## Facts

- A media report stated that the President had decided to end a covert CIA program to arm and train certain Syrian rebels.
- The President posted on social media disputing the report and referring to “ending” payments to Syrian rebels fighting the Assad government.
- In a subsequent interview, the President made comments about intelligence “leaks” and discussed weapons allegedly going to al-Qaeda, while denying personal involvement in the decision.
- A newspaper and its reporter submitted a FOIA request to the CIA seeking records related to the program referenced in the President’s statements.
- The CIA issued a Glomar response, neither confirming nor denying the existence of responsive records, asserting that the existence or nonexistence of such records was properly classified under FOIA Exemption 1 and Executive Order 13,526.
- The requesters sued under FOIA, arguing that the President’s statements and public remarks by a senior military officer constituted official acknowledgment and declassification that barred Glomar.
- The parties filed cross-motions for summary judgment supported by agency declarations, including a classified declaration.

## Issues

1. Whether the CIA may invoke a Glomar response under FOIA Exemption 1 when public statements by senior officials discuss the general subject matter of an alleged covert program.
2. Whether the President’s public statements declassified the existence of an alleged CIA program (and related CIA records), precluding Exemption 1 and Glomar.
3. Whether remarks by a senior military officer constituted an official acknowledgment that specifically matched the information sought about CIA involvement.

## Decision

- The court granted the CIA’s motion for summary judgment and denied the requesters’ cross-motion.
- The court held the CIA’s Glomar response proper under FOIA Exemption 1 because confirming or denying records would reveal classified intelligence information.
- The court held that the cited public statements did not satisfy the Second Circuit’s strict official-acknowledgment requirements and did not declassify the information at issue.
- The CIA was permitted to maintain its refusal to confirm or deny the existence or nonexistence of responsive records.

## Legal Principles

- A Glomar response is permissible when the fact of the existence or nonexistence of records falls within a FOIA exemption, including Exemption 1 for properly classified national security information.
- Under the Second Circuit’s official-acknowledgment doctrine, an agency loses the protection of a FOIA exemption only if prior disclosure is (1) as specific as the requested information, (2) matches the requested information, and (3) is an authorized, official, and documented disclosure.
- Courts give substantial weight to agency affidavits in national security FOIA cases when the agency provides a logical or plausible explanation that disclosure could reasonably be expected to harm national security.
- Ambiguous public statements that leave uncertainty about the precise facts allegedly confirmed do not defeat Exemption 1 or bar a Glomar response.
- Declassification is not inferred from general, informal, or unclear public remarks where the agency continues to treat the information as classified and supports that position with competent declarations.

## Conclusion

The court upheld the CIA’s Exemption 1 Glomar response because acknowledging whether records existed would itself reveal classified information, and the cited public statements did not specifically and officially confirm CIA involvement or effect declassification under the governing strict matching standard.


N.Y. Times Co. v. Cent. Intelligence Agency, 314 F. Supp. 3d 519 (S.D.N.Y. 2018)