Seth Hettena v. Decided July 22, 2025 CENTRAL INTELLIGENCE AGENCY

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FOR THE DISTRICT OF COLUMBlA CIRCUIT
Argued February 4, 2025
No. 24-5119
SETH HETTENA,
APPELLANT
V.
Decided July 22, 2025
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Coutt
for the District of Columbia
(No. 1 :22-cv-00877)
Stephen Stich Match argued the cause for appellant. With
him on the briefs was Matthew Topic.
Kevin B. Soter, 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, at the time the brief was filed, and Sharon Swingle,
Attorney.
Before: PILLARD and GARCIA, Circuit Judges, and
ROGERS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.
Reissued July 31, 2025

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GARCIA, Circuit Judge: Seth Hettena submitted a
Freedom of Information Act request to the CIA for a report
about an Iraqi national who died in CIA custody at the Abu
Ghraib prison. The CIA disclosed parts of the report but
redacted most of it. This appeal concerns whether the C1A's
redactions comply with FOIA. The district couti held that they
do. Because the record does not adequately support that
conclusion, we vacate and remand.
I
In 2003, the United States captured Manacle! al-Jamaidi
an Iraqi national suspected of carrying out a terrorist attack in
Baghdad-and moved him to the Abu Ghraib prison in Iraq.
Hours later, al-Jamaidi died while being interrogated by CIA
officers. A medical examiner ruled his death a homicide.
The CIA's Office oflnspector General (OIG) investigated
al-Jamaidi's death, including "allegations of impropriety" on
the part of C1A officers. I.A. 166. In 2005, the OIG
finalized-but did not publicly release-a repoti describing its
findings.1
In 2021, Hettena, an investigative journalist, asked the
CIA to disclose the report under FOIA. FOIA generally
requires federal agencies to disclose government records upon
request. See 5 U.S.C. § 552(a), (b). After the CIA did not
timely respond, Hettena sued.
The lawsuit prompted the CIA to release parts of the
report, including a general summary of the events surrounding
1 In the years since al-Jamaidi's death, the CIA has disclosed
several materials related to his capture and interrogation, including
the results of the medical examiner's autopsy and several
investigative reports swnma.rizing interviews with anonymous CIA
witnesses. But by 2021, it had not disclosed the repo,i.

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al-Jamaidi's death. The report states that a "hood" was :;placed
over" al-Jamaidi 's head and neck during the interrogation. J.A.
384. The report elsewhere refers to a ::head cover.' J.A. 403;
I.A. 405. The disclosures also contained a list of federal
criminal laws that '"could apply to the actions of CIA officers"
under investigation. J.A. 413. Most of those laws make it a
crime to defraud the federal government or obstruct a federal
investigation. See I.A. 413-14 (citing 18 U.S.C. §§ 371, 1001,
1519).
onetheless, the bulk of the report-including the OIG's
conclusions and recommendations-remained redacted. This
case requires us to decide whether those redactions comply
with FOIA.
In responding to a FOIA request, an agency may withhold
information that falls into any of the statute's enumerated
exemptions. See 5 U.S.C. § 552(b). The agency cannot,
however, withhold an entire record simply because it contains
some exempt information. See Mead Data Cent., Inc. v. Dep 't
of Air Force, 566 F.2d 242, 260 (D.C. Cir. 1977). FOIA
requires agencies to "take reasonable steps necessary to
segregate and release nonexempt information." 5 U.S.C.
§ 552(a)(8)(A)(ii)(II). So if an agency can disclose additional
ainformation content" without :,indirectly reveal[ing]" any
protected material, it must do so. Mead Data, 566 F.2d at 261
& n.55. The agency, moreover, waives the right to withhold
any material that it has already ::officially acknowledged"
through a prior disclosure. Fitzgibbon v. CIA, 911 F.2d 755,
765 (D.C. Cir. 1990) (citation modified). Through it all, the
agency bears the burden of proving that it has disclosed all it
must under FOIA. 5 U.S.C. § 552(a)(4)(B).
The CIA claims that the redactions satisfy FOIA because
most of the redacted material pertains to the Agency's
"intelligence activities," ,:sources," and "methods." That sort

