Petition for Writ of Certiorari — James G. Connell, III, Petitioner v. Central Intelligence Agency

No. 24-____

IN THE

Supreme Court of the United States

d

JAMES G. CONNELL , III,

Petitioner,

—v.—

CENTRAL INTELLIGENCE AGENCY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

Arthur B. Spitzer

Scott Michelman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF THE

DISTRICT OF COLUMBIA

529 14th Street NW, Suite 722

Washington, D.C. 20045

Brett Max Kaufman

Counsel of Record

Sara Robinson

Hina Shamsi

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2500

bkaufman@aclu.org

Cecillia D. Wang

Evelyn Danforth-Scott

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street, Suite 700

San Francisco, CA 94104

Counsel for Petitioner

QUESTION PRESENTED

When a federal agency responds to a request for

records under the Freedom of Information Act, 5

U.S.C. § 552, it may assert a “Glomar response,”

neither confirming nor denying the existence of

responsive records, on the theory that even a mere

acknowledgment that the records do or do not exist is

itself exempt from disclosure under one of the

statute’s narrow exemptions.

The question presented is whether, in assessing

the legality of a Glomar response, a court may weigh

any relevant evidence bearing on the existence of

responsive records, as the Second Circuit has held, or

may only look to evidence that the responding agency

has waived protection over the existence of records

through its own official acknowledgment, as the D.C.

Circuit held in the decision below.

i

PARTIES TO THE PROCEEDINGS

Petitioner (plaintiff–appellant below) is James G.

Connell, III.

Respondent (defendant–appellee below) is the

Central Intelligence Agency.

RELATED PROCEEDINGS

There are no proceedings in state or federal trial or

appellate courts, or in this Court, directly related to

this case within the meaning of this Court’s Rule

14.1(b)(iii).

ii

TABLE OF CONTENTS

QUESTION PRESENTED .......................................... i

PARTIES TO THE PROCEEDINGS ......................... ii

RELATED PROCEEDINGS....................................... ii

TABLE OF CONTENTS ............................................ iii

TABLE OF AUTHORITIES ...................................... vi

PETITION FOR A WRIT OF CERTIORARI ............. 1

OPINIONS BELOW ................................................... 1

JURISDICTION.......................................................... 1

STATUTORY PROVISIONS INVOLVED ................. 2

INTRODUCTION ....................................................... 4

STATEMENT OF THE CASE .................................... 7

I.

LEGAL BACKGROUND ............................... 7

II. FACTUAL & PROCEDURAL

BACKGROUND........................................... 12

REASONS FOR GRANTING THE PETITION ....... 19

I.

THE D.C. AND SECOND CIRCUITS

ARE DIVIDED ON THE QUESTION

PRESENTED. .............................................. 19

II. REVIEW IS WARRANTED BECAUSE

THE D.C. CIRCUIT’S INCORRECT

RULING WILL HAVE AN

OUTSIZED, NATIONWIDE IMPACT. ...... 23

A. The decision below is wrong on the

merits. ................................................... 23

iii

B. The D.C. Circuit’s ruling will affect

countless FOIA cases and incentivize

agency behavior that undermines the

purpose of the FOIA statute. ................ 28

CONCLUSION.......................................................... 30

iv

APPENDIX

Appendix A — Court of appeals opinion

(August 6, 2024) .................. 1a

Appendix B — District court opinion

(March 29, 2023)................ 29a

Appendix C — District court order

(March 29, 2023)................ 46a

v

TABLE OF AUTHORITIES

Page(s)

Cases

Abdelfattah v. DHS,

488 F.3d 178 (3d Cir. 2007)................................ 11

ACLU v. CIA,

710 F.3d 422 (D.C. Cir. 2013) ................ 11–12, 30

ACLU v. CIA,

No. 22-cv-11532, 2023 WL 3394485

(D. Mass. May 11, 2023) .............................. 22–23

ACLU v. DOD,

901 F.3d 125 (2d Cir. 2018)................................ 11

ACLU v. DOD,

No. 18-cv-154, 2019 WL 3945845

(D. Mont. Aug. 21, 2019) .................................... 22

ACLU v. DOJ,

640 F. App’x 9 (D.C. Cir. 2016) .......................... 12

Am. Friends Serv. Comm. v. DOD,

831 F.2d 441 (3d Cir. 1987)................................ 26

Argus Leader Media v. Dep’t of Agric.,

889 F.3d 914 (8th Cir. 2018) .............................. 26

Benavides v. U.S. Marshals Serv.,

990 F.2d 625, 1993 WL 117797

(5th Cir. 1993) .............................................. 26–27

Broward Bulldog, Inc. v. DOJ,

939 F.3d 1164 (11th Cir. 2019) .......................... 27

Daubert v. Merrell Dow Pharms., Inc.,

509 U.S. 579 (1993) ............................................ 23

vi

Dep’t of Air Force v. Rose,

425 U.S. 352 (1976) .................................. 8, 27–28

DOJ v. Reps. Comm. for Freedom of Press,

489 U.S. 749 (1989) .......................................... 7–8

Florez v. CIA,

829 F.3d 178 (2d Cir. 2016)................ 6, 18–24, 27

Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427 (2019) ...................................... 25–26

Gardels v. CIA,

689 F.2d 1100 (D.C. Cir. 1982) .................... 11, 21

Grand Cent. P’ship, Inc. v. Cuomo,

166 F.3d 473 (2d Cir. 1999)................................ 26

Hamdan v. DOJ,

797 F.3d 759 (9th Cir. 2015) ........................ 11, 27

Hrones v. CIA,

685 F.2d 13 (1st Cir. 1982) ................................ 26

Hull v. IRS,

656 F.3d 1174 (10th Cir. 2011) .......................... 27

Hunt v. CIA,

981 F.2d 1119 (9th Cir. 1992) ............................ 22

Madel v. DOJ,

784 F.3d 448 (8th Cir. 2015) .............................. 27

Marino v. DEA,

685 F.3d 1076 (D.C. Cir. 2012) .......................... 10

Mil. Audit Project v. Casey,

656 F.2d 724 (D.C. Cir. 1981) ............ 9–10, 25–26

Milner v. Dep’t of Navy,

562 U.S. 562 (2011) .............................................. 8

vii

Montgomery v. IRS,

40 F.4th 702 (D.C. Cir. 2022) ............................. 10

Nat’l Archives & Recs. Admin. v. Favish,

541 U.S. 157 (2004) .............................................. 7

NLRB v. Robbins Tire & Rubber Co.,

437 U.S. 214 (1978) .............................................. 8

PETA v. NIH,

746 F.3d 535 (D.C. Cir. 2014) ............................ 10

Phillippi v. CIA,

546 F.2d 1009 (D.C. Cir. 1976) ............................ 9

Rugiero v. DOJ,

257 F.3d 534 (6th Cir. 2001) .............................. 27

Salisbury v. United States,

690 F.2d 966 (D.C. Cir. 1982) ............................ 25

Stein v. FBI,

662 F.2d 1245 (7th Cir. 1981) ............................ 27

United States v. Zubaydah,

595 U.S. 195 (2022) ...................................... 19, 24

Vaughn v. Rosen,

484 F.2d 820 (D.C. Cir. 1973) ...................... 10, 30

Watts v. Indiana,

338 U.S. 49 (1949) .............................................. 24

Wolf v. CIA,

473 F.3d 370 (D.C. Cir. 2007) ............................ 11

viii

Statutes

Freedom of Information Act, 5 U.S.C. § 552

(a)(3)(A) ......................................................... 2–3, 8

(a)(4)(B) ............................................................... 10

(a)(6) .................................................................... 29

(b) .......................................................................... 8

(b)(1) .................................................................. 2–3

(b)(3) .................................................................. 2–3

Rules

Fed. R. Evid. 401 ..................................... 23–24, 26–27

Other Authorities

@CIA, Twitter (June 6, 2014, 10:49 a.m.) ................ 10

112 Cong. Rec. 13019 (1966)..................................... 25

ACLU Torture Database .......................................... 13

Bennett, M. Todd, Neither Confirm Nor Deny

(2023) .................................................................... 9

Birkin, David, Severe Clear Part 1: Existence

or Nonexistence (2014) ......................................... 9

CIA Mem. of Law, Florez v. CIA, No. 14-cv1002 (S.D.N.Y. Mar. 28, 2017), ECF No. 51 ...... 21

Def.’s Mot. for Summ. J., Connell v. CIA, No.

21-cv-627 (D.D.C. Mar. 28, 2022), ECF No.

13 ........................................................................ 14

DOJ, Summary of Annual FOIA Reports for

Fiscal Year 2023: Highlights of Key

Government-wide FOIA Data ............................ 29

ix

FOIA Project, FOIA Lawsuits Are Taking

Longer to Resolve (Jan. 23, 2020) ...................... 29

Grunewald, Mark H., Reducing FOIA

Litigation Through Targeted ADR

Strategies, Admin. Conf. of U.S. Courts

(Apr. 28, 2014) .................................................... 29

Off. of the Inspector Gen., CIA,

Counterterrorism Detention and

Interrogation Activities 1 (2004) ....................... 12

Off. of the Inspector Gen., DOJ,

A Review of the FBI’s Involvement in and

Observations of Detainee Interrogations in

Guantánamo Bay, Afghanistan, and Iraq

(2009) .................................................................. 13

Off. of the Press Sec’y, Press Conference by the

President (Aug. 1, 2014)..................................... 13

Radiolab, Neither Confirm Nor Deny, WNYC

Studios (June 4, 2019).......................................... 9

Republican Policy Committee Statement on

Freedom of Information Legislation,

S. 1160, 112 Cong. Rec. 13014 (1966) ................ 24

S. Comm. on Armed Servs., 110th Cong.,

Inquiry into the Treatment of Detainees in

U.S. Custody (2008) ........................................... 13

S. Select Comm. on Intel., 112th Cong.,

Committee Study of the CIA’s Detention

and Interrogation Program: Executive

Summary (2014) ................................................. 13

Stout, David, C.I.A. Detainees Sent to

Guantánamo, N.Y. Times, Sept. 6, 2006 ........... 13

x

Table B-7–U.S. Court of Appeals Statistical

Tables for the Federal Judiciary (December

31, 2022), U.S. Courts ........................................ 28

Table B-7–U.S. Court of Appeals Statistical

Tables for the Federal Judiciary (December

31, 2023), U.S. Courts ........................................ 28

Transcript of Oral Argument, Food Mktg. Inst.

v. Argus Leader Media, 588 U.S. 427

(2019) (No. 18-481) ............................................... 7

U.S. Gov’t Accountability Off.,

GAO-24-106535, Freedom of Information

Act: Additional Guidance and Reliable

Data Can Help Address Agency Backlogs

(Mar. 2024) ......................................................... 29

White House, Press Release, President

Discusses Creation of Military

Commissions to Try Suspected Terrorists

(Sept. 6, 2006) ..................................................... 13

xi

PETITION FOR A WRIT OF CERTIORARI

Petitioner James G. Connell, III, 1 respectfully

petitions this Court for a writ of certiorari to review

the judgment of the United States Court of Appeals

for the District of Columbia Circuit in this case.

OPINIONS BELOW

The opinion of the court of appeals (App. 1a) is

reported at Connell v. Central Intelligence Agency, 110

F.4th 256 (D.C. Cir. 2024). The opinion of the district

court granting Respondent’s motion for summary

judgment (App. 29a) is reported at Connell v. Central

Intelligence Agency, No. 21-cv-627, 2023 WL 2682012

(D.D.C. Mar. 29, 2023). The order of the district court

dismissing the case (App. 46a) is not reported.

JURISDICTION

The court of appeals issued its decision on August

6, 2024 (App. 1a). This Court has jurisdiction under 28

U.S.C. § 1254(1).

James G. Connell, III, though contracted by the

Department of Defense to represent an individual before a

Guantánamo Bay military commission, files this petition only in

his individual capacity, and does not represent the position of

that agency or the United States. Any citation to publicly

reported information should not be read as a confirmation or

denial of any classified information by Mr. Connell.

1

1

STATUTORY PROVISIONS INVOLVED

In relevant part, the Freedom of Information Act

5 U.S.C. § 552, provides:

(a) Each agency shall make available to the public

information as follows:

*

*

*

(3) (A) Except with respect to the records made

available under paragraphs (1) and (2) of this

subsection, and except as provided in subparagraph (E), each agency, upon any request for

records which (i) reasonably describes such

records and (ii) is made in accordance with

published rules stating the time, place, fees (if

any), and procedures to be followed, shall make

the records promptly available to any person.

*

*

*

(b) This section does not apply to 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

2

(ii) establishes particular criteria for

withholding or refers to particular types of

matters to be withheld; and

(B) if enacted after the date of enactment of the

OPEN FOIA Act of 2009, specifically cites to

this paragraph.

*

*

*

5 U.S.C. § 552(a)(3)(A), (b)(1), (b)(3).

3

INTRODUCTION

This case is about whether courts evaluating the

legality of a unique type of agency response to a FOIA

request must categorically ignore any evidence, no

matter how probative, that does not originate with the

agency itself. The D.C. Circuit’s decision below—

which squarely conflicts with a ruling of the Second

Circuit and will affect the behavior of practically every

federal agency—permits agencies to refuse to “confirm

or deny” the existence of records responsive to a FOIA

request even when the complete evidentiary record

makes clear that those records exist. This Court

should grant review to resolve the split of authority

and correct the court of appeals’ far-reaching error.

The FOIA presumptively opens government

records to public inspection, subject to a set of

narrowly defined exemptions. Ordinarily, after

receiving a request under the statute, an agency

searches for responsive records. Then it decides either

to release those records, or to instead withhold them,

in full or in part, by invoking one of the statute’s

exemptions. A requester who is dissatisfied with an

agency’s decision to withhold records can seek judicial

review.

When a court considers the lawfulness of an

agency’s withholding claim, the burden is on the

agency to show that it has logically and plausibly

justified its application of a statutory exemption. The

court assesses the agency’s justification in two main

ways, which are theoretically and practically distinct.

First, it determines whether an agency’s invocation of

an exemption is valid in the first place, by evaluating

the agency’s explanation, usually made through one or

4

more sworn declarations, as well as any other record

evidence that may call the agency’s explanation into

question. And second, the court considers whether an

agency has waived its ability to rely on a FOIA

exemption to withhold information (regardless of the

exemption’s applicability) because it has already

“officially acknowledged” that same or similar

information.

Sometimes, an agency declines to search for

responsive records and instead issues what is known

as a “Glomar response.” With a Glomar response, an

agency refuses to “confirm or deny” whether it has any

records responsive to a FOIA request at all, because,

in its view, the existence or nonexistence of records is

itself protected by one of the FOIA’s exemptions.

