National Security Archive v. Central Intelligence Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 20, 2023 Decided June 7, 2024
No. 23-5017
NATIONAL S ECURITY A RCHIVE ,
APPELLANT
v.
CENTRAL I NTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-02857)
Hilary T. Jacobs argued the cause for appellant. With her
on the briefs was John S. Guttmann.
Lewis S. Yelin, 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, and Sharon Swingle, Attorney.
Before: R AO and CHILDS , Circuit Judges, and GINSBURG,
Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge CHILDS .

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CHILDS , Circuit Judge: In 1983, during the Cold War,
Leonard H. Perroots, then an Assistant Chief of Staff for
Intelligence in the United States Air Forces in Europe,
allegedly recommended a course of action to his Commander
in response to an elevated alert status demonstrated by the
military forces of the Union of Soviet Socialist Republics
(“Soviet Union”), which helped avert a nuclear crisis.
Subsequently, in January 1989, Lieutenant General Perroots
wrote an End of Tour Report Addendum (“Perroots Memo”) to
detail the “chain of events” from 1983 to help the U.S.
Intelligence Community learn lessons “as relates to our
[Indications and Warning] capability and exercise planning.”
JA250, JA278.
Approximately thirty-two years later, a non-governmental
research institute known as The National Security Archive
(“Archive”) submitted a Freedom of Information Act (“FOIA”)
request to the Central Intelligence Agency (“CIA”) seeking
disclosure of the Perroots Memo. The CIA produced the
Memo’s cover letter but did not provide any further substance
of the Perroots Memo’s text. Thereafter, the Archive sued the
CIA seeking to compel disclosure of the Perroots Memo under
FOIA. The district court granted summary judgment in favor
of the CIA because the Archive conceded that the response was
justified under FOIA Exemptions 1 and 3, 5 U.S.C.
§§ 552(b)(1) and (6), and the CIA had not waived its right to
claim the exemptions. Nat’l Sec. Archive v. CIA, C/A No. 21-
2857, 2022 WL 5062523, at *5 (D.D.C. Oct. 4, 2022). The
district court denied the Archive’s motion to amend judgment
as well. Nat’l Sec. Archive v. CIA, C/A No. 21-2857, 2022 WL
18493099, at *1 (D.D.C. Nov. 16, 2022). The Archive appeals
both decisions. Upon de novo review, we affirm.

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I.
The Archive is an “independent non-governmental
research institute and library” that “promote[s] research and
public education about the U.S. governmental and national
security decision-making process.” Compl. ¶ 4 (JA002). The
Archive operates as a “repository of government records on a
wide range of topics pertaining to the national security, foreign,
intelligence, and economic policies of the United States.” Id.
In February 2021, the United States Department of State
(“DOS”) published a transcribed version of the Perroots Memo
in a volume of the Foreign Relations of the United States
(“FRUS”) series documenting 1981–1988. The FRUS is a
statutorily mandated “official documentary historical record of
major U.S. foreign policy decisions and significant diplomatic
activity.” Office of the Historian, U.S. Dep’t of State, About
the Foreign Relations of the United States Series,
https://history.state.gov/historicaldocuments/about-frus,
archived at https://perma.cc/3RQZ-DVPM; 22 U.S.C.
§ 4351(a). Publication in the FRUS generally requires the DOS
to obtain the respective agency’s declassification of any
relevant documents needed for publishing. See 22 U.S.C.
§ 4353(b)(1) (Any document published in the FRUS “shall be
submitted to the respective originating agency for
declassification review.”). Accordingly, the FRUS cites to a
CIA source and thanks CIA staff “for arranging full access to
CIA records,” JA269, and states that “[t]he declassification
review of this volume . . . began in 2015 and was completed in
2019,” JA135.
Six months after the FRUS’s release of Volume IV: Soviet
Union, January 1983–March 1985, the Archive submitted a
FOIA request to the CIA for the Perroots Memo. The CIA
acknowledged but did not substantively respond to the

