## Facts

- The ACLU submitted a FOIA request to the CIA seeking records about the use of unmanned aerial vehicles (“drones”) by the CIA and the U.S. Armed Forces for targeted killings, including legal and factual materials.
- The CIA did not search for or process records and instead issued a Glomar response, refusing to confirm or deny whether responsive records existed.
- The CIA asserted that acknowledging the existence or nonexistence of responsive records would disclose classified information regarding CIA involvement or interest in drone strikes and would harm national security.
- The ACLU argued the Glomar response was improper because senior executive officials had publicly discussed the United States’ drone program and its effectiveness against al Qaeda.
- The district court granted summary judgment to the CIA based on FOIA Exemptions 1 and 3.
- The ACLU appealed.

## Issues

1. Whether the CIA may maintain a Glomar response to a FOIA request for drone-related records when high-level official statements have publicly acknowledged the government’s drone-strike program.
2. If Glomar is unavailable, whether the CIA must at least confirm whether it has responsive records and then justify any withholdings under specific FOIA exemptions.

## Decision

- The D.C. Circuit reversed the district court’s judgment and remanded.
- The court held the CIA could not lawfully refuse to confirm or deny the existence of responsive records on this record of official public statements.
- The court required the CIA to acknowledge whether it possesses responsive records and to process the request, asserting any exemptions through ordinary FOIA procedures rather than a blanket Glomar position.
- The court emphasized that the CIA could still withhold sensitive information under applicable exemptions, but only after acknowledging the existence of responsive records.

## Legal Principles

- A Glomar response is permissible only when the fact of the existence or nonexistence of responsive records is itself protected from disclosure by a FOIA exemption.
- Under the official acknowledgment doctrine, the government may not rely on secrecy to justify a Glomar response when the existence of the requested records has been the subject of an official public acknowledgment.
- FOIA Exemption 1 protects properly classified national security information.
- FOIA Exemption 3 protects information exempted by statute, including statutory protections for intelligence sources and methods.
- FOIA allows agencies to withhold exempt content, but an agency generally must process requests and justify withholdings on a document-by-document or category-by-category basis rather than through a categorical refusal to confirm record existence.

## Conclusion

Because official statements by senior government officials publicly addressed the drone-strike program, the CIA could not plausibly treat the mere existence of drone-related records as a secret; the agency had to confirm whether it had responsive records and then litigate any claimed FOIA exemptions through standard processing on remand.


Am. Civil Liberties Union v. Cent. Intelligence Agency, 710 F.3d 422 (D.C. Cir. 2013)