JASON LEOPOLD AND BUZZFEED, INC. v. CENTRAL INTELLIGENCE AGENCY

Washington, DC - Criminal defense lawyer represented

APPELLEES with a Freedom of Information Act claim.

The plaintiffs based their request on the Freedom of

Information Act. The Act compels disclosure of government

records. 5 U.S.C. § 552(a)(3)(A). There are nine exemptions.

5 U.S.C. § 552(b). Two matter here.

Exemption 1 covers "matters”2

that are "specifically

authorized under criteria established by an Executive order to be

kept secret in the interest of national defense or foreign policy

and . . . are in fact properly classified pursuant to such Executive

order[.]” 5 U.S.C. § 552(b)(1). Thus, properly classified records

are exempt from disclosure. See Exec. Order No. 13,526, 75

Fed. Reg. 707 (Jan. 5, 2010) (governing the classification of

national security information).

Exemption 3 covers "matters” that are "specifically

exempted from disclosure by statute[.]” 5 U.S.C. § 552(b)(3).

Relevant here, the National Security Act of 1947 "qualifies as a

withholding statute under Exemption 3,” CIA v. Sims, 471 U.S.

159, 167 (1985), and directs the Director of National

Intelligence to "protect intelligence sources and methods from

unauthorized disclosure.” 50 U.S.C. § 3024(i)(1). By

delegation, the Director of the Central Intelligence Agency must

1

Buzzfeed "is a social news and entertainment company.” J.A.

4.

2

While § 552(a)(3)(A) provides for the disclosure of "records,”

the exemptions of § 552(b) cover "matters.”

3

do the same. DiBacco v. U.S. Army, 795 F.3d 178, 196–99

(D.C. Cir. 2015).

The absence of particular evidence may sometimes provide

clues as important as the presence of such evidence. In

literature, a common way of expressing this truth, although not

always accurately, is to refer to the dog that did not bark.3

In

Freedom of Information Act law, a similar concept justifies what

has become known as the Glomar response.

Our court has long recognized that the existence of agency

records relating to a subject, or the absence of such agency

records, may reveal information falling within one of these

exemptions. See Am. C.L. Union v. CIA, 710 F.3d 422, 426

(D.C. Cir. 2013) ("ACLU”); Wolf v. CIA, 473 F.3d 370, 374

3

The idiom is derived from Arthur Conan Doyle's Silver Blaze

(1892), reprinted in II THE ANNOTATED SHERLOCK HOLMES 261

(1967, Wm. S. Baring-Gould ed.).

A famous race horse – "Silver Blaze” – has disappeared the night

before an important race and the horse's trainer has been killed. The

following dialog concerns a dog kept at the stable. Colonel Ross, the

owner of "Silver Blaze,” questions Sherlock Holmes about the

progress of his investigation (id. at 277):



Colonel Ross: "Is there any other point to which you would wish

to draw my attention?”

Sherlock Holmes: "To the curious incident of the dog in the

night-time.”

Colonel Ross: "The dog did nothing in the night-time.”

Sherlock Holmes: "That was the curious incident.”

Holmes solves the mystery and explains the clue: because the

dog had not barked, "the midnight visitor [to the stable] was someone

whom the dog knew well.” Id. at 280.

4

(D.C. Cir. 2007); Phillippi v. CIA, 546 F.2d 1009, 1013–14

(D.C. Cir. 1976). If so, an agency "may refuse to confirm or

deny the existence of records” — a Glomar response.4

Wolf,

473 F.3d at 374 (quoting Gardels v. CIA, 689 F.2d 1100, 1103

(D.C. Cir. 1982)). A requester can overcome an agency's

otherwise valid Glomar response by showing that the agency has

officially and publicly acknowledged the records' existence.

ACLU, 710 F.3d at 427; Wolf, 473 F.3d at 378 (quoting

Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990); Afshar

v. Dep't of State, 702 F.2d 1125, 1133 (D.C. Cir. 1983)).5



Against this backdrop, we address the impact of President

Trump's "tweet”6

on July 24, 2017, stating: "The Amazon

Washington Post fabricated the facts on my ending massive,

dangerous, and wasteful payments to Syrian rebels fighting

Assad.....” Donald J. Trump (@realDonaldTrump), Twitter

4

The name comes from the Central Intelligence Agency's refusal

to confirm or deny the existence of records about a ship named the

Hughes Glomar Explorer, which reportedly engaged in a covert

mission to raise "a sunken Soviet submarine” from the depths of the

Pacific Ocean. Mil. Audit Project v. Casey, 656 F.2d 724, 728 (D.C.

Cir. 1981); Phillippi, 546 F.2d at 1010–11.

