James G. Connell, Iii v. Central Intelligence Agency

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued April 9, 2024 Decided August 6, 2024
No. 23-5118
JAMES G. CONNELL, III,
APPELLANT
v.
CENTRAL INTELLIGENCE AGENCY,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-00627)
Brett Max Kaufman argued the cause for appellant. With
him on the briefs was Arthur B. Spitzer.
Thomas G. Pulham, 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: CHILDS and GARCIA, Circuit Judges, and
GINSBURG, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge GARCIA.

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Concurring opinion filed by Senior Circuit Judge
GINSBURG.
GARCIA, Circuit Judge: In 2014, the Senate Select
Committee on Intelligence released a report that referred to the
CIA’s “operational control” over fourteen CIA detainees
transferred in September 2006 to the U.S. military base at
Guantanamo Bay, Cuba. Based on that reference, a lawyer
representing one of the detainees requested records from the
CIA under the Freedom of Information Act about the CIA’s
“operational control” at Guantanamo from September 2006
through January 2007. After searching a database of records
cleared for public release or previously released, the CIA
identified three documents. As to any classified or otherwise
unacknowledged connection between the CIA and the topic of
the request, however, the agency declared that it could neither
confirm nor deny the existence of such records without
revealing classified intelligence sources and methods
information. The sole issue in this appeal is whether the CIA
can rely on such a response to the records request here. We
conclude that it can.
I
The Freedom of Information Act (“FOIA”) provides for
disclosure of agency records to the public subject to nine
exemptions. 5 U.S.C. § 552(b); Wolf v. CIA, 473 F.3d 370, 374
(D.C. Cir. 2007). As in this case, agencies sometimes respond
to FOIA requests by declaring that they can neither confirm nor
deny the existence of records responsive to the request. This
kind of response is known as a Glomar response based on a
case permitting the CIA to refuse to confirm or deny whether
it had records about a ship named the Glomar Explorer. See
Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976).
In 2009, the Senate Select Committee on Intelligence
(“SSCI”) began to investigate the CIA’s post-9/11 detention

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and interrogation program. The SSCI investigation included
reviewing CIA documents. In 2012, the Committee sent drafts
of the resulting report and executive summary to the Executive
Branch for comment, which the CIA submitted. The
Committee then requested that the executive summary be
declassified, a process involving a review by the Director of
National Intelligence and the CIA. The executive summary
was released in redacted form in 2014. The full, unredacted
report remains classified.
The SSCI executive summary states that fourteen CIA
detainees were transferred “to Department of Defense custody
at Guantanamo Bay” in September 2006. J.A. 114.1 According
to the executive summary, the detainees “remained under the
operational control of the CIA.” Id. Footnote 977 cited a
document titled “CIA Background Memo for CIA Director
visit to Guantanamo, December [], 2006, entitled Guantanamo
Bay High-Value Detainee Detention Facility.” J.A. 114 n.977.
And a footnote on an earlier page cited a “September 1, 2006,
Memorandum of Agreement Between the Department of
Defense (DOD) and the Central Intelligence Agency (CIA)
Concerning the Detention by DOD of Certain Terrorists at a
Facility at Guantanamo Bay Naval Station.” J.A. 112 n.848.
These unredacted references formed the basis for the
records request at issue in this case. Appellant James G.
Connell III is a lawyer who represents one of the fourteen
detainees transferred to Guantanamo in September 2006. In
May 2017, citing the SSCI executive summary’s reference to
“operational control,” Connell submitted a FOIA request to the
CIA for “any and all information that relates to such
‘operational control’ of the CIA over Guantanamo Bay
detainees including but not limited to the document cited in the
1 Cites reflect the J.A.’s pagination, though some pages are not
marked with the page number.

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footnote 977.” J.A. 58. The CIA asked Connell to clarify the
scope of his request. Connell’s response specified an interest
in records that shed light on the meaning and extent of the
CIA’s “operational control” over a specific part of Guantanamo
called Camp 7 from September 1, 2006 to January 31, 2007.
J.A. 63. Connell also listed “[b]y way of example and not
limitation,” seven “possible topics,” including whether any
“operational control” included facilities other than Camp 7,
what organization had decisionmaking authority over Camp 7,
whether CIA “operational control” ended before or after
January 31, 2007, whether “operational control” involved CIA
personnel, any detainee records maintained by the CIA during
such a period, how other agencies could access detainees
during such a period, and how the facilities transitioned from
CIA to DOD “operational control.” Id.
The CIA deemed this an amended FOIA request and
responded in September 2020. It produced in partially redacted
form the itinerary and background memo cited in footnote 977
of the SSCI executive summary, which had been previously
released. The CIA stated that it could neither confirm nor deny
the existence of any other responsive records. Connell filed an
administrative appeal. The CIA failed to timely respond, and
Connell filed his complaint in this suit in district court on
March 8, 2021.
In July 2021, the CIA provided a final response to
Connell’s FOIA request. As CIA Information Review Officer
Vanna Blaine later explained in a declaration in this case, see
Blaine Decl. (J.A. 33–57), the CIA searched for records “that
would reveal an unclassified or openly acknowledged
association between the Agency and the subject of [Connell]’s
Amended FOIA request,” id. ¶ 16 (J.A. 38–39); see also J.A.
73, in a database of “all Agency records that have been
reviewed and/or compiled for potential release, or that have