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Archive’s request. Consequently, in October 2021, the
Archive filed suit in the D.C. District Court to compel
disclosure of the Memo. In April 2022, as its “final response”
to the Archive’s FOIA request, see JA248, the CIA provided
Perroots’ cover letter and a completely redacted copy of the
Memo, citing FOIA Exemptions 1 and 3 to justify the
redactions.
The CIA next moved for summary judgment asserting that
it properly withheld the Perroots Memo under FOIA
Exemption 1, because the Memo contained “information that
would tend to reveal specific intelligence activities, sources,
and methods that are either still actively in use or which remain
viable for use today,” JA045–JA046; and under Exemption 3
in accordance with the National Security Act of 1947,
identified by the CIA as an appropriate Exemption 3 qualifying
statute, JA046. The Archive opposed the motion and argued
that because the Memo was published in the FRUS Volume IV:
Soviet Union, January 1983–March 1985, the exemptions were
inapplicable due to the official acknowledgment doctrine and
the public domain doctrine. The district court disagreed,
finding that the CIA was not properly involved in the disclosure
to the FRUS to establish either official acknowledgment or
public disclosure. Nat’l Sec. Archive, 2022 WL 5062523, at
*4. The district court granted the CIA’s motion for summary
judgment, concluding that the Perroots Memo was exempt
from disclosure under FOIA Exemptions 1 and 3. Id. at *5.
The district court then denied the Archive’s motion to amend
judgment, in which the Archive sought to have the court amend
its order to require the CIA “‘to subject the Perroots
Memorandum to a reclassification review under Executive
Order No. 13526,’ which governs agency efforts to reclassify
certain information.” Nat’l Sec. Archive, 2022 WL 18493099,
at *1. The Archive timely appealed the district court’s
decisions.

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II.
A.
We have appellate jurisdiction under 28 U.S.C. § 1291 and
review the district court’s grant of summary judgment in a
FOIA case de novo. Pavement Coatings Tech. Council v. U.S.
Geological Surv., 995 F.3d 1014, 1020 (D.C. Cir. 2021)
(citation omitted). In addition, our review of summary
judgment “‘[i]n the FOIA context . . . requires that we ascertain
whether the agency has sustained its burden of demonstrating
that the documents requested are . . . exempt from disclosure.’”
Id. (quoting ACLU v. DOJ, 655 F.3d 1, 5 (D.C. Cir. 2011)).
B.
Before turning to the merits, we first address the Archive’s
standing. “It is well established that a federal court cannot act
in the absence of jurisdiction,” and “[i]t is equally well
established that Article III standing is a prerequisite to federal
court jurisdiction.” Am. Libr. Ass’n v. FCC, 401 F.3d 489, 492
(D.C. Cir. 2005) (citations omitted). The Archive has standing
if it has (i) suffered “an ‘injury in fact,’” such that its interest is
“concrete and particularized” and “‘actual or imminent,’”
(ii) shown “a causal connection between the injury and the
conduct,” and (iii) a legally redressable injury. Lujan v. Defs.
of Wildlife, 504 U.S. 555, 560–61 (1992) (citations omitted).
Addressing the injury prong, the Supreme Court has held that
an informational injury is sufficient to satisfy standing under
FOIA. Pub. Citizen v. DOJ, 491 U.S. 440, 449 (1989). To
demonstrate a “‘sufficiently concrete and particularized
informational injury,’ the plaintiff must show that ‘(1) it has
been deprived of information that . . . a statute requires the
government . . . to disclose to it, and (2) it suffers, by being
denied access to that information, the type of harm Congress

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sought to prevent by requiring disclosure.’” Elec. Priv. Info.
Ctr. v. Presidential Advisory Comm’n on Election Integrity,
878 F.3d 371, 378 (D.C. Cir. 2017) (citation omitted).
The Archive’s allegations establish informational standing
under our case law.1 First, as to the informational injury
components, and assuming for purposes of standing that the
Archive will prevail on the merits, FOIA provides the Archive
the right to seek the Perroots Memo because it is “designed ‘to
pierce the veil of administrative secrecy and to open agency
action to the light of public scrutiny.’” U.S. Dep’t of State v.
Ray, 502 U.S. 164, 173 (1991) (quoting Dep’t of Air Force v.
Rose, 425 U.S. 352, 361 (1976)); see also Maloney v.
Carnahan, 45 F.4th 215, 217 (D.C. Cir. 2022) (Millett, J.,
concurring) (FOIA is an “example[] of [a] statute[] that
create[s]” “an individual right to obtain information” and
“‘[a]nyone whose request for specific information has been
denied has standing to bring an action[.]’” (citation omitted)).
Second, we view the Archive’s stated injury resulting from the
inability to access the Perroots Memo as the type that FOIA’s
disclosure objectives directly prevent:
1 We note that in TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2214
(2021), the Supreme Court observed that “[a]n ‘asserted
informational injury that causes no adverse effects cannot satisfy
Article III.’” We are bound by Supreme Court precedent, but
TransUnion does not expressly overrule Public Citizen. This Court
is charged with following case law that directly controls a particular
issue, “leaving to [the Supreme] Court the prerogative of overruling
its own decisions.” Mallory v. Norfolk S. Ry. Co., 143 S. Ct. 2028,
2038 (2023) (cleaned up).