5

Once an agency has officially acknowledged that records exist,

there is no value in a Glomar response. The secret is out. But if the

existence is still a mystery and the court agrees with the Glomar

response, the case is at an end. The agency does not need to claim

exemptions for the contents of the records (if any). See Moore v. CIA,

666 F.3d 1330, 1333–34 (D.C. Cir. 2011).

6

"Tweeting” is the act of posting a character-limited message (a

"tweet”) on Twitter, a social media and micro-blogging service.

United States v. Feng Ling Liu, 69 F. Supp. 3d 374, 376 n.1 (S.D.N.Y.

2014).

5

(July 24, 2017, 10:23 PM).7

Shortly thereafter, Jason Leopold and BuzzFeed

(collectively, "BuzzFeed”) requested the Central Intelligence

Agency's records about Agency "payments to Syrian rebels

fighting Assad.” J.A. 45. The Agency issued a Glomar

response, supported by a sworn declaration, invoking

Exemptions 1 and 3. BuzzFeed sued, arguing that President

Trump's tweet had officially acknowledged the existence of

Agency payments to Syrian rebels. Leopold v. CIA, 380 F.

Supp. 3d 14, 22 (D.D.C. 2019) ("Leopold I”). Both parties

sought summary judgment. Id.

In Leopold I, the district court granted summary judgment

to the Agency, explaining that "the President's tweet did not

mention the [Agency] or create any inference that such a

program would be linked to or run by the [Agency].” Id. at 25.

The district court reasoned that "[t]he President might have

acknowledged the existence of 'massive, dangerous, and

wasteful' payments to Syrian rebels, but he did not mention

from which branch of government such payments would have

originated.” Id.

The request from Leopold I is not at issue. BuzzFeed later

sent another request, this time seeking nine broad categories of

Agency records. Although the first request sought Agency

records relating to Agency payments to Syrian rebels, the second

request sought Agency records relating to payments to Syrian

rebels. Compare J.A. 45, with J.A. 24.

7

The tweet does not identify the Washington Post article, but

Buzzfeed claims it was an article by Greg Jaffe and Adam Entous

entitled Trump Ends Covert CIA Program to Arm Anti-Assad Rebels

in Syria, a Move Sought by Moscow, Wash. Post (July 19, 2017).

6

Again, the Agency issued a Glomar response. In another

sworn declaration, the Agency asserted that a response would

reveal whether it had an intelligence interest in, intelligence

sources about, and connection to payments or programs related

to Syrian rebels — information exempt from disclosure under

Exemptions 1 and 3. No one disputes the validity of the

exemptions. Oral Arg. 31:43–31:53. And again, BuzzFeed

sued, alleging that the President's tweet had officially

acknowledged the existence of such records. Both sides moved

for summary judgment. Leopold v. CIA, 419 F. Supp. 3d 56, 63

(D.D.C. 2019) ("Leopold II”).

This time around, the district court granted summary

judgment to BuzzFeed, holding that President Trump's tweet

had officially acknowledged "the government's intelligence

interest in the broader categories of records that BuzzFeed has

requested.” Id. at 68. Having overcome the Agency's Glomar

response, the district court ordered the Agency to respond. Id.

at 68–69. The Agency appealed.

II

We first address our appellate jurisdiction. The district

court's order may not be a "final decision” appealable under 28

U.S.C. § 1291. See Jud. Watch, Inc. v. Dep't of Energy, 412

F.3d 125, 128 (D.C. Cir. 2005) (citing Se. Fed. Power

Customers, Inc. v. Harvey, 400 F.3d 1, 4 (D.C. Cir. 2005)). But

it is an appealable order under 28 U.S.C. § 1292(a)(1), which

extends our jurisdiction to include "[i]nterlocutory orders of the

district courts . . . granting . . . injunctions[.]” Id.

There is no doubt that orders requiring "the disclosure of

documents” are appealable injunctions. See, e.g., Jud. Watch,

Inc. v. Dep't of Energy, 412 F.3d at 128; Citizens for Resp. &

Ethics in Wash. v. U.S. Dep't of Homeland Sec., 532 F.3d 860,

863 (D.C. Cir. 2008) ("CREW”). Buzzfeed claims the order

7

here is different because the district court did not require the

Agency to disclose any documents. This misses the point.

What matters for jurisdictional purposes under 28 U.S.C. §

1292(a)(1) is whether the district court has issued an injunction,

not whether the injunction requires documents to be disclosed.