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been previously disclosed to the public,” Blaine Decl. ¶ 20
(J.A. 40–41).
That search located three documents. Two were released
with redactions: another version of the itinerary and
background memo in footnote 977 that the CIA had previously
produced, and the Memorandum of Agreement (“MOA”)
between the DOD and CIA cited in footnote 848. The CIA
identified a third document but withheld it in full.2
As to any other records, the CIA stated that “it could
neither confirm nor deny the existence of records that may
reveal a classified connection between the Agency and the
subject of [Connell]’s Amended FOIA request because
confirming or denying the existence or nonexistence of such
records would reveal classified intelligence sources and
methods information that is protected from disclosure” under
FOIA Exemptions 1 and 3. Id. ¶ 26 (J.A. 43); see also J.A. 74.
According to the agency, responding otherwise could “reveal
sensitive details about CIA’s intelligence sources and methods
and jeopardize the safety of . . . CIA employees and the
employees of other agencies” or “provide adversaries with
insight into the CIA’s priorities, resources, capabilities, and
relationships with other agencies.” Blaine Decl. ¶ 34 (J.A. 47).
The CIA moved for summary judgment, relying on
Blaine’s declaration. Connell opposed, arguing that the CIA
could not refuse to confirm or deny the existence or
nonexistence of further responsive records in light of the
2 Connell does not challenge that withholding, nor does he
attempt to use this third document in any way to support his other
arguments in this case. Connell’s counsel attempted to do so for the
first time at oral argument, but that came far too late. U.S. ex rel.
Davis v. District of Columbia, 793 F.3d 120, 127 (D.C. Cir. 2015)
(“Generally, arguments raised for the first time at oral argument are
forfeited.”).

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documents it had produced, the SSCI executive summary, and
other non-CIA documents which, according to Connell,
indicated that the CIA had records about its “operational
control” of Camp 7 during the specified time period.
The district court granted summary judgment in favor of
the CIA, concluding that the CIA adequately justified its
Glomar response to show entitlement to summary judgment
and had not otherwise waived such a response. Connell timely
appealed.
II
We review de novo a district court’s grant of summary
judgment in favor of an agency that invokes a FOIA
exemption, including when the agency has issued a Glomar
response. See Montgomery v. IRS, 40 F.4th 702, 709 (D.C. Cir.
2022). Whether the CIA is entitled to summary judgment here
depends on two inquiries—whether the CIA waived its ability
to assert a Glomar response through official acknowledgment
and, if not, whether the CIA’s justification for its Glomar
response was sufficient to show it was entitled to summary
judgment. We address each inquiry in turn.
A
“[A]n agency can waive a Glomar response through
official acknowledgment,” Mobley v. CIA, 806 F.3d 568, 584
(D.C. Cir. 2015), because “[o]nce an agency has officially
acknowledged that records exist, there is no value in a Glomar
response. The secret is out.” Leopold v. CIA, 987 F.3d 163,
167 n.5 (D.C. Cir. 2021).
To show such a waiver, a plaintiff must “identify
information in the public domain that (1) matches the
information requested, (2) is as specific, and (3) has ‘been
made public through an official and documented disclosure.’”
Knight First Amend. Inst. v. CIA, 11 F.4th 810, 815 (D.C. Cir.