In the decision below, the D.C. Circuit held that

the only way for a FOIA plaintiff to defeat an agency’s

Glomar response is by pointing to evidence of the

agency’s waiver by “official acknowledgment.” That

ruling explicitly broke with the Second Circuit, which

years ago held that a requester can defeat a Glomar

response in either of the two ways: by identifying an

agency’s “official acknowledgments,” or by pointing to

evidence in the record that contradicts the agency’s

justification for withholding. The decision below shuts

off the latter path in the D.C. Circuit.

This case makes clear the folly of the D.C.

Circuit’s rule. Here, Petitioner sought records

concerning the CIA’s “operational control” over Camp

VII, a detention center for “high-value detainees” at

the U.S. Naval Base at Guantánamo Bay. The CIA

asserted a Glomar response. Petitioner then pointed

to public evidence that, he argued, made it plain that

5

the CIA was indeed involved in operating Camp VII

and that, therefore, the CIA’s Glomar response was

illogical and implausible. Petitioner’s evidence

included the CIA’s own documents; an official report

by the Senate Select Committee on Intelligence;

officially disclosed documents from the Office of the

Director of National Intelligence (“ODNI”); the public

sworn testimony of a military official at the

Guantánamo military commissions; unclassified

formal military commissions filings; and an

unclassified military commission judicial opinion.

In a FOIA case not involving Glomar, a court

would have considered the effect of all of this contrary

record evidence when evaluating the logic and

plausibility of the CIA’s exemption claim. But the

court below held that, when it came to the CIA’s

Glomar response, Petitioner could not rely on any

evidence that did not originate with the CIA itself—no

matter what it showed—to show that the agency’s

Glomar response was not logical or plausible. Instead,

the court held that Petitioner could prevail only if the

CIA had waived its own ability to rely on a FOIA

exemption through official acknowledgment. 2

The Court should grant certiorari for two reasons.

First, the D.C. Circuit’s decision creates a clear

split with the Second Circuit. In Florez v. Central

Intelligence Agency, 829 F.3d 178 (2d Cir. 2016), the

Second Circuit held that courts must consider all

relevant record evidence in determining whether a

2 While Petitioner argued below that the CIA had, in fact,

waived its ability to invoke a Glomar response through official

acknowledgment, he does not seek certiorari on that issue.

6

Glomar response is logical or plausible. The decision

below explicitly rejects that rule.

Second, review is necessary because the decision

below is wrong on the merits and will give federal

agencies license to flout FOIA’s requirements.

Because of “the D.C. Circuit’s special situation with

respect to FOIA,” 3 and because other circuit courts

frequently look to the D.C. Circuit’s extensive FOIA

experience for authority on both the FOIA and

Glomar, the decision will have a widespread impact on

the pre-litigation behavior of agencies responding to

FOIA requests. Absent review by this Court, the

decision below will leave most federal agencies free to

ignore any evidence from sources other than

themselves when deciding whether to assert a Glomar

response—and more FOIA requests will be shut down

at the earliest possible stage even when it is not logical

or plausible for an agency to deny the existence of

responsive records.

STATEMENT OF THE CASE

I.

LEGAL BACKGROUND

Passed in 1966 and strengthened several times

since, the FOIA “is often explained as a means for

citizens to know what their Government is up to.”

Nat’l Archives & Recs. Admin. v. Favish, 541 U.S. 157,

171 (2004) (quotation marks omitted). As this Court

has noted, the statute’s “central purpose is to ensure

that the Government’s activities be opened to the

sharp eye of public scrutiny.” DOJ v. Reps. Comm. for

3 Transcript of Oral Argument at 64:1, Food Mktg. Inst. v.

Argus Leader Media, 588 U.S. 427 (2019) (No. 18-481) (statement

of Kagan, J.).

7

Freedom of Press, 489 U.S. 749, 774 (1989). Indeed,

public scrutiny of government decision-making that is

many times removed from the voting booth—so that

the people may “pierce the veil of administrative

secrecy”—is the FOIA’s central purpose. Dep’t of Air

Force v. Rose, 425 U.S. 352, 361 (1976) (quotation

marks omitted). This serves “to ensure an informed

citizenry, vital to the functioning of a democratic

society, needed to check against corruption and to hold

the governors accountable to the governed.” NLRB v.

Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978).

As this Court has recognized, the statute is a

“structural necessity in a real democracy.” Favish, 541

U.S. at 172.

The cardinal rule of the FOIA is its presumption

in favor of the disclosure of government records. See 5

U.S.C. § 552(a)(3)(A) (“[E]ach agency, upon any

request for records which (i) reasonably describes such

records and (ii) is made in accordance with published

rules stating the time, place, fees (if any), and

procedures to be followed, shall make the records

promptly available to any person.”). Of course, the rule

is not categorical: since Congress recognized that the

disclosure of certain records might be contrary to

legitimate public or private interests, the FOIA allows

for nine narrow, exclusive exemptions. 5 U.S.C.

§ 552(b); Milner v. Dep’t of Navy, 562 U.S. 562, 565

(2011).

And, sometimes, an agency may claim that the

very existence or nonexistence of records responsive to

a request is protected under an exemption. Refusing

to confirm or deny the existence of records is known as

a “Glomar response,” thanks to the CIA’s first, nowfamous use of this technique. Almost half a century

8

ago, the CIA sought to keep secret, using a cover story,

its attempt to salvage a sunken Soviet submarine

using a large vessel, built by the filmmaker Howard

Hughes, called the Hughes Glomar Explorer. See

Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). The

press got wind of the attempt, and “Director William

Colby and other CIA officials then scrambled to

suppress the story.” Mil. Audit Project v. Casey, 656

F.2d 724, 729 (D.C. Cir. 1981). Ultimately, the agency

resisted FOIA requests for records about the vessel’s

real objective by maintaining that even confirming the

CIA’s mere possession of records about the vessel

would harm national security by revealing a classified

secret. See id. at 730–31.

For several decades, the government rarely used

Glomar responses, but today they are commonplace. 4

In a Westlaw search, the term “Glomar” appears in

608 federal court decisions, with 455 of those coming

in the last fifteen years. And the same search shows

that more than half of the total decisions, including

those since 2009, were in the district courts and the

court of appeals within the D.C. Circuit. This

exponential growth of the Glomar response has taken

place even though this Court has never mentioned the

word, let alone endorsed the technique.

4 The phrase “can neither confirm nor deny the existence or

nonexistence” has become so well known that it has been the

subject of extensive media attention, and even public art. See,

e.g., M. Todd Bennett, Neither Confirm Nor Deny (2023);

Radiolab, Neither Confirm Nor Deny, WNYC Studios (June 4,

2019), https://perma.cc/63NK-QSZZ; David Birkin, Severe Clear

Part 1: Existence or Nonexistence (2014), https://perma.cc/LSM2EHBP.

9

Glomar has long been associated with the CIA,

and the agency has made that association something

of a perverse point of pride. When the CIA joined

Twitter, its first post read: “We can neither confirm

nor deny that this is our first tweet.” 5 Today, though,

use of the technique is no longer limited to intelligence

agencies. 6

When a FOIA requester is dissatisfied with an

agency’s administrative response to its request, it can

file suit. 5 U.S.C. § 552(a)(4)(B). Once in litigation,

FOIA cases are almost always decided at the

summary judgment stage, on a paper record. It is the

agency’s burden to “sustain” its invocation of one or

more of the FOIA’s exemptions to withhold records in

full or in part. Id. To meet that burden, the agency

ordinarily submits one or more declarations from

agency personnel explaining why disclosure would

cause harm under one of the statutory exemptions.

See, e.g., Mil. Audit Project, 656 F.2d at 738, 738 n.49

(collecting cases).

In the usual FOIA case, along with its

declarations, a defendant agency produces what is

known as a “Vaughn index” that identifies withheld

documents with “relatively detailed” and “specific”

descriptions. Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir.

1973). Together, the declarations and the index are

intended to allow both the requester and the court to

assess whether each document is properly withheld

5

@CIA, Twitter (June

https://perma.cc/M4RG-WRVU.

6,

2014,

10:49

a.m.),

6 See, e.g., Montgomery v. IRS, 40 F.4th 702 (D.C. Cir. 2022);

PETA v. NIH, 746 F.3d 535 (D.C. Cir. 2014); Marino v. DEA, 685

F.3d 1076 (D.C. Cir. 2012).

10

under one or more exemptions. See Abdelfattah v.

DHS, 488 F.3d 178, n.3 (3d Cir. 2007) (Vaughn index

prevents agencies from unilaterally controlling

disclosures under the FOIA and gives courts “a

reasonable basis to evaluate . . . claim[s] of privilege”

as part of “a meaningful adversarial process”). Courts

will deny summary judgment to an agency if its

justifications for the invocation of FOIA exemptions

are not logical or plausible because they are

controverted by contrary evidence in the record. See

ACLU v. DOD, 901 F.3d 125, 133–34 (2d Cir. 2018)

(citing Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.

1982)); Hamdan v. DOJ, 797 F.3d 759, 774 (9th Cir.

2015).

But when an agency asserts a Glomar response, it

bypasses the entire FOIA process—from the initial

search for responsive records, to the listing and

description of withheld documents under Vaughn, to

the justification for withholding of specific documents

or portions thereof. Instead, the agency simply asserts

that the existence or nonexistence of responsive

records is itself exempt from disclosure under a FOIA

exemption. If a court sustains the Glomar, that is the

end of the matter. But even where a court rejects the

response, the agency need not necessarily disclose any

records; the agency simply must go through the

ordinary FOIA steps of searching for responsive

records and justifying any asserted statutory

exemptions over any of them that it seeks to withhold.

That is, the secrecy of the contents of responsive

records is a distinct, and subsequent, issue to the

secrecy of the existence or nonexistence of those

records. See ACLU v. CIA, 710 F.3d 422, 432 (D.C. Cir.

2013) (discussing Wolf v. CIA, 473 F.3d 370, 380 (D.C.

11

Cir. 2007)). Thus, in some cases, the defeat of a

Glomar response will not lead to the release of any

information at all beyond the fact that the agency does

possess responsive material. See, e.g., ACLU v. DOJ,

640 F. App’x 9 (D.C. Cir. 2016) (summary affirmance

of withholding of all responsive records three years

after defeat of Glomar response in ACLU v. CIA).

II. FACTUAL

BACKGROUND 7

&

PROCEDURAL

In this case, Petitioner filed a FOIA request with

the CIA seeking documents about the measure of the

agency’s operational control over Camp VII, a facility

for “high-value detainees” at Guantánamo Bay,

during a five-month period in 2006 and 2007. The CIA

responded to the request by releasing several records,

and then asserting a Glomar response as to any

others.

The context for Petitioner’s request began with

the September 11, 2001 attacks. Six days later,

President George W. Bush authorized the CIA “to

capture and detain persons” at detention sites outside

the United States. 8 On that authority, the CIA

instituted its “rendition, detention, and interrogation

program,” under which dozens of Muslim men and

boys were abducted, tortured, held incommunicado,

7 In this petition, “JA” citations are to the joint appendix as

filed in the court of appeals. See Joint Appendix, Connell v. CIA,

No. 23-5118 (D.C. Cir. Oct. 12, 2023), available at

https://perma.cc/N6GD-4L3Z.

Off. of the Inspector Gen., CIA, Counterterrorism

Detention

and

Interrogation

Activities

1

(2004),

https://perma.cc/Q8JT-HZGS (quoting Mem. of Notification for

Members of the Nat’l Sec. Council (Sept. 17, 2001)).

8

12

and denied legal process. The program is well

documented, including by Congress and the executive

branch. 9

In early September 2006, the CIA transferred

fourteen men—the so-called high-value detainees—to

“the high-value detention center” 10 at Camp VII. 11

According to a 2014 report by the Senate Select

Committee on Intelligence (the “Senate Report” or

“Report”), after their arrival at Camp VII, the fourteen

high-value detainees “remained under the operational

control of the CIA.” 12

9 See generally, e.g., S. Comm. on Armed Servs., 110th Cong.,

Inquiry into the Treatment of Detainees in U.S. Custody (2008),

https://perma.cc/DG9M-3FJJ; Off. of the Inspector Gen., DOJ, A

Review of the FBI’s Involvement in and Observations of Detainee

Interrogations in Guantánamo Bay, Afghanistan, and Iraq

(2009), https://perma.cc/Y3NM-JCXY; S. Select Comm. on Intel.,

112th Cong., Committee Study of the CIA’s Detention and

Interrogation Program: Executive Summary 458–61 (2014),

https://perma.cc/K4PX-FGGM (“Senate Report”) (excerpted at

JA79–82, JA110–15, JA159); Off. Of the Press Sec’y, Press

Conference

by

the

President

(Aug.

1,

2014),

https://perma.cc/W7KF-FQHR; see also ACLU Torture Database,

https://perma.cc/6RS5-5BV8 (compiling government documents

obtained through FOIA requests and FOIA litigation).

10 Expanded Background Mem. at JA319; Press Release,

White House, President Discusses Creation of Military

Commissions to Try Suspected Terrorists (Sept. 6, 2006),

https://perma.cc/LZN9-YPWK; David Stout, C.I.A. Detainees

Sent to Guantánamo, N.Y. Times, Sept. 6, 2006,

https://www.nytimes.com/2006/09/06/washington/06cndbush.html.

11 Mil. Comm’n Tr. at JA367.

12 Senate Report at JA114 (citing a “CIA Background Memo

for CIA Director visit to Guantánamo,” dated December 2006,

13

To learn more about the extent of the CIA’s

operational control over Camp VII, Petitioner filed a

FOIA request with the CIA. 13 He requested “any and

all information that relates to such ‘operational

control’ of the CIA over Guantánamo Bay detainees.” 14

The CIA released three documents with redactions,

withheld a fourth document in its entirety and issued

a Glomar response as to any remaining documents. 15

The Glomar response was based on the CIA’s

assertion that revealing the existence or nonexistence

of records would reveal classified sources and

methods. 16

In the ensuing lawsuit, the CIA moved for

summary judgment. 17 Petitioner, proceeding pro se,

argued that summary judgment was inappropriate, in

part because contrary record evidence called into

question the logic and plausibility of the CIA’s Glomar

response. In so arguing, Petitioner relied on evidence

from a variety of sources.

First, Petitioner relied on CIA documents. Those

documents included a 2006 Memorandum of

“entitled Guantánamo Bay High-Value Detainee Detention

Facility”); see also Nashiri Op. at JA518.

13 FOIA Req. at JA58 (May 23, 2017).

14 Id. (quoting Senate Report at JA114).

15 FOIA Resp. at JA68–69 (releasing one document); Final

FOIA Resp. at JA73–74 (releasing two documents, withholding

one document in its entirety, and asserting a Glomar response as

to any remaining documents).

16 Final FOIA Resp. at JA74.

17 Def.’s Mot. for Summ. J., Connell v. CIA, No. 21-cv-627

(D.D.C. Mar. 28, 2022), ECF No. 13.