CREW is not to the contrary. There, the Secret Service

refused to produce visitor logs because it believed that the logs

did not qualify as agency records. 532 F.3d at 862. Rejecting

that argument, the district court ordered the Secret Service to

"process [CREW]'s Freedom of Information Act request and

produce all responsive records that are not exempt from

disclosure[.]” Id. We lacked interlocutory jurisdiction because

"the Secret Service may yet be entitled to withhold some or all

of the documents under one or more of [the Act's] nine

exemptions.” Id. at 863; see Green v. Dep't of Com., 618 F.2d

836, 839 (D.C. Cir. 1980). In other words, the consequences of

the district court's order would not be known until the Secret

Service processed CREW's request. The court put it this way:

"Under the court's order, the Secret Service will have to search

for and locate any responsive documents and claim any

exemptions it believes applicable. At that point, the court may

agree with the agency, allowing it to withhold the requested

records, in which case the government would have no cause to

appeal. Or alternatively, 'the issues might be sufficiently

narrowed to permit the parties to reach a settlement.' In either

case, appellate review at this stage is premature.” Id. at 864

(quoting Green, 618 F.2d at 839).

An order denying a Glomar response and requiring the

agency to reveal whether it holds particular records is not

comparable. The appeal from such an order is by no means

"premature.” If the order goes into effect and forces the agency

to reveal whether it possessed the records, any later agency

appeal would be fruitless. See Wolf, 473 F.3d at 379. That cat

8

would be out of the bag, regardless whether any relevant

documents the agency might possess would be exempt from

disclosure.

Here, the records' existence (or not) is a properly classified

fact and one that would reveal intelligence sources and methods.

As our court stated in the original "Glomar” case: "In effect, the

situation is as if [the plaintiff] had requested and been [granted]

permission to see a document which says either 'Yes, we have

records relating to contacts with the media concerning the

Glomar Explorer' or 'No, we do not have any such records.'”

Phillippi, 546 F.2d at 1012.

To sum up, the contents of the records (if any) may be

exempt from disclosure. See Wolf, 473 F.3d at 380. But the

district court has ordered the release of information "for which

the [Agency] claim[s] no basis for non-disclosure beyond the

argument already rejected.” Jud. Watch, Inc. v. U.S. Dep't of

Energy, 412 F.3d at 128. As such, the court's order is injunctive

in nature and appealable under 28 U.S.C. § 1292(a)(1).

III

We would uphold the district court's ruling, even on de

novo review, if President Trump's tweet officially

acknowledged the existence of Central Intelligence Agency

records (and, therefore, intelligence interest and capabilities)

about payments to Syrian rebels.8

To find official

8

We do not address BuzzFeed's argument that the President's

interview with the Wall Street Journal was also an official

acknowledgment. BuzzFeed did not raise this claim in the district

court. See Pls.' Cross Mot. for Summ. J., ECF No. 12 at 1 n.1 ("[T]he

only question the Court needs to address is the impact of the tweet on

what would otherwise have been a valid Glomar response.”); Potter

v. District of Columbia, 558 F.3d 542, 547 (D.C. Cir. 2009). Buzzfeed

9

acknowledgment, under our precedents, three prerequisites must

be met: "the information requested must be as specific as the

information previously released,” "match the information

previously disclosed,” and "already have been made public

through an official and documented disclosure.” Fitzgibbon,

911 F.2d at 765 (quoting Afshar, 702 F.2d at 1133). "In the

Glomar context, then, if the prior disclosure establishes the

existence (or not) of records responsive to the [information]

request, the prior disclosure necessarily matches both the

information at issue . . . and the specific request for that

information.” Wolf, 473 F.3d at 379. This test is "strict.”

Moore v. CIA, 666 F.3d 1330, 1333 (D.C. Cir. 2011) (citing

Wilson v. CIA, 586 F.3d 171, 186 (2d Cir. 2009)).

The initial burden rests with the requester, who must

"point[] to specific information in the public domain that

appears to duplicate that being withheld.” ACLU, 710 F.3d at

427 (quoting Wolf, 473 F.3d at 378). "An agency's official

acknowledgment . . ., however, cannot be based on mere public

speculation, no matter how widespread.” Wolf, 473 F.3d at 378

(citing Afshar, 702 F.2d at 1130). And for good reason: "it is

one thing for a reporter or author to speculate or guess that a

thing may be so . . .; it is quite another thing for one in a position

to know of it officially to say that it is so.” Fitzgibbon, 911 F.2d

at 765 (quoting Alfred A. Knopf, Inc. v. Colby, 509 F.2d 1362,

did argue in the district court that the President's interview with the

Wall Street Journal bolsters Buzzfeed's interpretation of the tweet as

disclosing the existence of payments to Syrian rebels. See Pls.' Cross

Mot. for Summ. J. at 6. But for the reasons given infra and in N.Y.

Times v. CIA, 965 F.3d 109, 118 (2d Cir. 2020), we find that even

considered alongside the President's interview with the Wall Street

Journal, the President's tweet lacks the requisite specificity to

constitute an official acknowledgment of the Agency's intelligence

interest in payments or programs related to Syrian rebels.