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of infonnation, the Agency argues, is covered by FOIA
Exemptions I and 3. 2 The CIA also insists that it cannot
disclose any additional "information content" from the report
without also revealing that protected material. To support these
assertions, the CIA has submitted a one-page Vaughn index and
a declaration from a FOIA officer. 3
Hettena does not dispute that the CIA may withhold
information about the Agency's •'intelligence activities,"
"sources," or "methods." See, e.g., Appellant's Brief 9.
Instead, he claims that the redactions must include material that
falls outside those protected categories of information
specifically, statements relating to the OIG's investigation into
potential obstruction by CIA officers. And at least some of the
redactions, he speculates, cover infotmation that the CIA has
2 Exemption l covers any information that is "specifically
authorized under criteria established by an Executive order to be kept
secret in the interest of national defense or foreign policy" and is "in
fact properly classified pursuant to such Executive order." 5 U.S.C.
§ 5 52(b)( l ). The CIA has relied on Executive Order 13,526, which
covers (as relevant here) material pertaining to "intelligence
activities (including covert action)," "intelligence sources or
methods," and "foreign relations or foreign activities of the United
States." Classified National Security Information, Exec. Order No.
13,526 § t.4(c), (d), 75 Fed. Reg. 707, 709 (Dec. 29, 2009).
Exemption 3 applies to "matters" that are "specifically exempted
from disclosure" by a qualifying "statute." 5 U.S.C. § 552(b )(3). For
this exemption, the CIA has pointed to the National Security Act,
which likewise protects ;;intelligence sources and methods from
unauthorized disclosure." 50 U.S.C. § 3024(i)( !); see Leopold v.
CL4, 987 F.3d 163, 167 (D.C. Cir. 2021).
3 The Vaughn index describes the report and explains the ClA's
redactions. See Vaughn v. Rosen, 484 F.2d 820, 826-27 (D.C. Cir.
1973). The declaration elaborates on the Agency's reasoning.

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already ··officially acknowledged" in a prior disclosure,
including statements about a "hood" or "head cover."
After reviewing the CIA's evidence and the full report in
camera, the district court granted summary judgment in the
government's favor. See Hettena v. CIA, 2024 WL 1239705,
at *I (D.D.C. Mar. 22, 2024).4
II
We review the district court's decision de novo. Connell
v. CIA, I IO F.4th 256, 263 (D.C. Cir. 2024). At the parties'
invitation, we have also reviewed the full report in camera. See
5 U.S.C. § 552(a)(4)(B). We also conducted a classified, ex
parte hearing with the CIA's representatives.
We conclude-and Hettena does not doubt-that most of
the redactions comply with FOIA. As the CIA's declaration
describes, much of the report contains information about CIA
"covert personnel," "methods for collecting foreign
intelligence," "locations of Agency facilities," and the like.
J.A. 34-39. And as the declaration explains, disclosing this
sort of material would clearly reveal something new about the
CIA's intelligence activities, sources, and methods. Id.; see
also Hettena, 2024 WL l239705, at *4. Disclosing the
identities of covert personnel, for example, could "expose the
intelligence activities with which they have been involved and
the sources with whom they have had contact." J.A. 35. In
4 Before the district court, we note, the CIA also relied on other,
alternative grounds to justify the redactions. The district court did
not address these arguments. See Hettena v. CL4, 2024 WL 1239705,
at *3 (D.D.C. Mar. 22, 2024). So, for our purposes, the only ground
at issue here is the CIA's asse1tion that the redactions are necessary
to protect information about the Agency's "intelligence activities,"
"sources," and "methods."