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There is likely information of great historical
value to the Archive that was not included in the
[Perroots Memo’s] transcription, but may be in
the original form of the document. For instance,
original documents often list the offices within
specific agencies that received a document,
specific individual recipients, special security
designations, and individuals who were copied
on the correspondence — information that is not
necessarily captured in a transcription.
Compl. ¶ 25 (JA007). Accordingly, we find that the Archive
suffered a concrete injury when the CIA refused its FOIA
request for the Perroots Memo. Additionally, the Archive’s
injury is “‘fairly trace[able]’” to the CIA’s denial of its FOIA
request, and it is likely that the injury would be “redressed by
a favorable decision” by this Court. Lujan, 504 U.S. at 560–
61. For these reasons, we find that the Archive has standing,
and the Court has subject matter jurisdiction. We will now turn
to the merits.
C.
“Congress enacted . . . FOIA to pierce the veil of
administrative secrecy and open agency action to the light of
public scrutiny, and thereby to achieve greater transparency in
support of open government.” Insider Inc. v. GSA, 92 F.4th
1131, 1133 (D.C. Cir. 2024) (cleaned up). To facilitate that
objective, FOIA provides members of the public with the
ability to request records from federal agencies—which an
agency may only withhold by demonstrating the requested
documents fall within one of nine statutory exemptions. See
5 U.S.C. § 552(b)(1)–(9); Citizens for Resp. & Ethics in
Washington v. DOJ, 58 F.4th 1255, 1261 (D.C. Cir. 2023).
Here, in response to the Archive’s FOIA request for the

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Perroots Memo, the CIA invokes Exemptions 1 and 3, which
exempt from disclosure “matters that are—”
(1)(A) specifically authorized under criteria
established by an Executive order to be kept
secret in the interest of national defense or
foreign policy and (B) are in fact properly
classified pursuant to such Executive order; . . .
(3) specifically exempted from disclosure by
statute (other than section 552b of this title), if
that statute—
(A)(i) requires that the matters be
withheld from the public in such a
manner as to leave no discretion on the
issue; or
(ii) establishes particular criteria for
withholding or refers to particular types
of matters to be withheld.
5 U.S.C. § 552(b)(1), (3) (emphases added). The Archive does
not contest the applicability of Exemptions 1 and 3. Rather, it
contends the CIA waived its right to assert the exemptions
through application of the official acknowledgment and public
domain doctrines. We disagree.
1.
“The official acknowledgment doctrine holds that ‘when
an agency has officially acknowledged otherwise exempt
information through prior disclosure, the agency has waived its
right to claim an exemption with respect to that information.’”
Montgomery v. IRS, 40 F.4th 702, 710 (D.C. Cir. 2022)
(citation omitted); see also Knight First Amend. Inst. v. CIA, 11
F.4th 810, 813 (D.C. Cir. 2021) (“If an agency has ‘officially
acknowledged otherwise exempt information through prior

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disclosure,’ it has ‘waived its right to claim an exemption with
respect to that information.’” (citation omitted)). Information
is considered “officially acknowledged” when it (1) is “as
specific as the information previously released”; (2) matches
“the information previously disclosed”; and (3) has already
“been made public through an official and documented
disclosure.” Fitzgibbons v. CIA, 911 F.2d 755, 765 (D.C. Cir.
1990) (citing Afshar v. Dep’t of State, 702 F.2d 1125, 1133
(D.C. Cir. 1983)). With respect to the third element,
“[d]isclosure by one federal agency does not waive another
agency’s right to assert a FOIA exemption.” Mobley v. CIA,
806 F.3d 568, 583 (D.C. Cir. 2015) (citing Frugone v. CIA, 169
F.3d 772, 774–75 (D.C. Cir. 1999)); see also Knight First
Amend. Inst., 11 F.4th at 816 (“We do not ‘deem “official” a
disclosure made by someone other than the agency from which
the information is being sought.’” (citing Frugone, 169 F.3d at
774)).
The Archive contends that the official acknowledgment
doctrine is applicable to the Perroots Memo because “(1) . . .
the CIA was involved in the Perroots Memo transcription’s
publication, and (2) at least a portion of the text from the
Perroots Memo is unquestionably public.” Appellant’s Br. 11.
We reject these contentions because the record, as observed by
the district court, contains classified, supplemental, ex parte,
and in camera declarations which establish that the CIA was
not involved in the disclosure of the Perroots Memo. See Nat’l
Sec. Archive, 2022 WL 5062523, at *4 (JA086).
That the State Department thanked the CIA for its
contribution and acknowledged the CIA as the source of the
Perroots Memo in the FRUS’s Volume IV: Soviet Union,
January 1983–March 1985 is of no consequence: both were
actions taken by the DOS, not the CIA. For the same reason,
although the DOS is statutorily required to “submit[] to the