10

1370 (4th Cir. 1975)) (brackets omitted). "[I]n the absence of

any official acknowledgment, . . . foreign governments would be

left guessing[.]” Ameziane v. Obama, 699 F.3d 488, 492 (D.C.

Cir. 2012). Here, the plaintiffs have failed to satisfy their

burden.

The Agency claims that President Trump's tweet lacks

sufficient specificity to qualify as an "official acknowledgment”

that the records exist. BuzzFeed's contrary argument is twotiered. The first is that the President's tweet officially

acknowledged the existence of some program providing

payments to Syrian rebels. BuzzFeed principally points to the

tweet's adjectives ("massive, dangerous, and wasteful”) and the

possessive "my” to support this reading. Second, because of

that alleged disclosure, BuzzFeed asserts that it is an

"ineluctable conclusion . . . that the [Agency] possesses records

relating to such payments, or at least to the ending of such

payments.” Appellee Br. 31.

Did President Trump's tweet officially acknowledge the

existence of a program? Perhaps. Or perhaps not. And therein

lies a problem. See Gardels, 689 F.2d at 1105 ("Official

acknowledgment ends all doubt[.]”). The President's tweet is

subject to several plausible interpretations. From the Agency's

perspective, the tweet simply asserts that the Post fabricated

facts, a rather common complaint. So what else is new? The

Agency argues that the possessive "my” just refers to the

accusations of the story and that the adjectives are the

President's editorial interpretations. BuzzFeed asserts the

opposite. Assuming arguendo that the President ended a

program, it is not clear whose program the President ended.

"[M]y ending” could refer to the President terminating, directly

or indirectly, the program of a foreign government or even a

non-state actor. Oral Arg. 9:20–11:59. The tweet sheds little,

if any, light. But we do not have to resolve this question.

11

Even if the President's tweet revealed some program, it did

not reveal the existence of Agency records about that alleged

program. BuzzFeed has failed to point to specific information

that matches the information sought — the existence of Agency

records and, therefore, its intelligence interest and capabilities.

See Wolf, 473 F.3d at 378.

Our opinion in ACLU does not say otherwise. ACLU

concerned whether the Agency could maintain a Glomar

response about the Agency's interest in drone strikes following

three official acknowledgments. 710 F.3d at 428–30. There,

President Obama had "himself publicly acknowledged that the

United States uses drone strikes against al Qaeda . . . on a live

internet video forum.” Id. at 429. President Obama's

counterterrorism advisor went further, stating that "in deciding

whether to carry out a strike, we draw on the full range of our

intelligence capabilities and may ask the intelligence community

to collect additional intelligence[.]” Id. at 430 (internal

quotation marks and alterations omitted). The disclosures

continued. The Director of the CIA stated in public remarks that

"I can assure you that in terms of that particular area, it is very

precise and it is very limited in terms of collateral damage[.]”

Id. at 430. As we noted then, "[i]t is hard to see how the CIA

Director could have made his Agency's knowledge of — and

therefore 'interest' in — drone strikes any clearer.” Id.

"[T]hose statements are tantamount to an acknowledgment that

the [Agency] has documents on the subject.” Id. at 431. Based

on the totality of these collective acknowledgments, we held that

it was "neither logical nor plausible” for the Agency to deny an

interest in drone strikes. Id. at 430.

The case before us is not comparable. "[T]he pertinent

official statements in ACLU were far more precise, thorough,

and numerous than those found here.” N.Y. Times v. CIA, 965

F.3d 109, 119 (2d Cir. 2020). As we have discussed above, it is

12

not clear what, if anything, this short, informal post disclosed.

The tweet never mentions the Agency at all, let alone its

intelligence interest in, or capabilities to gather intelligence

about, payments to Syrian rebels. See Donald J. Trump

(@realDonaldTrump), Twitter (July 24, 2017, 10:23 PM).

Whereas ACLU, 710 F.3d at 431, relied on specific statements

revealing the Agency's interest, the district court here simply

assumed that "it seems wildly unlikely that, in the eight and a

half years since the Syrian civil war began, the Central

Intelligence Agency has done no intelligence-gathering that

produced a single record even pertaining to payments [to]

Syrian rebels[.]” Leopold II, 419 F. Supp. 3d at 67. One would

hope that the district court's assumption is accurate but who

knows for sure? To establish official acknowledgment our

precedents require certainty, not assumptions of this sort. See

Ameziane, 699 F.3d at 492; Afshar, 702 F.2d at 1130. Whereas

the official acknowledgments in ACLU, 710 F.3d at 430, could

hardly have been "any clearer” about the Agency's intelligence

interest, the tweet here leaves too much doubt. The district court

erred in concluding otherwise.

For the foregoing reasons, we hold that President Trump’s

tweet was not an official acknowledgment of the existence (or

not) of Agency records. Accordingly, the judgment of the

district court is reversed.