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offering these explanations, the CIA has adequately justified
most of its redactions.
But the CIA has not adequately justified every redaction.
The redactions also include the OIG's findings about whether
any CIA officers obstructed its internal investigation. We
cannot tell from the record, however, why those findings have
been withheld. As the CIA itself concedes, a ;'standalone
finding by the Inspector General regarding destruction of
evidence" would not .;necessarily contain classified
information regarding intelligence activities or methods."
Appellee' s Brief 21; see also Tr. of Oral Arg. 19-21.
Disclosing whether obstruction occurred would not necessarily
reveal, for instance, any of the categories of information
discussed in the CIA' s declaration (such as "covert personnel,"
;.methods for collecting foreign intelligence," and so on). And
to the extent any obstruction-related findings refer to specific
pieces of classified evidence, the CIA could presumably
disclose the OIG's high-level conclusions about whether
obstruction occurred without divulging any of the details (such
as which specific individuals or pieces of evidence were
involved). For the CIA to adequately justify its redactions, it
would need to grapple with these basic points.
The CIA has not done that. It insists that, even if findings
about obstruction are not always exempt, the specific findings
in this repo1i are. But we see nothing in the record to suppo1i
that assertion. Neither the declaration nor the Vaughn index,
as we've noted, addresses findings related to obstruction. And,
based on our review, there are obstruction-related findings that
can seemingly be separated from the remainder of the repo1i in
a way that produces meaningful ;.infotmation content." Mead
Data, 566 F.2d at 261 n.55. As a result, we are left to wonder
how the disclosure of those findings would, directly or
indirectly, reveal anything new about the CIA's intelligence
activities, sources, or methods. Without more from the

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Agency, we see no basis in the record to conclude that such
statements are protected under FOIA. Cf Wolf v. CIA, 473
F.3d 370, 374-75 (D.C. Cir. 2007) (requiring that agency
affidavits in the FO IA context justify any withholdings in
"reasonably specific detair' and that any justification ';appears
logical or plausible" (citation modified)).
Likewise, factual questions remain over Hettena's
challenge that the redactions contain information that the CIA
has already ·•officially acknowledged." For the most part, we
agree with the CIA that it has not publicly acknowledged any
of the statements it has redacted. But one issue-whether the
report's now-public references to a ·'hood" or "head cover"
require further disclosures-poses a trickier question. On one
level, we agree with the CIA: By revealing the existence of a
.;hood" or .;head cover," the CIA did not make every statement
about a ··hood" or "head cover" subject to disclosure under this
cou1i' s official-acknowledgment doctrine. See Fitzgibbon, 911
F.2d at 765 (applying the doctrine only when "the information
requested" is --as specific as the information previously
released"). At the same time, we cannot tell whether every
redacted statement about a "hood" or "head cover" reveals
something new about the CIA's intelligence activities, sources,
or methods. Nothing in the CIA's evidence, again, speaks to
this specific issue. So, as things stand, we cannot conclude that
the redactions fully comply with FOIA's "official
acknowledgment" doctrine.
Finally, a word about what happens next. We think it best
to give the CIA another chance to explain itself on remand,
especially in view of the national-security interests at stake.
See 28 U.S.C. § 2106. The district court may therefore further
develop the record to resolve the factual issues we have
identified, perhaps with the benefit of an ex parte declaration

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from the CIA. Cf Arie.ff v. Dep 't of Navy, 712 F.2d 1462,
1470-71 (D.C. Cir. 1983).5
We appreciate that our analysis has been more abstract
than concrete. That is the reality of a case dealing with
sensitive materials in the national-security setting. To fill in
some of the details, with an eye toward guiding potential
review on remand, we have prepared a classified, ex parte
addendum identifying a representative (but not exhaustive) set
of redactions that the CIA has failed to adequately justify. To
be clear, we do not definitively hold that any of those
statements must be disclosed. We hold only that the statements
raise difficult questions that the CIA has not adequately
answered on this record.
The district couii,of course, could also seek to resolve this
case based on any of the other grounds invoked by the CIA.
For example, the CIA has also raised a separate and slightly
different Exemption 3 argument, based on the CIA Act. See
DiBacco v. Dep 't ofArmy, 926 F.3d 827,835 (D.C. Cir.2019).
It also claims that certain portions of the report are covered by
Exemption 5. The district court did not reach these alternative
arguments, and neither do we. See Liff v. Off ofInspector Gen.
for Dep 't ofLab., 881 F.3d 912, 919 (D.C. Cir. 20 I 8)(restating
the "general rule" that "a federal appellate couii does not
consider an issue not passed upon below" (citation modified)).
III
We vacate the district court's judgment and remand for
further proceedings consistent with this opinion.
So ordered.
5 Hettena's own reply brief, we note, likewise suggests that we
order the CIA to provide fwiher "clarification on remand" if
necessary. Reply Brief 8 n.2.

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