14

Agreement between the CIA and the Department of

Defense (“DOD”) concerning “the detention by DOD of

certain terrorists at a facility at Guantánamo Bay

Naval Station” and “sett[ing] out the duties and

responsibilities of DOD and CIA.” 18 Petitioner also

relied on a background memorandum prepared for the

December 2006 visit of the Director of the CIA to

Guantánamo that included information about Camp

VII, which it referred to as the “Guantánamo Bay

High-Value Detainee Detention Facility,” as well as

over a dozen pages of information about the detainees

held there. 19 And Petitioner pointed to publicly

acknowledged CIA documents, like “site daily reports”

and cables about the detainees. 20

Second, Petitioner pointed to evidence that did not

come from the CIA. For example, he relied on details

published in the Senate Report, which has become the

country’s official record concerning the government’s

use of torture and other mistreatment of detainees in

U.S. custody as part of the government’s rendition,

detention, and interrogation program. To draft the

Report, the Committee spent five and a half years

reviewing more than six million pages of records from

the intelligence community, including the CIA. 21 And

18 DOD–CIA Mem. of Agreement at JA307 (emphasis

omitted).

Expanded Background Mem. at JA319, JA323–39; see

also Senate Report at JA114 (citing the background

memorandum).

19

20 Senate Report at JA111 & nn.427–28; Pradhan Decl. at

JA151 ¶¶ 6–8; Mil. Comm’n Tr. at JA209, JA216–17, JA182–84.

21 Brinkmann Decl. Ex. B, at JA244; Higgins Decl. at JA250,

JA255.

15

as evidence in the record in this case shows, the CIA

itself played a central role in the publication of the

Report, and its ultimate contents: the Senate

Committee revised it to address issues raised in the

CIA’s reply to an initial draft, 22 and the CIA and the

Director of National Intelligence, in consultation with

other executive branch agencies, conducted a

declassification review of the executive summary

before its publication, which the President approved. 23

Further, Petitioner introduced declassified

documents and transcripts from military commissions

proceedings at Guantánamo Bay. The degree of the

CIA’s control over Camp VII has been a long-running

focus of discovery in multiple commissions cases. 24

Drawing from those cases, Petitioner introduced

testimony from firsthand participants, including a

military commander, about the goings-on at Camp VII

during the time period in question. 25 This evidence

showed that, in the commissions setting, the

government has not treated as a classified secret the

22 See Higgins Decl. at JA254 ¶ 17.

See Lutz Decl. at JA271–72 ¶¶ 5–6; Higgins Decl. at

JA248 ¶ 4, JA253–56 ¶¶15–20.

23

24 For example, in 2022, the military commission granted a

motion to compel CIA records related to Camp VII. See Jan. 2022

Discovery Order at JA228–30; see also Mot. to Compel at JA161;

Mil. Comm’n Tr. at JA179–229; Mil. Comm’n Tr. at JA438; Mar.

2022 Discovery Order at JA476.

25 See, e.g., Mil. Comm’n Tr. at JA362 (testimony from the

first Camp VII commander); id. at JA453–54, JA456, JA458–59

(referencing testimony from FBI agents who questioned

detainees held at Camp VII); id. at JA196 (same).

16

question of whether the CIA had at least some

measure of operational control over Camp VII. 26

The district court granted summary judgment to

the CIA and upheld the CIA’s Glomar response as

“logical” and “plausible.” App. 36a–38a, 44a.

Evaluating all of Petitioner’s evidence under the

official acknowledgment doctrine, the court concluded

that the agency had not waived its right to issue a

Glomar response with respect to Petitioner’s request.

App. 39–45a.

Petitioner retained counsel and appealed to the

Court of Appeals for the D.C. Circuit, 27 which

affirmed.

First, the court held that the CIA had not waived

its ability to assert a Glomar response by official

acknowledgment. App. 10a. (Petitioner does not seek

certiorari on this ground of the court of appeals’

decision.)

Second, the court held that the CIA’s Glomar

response was “plausible” because “revealing the

existence or nonexistence of records of a classified or

otherwise unacknowledged connection between the

CIA and the subject of [Petitioner]’s FOIA request

could reveal intelligence sources and methods

information.” App 19a. In its opinion, the court of

appeals rejected Petitioner’s argument that it should

evaluate whether contrary record evidence not

originating from the CIA—including the Senate

26 See, e.g., Zittritsch Decl. at JA78–79, JA83–84; Pub. Tr.

Process at JA148; Pradhan Decl. at JA157; Connell Decl. at

JA296.

27 Notice of Appeal at JA497.

17

Report; military commission documents, testimony,

and opinions; and ODNI documents—undermined the

CIA’s Glomar response, by making clear that the CIA

possessed additional records responsive to his FOIA

request. See App. 21a. It explained:

Connell’s key legal argument in asking

us to focus on these materials is that

even if statements that are not from the

CIA or an authorized representative of

its parent cannot qualify as official

acknowledgments under our waiver

cases, they are still relevant evidence to

consider when assessing whether it is

plausible for the CIA to state that

confirming or denying the existence of

responsive

records

would

reveal

something that is not already public. . . .

We reject that argument, as agreeing

with Connell would amount to an endrun around our official acknowledgment

cases and contravene both their logic and

results.

Id.

The court of appeals explicitly noted its rejection

of the Second Circuit’s contrary holding. See App. 23a

n.3 (discussing Florez, 829 F.3d at 186–87). And it

expressly held that, in evaluating whether an agency’s

Glomar response is logical or plausible, a court cannot

consider any evidence that does not come from a

defendant agency. See App. 24a n.4.

18

REASONS FOR GRANTING THE PETITION

I.

THE D.C. AND SECOND CIRCUITS ARE

DIVIDED ON THE QUESTION PRESENTED.

In the decision below, the D.C. Circuit broke with

the Second Circuit and held that, when evaluating

whether an agency’s Glomar response is logical and

plausible, courts must ignore all evidence from

sources other than the responding agency. App. 23a

n.3 (discussing Florez, 829 F.3d 178). The D.C. Circuit

reasoned that allowing courts to consider such

evidence would conflict with its judge-made, waiverbased “official acknowledgment” doctrine, upon which

a handful of past circuit cases had turned. 28 See App.

22a–23a, 23a n.3. By contrast, the Second Circuit

recognizes

that,

while

an

out-of-agency

acknowledgment cannot establish an agency’s waiver

through official acknowledgment, that kind of

evidence—like any other kind of relevant evidence—

can still undermine the plausibility of agency’s

Glomar response. See Florez, 829 F.3d at 187.

In Florez, the Second Circuit examined this

distinction at length. There, the court considered a

FOIA request sent to the CIA for all records

concerning a former Cuban diplomat that the

requester, the diplomat’s son, surmised had been

This Court has remarked upon the “official

acknowledgment” doctrine only once: in a portion of Justice

Breyer’s opinion in United States v. Zubaydah, 595 U.S. 195, 210

(2022), that was joined only by Chief Justice Roberts and Justice

Kagan. Zubaydah concerned the state secrets doctrine, and

Justice Breyer looked to D.C. Circuit caselaw on the FOIA

“official acknowledgment” waiver doctrine as a helpful, but

“imperfect[,] analogy.” Id.

28

19

under CIA surveillance. Id. at 180. The agency

responded with a Glomar response, asserting that

acknowledging the existence or nonexistence of

records would reveal classified intelligence sources

and methods. Id. at 181. The district court upheld the

response. Id. Then, while an appeal was pending

before the Second Circuit, the FBI declassified and

released several documents about the diplomat, and

the plaintiff argued that the FBI’s new disclosures

were contrary record evidence that undermined the

CIA’s Glomar response. Id. at 182.

The Second Circuit agreed that the FBI

disclosures were relevant to assessing whether the

CIA’s Glomar response was logical and plausible, and

it remanded the matter for further examination of the

response in light of the newly declassified documents.

Id. at 189–90. It explained that, even though the new

information did not come from the responding

agency—and thus could not “waive the asserting

agency’s right to a Glomar response”—such

disclosures still “may well shift the factual

groundwork upon which” courts evaluate the agency’s

response. Id. at 186; see id. at 184 (FBI disclosures

were “germane to the CIA’s asserted rationale for

asserting a Glomar response”). Looking to

fundamental concepts in the Rules of Evidence, the

Court held that the FBI’s disclosures were relevant to

the legality of the CIA’s Glomar response because they

had “appreciable probative value in determining,

under the record as a whole, whether the justifications

set forth in the CIA’s declaration are logical and

plausible.” Id. at 184–85 (cleaned up).

To reach this conclusion, the Second Circuit

specifically rejected the argument upon which

20

Respondent prevailed in the court below: namely,

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.” Id. at 186.

And it rejected “exclusive reliance on the official

acknowledgment doctrine to create out of whole cloth

a rule limiting the evidence a district court may

consider in a Glomar inquiry.” Id. at 187. It concluded

by explaining that “[i]t defies reason to instruct a

district court to deliberately bury its head in the sand

to relevant and contradictory record evidence solely

because that evidence does not come from the very

same agency seeking to assert a Glomar response,”

and that letting agencies do so would be tantamount

to letting them “avoid the strictures of FOIA.” Id.

(citing Gardels v. CIA, 689 F.2d 1100, 1105 (D.C. Cir.

1982)). (On remand, the CIA withdrew its Glomar

response, conducted a search, and disclosed

responsive records. 29)

Judge Livingston dissented. As relevant here, she

challenged the majority’s reliance on out-of-agency

evidence to cast doubt on an agency’s assertion of

confidentiality via Glomar. If FBI documents could

somehow “render illogical or implausible the CIA’s

affidavits,” she reasoned, that outcome would

“produce the anomalous result of one agency’s

revelations obligating disclosure of classified material

by another.” Id. at 196 (Livingston, J., dissenting)

(cleaned up). This would “invite by the back door what

29 CIA Mem. of Law at 9–11, Florez v. CIA, No. 14-cv-1002

(S.D.N.Y. Mar. 28, 2017), ECF No. 51.

21

the official acknowledgment doctrine prohibits at the

front.” Id.

In its opinion below, the D.C. Circuit expressly

aligned itself with Judge Livingston’s position in

Florez, remarking that the consideration of evidence

from beyond the responding agency “would amount to

an end-run around our official acknowledgment cases

and contravene both their logic and results.” App. 21a;

accord Florez, 829 F.3d at 196. On that basis, the D.C.

Circuit acknowledged its split with the majority in

Florez, and instead held that waiver by official

acknowledgment is the only available means to

challenge a Glomar response.

The split between the D.C. and Second Circuits

could not be sharper. 30

30 Although the D.C. and Second Circuits are the only courts

of appeals to squarely address the question presented, the Ninth

Circuit once accepted as logical and plausible a CIA affidavit

justifying the agency’s Glomar response even though “some of the

information sought by [the requester] had already been made

public by other governmental and law enforcement agencies.”

Hunt v. CIA, 981 F.2d 1119, 1120 (9th Cir. 1992). But the

opinion’s fleeting discussion includes no details about the

particular records at issue, whether the court found the specific

explanation in the CIA affidavit outweighed the value of the

other agencies’ releases (which would align the case with Florez),

or whether it believed that evidence from outside the CIA could

never bear on the logic and plausibility of a Glomar response

(which would align the case with the D.C. Circuit’s decision

below). A few years ago, a district court in the Ninth Circuit

followed Florez—and did not cite Hunt at all—in determining

that a separate agency’s disclosures were “relevant” to whether

the FBI had adequately justified its entitlement to a Glomar

response. ACLU v. DOD, No. 18-cv-154, 2019 WL 3945845, at *12

(D. Mont. Aug. 21, 2019); see also ACLU v. CIA, No. 22-cv-11532,

22

II. REVIEW IS WARRANTED BECAUSE THE

D.C. CIRCUIT’S INCORRECT RULING WILL

HAVE

AN

OUTSIZED,

NATIONWIDE

IMPACT.

A. The decision below is wrong on the

merits.

The D.C. Circuit’s decision is wrong because, in

Glomar cases, it requires courts to displace the

ordinary evidentiary inquiry under the FOIA to

determine whether an agency’s invocation of an

exemption is logical or plausible, in favor of a narrow,

judge-made waiver doctrine. The ruling gives agencies

responding to FOIA requests a free pass to evade even

the first, basic step of their statutory obligations by

issuing a Glomar response when relevant evidence in

the record contradicts the logic and plausibility of that

response. As a result, the decision below requires

courts to endorse an agency’s implausible claims of

secrecy even when, in cases like this one, everyone can

see for themselves that some responsive records exist.

The decision below rewrites the Federal Rules of

Evidence in Glomar cases. In the federal courts,

evidence is “relevant” when it has “any tendency to

make a fact more or less probable than it would be

without the evidence” and “the fact is of consequence

in determining the action.” Fed. R. Evid. 401

(emphasis added). As this Court has held, that rule’s

“basic standard” is “a liberal one.” Daubert v. Merrell

Dow Pharms., Inc., 509 U.S. 579, 587 (1993). The D.C.

2023 WL 3394485, at *9–11 (D. Mass. May 11, 2023) (applying

Florez in a similar fashion).

23

Circuit’s ruling is flatly inconsistent with Rule 401.

See Florez, 829 F.3d at 184 (majority op.).

This departure from basic evidentiary practice

will force courts into untenable positions by

compelling them to “be ignorant as judges of what

[they] know to be true as citizens.” Zubaydah, 595

U.S. at 237–38 (Gorsuch, J., dissenting) (citing Watts

v. Indiana, 338 U.S. 49, 52 (1949) (Frankfurter, J.)).

Consider a FOIA case where an agency maintained a

Glomar response in the face of contrary, sworn

testimony (before Congress, or in litigation) by

multiple other agency heads with personal knowledge

of a particular matter involving the defendant agency.

Of course, that kind of evidence would not be evidence

of the defendant agency’s waiver. But it would quite

obviously be relevant—in every meaningful sense—to

the ultimate question of whether the Glomar response

was logical and plausible. Under the D.C. Circuit’s

rule, though, a court would be required to ignore this

testimony and endorse the agency’s farcical secrecy

claim, enlisting the courts in an obvious charade.

That kind of result has no basis in the FOIA’s text,

and it is contrary to Congress’s purpose of enacting

the FOIA to end a “period of selective disclosures,

managed news, half-truths, and admitted distortions”

by those in power. Republican Policy Committee

Statement on Freedom of Information Legislation, S.

1160, 112 Cong. Rec. 13014 (1966), reprinted in

Subcomm. on Admin. Practice, S. Comm. on the

Judiciary, 93d Cong., Freedom of Information Act

Source Book: Legislative Materials, Cases, Articles, at

59 (1974) (“FOIA Source Book”). Passed after a time

that had exposed the “nature of Government to play

down mistakes and to promote successes,” the FOIA

24

was meant to “make it considerably more difficult for

secrecy-minded bureaucrats to decide arbitrarily that

the people should be denied access to information on

the conduct of Government.” 112 Cong. Rec. 13019

(1966) (statement of Rep. Rumsfeld), reprinted in

FOIA Source Book at 70. But the D.C. Circuit’s

decision undermines that purpose by making it easier

for the government to pull the wool over the public’s

eyes.

