FOIA Advisor

Court opinions issued April 24, 2015

Court Opinions (2015-16)Allan BlutsteinComment

Freedom Watch v. Nat'l Sec. Agency (D.C. Cir.) -- Affirming Glomar responses of NSA, CIA, and Dep't of Defense in connection with requests for records about New York Times article discussing U.S. cyber-attack on Iran; remanding case to the district court to oversee the State Department's processing of former Secretary Clinton's privately-maintained emails for records responsive to Freedom Watch's request. 

The court held that Freedom Watch was precluded from challenging the Exemption 1 Glomar responses of NSA and CIA because it had not challenged them at the administrative stage.  The court found DoD's Glomar response to be proper on the merits; it accorded "substantial weight" to DoD's judgment that acknowledging existence or non-existence of records would "'cause damage to national security by providing insight into DoD's military and intelligence capabilities and interests.'"  With respect to the State Department, the court held that Freedom Watch forfeited objections to the agency's search and the withholding of a press briefing memo by failing to assert those objections at district court level.  The court further held that district court had not abused its broad discretion in denying Freedom Watch's request for discovery, which was not supported by evidence of agency bad faith.  The court accepted the government's suggestion to remand the case to permit State Department to process former Secretary Clinton's emails, as well as to supplement the record concerning its search for documents maintained by the Executive Secretariat.  The court reminded the agency that regardless of its plans to release the emails to the public, it had an obligation under FOIA to produce responsive records "'in the shortest amount time.'"

Related article from The Hill here.

See complete case list for April 2015 here