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respective originating agency for declassification review,” 22
U.S.C. § 4353(b)(1), its actions do not waive the CIA’s right to
assert FOIA Exemptions 1 and 3. Therefore, we affirm the
district court’s decision that the third element of the official
acknowledgment doctrine remains unsatisfied and “that the
CIA—and this includes the agency and its ‘components’—was
not properly involved in the [Perroots Memo]’s disclosure” to
trigger waiver of FOIA Exemptions 1 and 3. Nat’l Sec.
Archive, 2022 WL 5062523, at *4 (JA086).
2.
The Archive argues that application of the public domain
doctrine equally necessitates disclosure of the Perroots Memo.
In this regard, the Archive suggests that disclosure is
appropriate because “the information requested is the same as
what is publicly available in Volume IV”: Soviet Union,
January 1983–March 1985, and it is already part of the
permanent public record based on its availability for viewing
in numerous court records via a Public Access to Court
Electronic Records account, or by accessing the “Internet
Archive Way Back Machine, a non-profit ‘digital library of
Internet sites’ that ‘archive[s] the Internet itself.’” Appellant’s
Br. 15.
Despite the Archive’s support for the existence of the
public domain doctrine, we do not recognize that this exception
is separate and distinct from the official acknowledgment
doctrine. To this point, many of our decisions use the terms
“public domain” and “official acknowledgment”
interchangeably. See, e.g., ACLU v. CIA, 710 F.3d 422, 427
(D.C. Cir. 2013) (“A plaintiff mounting an official
acknowledgment argument ‘must bear the initial burden of
pointing to specific information in the public domain that
appears to duplicate that being withheld.’” (citation omitted));

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Wolf v. CIA, 473 F.3d 370, 378 (D.C. Cir. 2007) (“Prior
disclosure of similar information does not suffice; instead, the
specific information sought by the plaintiff must already be in
the public domain by official disclosure.” (citation omitted)
(emphasis in original)); but see Cottone v. Reno, 193 F.3d 550,
554 (D.C. Cir. 1999) (“Under our public-domain doctrine,
materials normally immunized from disclosure under FOIA
lose their protective cloak once disclosed and preserved in a
permanent public record.”); Students Against Genocide v.
Dep’t of State, 257 F.3d 828, 836 (D.C. Cir. 2001) (“This
circuit has held that the government may not rely on an
otherwise valid exemption to justify withholding information
that is already in the '‘public domain.’”). As we have
emphasized in our precedent, the mere public disclosure of
information does not eliminate potential risks posed by further
disclosure to national security interests—and cannot overcome
an otherwise valid FOIA exemption. See Afshar, 702 F.2d at
1130 (“Also, even if a fact . . . is the subject of widespread
media and public speculation, its official acknowledgment by
an authoritative source might well be new information that
could cause damage to the national security.”). Because the
CIA demonstrated the applicability of Exemptions 1 and 3,
which the Archive failed to either directly or successfully
challenge, we affirm the district court’s decision to grant
summary judgment to the CIA.

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D.
The Archive also appealed the district court’s denial of the
Archive’s motion to amend judgment requesting that the CIA
“‘subject the Perroots Memorandum to a reclassification
review under Executive Order 13526,’ which governs agency
efforts to reclassify certain information.” Nat’l Sec. Archive,
2022 WL 18493099, at *1 (citation omitted). However, in its
briefing, the Archive failed to make any substantive arguments
regarding its reclassification request. We ordinarily do not
consider matters on appeal that are not specifically and
distinctly argued in an appellant’s briefs and therefore we
decline to consider here the Archive’s request to reclassify the
Perroots Memo. E.g., Anna Jaques Hosp. v. Sebelius, 583 F.3d
1, 7 (D.C. Cir. 2009) (“We will not consider ‘asserted but
unanalyzed’ arguments because ‘appellate courts do not sit as
self-directed boards of legal inquiry and research, but
essentially as arbiters of legal questions presented and argued
by the parties before them.’” (citation omitted)).
*****
For the foregoing reasons, we affirm the district court’s
judgment.
So ordered.

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