The decision below is also a marked departure

from ordinary (i.e., non-Glomar) FOIA cases, where

the consideration of contrary record evidence is taken

as a given. In fact, the D.C. Circuit itself has

recognized the relevance of this kind of evidence under

the FOIA, including in cases involving national

security topics. In those cases, the court weighed

evidence that did not originate from the defendant

agency in concluding that the agency was entitled to

summary judgment. See Mil. Audit Project, 656 F.2d

at 742–45, 753; Salisbury v. United States, 690 F.2d

966, 970–71 (D.C. Cir. 1982). Although the court

granted summary judgment to the agencies in both

instances, it did not categorically refuse to consider

such evidence, and instead held that the weight of the

evidence was insufficient to create a genuine issue of

material fact. Id.

For another example, look to a recent FOIA case

in this Court, where the parties disagreed about

whether the Department of Agriculture could

withhold certain data as “confidential” private-sector

“commercial or financial information” under FOIA

Exemption 4. Food Mktg. Inst. v. Argus Leader Media,

588 U.S. 427, 430–31 (2019). After denying the

government’s motion for summary judgment, the

25

district court held a two-day bench trial, during which

experts from both parties testified about the

sensitivity of the commercial information at issue.

Argus Leader Media v. Dep’t of Agric., 889 F.3d 914,

915 (8th Cir. 2018). In holding that the courts below

had applied the wrong legal standard under

Exemption 4, this Court relied on testimony from the

bench trial to conclude that the correct standard had

been satisfied. Argus Leader, 588 U.S. at 434–35. At

no point in the litigation did anyone insist that only

evidence from the Department of Agriculture

mattered, nor did anyone question the relevance of

record evidence from the businesses themselves.

Excluding non-agency evidence would have been

plainly absurd, because it obviously weighed on the

correct resolution of the matter. See Fed. R. Evid. 401.

Arbitrarily restricting the scope of evidence that a

court may consider—and creating a Glomar exception

to the rules of evidence that does not apply in all other

FOIA cases—makes no sense. Petitioner’s FOIA

request sought records about the CIA’s operational

control of a facility at Guantánamo Bay. Had the CIA

released a record and redacted part of it, there would

be no question that Petitioner could have submitted

evidence from sources outside the CIA to evaluate

whether the redactions were properly applied. 31 After

31 Indeed, eleven federal courts of appeals—including the

D.C. Circuit—recognize that government agencies are not

entitled to summary judgment in FOIA cases if their

justifications for the application of FOIA exemptions are

controverted by “contrary evidence in the record.” Mil. Audit

Project, 656 F.2d at 738 n.49 (collecting cases); see also Hrones v.

CIA, 685 F.2d 13, 18 (1st Cir. 1982); Grand Cent. P’ship, Inc. v.

Cuomo, 166 F.3d 473, 478 (2d Cir. 1999); Am. Friends Serv.

Comm. v. DOD, 831 F.2d 441, 444 (3d Cir. 1987); Benavides v.

26

all, evidence from the U.S. military, the ODNI, judges

and prosecutors at the military commissions, and

others all have some “tendency to make a fact more or

less probable than it would be without the evidence.”

Fed. R. Evid. 401. It was wrong for the D.C. Circuit to

dismiss the relevance of such evidence out of hand

simply because the CIA was protecting one type of

information—the existence or nonexistence of

records—instead of another. And, critically, this is

true regardless of whether the court would have

ultimately found this evidence compelling enough to

defeat the CIA’s Glomar response. 32

In this case, the court of appeals has rewritten not

only the Rules of Evidence, but the FOIA statute, too.

Creating special evidentiary rules in Glomar cases

runs contrary to this Court’s “repeated[] state[ments]

that the policy of the Act requires that the disclosure

requirements be construed broadly, the exemptions

narrowly.” Rose, 425 U.S. at 366 (cleaned up).

Refusing to consider relevant evidence flips that

standard on its head. In order ensure that the public

has a fair opportunity “to pierce the veil of

administrative secrecy and to open agency action to

U.S. Marshals Serv., 990 F.2d 625, 1993 WL 117797, at *4 (5th

Cir. 1993); Rugiero v. DOJ, 257 F.3d 534, 544 (6th Cir. 2001);

Stein v. FBI, 662 F.2d 1245, 1253 (7th Cir. 1981); Madel v. DOJ,

784 F.3d 448, 452 (8th Cir. 2015); Hamdan v. DOJ, 797 F.3d 759,

769 (9th Cir. 2015); Hull v. IRS, 656 F.3d 1174, 1177–78 (10th

Cir. 2011); Broward Bulldog, Inc. v. DOJ, 939 F.3d 1164, 1180–

81 (11th Cir. 2019).

32 Similarly, if this Court were to grant review, it would not

need to weigh Petitioner’s evidence itself, and could remand to

the district court for that exercise—just as the Second Circuit did

in Florez. See 829 F.3d at 189–90.

27

the light of public scrutiny,” id. at 361 (cleaned up),

courts must consider all relevant record evidence

when deciding whether to uphold an agency’s Glomar

response. The court below erred.

B. The D.C. Circuit’s ruling will affect

countless FOIA cases and incentivize

agency behavior that undermines the

purpose of the FOIA statute.

Because the D.C. Circuit is particularly

influential in FOIA matters, including on the contours

of the Glomar doctrine, the Court should grant

certiorari and resolve its split with the Second Circuit

now, rather than wait for the question presented to

percolate further in the circuit courts.

The D.C. Circuit is the forum for the vast majority

of FOIA litigation. In the last two calendar years, the

circuit has been home to more than half of all FOIA

appeals (51 out of 101 total). 33 And during the same

two-year period, 1,129 out of the 1,697 FOIA cases

filed nationally—more than 66 percent—were filed in

that circuit’s district courts. 34 The decision below

therefore applies to a huge percentage of the FOIA

33 Table B-7–U.S. Court of Appeals Statistical Tables for the

Federal Judiciary (December 31, 2023), U.S. Courts,

https://www.uscourts.gov/statistics/table/b-7/statistical-tablesfederal-judiciary/2023/12/31 (detailing the number of appeals by

nature of suit and by circuit court in calendar year 2023); Table

B-7–U.S. Court of Appeals Statistical Tables for the Federal

Judiciary

(December

31,

2022),

U.S.

Courts,

https://www.uscourts.gov/statistics/table/b-7/statistical-tablesfederal-judiciary/2022/12/31 (same for calendar year 2022).

This statistic was calculated using Bloomberg Law’s

docket search feature, which enables users to search by nature of

suit, appellate court, and date range.

34

28

cases in the country, regardless of how the caselaw

develops in other circuits.

Moreover, unless corrected by this Court, the D.C.

Circuit’s decision will have a nationwide impact

because it gives federal agencies an incentive to use

Glomar responses tactically, to stall or stymie FOIA

requesters around the country, even when there is

ample evidence that the requested records exist. This

defeats Congress’s intent, especially because there is

already an enormous backlog of FOIA requests in

practically every agency, leading to months- or even

years-long delays before requesters receive responsive

records, in violation of the deadlines Congress set. 35

As a practical matter, when an agency determines

that it may lawfully keep records secret, it can take

years of litigation for a requester to ultimately

prevail. 36 All of this has effectively gutted Congress’s

statutory presumption of prompt public inspection of

government records. And Glomar responses

exacerbate these issues, as a requester may (as in this

case) need to engage in years of litigation challenging

the Glomar response before the agency even conducts

35 See 5 U.S.C. § 552(a)(6); U.S. Gov’t Accountability Off.,

GAO-24-106535, Freedom of Information Act: Additional

Guidance and Reliable Data Can Help Address Agency Backlogs

at i, 1, 7–8, 13, 17 (Mar. 2024), https://perma.cc/C66P-AQPE;

DOJ, Summary of Annual FOIA Reports for Fiscal Year 2023:

Highlights of Key Government-wide FOIA Data, at 11–12, 14–15,

https://perma.cc/H54N-VZ2T.

FOIA Lawsuits Are Taking Longer to Resolve, FOIA

Project (Jan. 23, 2020), https://perma.cc/6BMJ-DF3D; Mark H.

Grunewald, Reducing FOIA Litigation Through Targeted ADR

Strategies, Admin. Conf. of U.S. Courts, 22–23 (Apr. 28, 2014),

https://perma.cc/PC8B-6SPE.

36

29

a search for responsive records. See, e.g., ACLU v. CIA,

710 F.3d at 425 (defeat of Glomar response thirtyeight months after request was filed).

By removing the ability of a FOIA requester to

challenge an agency’s Glomar response (or any other

FOIA response) using evidence that is not supplied by

the very agency invoking the response, the D.C.

Circuit has made it even more difficult for the public

to use the FOIA statute as Congress intended. That is

the opposite of what the same court did more than fifty

years ago in Vaughn, where it sought to get back to

“what Congress had in mind,” 484 F.2d at 826, and

held, based on the statute’s text and purpose, that an

agency cannot evade FOIA obligations simply on its

own say-so.

The decision below permits any government

agency to flout the FOIA by saying that it will neither

confirm nor deny the existence of records when

everyone—including the requester, the public, and the

courts—knows the records do exist. That is strikingly

at odds with the D.C. Circuit’s own earlier warnings

against courts allowing the government to “stretch

th[e Glomar] doctrine too far” and “giv[ing] their

imprimatur to a fiction of deniability that no

reasonable person would regard as plausible.” ACLU

v. CIA, 710 F.3d at 431. The FOIA does not

countenance this absurd result.

CONCLUSION

For the foregoing reasons, the Court should grant

the petition for a writ of certiorari.

30

Respectfully submitted,

Arthur B. Spitzer

Scott Michelman

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION OF THE

DISTRICT OF COLUMBIA

529 14th Street NW, Suite 722

Washington, D.C. 20045

Brett Max Kaufman

Counsel of Record

Sara Robinson

Hina Shamsi

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

125 Broad Street, 18th Floor

New York, NY 10004

(212) 549-2500

bkaufman@aclu.org

Cecillia D. Wang

Evelyn Danforth-Scott

AMERICAN CIVIL LIBERTIES

UNION FOUNDATION

425 California Street, Suite 700

San Francisco, CA 94104

Date: November 4, 2024

31

APPENDIX

APPENDIX

TABLE OF CONTENTS

Appendix A — Court of appeals opinion

(August 6, 2024) .................. 1a

Appendix B — District court opinion

(March 29, 2023)................ 29a

Appendix C — District court order

(March 29, 2023)................ 46a

1a

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 23-5118

JAMES G. CONNELL, III,

Appellant

v.

CENTRAL INTELLIGENCE AGENCY,

Appellee

On Appeal from the United States District Court for

the District of Columbia

(District Court No. 1:21-cv-00627)

Argued April 9, 2024

Decided August 6, 2024

BRETT MAX KAUFMAN argued the cause for appellant. With him on the briefs was ARTHUR B. SPITZER.

2a

THOMAS G. PULHAM, 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: CHILDS and GARCIA, Circuit Judges, and

GINSBURG, Senior Circuit Judge.

Opinion for the Court filed by Circuit Judge

GARCIA.

Concurring opinion filed by Senior Circuit Judge

GINSBURG.

OPINION OF THE COURT

GARCIA, Circuit Judge,

In 2014, the Senate Select Committee on Intelligence released a report that referred to the CIA’s “operational control” over fourteen CIA detainees transferred in September 2006 to the U.S. military base at

Guantanamo Bay, Cuba. Based on that reference, a

lawyer representing one of the detainees requested

records from the CIA under the Freedom of Information Act about the CIA’s “operational control” at

Guantanamo from September 2006 through January

2007. After searching a database of records cleared for

public release or previously released, the CIA identified three documents. As to any classified or otherwise

3a

unacknowledged connection between the CIA and the

topic of the request, however, the agency declared that

it could neither confirm nor deny the existence of such

records without revealing classified intelligence

sources and methods information. The sole issue in

this appeal is whether the CIA can rely on such a response to the records request here. We conclude that

it can.

I

The Freedom of Information Act (“FOIA”) provides for disclosure of agency records to the public subject to nine exemptions. 5 U.S.C. § 552(b); Wolf v. CIA,

473 F.3d 370, 374 (D.C. Cir. 2007). As in this case,

agencies sometimes respond to FOIA requests by declaring that they can neither confirm nor deny the existence of records responsive to the request. This kind

of response is known as a Glomar response based on a

case permitting the CIA to refuse to confirm or deny

whether it had records about a ship named the

Glomar Explorer. See Phillippi v. CIA, 546 F.2d 1009

(D.C. Cir. 1976).

In 2009, the Senate Select Committee on Intelligence (“SSCI”) began to investigate the CIA’s post9/11 detention and interrogation program. The SSCI

investigation included reviewing CIA documents. In

2012, the Committee sent drafts of the resulting report and executive summary to the Executive Branch

for comment, which the CIA submitted. The Committee then requested that the executive summary be declassified, a process involving a review by the Director

of National Intelligence and the CIA. The executive

4a

summary was released in redacted form in 2014. The

full, unredacted report remains classified.

The SSCI executive summary states that fourteen

CIA detainees were transferred “to Department of Defense custody at Guantanamo Bay” in September

2006. J.A. 114. 1 According to the executive summary,

the detainees “remained under the operational control

of the CIA.” Id. Footnote 977 cited a document titled

“CIA Background Memo for CIA Director visit to

Guantanamo, December [], 2006, entitled Guantanamo Bay High-Value Detainee Detention Facility.”

J.A. 114 n.977. And a footnote on an earlier page cited

a “September 1, 2006, Memorandum of Agreement Between the Department of Defense (DOD) and the Central Intelligence Agency (CIA) Concerning the Detention by DOD of Certain Terrorists at a Facility at

Guantanamo Bay Naval Station.” J.A. 112 n.848.

These unredacted references formed the basis for

the records request at issue in this case. Appellant

James G. Connell III is a lawyer who represents one

of the fourteen detainees transferred to Guantanamo

in September 2006. In May 2017, citing the SSCI executive summary’s reference to “operational control,”

Connell submitted a FOIA request to the CIA for “any

and all information that relates to such ‘operational

control’ of the CIA over Guantanamo Bay detainees

including but not limited to the document cited in the

footnote 977.” J.A. 58. The CIA asked Connell to clarify the scope of his request. Connell’s response specified an interest in records that shed light on the meaning and extent of the CIA’s “operational control” over

Cites reflect the J.A.’s pagination, though some pages are

not marked with the page number.

1

5a

a specific part of Guantanamo called Camp 7 from

September 1, 2006 to January 31, 2007. J.A. 63. Connell also listed “[b]y way of example and not limitation,” seven “possible topics,” including whether any

“operational control” included facilities other than

Camp 7, what organization had decisionmaking authority over Camp 7, whether CIA “operational control” ended before or after January 31, 2007, whether

“operational control” involved CIA personnel, any detainee records maintained by the CIA during such a

period, how other agencies could access detainees during such a period, and how the facilities transitioned

from CIA to DOD “operational control.” Id.

