment doctrine remains unsatisfied and “that the

CIA—and this includes the agency and its ‘components’—was

not properly involved in the [Perroots Memo]’s disclosure” to

trigger waiver of FOIA Exemptions 1 and 3. Nat’l Sec.

Archive, 2022 WL 5062523, at *4 (JA086).

2.

The Archive argues that application of the public domain

doctrine equally necessitates disclosure of the Perroots Memo.

In this regard, the Archive suggests that disclosure is

appropriate because “the information requested is the same as

what is publicly available in Volume IV”: Soviet Union,

January 1983–March 1985, and it is already part of the

permanent public record based on its availability for viewing

in numerous court records via a Public Access to Court

Electronic Records account, or by accessing the “Internet

Archive Way Back Machine, a non-profit ‘digital library of

Internet sites’ that ‘archive[s] the Internet itself.’” Appellant’s

Br. 15.

Despite the Archive’s support for the existence of the

public domain doctrine, we do not recognize that this exception

is separate and distinct from the official acknowledgment

doctrine. To this point, many of our decisions use the terms

“public domain” and “official acknowledgment”

interchangeably. See, e.g., ACLU v. CIA, 710 F.3d 422, 427

(D.C. Cir. 2013) (“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.’” (citation omitted));

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Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (“Prior

disclosure of similar information does not suffice; instead, the

specific information sought by the plaintiff must already be in

the public domain by official disclosure.” (citation omitted)

(emphasis in original)); but see Cottone v. Reno, 193 F.3d 550,

554 (D.C. Cir. 1999) (“Under our public-domain doctrine,

materials normally immunized from disclosure under FOIA

lose their protective cloak once disclosed and preserved in a

permanent public record.”); Students Against Genocide v.

Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001) (“This

circuit has held that the government may not rely on an

otherwise valid exemption to justify withholding information

that is already in the '‘public domain.’”). As we have

emphasized in our precedent, the mere public disclosure of

information does not eliminate potential risks posed by further

disclosure to national security interests—and cannot overcome

an otherwise valid FOIA exemption. See Afshar, 702 F.2d at

1130 (“Also, even if a fact . . . is the subject of widespread

media and public speculation, its official acknowledgment by

an authoritative source might well be new information that

could cause damage to the national security.”). Because the

CIA demonstrated the applicability of Exemptions 1 and 3,

which the Archive failed to either directly or successfully

challenge, we affirm the district court’s decision to grant

summary judgment to the CIA.

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D.

The Archive also appealed the district court’s denial of the

Archive’s motion to amend judgment requesting that the CIA

“‘subject the Perroots Memorandum to a reclassification

review under Executive Order 13526,’ which governs agency

efforts to reclassify certain information.” Nat’l Sec. Archive,

2022 WL 18493099, at *1 (citation omitted). However, in its

briefing, the Archive failed to make any substantive arguments

regarding its reclassification request. We ordinarily do not

consider matters on appeal that are not specifically and

distinctly argued in an appellant’s briefs and therefore we

decline to consider here the Archive’s request to reclassify the

Perroots Memo. E.g., Anna Jaques Hosp. v. Sebelius, 583 F.3d

1, 7 (D.C. Cir. 2009) (“We will not consider ‘asserted but

unanalyzed’ arguments because ‘appellate courts do not sit as

self-directed boards of legal inquiry and research, but

essentially as arbiters of legal questions presented and argued

by the parties before them.’” (citation omitted)).

*****

For the foregoing reasons, we affirm the district court’s

judgment.

So ordered.