The CIA deemed this an amended FOIA request

and responded in September 2020. It produced in partially redacted form the itinerary and background

memo cited in footnote 977 of the SSCI executive summary, which had been previously released. The CIA

stated that it could neither confirm nor deny the existence of any other responsive records. Connell filed

an administrative appeal. The CIA failed to timely respond, and Connell filed his complaint in this suit in

district court on March 8, 2021.

In July 2021, the CIA provided a final response to

Connell’s FOIA request. As CIA Information Review

Officer Vanna Blaine later explained in a declaration

in this case, see Blaine Decl. (J.A. 33–57), the CIA

searched for records “that would reveal an unclassified or openly acknowledged association between the

Agency and the subject of [Connell]’s Amended FOIA

request,” id. ¶ 16 (J.A. 38–39); see also J.A. 73, in a

database of “all Agency records that have been reviewed and/or compiled for potential release, or that

6a

have been previously disclosed to the public,” Blaine

Decl. ¶ 20 (J.A. 40–41).

That search located three documents. Two were

released with redactions: another version of the itinerary and background memo in footnote 977 that the

CIA had previously produced, and the Memorandum

of Agreement (“MOA”) between the DOD and CIA

cited in footnote 848. The CIA identified a third document but withheld it in full. 2

As to any other records, the CIA stated that “it

could neither confirm nor deny the existence of records

that may reveal a classified connection between the

Agency and the subject of [Connell]’s Amended FOIA

request because confirming or denying the existence

or nonexistence of such records would reveal classified

intelligence sources and methods information that is

protected from disclosure” under FOIA Exemptions 1

and 3. Id. ¶ 26 (J.A. 43); see also J.A. 74. According to

the agency, responding otherwise could “reveal sensitive details about CIA’s intelligence sources and methods and jeopardize the safety of . . . CIA employees and

the employees of other agencies” or “provide adversaries with insight into the CIA’s priorities, resources,

capabilities, and relationships with other agencies.”

Blaine Decl. ¶ 34 (J.A. 47).

Connell does not challenge that withholding, nor does he

attempt to use this third document in any way to support his

other arguments in this case. Connell’s counsel attempted to do

so for the first time at oral argument, but that came far too late.

U.S. ex rel. Davis v. District of Columbia, 793 F.3d 120, 127 (D.C.

Cir. 2015) (“Generally, arguments raised for the first time at oral

argument are forfeited.”).

2

7a

The CIA moved for summary judgment, relying on

Blaine’s declaration. Connell opposed, arguing that

the CIA could not refuse to confirm or deny the existence or nonexistence of further responsive records in

light of the documents it had produced, the SSCI executive summary, and other non-CIA documents

which, according to Connell, indicated that the CIA

had records about its “operational control” of Camp 7

during the specified time period.

The district court granted summary judgment in

favor of the CIA, concluding that the CIA adequately

justified its Glomar response to show entitlement to

summary judgment and had not otherwise waived

such a response. Connell timely appealed.

II

We review de novo a district court’s grant of summary judgment in favor of an agency that invokes a

FOIA exemption, including when the agency has issued a Glomar response. See Montgomery v. IRS, 40

F.4th 702, 709 (D.C. Cir. 2022). Whether the CIA is

entitled to summary judgment here depends on two

inquiries—whether the CIA waived its ability to assert a Glomar response through official acknowledgment and, if not, whether the CIA’s justification for its

Glomar response was sufficient to show it was entitled

to summary judgment. We address each inquiry in

turn.

A

“[A]n agency can waive a Glomar response

through official acknowledgment,” Mobley v. CIA, 806

F.3d 568, 584 (D.C. Cir. 2015), because “[o]nce an

8a

agency has officially acknowledged that records exist,

there is no value in a Glomar response. The secret is

out.” Leopold v. CIA, 987 F.3d 163, 167 n.5 (D.C. Cir.

2021).

To show such a waiver, a plaintiff must “identify

information in the public domain that (1) matches the

information requested, (2) is as specific, and (3) has

‘been made public through an official and documented

disclosure.’” Knight First Amend. Inst. v. CIA, 11 F.4th

810, 815 (D.C. Cir. 2021) (quoting Fitzgibbon v. CIA,

911 F.2d 755, 765 (D.C. Cir. 1990)). To satisfy the first

two requirements in “the Glomar context, the prior

disclosure must confirm the existence or nonexistence

of records responsive to the FOIA request.” Id. at 813.

These requirements are exacting: “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.” Wolf,

473 F.3d at 378. In cases like this one, this “insistence

on exactitude recognizes ‘the Government’s vital interest in information relating to national security and

foreign affairs.’” Id. (quoting Pub. Citizen v. Dep’t of

State, 11 F.3d 198, 203 (D.C. Cir. 1993)).

Crucially for this case, the third requirement is

also strict: A disclosure is “‘official’” only if made by

“the agency from which the information is being

sought.” Knight First Amend. Inst., 11 F.4th at 816

(quoting Frugone v. CIA, 169 F.3d 772, 774 (D.C. Cir.

1999)). Our cases have repeatedly affirmed the rationale for such a narrow approach: “While information from outside an agency may be viewed as ‘possibly erroneous,’ confirmation by the agency itself

‘would remove any lingering doubts.’” Id. at 816 (quoting Frugone, 169 F.3d at 774–75). We have also

9a

explained that “the rationale for not imputing statements by one agency to another applies with greater

force, not lesser, in the intelligence context.” Id. at

818.

We have applied the rule that an official acknowledgment must come from the agency whose records

are sought “in various cases and contexts.” Id. at 816.

For example, the FBI cannot make an official acknowledgment on behalf of the CIA. Moore v. CIA, 666

F.3d 1330, 1333–34 (D.C. Cir. 2011). Neither can the

State Department, Knight First Amend. Inst., 11 F.4th

at 816–18, the Office of Personnel Management, Frugone, 169 F.3d at 774–75, nor Congress, Fitzgibbon,

911 F.2d at 765–66. We have recognized one “limited

exception” to this agency-specific rule: An agency is

bound by a disclosure “made by an authorized representative of the agency’s parent,” Knight First Amend.

Inst., 11 F.4th at 816 (quoting ACLU v. CIA, 710 F.3d

422, 429 n.7 (D.C. Cir. 2013))—that is, a disclosure by

another component within the same executive department or by the President as the head of the entire Executive Branch, id. at 816–17.

Connell argues that the CIA waived its ability to

assert a Glomar response here based on the SSCI executive summary that gave rise to his request and the

documents the CIA produced in this litigation—the

itinerary and background memo and the CIA-DOD

MOA. Connell argues that these documents officially

confirm the existence of responsive records showing a

classified or otherwise unacknowledged connection

between the CIA and the subject of his FOIA request.

We are not persuaded.

10a

1

Start with the SSCI executive summary and its

reference to CIA “operational control.” The SSCI executive summary’s reference to CIA “operational control” is not an “official” acknowledgment: It was made

by a congressional committee, not by the CIA or an

authorized representative of the agency’s parent, and

thus cannot be attributed to the CIA for purposes of

waiver under our case law. Knight First Amend. Inst.,

11 F.4th at 816–18 (noting that the CIA does not have

a parent agency, but acknowledging the President or

their authorized representative could qualify). In so

holding, we follow a well-trodden path—indeed, as

just explained, we have specifically rejected imputing

disclosures by Congress to the CIA before. See, e.g.,

Fitzgibbon, 911 F.2d at 766; see also Knight First

Amend. Inst., 11 F.4th at 816 (noting that this Court

has “rejected attempts to establish an agency’s official

acknowledgment based on disclosures by Congress”).

Connell argues that we can nonetheless consider

the SSCI executive summary an “official” acknowledgement by the CIA because the summary would be

seen as “similarly credible” in the eyes of “the public

and U.S. adversaries,” Reply Brief 23–24, in part because the CIA “submitted . . . comments” and participated in the report’s declassification review, J.A. 248.

That approach would create a new exception to our

well-established and “‘strict’” insistence that an “official” statement must be made by the agency itself;

that rule has never turned on the perceived credibility

of the other speaker. Leopold, 987 F.3d at 170 (quoting

Moore, 666 F.3d at 1333). Nor does the CIA’s submission of comments and participation in the

11a

declassification review transmute the congressional

report into a CIA one. We have rejected similar arguments that disclosures by former employees are official acknowledgments where the CIA participated in

some advance review or failed to prevent the disclosure. See, e.g., Afshar v. Dep’t of State, 702 F.2d 1125,

1133–34 (D.C. Cir. 1983); Phillippi v. CIA, 655 F.2d

1325, 1330–31 (D.C. Cir. 1981). Those cases are instructive here. The CIA’s review does not make the

Committee’s choice to use the phrase “operational control” an “official” disclosure attributable to the CIA.

That is true at least where, as here, Connell has not

pointed to anything in the record that describes the

scope or content of the CIA’s comments or the extent

to which the Committee implemented them, much less

anything that would support attributing the particular phrase “operational control” to the CIA.

Lacking support in our FOIA case law, Connell

turns to two non-FOIA cases. But both are inapposite.

In United States v. Zubaydah, 595 U.S. 195 (2022), a

Guantanamo detainee sought to depose two former

CIA contractors in ways that would reveal the existence (or not) of a CIA detention site in Poland. Id. at

199. The government moved to quash the subpoenas

based on the state secrets privilege. Id. at 208. The

Court concluded that the privilege applied, reasoning

that even though there was already public speculation

that such a site existed, disclosures by the contractors

could reasonably be expected to significantly harm national security interests. Id. at 207. Because the contractors played a “central role in the relevant events,”

their disclosure would be “tantamount to a disclosure

from the CIA itself.” Id. at 211. In a portion of the opinion joined by only two other Justices, Justice Breyer

12a

drew “some support” for this conclusion from FOIA

cases, including ours, id. at 210–11, for the proposition

that disclosure from an agency “insider,” id. at 208,

like the contractors or the agency itself, would carry

greater weight, and thus inflict more potential harm

to national security interests, than mere public speculation, id. at 207–09.

Connell argues that Zubaydah undermines our official acknowledgement case law, and that now statements from sufficiently credible non-agency actors

(like, he says, the SSCI here) waive an agency’s rights

under FOIA. This argument fails for at least two reasons. First, it is implausible to read the Court in

Zubaydah as casting doubt on our FOIA case law—to

the contrary, only three Justices joined the portion of

the opinion discussing the FOIA cases, and even those

Justices treated those cases as settled law and drew a

“rough[] analog[y]” from them to support their conclusion in the different context presented in that case. Id.

at 210. Second, and in any event, those Justices found

the analogy helpful only because the contractors there

were agency “insider[s],” id. at 208, who played a “central role in the relevant events,” id. at 211; neither

characterization applies to the Committee here.

Connell’s other case, Ameziane v. Obama, 699

F.3d 488 (D.C. Cir. 2012), is also not a FOIA case.

Ameziane considered whether the government could

adequately justify protecting certain information under a protective order governing all Guantanamo habeas litigation. Id. at 490. In holding that the case was

not mooted by certain unofficial disclosures of the information at issue, the court reasoned that if, as the

plaintiff requested, his attorney—a government official and officer of the court—could disclose the

13a

information, that would be treated as tantamount to a

similar statement by the government itself. Id. at 493.

As with Zubaydah, however, Ameziane nowhere casts

doubt on our FOIA precedent, and (as our description

of the case shows) is both legally and factually inapposite.

In short, our precedent squarely prohibits treating the Committee’s statement that the detainees remained under the CIA’s “operational control” as an official acknowledgment of the same by the CIA, and the

non-FOIA cases Connell points to cast no doubt on

that conclusion.

2

We turn next to the CIA-produced documents. As

an initial matter, the CIA’s production of some documents in response to Connell’s FOIA request does not

foreclose its ability to assert a Glomar response as to

others. See Wolf, 473 F.3d at 379; see also Mobley, 806

F.3d at 583–84 (affirming CIA’s reliance on partial

Glomar response). Here, the CIA explained that it

identified three documents, two of which it produced,

from a database of records “that have been previously

disclosed to the public.” Blaine Decl. ¶ 20 (J.A. 41).

That limited disclosure does not categorically prevent

the CIA from invoking a Glomar response as to records showing a classified or otherwise unacknowledged connection between the CIA and the subject of

Connell’s FOIA request. See Wolf, 475 F.3d at 379.

And we are not persuaded that either of the two CIAproduced documents specifically matches the information protected by the CIA’s Glomar response. Neither document reveals the existence or nonexistence

14a

of records about a classified or otherwise unacknowledged connection between the CIA and the subject of

Connell’s FOIA request, namely, the CIA’s “operational control” over Camp 7 from September 1, 2006 to

January 31, 2007.

The itinerary and background memo refer to a December 21, 2006 visit by the CIA Director to Guantanamo and to the CIA transferring detainees to

Guantanamo. The only reference to the CIA’s role is a

description of the “CIA’s end game” as “assist[ing]

DoD in any way possible in the Military Commission

process, while at the same time protecting CIA equities.” J.A. 322.

The MOA between DOD and the CIA “concerning

the detention by DOD of certain terrorists at a facility

at Guantanamo Bay Naval Station” indicates DOD,

not CIA, control over detainees at Guantanamo. J.A.

307. It refers to “DoD’s detention of certain individuals,” who were “transferred to DoD and whose detention by DoD is the subject of this MOA” and states that

these “DoD detainees [are] under the exclusive responsibility and control of the Secretary of Defense,”

who “is solely responsible for the[ir] continued detention, release, transfer, or movement.” J.A. 307. The

only reference to the CIA’s role is with respect to “coordinat[ion] with [DOD] with regard to all communications with Congress,” J.A. 313, and “on all public affairs matters and, as necessary, other US agencies,”

J.A. 314.

These documents do not suggest one way or the

other whether the CIA has still-undisclosed records

about CIA operational control over Camp 7 in the

specified time period. The documents indicate only

15a

that detainees had been in CIA custody elsewhere before being transferred to DOD control at Guantanamo,

and that thereafter the CIA communicated with DOD

about issues relating to the detainees. Neither fact reveals the existence or nonexistence of records concerning CIA “operational control.” Indeed, Connell concedes that at least the itinerary and background

memo “on its face . . . doesn’t necessarily point to operational control.” Oral Argument Tr. 12:18–19; see

also id. at 23:8–16. Our precedent “insist[s] on exactitude” in matching the prior disclosure with the information protected by the Glomar response. Moore, 666

F.3d at 1333 (quoting Wolf, 473 F.3d at 378). There is

no such specific match here.

Perhaps recognizing the problem, Connell seeks to

reshape his FOIA request to fit what the CIAdisclosed documents show. Specifically, Connell argues that his FOIA request sought records showing

any CIA “connection to, relationship with, and authority (or partial authority) over” Camp 7 in the specified

time period. Appellant’s Brief 30. Because the CIAproduced records do show some connection between

the CIA and Camp 7 in the specified time period, Connell argues, they officially acknowledged the existence

of such records.

But Connell’s request did not seek records of “any

connection” between the CIA and Camp 7 in the specified time period. It sought records about, in the

SSCI’s words, the CIA’s “operational control” of Camp

7 during that period. As explained, nothing in the documents the CIA produced discloses that the CIA had

such control, much less discloses whether the CIA has

other, previously undisclosed documents related to

that request.

16a

Finally, Connell argues that because the CIA

identified the itinerary and background memo and

CIA-DOD MOA as responsive, the CIA did, in fact,

confirm that the documents show “operational control.” Oral Argument Tr. 9:20–23; see also id. at 9:5–8.

But Connell’s request specifically referenced the SSCI

executive summary and its footnote citations. That

the CIA produced these as responsive documents indicates only that the SSCI report cited them, not that

the CIA was confirming that they showed “operational

control” on any independent understanding of the

term by the CIA.

Ultimately, as we have explained, what Connell

needed to show was a CIA disclosure that addresses

whether other CIA records exist that are responsive to

the request. See Wolf, 473 F.3d at 379 (even where CIA

had officially acknowledged the existence of some records pertaining to a specific person, it was required to

disclose the “existence of CIA records about [him] that

have been previously disclosed (but not any others)”

(emphasis added)). He has not done so.

B

Even though the CIA has not waived its Glomar

response, it must still show that it properly issued

that response to be entitled to summary judgment.

“An agency properly issues a Glomar response when

its affidavits plausibly describe the justifications for

issuing such a response, and these justifications are

not substantially called into question by contrary record evidence.” Schaerr v. DOJ, 69 F.4th 924, 926 (D.C.

Cir. 2023); see ACLU, 710 F.3d at 427 (“Ultimately, an

agency’s justification for invoking a FOIA exemption,

17a

whether directly or in the form of a Glomar response,

is sufficient if it appears logical or plausible.” (cleaned

up)).

1

Recall that the CIA’s Glomar response asserted

that the existence or nonexistence of records reflecting

a classified or otherwise unacknowledged connection

between the CIA and the subject of Connell’s FOIA request was protected from disclosure by Exemptions 1

and 3. [J.A. 43.] Because our analysis of Exemption 3

is dispositive on the issue, we do not discuss or reach

Exemption 1. See Wolf, 473 F.3d at 375 (“Proper invocation of, and affidavit support for, either Exemption,

standing alone, may justify the CIA’s Glomar response.”); Larson v. Dep’t of State, 565 F.3d 857, 862–

63 (D.C. Cir. 2009) (similar).

Exemption 3 applies to “matters” that are “specifically exempted from disclosure by statute,” 5 U.S.C.

§ 552(b)(3), recognizing that Congress can protect particular matters from FOIA’s broad disclosure requirements. To show Exemption 3 applies, an agency must

establish only “the existence of a relevant statute and

the inclusion of withheld material within the statute’s

coverage.” Morley v. CIA, 508 F.3d 1108, 1126 (D.C.

Cir. 2007). In invoking Exemption 3 here, the CIA relied on the National Security Act, which commands

the Director of National Intelligence to “protect . . . intelligence sources and methods from unauthorized

disclosure.” 50 U.S.C. § 3024(i)(1). “By delegation,” the

CIA Director “must do the same.” Leopold, 987 F.3d at

167. As Connell does not dispute, the National Security Act is a qualifying “withholding statute under

18a

Exemption 3.” CIA v. Sims, 471 U.S. 159, 167 (1985).

The CIA’s burden was therefore to establish that disclosing whether it has other records responsive to

Connell’s FOIA request would itself reveal intelligence sources and methods protected by the National

Security Act.

To meet that burden, the CIA relied on Blaine’s

declaration. We accord “substantial weight” in the national security context to an agency’s determinations

as to whether particular information is related to intelligence sources and methods or is otherwise classified. Knight First Amend. Inst., 11 F.4th at 818 (quoting Wolf, 473 F.3d at 374) (emphasis omitted); see also

Sims, 471 U.S. at 179 (determinations of intelligence

officials “familiar with ‘the whole picture,’ as judges

are not,” as to whether information relates to intelligence sources and methods “are worthy of great deference given the magnitude of the national security interests and potential risks at stake”). We “do not require a degree of specificity that would itself possibly

‘compromise intelligence methods and sources.’”

Knight First Amend. Inst., 11 F.4th at 821 (quoting

Mil. Audit Project v. Casey, 656 F.2d 724, 751 (D.C.

Cir. 1981)).

Here, the CIA’s declaration explains that a “defining characteristic of the CIA’s intelligence activities is

that they are carried out through clandestine means,

and therefore they must remain secret in order to be

effective.” Blaine Decl. ¶ 23 (J.A. 41–42). Accordingly,

“the CIA generally does not confirm or deny the existence, or disclose the target, of specific intelligence collection activities of the operations it conducts or supports.” Id. ¶ 44 (J.A. 52). Turning to the specific request here, the declaration states that “acknowledging

19a

the existence or nonexistence of records reflecting a

classified or otherwise unacknowledged connection to

the CIA in this matter would reveal information that

concerns intelligence sources and methods, which the

National Security Act is designed to protect.” Id. ¶ 39

(J.A. 49); see also id. ¶ 16 (J.A. 39) (defining scope of

Glomar response as to “any records that may reveal a

classified connection between the Agency and the subject of Plaintiff’s Amended FOIA Request”). The declaration also states that “confirmation or denial of the

existence or nonexistence of such records would reveal

sensitive information about the CIA’s intelligence interests, personnel, capabilities, authorities, and resources.” Id. ¶ 34 (J.A. 47). A Glomar response was

further needed to avoid “reveal[ing] sensitive details

about CIA’s intelligence sources and methods and

jeopardiz[ing] the safety of the CIA employees and the

employees of other agencies” and to avoid “provid[ing]

adversaries with insight into the CIA’s priorities, resources, capabilities, and relationships with other

agencies.” Id.

Though the CIA could arguably have provided additional detail as to what intelligence sources and

methods would be revealed here, the CIA met its burden of justifying its Glomar response. It is plausible

that revealing the existence or nonexistence of records

of a classified or otherwise unacknowledged connection between the CIA and the subject of Connell’s

FOIA request could reveal intelligence sources and

methods information. It is also plausible that stating

whether the CIA has records about its operational control (or partial control or utter lack thereof) over Camp

7 would reveal information about the CIA’s “relationships with other agencies,” including DOD, or

20a

information about the CIA’s “priorities,” “capabilities,” and “resources.” Id. ¶ 34 (J.A. 47).

Furthermore, as we have recognized, protecting

intelligence sources and methods information under

the National Security Act allows the CIA to withhold

even “superficially innocuous information on the

ground that it might enable an observer to discover”

an intelligence source or method. Sims, 471 U.S. at

178. Because “bits and pieces of data may aid in piecing together bits of other information even when the

individual piece is not of obvious importance itself,”

the CIA’s protection of intelligence sources and methods can cover “what may seem trivial to the uninformed,” but “may appear of great moment to one who

has a broad view of the scene” and can “put the questioned item of information in its proper context.” Id.

(cleaned up). The CIA’s declaration here makes precisely this point. See Blaine Decl. ¶ 32 (J.A. 46) (“Terrorist organizations, foreign intelligence services, and

other hostile groups . . . search continually for information regarding the activities of the CIA and are able

to gather information from a myriad of sources, analyze this information, and devise ways to defeat CIA

activities from seemingly disparate pieces of information.”).

Connell does not dispute any of those points. He

does not argue that the declaration lacks sufficient

specificity about which intelligence sources and methods would be revealed or how, nor does he dispute that

the CIA’s explanation for its Glomar response was

otherwise sufficiently logical or plausible on its own

terms.

21a

2

Connell instead argues that the CIA cannot plausibly claim that it has no further documents in light of

“contrary record evidence,” Schaerr, 69 F.4th at 926—

the documents the CIA produced and disclosures from

other government entities. See Appellant’s Brief 31

(“If the record establishes that it is not logical or plausible that the agency has no such records, the CIA

must acknowledge that it does, in fact, have them . . .

.”). In other words, he argues that there is nothing for

the CIA’s Glomar response to protect because based

on already-public information it is obvious, at least to

him, that the CIA does have other documents responsive to his FOIA request.

Connell bases this argument not only on the two

CIA documents the agency produced, but also on an

array of non-CIA materials, such as statements from

various parties and a judge in military commission

proceedings. See also infra at note 4. Because Connell’s argument turns primarily on the non-CIA documents, we address those first. Connell’s key legal argument in asking us to focus on these materials is that

even if statements that are not from the CIA or an authorized representative of its parent cannot qualify as

official acknowledgments under our waiver cases,

they are still relevant evidence to consider when assessing whether it is plausible for the CIA to state that

confirming or denying the existence of responsive records would reveal something that is not already public. See Appellant’s Brief 32–35. We reject that argument, as agreeing with Connell would amount to an

end-run around our official acknowledgment cases

and contravene both their logic and results.

22a

As detailed above, the rationale underlying our official acknowledgment cases, as applied to Glomar responses, is that confirmation that an agency has responsive records (or not) by the agency itself is different from statements to that effect by other sources—

even trusted government sources—because confirmation by the agency itself removes “any lingering

doubts” on the issue. Knight First Amend. Inst., 11

F.4th at 816; see Frugone, 169 F.3d at 774–75. For that

reason, “other agencies of the Executive Branch” cannot “obligate agencies with responsibility in [the national security] sphere,” like the CIA here, to reveal

protected intelligence information. Frugone, 169 F.3d

at 775. The upshot for present purposes is that when

an agency has not officially acknowledged whether it

has records responsive to a FOIA request, we cannot

assume the answer to that question based on “public

speculation, no matter how widespread,” Wolf, 473

F.3d at 378; see Casey, 656 F.2d at 745 (“We cannot

assume, as the appellants would have us, that the CIA

has nothing left to hide.”). Yet that is exactly what

Connell’s theory would have us do: assume the CIA

has responsive documents based on non-CIA statements.

To take just one concrete example from our case

law, we held in Frugone that the CIA could plausibly

maintain a Glomar response to a request for an individual’s personnel records even where the Office of

Personnel Management had stated in no uncertain

terms that such records were “maintained by the

CIA.” 169 F.3d at 773. Because the statement was not

made by the CIA, and the CIA explained why Exemptions 1 and 3 justified a Glomar response, we upheld

that response. Id. On Connell’s theory, however, the

23a

plaintiff there could have sidestepped that holding by

arguing that even if that non-CIA statement could not

amount to an official acknowledgement, that statement (from an undoubtedly trustworthy speaker)

nonetheless rendered it implausible for the CIA to assert that it might not have such records and that protected information would be revealed if the CIA itself

confirmed or denied the records’ existence. Connell’s

approach would undermine not just Frugone but decades of settled precedent, and we decline to endorse

it. 3

Connell identifies one case that arguably relied on nonofficial statements in the way he urges: Florez v. CIA, 829 F.3d 178

(2d Cir. 2016). We do not find that out-of-circuit case persuasive.

In Florez, a divided Second Circuit panel addressed whether FBI

disclosures that post-dated the district court’s summary judgment opinion required remand for the district court to reconsider

whether the CIA was entitled to summary judgment on its

Glomar response. Id. at 180–81. The majority did not find that

FBI disclosures rendered the CIA’s Glomar response implausible, but it concluded that the disclosures were “relevant” and remanded for the district court to consider in the first instance. Id.

at 186–87. The dissent, however, reasoned that FBI disclosures

that did not mention the CIA at all, let alone the existence of CIA

records responsive to the FOIA request at issue, could not affect

the adequacy of the CIA’s justification that its Glomar response

was necessary to avoid unauthorized disclosures of intelligence

sources and methods information under Exemptions 1 and 3. Id.

at 191–95 (Livingston, C.J., dissenting). Further, the dissent

pointed out—correctly, in our view—that “[t]he majority’s error

in deeming these irrelevant documents germane thus appears to

invite by the back door what the official acknowledgment doctrine prohibits at the front.” Id. at 196. To the extent the Florez

majority characterized the FBI disclosures as “relevant” to the

CIA’s justification for its Glomar response, we find the dissent’s

explanation of how this improperly circumvents the official acknowledgment doctrine persuasive and in accord with this

court’s case law, at least as applied to our analysis of Connell’s

3

24a

Accordingly, the non-CIA statements on which

Connell seeks to rely could not render illogical or implausible the CIA’s assertion that it would reveal protected intelligence information to confirm or deny the

existence or nonexistence of records showing a classified or unacknowledged connection between the CIA

and the subject of Connell’s request. 4

Connell also relies heavily on our 2013 decision in

ACLU v. CIA, but that case only confirms our conclusion. The FOIA request there sought CIA records regarding the United States’ use of drone strikes, and

the CIA issued a Glomar response “on the ground that

it was necessary to keep secret whether the CIA itself

was involved in, or interested in, such strikes.” 710

F.3d at 428 (emphasis omitted). The question was

therefore whether it was logical or plausible “for the

CIA to contend that it would reveal something not already officially acknowledged to say that the Agency

argument here.

4

These materials include the SSCI executive summary’s

footnote reference to a site daily report and cable (which, we note,

does not correspond to the dates of Connell’s FOIA request and

is thus not responsive); November 2006 interagency meeting materials produced by the Office of the Director of National Intelligence in response to a separate FOIA request, which show, at

most, inter-agency communication related to Camp 7; testimony

from Camp 7’s commander, which never identifies the CIA; a military judge’s decision and factfinding in a case concerning a

Guantanamo detainee, which does not correspond to the dates of

Connell’s FOIA request; the protective order in Connell’s client’s

case before the military commission; and a government response

to motions to compel discovery related to the CIA’s role at Camp

7. Although we do not resolve the question, we note that it is far

from clear that these materials are properly read to undermine

the CIA’s justification for its Glomar response even if they were

accorded the same status as statements from the CIA itself.

25a

‘at least has an intelligence interest’ in [drone]

strikes.” Id. at 429. The problem for the CIA there was

that repeated official statements—from the President,

his counterterrorism advisor, and the CIA Director—

revealed that the United States used drone strikes. Id.

at 429–30. As a result of those official statements, we

held that it “strains credulity” for the CIA—“an

agency charged with gathering intelligence affecting

the national security”—to maintain that it did not at

least have an “intelligence interest” in that subject. Id.

at 430.

ACLU indicates that even when official statements do not precisely match the secret protected by

the Glomar response as required for waiver through

official acknowledgment, such statements can render

a Glomar response insufficiently logical or plausible if

they directly undermine the justification given for

that response. But the statements in ACLU were, crucially, official. Everything our cases have said about

the special import of official statements (those from

the agency or an authorized representative of the

agency’s parent) was therefore not in tension with our

rationale there. ACLU did not turn in any respect on

the type of nonofficial statements Connell asks us to

consider here.

And, unlike in ACLU, the official statements Connell identifies here do not undermine the CIA’s justification for its Glomar response. As discussed above,

the two CIA-produced documents indicate that detainees had been in CIA custody elsewhere before being

transferred to DOD control at Guantanamo, and that

the CIA communicated with DOD about issues relating to the detainees. But records revealing prior custody and ongoing inter-agency communication do not

26a

make it implausible that the CIA’s confirmation of the

existence or nonexistence of records showing a classified or unacknowledged connection between the CIA

and “operational control” over Camp 7 in the specified

time period would reveal intelligence sources and

methods protected by the National Security Act or information about the CIA’s relationships with other

agencies, priorities, or resources.

*

*

*

In sum, the CIA did not waive its ability to assert

a Glomar response through official acknowledgment.

On Connell’s articulation of the topic of his FOIA request, neither the SSCI executive summary nor the

CIA-produced documents support waiver. Further,

though its declaration could have provided more detail, the CIA’s justification for its Glomar response

was logical and plausible. Connell’s “contrary record

evidence” does not indicate otherwise.

III

For the foregoing reasons, the judgment of the district court is affirmed.

So ordered.

27a

GINSBURG, Senior Circuit Judge, concurring:

I concur fully in the opinion of the Court. I write

separately to make two additional points.

First, Connell’s reliance on the Second Circuit’s

decision in Florez v. CIA, 829 F.3d 178 (2016), is misplaced. In that case, the Second Circuit deemed

Glomar responses “justified only in ‘unusual circumstances, and only by a particularly per-suasive affidavit.’” Id. at 182 (quoting N.Y. Times v. Dep’t of Just.,

756 F.3d 100, 122 (2d Cir. 2014)). The Second Circuit

borrowed that wording from our opinion in ACLU v.

CIA, 710 F.3d 422 (2013), but it misread that opinion.

There we explained that when an agency must disclose the existence of a document requested under the

FOIA, but believes the content of the document is exempt from disclosure, it may issue either a “no number, no list” response or a “Vaughn index.”* 1See id. at

432–35. Observing that “there is a material difference

be-tween a ‘no number, no list’ response and a Glomar

response,” we held that a “no number, no list” response, unlike a Glomar response, is justified under

the FOIA only “in unusual circum-stances, and only

by a particularly persuasive affidavit.” Id. at 433. We

made clear that a Glomar response, unlike a “no number, no list” response, is to be judged under “the same

*As we have previously explained, a “Vaughn index” is a filing that lists the documents an agency has withheld and explains

why each is subject to a particular FOIA exemption. See, e.g., DiBacco v. U.S. Army, 795 F.3d 178, 186 n.2 (D.C. Cir. 2015),

ACLU, 710 F.3d at 432–33; Judicial Watch, Inc. v. FDA, 449 F.3d

141, 145–46 (D.C. Cir. 2006). A “no number, no list” response is

a filing in which an agency admits it has responsive documents

but declines to enumerate or describe them at all. See, e.g.,

ACLU, 710 F.3d at 432–33; N.Y. Times, 756 F.3d at 105.

28a

general exemption review standards established in

non-Glomar cases.” Id. at 426 (quoting Wolf v. CIA,

473 F.3d 370, 374 (D.C. Cir. 2007)). That is the standard the FOIA requires for a Glomar response, as we

reiterated three terms ago in Knight First Amendment

Institute at Columbia University v. CIA, 11 F.4th 810,

819 (2021).

Second, a litigant that challenges an agency’s justification for a Glomar response by pointing to publicly

available information related to the subject of the documents it seeks would do well to remember that the

touchstone of FOIA Exemption 1 is whether the document in question “‘pertains to’ either ‘intelligence activities’ or ‘intelligence sources or methods’” and

“‘could reasonably be expected to cause identifiable or

describable damage to the national security’ if disclosed.” Knight Inst., 11 F.4th at 813 (quoting Exec.

Order No. 13,526, § 4(c), 75 Fed. Reg. 707, 709 (2009)).

It is for this very reason that our past decisions “have

unequivocally recognized that the fact that information resides in the public domain does not eliminate the possibility that further disclosures can cause

harm to intelligence sources, methods[,] and operations.” Fitzgibbon v. CIA, 911 F.2d 755, 766 (D.C. Cir.

1990). We give substantial weight to the CIA’s judgment regarding that possibility, for as we have often

repeated, “[t]he assessment of harm to intelligence

sources, methods[,] and operations is entrusted to the

Director of Central Intelligence, not to the courts.”

ACLU v. U.S. Dep’t of Def., 628 F.3d 612, 624 (2011)

(first alteration in original); Assassination Archives &

Rsch. Ctr. v. CIA, 334 F.3d 55, 58 (2003); Students

Against Genocide v. Dep’t of State, 257 F.3d 828, 835

(2001); Fitzgibbon, 911 F.2d at 766.

29a

APPENDIX B

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 21-cv-627 (CRC)

JAMES G. CONNELL, III,

Plaintiff,

v.

UNITED STATES CENTRAL INTELLIGENCE AGENCY,

Defendant.

MEMORANDUM OPINION

COOPER, District Judge,

In 2006, the Central Intelligence Agency transferred a number of “high-value” detainees to a detention facility at the U.S. military base in Guantanamo

Bay, Cuba known as Camp 7. The intelligence community later declassified snippets of information that

touch on the CIA’s relationship to that facility. In

2014, for instance, the Director of National Intelligence blessed the public release of a redacted executive summary to a study by the Senate Select

30a

Committee on Intelligence (“SSCI”) on the CIA’s detention and interrogation program in the aftermath of

the September 11, 2001 terrorist attacks. The executive summary states that in September 2006, after “14

CIA detainees arrived at the U.S. military base at

Guantanamo Bay, they were housed in a separate

building from other U.S. military detainees and remained under the operational control of the CIA.”

Decl. of Amy Zittritsch (“Zittritsch Decl.”) Ex. B at

160. Seizing on this statement, defense lawyer James

Connell, who represents Guantanamo detainee Ammar al Baluchi before a U.S. military commission,

filed a FOIA request with the CIA seeking “any and

all information” relating to the CIA’s “operational control . . . over Guantanamo Bay detainees.” Decl. of

Vanna Blaine, Information Review Officer (“Blaine

Decl.”) Ex. 1 at 1. After receiving clarification of the

request, the agency responded by providing Connell

three documents and withholding one other. As to

other records, the agency issued a “Glomar” 1 response,

neither confirming nor denying that any responsive

information exists. The agency based its Glomar response on FOIA Exemptions 1 and 3, which protect

from release, respectively, classified records and records prohibited from disclosure by statute.

Connell challenges the CIA’s Glomar response.

Specifically, he contends the agency waived its ability

to assert the response because it has purportedly declassified and publicly acknowledged the existence of

information reflecting its “operational control” over

The Glomar response got its name from the Glomar Explorer vessel—the focus of Phillippi v. CIA, where a FOIA requester challenged the CIA’s refusal to acknowledge the existence of records about the ship. 546 F.2d 1009 (D.C. Cir. 1976).

1

31a

Camp 7, including in the two documents the CIA released to him. Rejecting Connell’s waiver argument,

the Court will grant summary judgment for the CIA.

I.

Background

Mr. Connell lodged the request at issue with the

CIA in May 2017. Blaine Decl. Ex. 1 at 1. The request

begins:

Description of Request: In the Report:

“Senate Select Committee on Intelligence: Committee Study of the Central Intelligence Agency’s

Detention and Interrogation Program” reads [sic]

on page 160:

“After the 14 CIA detainees arrived at the

U.S. military base at Guantanamo Bay, they were

housed in a separate building from other U.S. military detainees and remained under the operational control of the CIA.” [Footnote 977 – CIA

Background Memo for CIA Director Visit to Guantanamo, December [redacted], 2006, entitled

Guantanamo Bay High-Value Detainee Detention

Facility]. (brackets in original) (emphasis omitted).

It continues:

I request for [sic] any and all information that

relates to such “operational control” of the CIA

over Guantanamo Bay detainees including but not

limited to the document cited in the footnote 977.

Id.

After acknowledging receipt, the CIA’s FOIA office wrote to Connell seeking clarification regarding

the scope of the request. Blaine Decl. Exs. 2, 3. It

32a

asked Connell to “provide the aspects of operational

control that interest you, as well as a specific [] period

of time you would like us to search.” Id. Ex. 3 at 1.

Connell responded that “[t]he specific period of time in

which I am interested is 1 September 2006 to 31 January 2007.” Id. Ex. 4 at 1. He further explained that “I

am seeking to determine what ‘operational control’

means,” and offered the following unexhaustive list of

“possible topics:”

(1) Whether CIA “operational control” included

only Camp 7 or extended to other facilities such as

Echo 2;

(2) What organization had decision-making authority over Camp 7;

(3) Whether CIA “operational control” ended before or after 31 January 2007;

(4) Whether the “operational control” involved

CIA personnel, whether employees or contractors;

(5) Any detainee records maintained by the CIA

during the period of “operational control,” such as

Detainee Inmate Management System records or

the equivalent;

(6) How other agencies would obtain access to detainees during the period of “operational control,[”] such as a Memorandum of Understanding

with the Federal Bureau of Investigation or Criminal Investigative Task Force; [and]

(7) How the facilities transitioned from CIA “operational control” to DOD “operational control.”

Id.

The CIA replied in September 2020. Blaine Decl.

33a

Ex. 6. Treating Connell’s clarifications as an amended

request covering the period September 1, 2006 to January 31, 2007 and encompassing the seven listed topics, the agency indicated that a “thorough search” had

revealed one three-page document, which it released.

Id. at 1; Decl. of James G. Connell III (“Connell Decl.”)

Ex. A. As to other records, the agency issued a Glomar

response, stating that it could “neither confirm nor

deny the existence of records responsive to your request.” Blaine Decl. Ex. 6 at 1–2. The agency explained that “[t]he fact of the existence or nonexistence of such records is itself currently and properly

classified and is intelligence sources and methods information protected from disclosure by Section 6 of the

CIA Act of 1949, as amended, and Section 102A(i)(l) of

the National Security Act of 1947, as amended. Therefore, your request is denied pursuant to FOIA exemptions (b)(1) and (b)(3).” Id.

Connell filed an administrative appeal in December 2020 and followed with this lawsuit in March

2021. Blaine Decl. Ex. 7; see also Compl. The CIA responded to the appeal in July 2021, indicating that it

had found three additional responsive documents, two

of which it released in redacted form and the third of

which it withheld in its entirety. Blaine Decl. Ex. 8 at

1. The two additional documents released by the

agency were: (1) a Department of Defense (“DoD”)-CIA

Memorandum of Agreement (“MOA”) concerning

DoD’s detention of certain suspected terrorists at

Guantanamo; and (2) a proposed itinerary and memo

for the then-CIA Director’s visit to Guantanamo in December 2006. Connell Decl. ¶ 11; id. Exs. B, C. The

agency withheld Document C06833121, which it describes as “consist[ing] of classified draft

34a

remarks/discussion points addressing a specific aspect

of a sensitive Agency intelligence program/operation.”

Blaine Decl. ¶ 41. The agency also repeated its Glomar

response. Id. Ex. 8 at 2.

The CIA moved for summary judgment; Connell

did not cross move. See Mot. Summ. J. (“Mot.”). Connell has since indicated that he does not challenge the

withholding or redaction of the documents the CIA

deemed responsive. Opp’n Mot. Summ. J. (“Opp’n”) at

6 n.4; Pl.’s Status Report (July 29, 2021). The lone remaining dispute, then, is Connell’s objection to the

agency’s Glomar response.

II. Legal Standards

“FOIA cases typically and appropriately are decided on motions for summary judgment.” Eddington

v. U.S. Dep’t of Just., 581 F. Supp. 3d 218, 225 (D.D.C.

2022). Under FOIA, federal agencies are generally required to “disclose their records upon request,” subject

to several exemptions. Knight First Amend. Inst. at

Columbia Univ. v. CIA, 11 F.4th 810, 813 (D.C. Cir.

2021) (citing 5 U.S.C. § 552(a)(3)(A)). Agencies “may

refuse to confirm or deny the existence of records

where to answer the FOIA inquiry would cause harm

cognizable under an FOIA exception.” Wolf v. CIA, 473

F.3d 370, 374 (D.C. Cir. 2007) (cleaned up). This practice, known as a Glomar response, is proper if “the fact

of the existence or nonexistence of agency records” itself falls within a FOIA exemption. Id. (cleaned up). In

considering a Glomar response, courts apply the “general exemption review standards established in nonGlomar cases.” Knight First Amend. Inst., 11 F.4th at

813 (cleaned up). The burden falls on the agency to

justify the “applicability of FOIA exemptions.” Mobley

35a

v. CIA, 806 F.3d 568, 580 (D.C. Cir. 2015).

An otherwise valid Glomar response can be

waived if the agency has “officially and publicly

acknowledged the records’ existence.” Leopold v. CIA,

987 F.3d 163, 167 (D.C. Cir. 2021) (citing Am. C.L. Union v. CIA, 710 F.3d 422, 426–27 (D.C. Cir. 2013)). An

official acknowledgement must satisfy a three-part

test—the information requested (1) “must be as specific as the information previously released;” (2) “must

match the information previously disclosed;” and (3)

“must already have been made public through an official and documented disclosure.” Wolf, 473 F.3d at 378

(quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.

Cir. 1990)). Plaintiffs relying on this strict test “bear

the initial burden of pointing to specific information in

the public domain that appears to duplicate that being

withheld.” Schaerr v. U.S. Dep’t of Just., 435 F. Supp.

3d 99, 116 (D.D.C. 2020) (quoting Afshar v. Dep’t of

State, 702 F.2d 1125, 1130 (D.C. Cir. 1983)). When applied to Glomar responses, the first two prongs of the

inquiry merge—“if the prior disclosure establishes the

existence (or not) of records responsive to the FOIA request, the prior disclosure necessarily matches both

the information at issue—the existence of records—

and the specific request for that information.” Wolf,

473 F.3d at 379 (cleaned up). The prior disclosure

must thus “confirm the existence or nonexistence of

records responsive to the FOIA request.” Knight First

Amend. Inst., 11 F.4th at 813 (citing Am. C.L. Union,

710 F.3d at 427). Courts should “accord substantial

deference to an agency’s Glomar response and avoid

searching judicial review when the information requested implicates national security, a uniquely executive purview.” Eddington, 581 F. Supp. 3d at 225

36a

(cleaned up).

III. Analysis

The CIA supports its Glomar response with a declaration from Information Review Officer Vanna

Blaine. See Blaine Decl. ¶ 1. Like the agency’s initial

response to Connell’s FOIA request, Ms. Blaine

grounds the Glomar response in FOIA Exemptions 1

and 3. Id. ¶¶ 16, 22, 26.

Beginning with Exemption 1, Blaine correctly

notes that it protects from disclosure any information

that has been properly classified pursuant to Executive Order (“E.O.”) 13526, which established the current system for classifying national security information. Blaine Decl. ¶ 27. Blaine further explains that

she holds “original classification authority” under

E.O. 13526, meaning she has authority to assess the

proper classification of CIA information up to the TOP

SECRET level. Id. ¶ 3. Exercising that authority,

Blaine declares that she “ha[s] determined that the

existence or nonexistence of the requested records is a

properly classified fact; the records concern ‘intelligence activities’ and ‘intelligence sources and methods’ within the meaning of . . . the Executive Order;

the records are owned by and under the control of the

U.S. Government; and . . . the disclosure of the existence or nonexistence of [the] requested records reasonably could be expected to result in damage to national

security.” Id. ¶ 30. Blaine continues, stating that formally acknowledging the existence or nonexistence of

records “reflecting a classified or otherwise publicly

unacknowledged connection between the CIA and the

topics in Plaintiff’s Amended FOIA request would reveal classified intelligence information and jeopardize

37a

the clandestine nature of the Agency’s intelligence activities.” Id. ¶ 34. Either a confirmation or a denial,

Blaine posits, “could be used by terrorist organizations, foreign intelligence services, and other hostile

adversaries to undermine CIA intelligence activities

and attack the United States and its interests.” Id.

Blaine alternatively based the Glomar response

on FOIA Exemption 3, which shields information that

is specifically exempted from disclosure by statute.

Blaine Decl. ¶ 37. One such statute is the National Security Act, which directs the Director of National Intelligence to “protect intelligence sources and methods

from unauthorized disclosure.” Id. ¶ 38; 50 U.S.C. §

3024(i)(1). The CIA relies on the National Security Act

to protect its own sources and methods. Blaine Decl. ¶

38. Consistent with her discussion of Exemption 1,

Blaine asserts that “acknowledging the existence or

nonexistence of records reflecting a classified or otherwise unacknowledged connection to the CIA in this

matter would reveal information that concerns intelligence sources and methods, which the National Security Act is designed to protect.” Id. ¶ 39. While the National Security Act does not require the CIA to identify

the damage to national security that might result

should it confirm or deny the existence of a responsive

record, Blaine points to the same potential harms

noted with respect to Exemption 1. Id. ¶ 40.

Courts “must accord substantial weight to an

agency’s affidavit concerning the details of the classified status of the disputed record.” Am. C.L. Union,

710 F.3d at 427 (cleaned up). An agency’s rationale for

invoking an exemption—even for Glomar responses—

“is sufficient if it appears ‘logical’ or ‘plausible.’” Id.

(quoting Wolf, 473 F.3d at 374–75).

38a

Connell does not dispute Blaine’s authority to assess classification of CIA information. Nor does he

contest that E.O. 13526 and the National Security Act

are recognized grounds upon which to assert FOIA Exemptions 1 and 3, respectively. Rather, he argues that

the CIA has waived its ability to invoke Exemptions 1

and 3 to support its Glomar response because the

agency has declassified “the intelligence connection

between [the] CIA and Guantanamo Bay’s Camp VII

and [officially acknowledged] the existence of responsive documents about that connection.” 2 Opp’n at 5–7.

Specifically, Connell claims that “the [DNI] declassified CIA ‘operational control’ over Camp VII in 2014”

and, since then, “CIA and other authorities have—until now—consistently treated both the fact of [the]

CIA’[s] connection to Camp VII and the existence of

documents providing specifics as unclassified, even if

the specifics themselves are classified.” Id. at 8. As a

While Connell presents declassification as a standalone basis for a Glomar response waiver—separate from the public

acknowledgement test—he cites no authority supporting that approach and the Court has not independently found any. While an

agency can publicly acknowledge the existence of records by declassifying documents discussing that information, waiver still

requires satisfying the three criteria of the public acknowledgment test. To the extent that Connell relies on declassification to

contend that the CIA’s rationale for invoking exemptions 1 and 3

is not “logical” or “plausible,” the Court rejects this argument.

The Court finds the CIA’s description of the “potential harm from

further disclosures is both logical and plausible,” Competitive

Enter. Inst. v. Nat’l Sec. Agency, 78 F. Supp. 3d 45, 60 (D.D.C.

2015), and that the declassified documents referenced do not definitively disclose the CIA’s “operational control” over Camp 7.

“[T]he fact that information resides in the public domain does not

eliminate the possibility that further disclosures can cause harm

to intelligence sources, methods and operations.” Fitzgibbon, 911

F.2d at 766 (cleaned up).

2

39a

result, he argues, further “confirming or denying the

existence of responsive records will not result in a

harm cognizable under Exemption 1 or 3 because the

DNI has already declassified the intelligence connection [the] CIA claims to be protecting.” Id.

Before tackling Connell’s waiver argument and

the declassified materials upon which it is based, the

Court will first pinpoint the topic of Connell’s FOIA

request that he claims the agency has publicly

acknowledged. As discussed above, Connell initially

sought “any and all information” related to the CIA’s

purported “operational control . . . over Guantanamo

Bay detainees.” Blaine Decl. Ex. 1 at 1. He later clarified that he was interested in materials reflecting

“what ‘operational control’ means,” with reference to

seven specific topics as examples. Id. Ex. 4 at 1. He

further refined the request to cover the five-month period from September 1, 2006 through January 31,

2007. Id. And he reiterated that he was requesting the

document cited at footnote 977 of the redacted SSCI

Executive Summary, namely the “CIA Background

Memo” for the CIA Director’s visit to Guantanamo in

December 2006. Id. With those refinements, the topic

of Connell’s FOIA request can fairly be described as

records reflecting not only the fact of the CIA’s purported “operational control” over Guantanamo detainees from September 2006 through January 2007, but

also “what [that] operational control means”—that is,

details about the CIA’s purported operational control,

including the seven questions Connell posed in response to the agency’s call for clarification of his original request. See id. The topic of Connell’s request also

includes the specific unclassified documents noted in

the request: the SSCI Executive Summary and the

40a

CIA Background Memo cited at footnote 977. Id.

Turning to Connell’s Glomar-waiver argument, to

support his contention that the CIA’s “intelligence

connection” to the topics of his FOIA request has been

declassified or otherwise officially acknowledged, Connell points to information contained in several publicly released documents.

He focuses primarily on the passage from the redacted SSCI Executive Summary quoted in his FOIA

request, which states: “After the 14 CIA detainees arrived at the U.S. military base at Guantanamo Bay,

they were housed in a separate building from other

U.S. military detainees and remained under the operational control of the CIA.” Opp’n at 12 (citing

Zittritsch Decl. Ex. B at 160). The parties spar over

whether the DNI’s declassification of the quoted sentence in the executive summary is attributable to the

CIA for purposes of the public acknowledgement doctrine. Opp’n at 11; Reply at 18–19. But the Court need

not decide that question. Instead, assuming arguendo

that DNI declassification suffices, the Court asks

whether the passage matches the topics of Connell’s

FOIA request. In other words, does it acknowledge

that the CIA in fact exercised “operational control”

over Camp 7 and “what operational control means” in

context? The Court thinks not.

As noted above, the information requested “must

be as specific as the information previously released”

and “must match the information previously disclosed.” Wolf, 473 F.3d at 378 (cleaned up). The quoted

sentence from the redacted SSCI Executive Summary

does not meet this standard. For starters, it is not an

acknowledgement by the CIA of its operational control

41a

over Camp 7; rather, it reflects the SSCI’s characterization of the CIA’s relationship to Camp 7, presumably based on its interpretation of the source document

cited at footnote 977: the “CIA Background Memo” for

the agency director’s visit to Guantanamo Bay in September 2006. Accordingly, any CIA acknowledgment

flowing from the declassification of the Executive

Summary would only extend to the fact that the SSCI

read the Background Memo cited at footnote 977 to

imply CIA “operational control” over the fourteen detainees. That is not enough to establish public

acknowledgement. Knight First Amend. Inst., 11

F.4th at 816 (“While information from outside an

agency may be viewed as ‘possibly erroneous,’ confirmation by the agency itself ‘would remove any lingering doubts.’” (quoting Frugone v. CIA, 169 F.3d 772,

774–75 (D.C. Cir. 1999))).

The declassified sections of the CIA Background

Memo do not acknowledge the CIA’s operational control over Camp 7, either. See Connell Decl. Ex. C. To

the contrary. The redacted memo states that the CIA

“sent fourteen high-value detainees to the high-value

detention center at GTMO.” Id. at 4. It then indicates

that “[u]pon their arrival . . . all detainees are subject

to the same general in-processing utilized by DoD for

other detainees arriving at GTMO.” Id. That processing included “a medical exam by the on-site DoD

physician, as well as any needed dental and psychiatric care.” Id. The memo continues that “[i]n order for a

detainee to be considered for transfer from the CIA

program to GTMO, . . . the detainee must no longer be

of significant intelligence value” and be subject to trial

by a military commission. Id. Finally, under a section

heading titled “End Game[,]” the memo explains that

42a

the “CIA desires to maintain custody of any given detainee only so long as that detainee continues to provide significant intelligence.” Id. Thus, if the unclassified portions of the memo suggest anything about “operational control,” it is that CIA transferred the fourteen high-value detainees to Guantanamo, and relinquished “custody” over them, because they no longer

had “significant intelligence value.” Id. And once the

detainees were there, they were subject to customary

DoD procedures. As a result, neither the quoted language from page 160 of the redacted SSCI Executive

Summary nor the CIA memo upon which it was based

supports Connell’s waiver argument.

Connell also points to the following snippet from

page 80 of the redacted SSCI’s unclassified Executive

Summary: “On September 5, 2006, [detainee] bin al

Shibh was transferred to U.S. military custody at

Guantanamo Bay, Cuba. After his arrival, bin al

Shibh was placed on anti-psychotic medications.”

Opp’n at 13 (citing Zittritsch Decl. Ex. B at 80). Connell contends that the DNI declassified references to

two CIA documents supporting these statements.

Opp’n at 13. But the passage says nothing about CIA

“operational control.” Indeed, the CIA Background

Memo indicates that psychiatric screening was a

standard part of DoD intake procedures for all detainees who arrived at Guantanamo.

Next, Connell points to a redacted version of a

2006 MOA between the DoD and the CIA concerning

“DoD’s detention of certain individuals” at Guantanamo Bay. Connell Decl. Ex. D at 1. As far as the

Court can tell, however, none of the unredacted material discusses the CIA’s role or activities under the

MOA, let alone acknowledges the agency’s operational

43a

control of Camp 7.

Connell also relies on two facsimiles from the Office of the Director of National Intelligence to a lawyer

at the State Department regarding the agenda for an

upcoming “[i]nter-agency meeting.” Connell Decl. Exs.

E, F. An attached agenda—for a discussion of “Interagency Decisions Needed Regarding the 14 High

Value Detainees”—includes questions on “[w]hat level

of security clearance is required to adequately protect

the classified information” about “the CIA program

and physical access to the detainees” and “[w]ho

should be permitted to have access to the detainees.”

Id. Ex. E at 1–3. These questions may well encompass

some of the specific topics of Connell’s FOIA request.

But a document that merely reflects the CIA’s participation in an interagency meeting on those subjects

falls far short of an acknowledgement by the agency

that it had “operational control” of Camp 7 or that documents concerning such “operational control” exist.

Finally, Connell cites excerpts from transcripts of

military commission proceedings where defense lawyers, prosecutors, and the First Camp 7 Commander—all of whom are either employed or retained

by DoD—referenced the CIA’s purported operational

control of Camp 7, including the sentence about “operational control” from page 160 of the SSCI Executive

Summary. See Opp’n at 15–18; Reply at 13; see also

Connell Decl. Ex. G at 28584–86; Organization Office,

Office

of

Military

Commissions,

https://www.mc.mil/ABOUTUS/OrganizationOvervie

w.aspx. Although not entirely clear to the Court, these

proceedings appear to concern discovery disputes involving efforts by defense counsel to unearth specifics

about the CIA’s role at Camp 7. See Decl. of Alka

44a

Pradhan ¶¶ 9–14. Connell claims that the CIA has declassified the transcripts. Opp’n at 16–18. But like the

executive summary, the transcripts only reflect characterizations of the CIA’s relationship to Camp 7 by

people outside the agency. They say nothing about the

CIA’s position on the matter.

In sum, none of the unclassified information Connell highlights constitutes public acknowledgement by

the CIA of its “operational control” of Camp 7 or the

ins and outs of “what [such] operational control

means.” See Wolf, 473 F.3d at 378 (“An agency’s official acknowledgment of information by prior disclosure . . . cannot be based on mere public speculation,

no matter how widespread.” (cleaned up)). As a result,

none of the materials referenced constitute a public

acknowledgement by the CIA of the existence of documents concerning the agency’s purported operational

control of Camp 7.

The agency therefore has not waived its ability to

assert a Glomar response to Connell’s amended FOIA

request. And because the Blaine Declaration “logically” and “plausibly” supports the response under

FOIA Exemptions 1 and 3, the Court will uphold it.

A final point. Even if the Court were to assume

arguendo that the CIA acknowledged its operational

control of Camp 7 by declassifying one or more of the

documents Connell cites, the agency’s Glomar response would still be valid. In Wolf v. CIA, the CIA

asserted a Glomar response with respect to a FOIA

request for records related to former Colombian politician Jorge Eliecer Gaitan. 473 F.3d at 372. The requester countered with evidence that a former CIA Director had given Congressional testimony decades

45a

earlier that included direct quotations from CIA dispatches referencing Gaitan. Id. at 378–79. The D.C.

Circuit found that the testimony amounted to public

acknowledgment of the existence of records about Gaitan. Id. It thus held that the agency’s Glomar response

“[did] not suffice regarding the dispatch excerpts that

reference Gaitan.” Id. at 379. The Circuit went on to

find, however, that the “official acknowledgment

waiver relate[d] only to the existence or nonexistence

of the records about Gaitan disclosed by [the former

Director’s] testimony.” Id. As a result, the requestor

“[wa]s entitled to disclosure of that information,

namely the existence of CIA records about Gaitan that

ha[d] been previously disclosed (but not any others).”

Id. (emphasis added). Applying Wolf here, if the release of the redacted SSCI Executive Summary or any

of the other documents that Connell highlights triggered a public acknowledgement waiver, then he

would be entitled to an acknowledgement of the existence of those specific documents “but not any others.”

Id. All of those documents have been produced to Connell or are otherwise publicly available.

Accordingly, the CIA’s Glomar response was valid

and the agency is entitled to summary judgment. A

separate order will follow.

46a

APPENDIX C

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLUMBIA

No. 21-cv-627

JAMES G. CONNELL, III

Plaintiff,

v.

UNITED STATES CENTRAL INTELLIGENCE AGENCY,

Defendant.

ORDER

For the reasons stated in the accompanying Memorandum Opinion, it is hereby ORDERED that [13] Defendant’s Motion for Summary Judgment is GRANTED.

This is a final appealable Order.

SO ORDERED.

s/ CHRISTOPHER R. COOPER

District Judge

Date: March 29, 2024