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2021) (quoting Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir.
1990)). To satisfy the first two requirements in “the Glomar
context, the prior disclosure must confirm the existence or
nonexistence of records responsive to the FOIA request.” Id.
at 813. These requirements are exacting: “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.” Wolf, 473 F.3d at 378.
In cases like this one, this “insistence on exactitude recognizes
‘the Government’s vital interest in information relating to
national security and foreign affairs.’” Id. (quoting Pub.
Citizen v. Dep’t of State, 11 F.3d 198, 203 (D.C. Cir. 1993)).
Crucially for this case, the third requirement is also strict:
A disclosure is “‘official’” only if made by “the agency from
which the information is being sought.” Knight First Amend.
Inst., 11 F.4th at 816 (quoting Frugone v. CIA, 169 F.3d 772,
774 (D.C. Cir. 1999)). Our cases have repeatedly affirmed the
rationale for such a narrow approach: “While information from
outside an agency may be viewed as ‘possibly erroneous,’
confirmation by the agency itself ‘would remove any lingering
doubts.’” Id. at 816 (quoting Frugone, 169 F.3d at 774–75).
We have also explained that “the rationale for not imputing
statements by one agency to another applies with greater force,
not lesser, in the intelligence context.” Id. at 818.
We have applied the rule that an official acknowledgment
must come from the agency whose records are sought “in
various cases and contexts.” Id. at 816. For example, the FBI
cannot make an official acknowledgment on behalf of the CIA.
Moore v. CIA, 666 F.3d 1330, 1333–34 (D.C. Cir. 2011).
Neither can the State Department, Knight First Amend. Inst.,
11 F.4th at 816–18, the Office of Personnel Management,
Frugone, 169 F.3d at 774–75, nor Congress, Fitzgibbon,
911 F.2d at 765–66. We have recognized one “limited
exception” to this agency-specific rule: An agency is bound by

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a disclosure “made by an authorized representative of the
agency’s parent,” Knight First Amend. Inst., 11 F.4th at 816
(quoting ACLU v. CIA, 710 F.3d 422, 429 n.7 (D.C. Cir.
2013))—that is, a disclosure by another component within the
same executive department or by the President as the head of
the entire Executive Branch, id. at 816–17.
Connell argues that the CIA waived its ability to assert a
Glomar response here based on the SSCI executive summary
that gave rise to his request and the documents the CIA
produced in this litigation—the itinerary and background
memo and the CIA-DOD MOA. Connell argues that these
documents officially confirm the existence of responsive
records showing a classified or otherwise unacknowledged
connection between the CIA and the subject of his FOIA
request. We are not persuaded.
1
Start with the SSCI executive summary and its reference
to CIA “operational control.” The SSCI executive summary’s
reference to CIA “operational control” is not an “official”
acknowledgment: It was made by a congressional committee,
not by the CIA or an authorized representative of the agency’s
parent, and thus cannot be attributed to the CIA for purposes of
waiver under our case law. Knight First Amend. Inst., 11 F.4th
at 816–18 (noting that the CIA does not have a parent agency,
but acknowledging the President or their authorized
representative could qualify). In so holding, we follow a well-
trodden path—indeed, as just explained, we have specifically
rejected imputing disclosures by Congress to the CIA before.
See, e.g., Fitzgibbon, 911 F.2d at 766; see also Knight First
Amend. Inst., 11 F.4th at 816 (noting that this Court has
“rejected attempts to establish an agency’s official
acknowledgment based on disclosures by Congress”).

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Connell argues that we can nonetheless consider the SSCI
executive summary an “official” acknowledgement by the CIA
because the summary would be seen as “similarly credible” in
the eyes of “the public and U.S. adversaries,” Reply Brief 23–
24, in part because the CIA “submitted . . . comments” and
participated in the report’s declassification review, J.A. 248.
That approach would create a new exception to our well-
established and “‘strict’” insistence that an “official” statement
must be made by the agency itself; that rule has never turned
on the perceived credibility of the other speaker. Leopold,
987 F.3d at 170 (quoting Moore, 666 F.3d at 1333). Nor does
the CIA’s submission of comments and participation in the
declassification review transmute the congressional report into
a CIA one. We have rejected similar arguments that
disclosures by former employees are official acknowledgments
where the CIA participated in some advance review or failed
to prevent the disclosure. See, e.g., Afshar v. Dep’t of State,
702 F.2d 1125, 1133–34 (D.C. Cir. 1983); Phillippi v. CIA,
655 F.2d 1325, 1330–31 (D.C. Cir. 1981). Those cases are
instructive here. The CIA’s review does not make the
Committee’s choice to use the phrase “operational control” an
“official” disclosure attributable to the CIA. That is true at
least where, as here, Connell has not pointed to anything in the
record that describes the scope or content of the CIA’s
comments or the extent to which the Committee implemented
them, much less anything that would support attributing the
particular phrase “operational control” to the CIA.
Lacking support in our FOIA case law, Connell turns to
two non-FOIA cases. But both are inapposite. In United States
v. Zubaydah, 595 U.S. 195 (2022), a Guantanamo detainee
sought to depose two former CIA contractors in ways that
would reveal the existence (or not) of a CIA detention site in
Poland. Id. at 199. The government moved to quash the
subpoenas based on the state secrets privilege. Id. at 208. The
Court concluded that the privilege applied, reasoning that even

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though there was already public speculation that such a site
existed, disclosures by the contractors could reasonably be
expected to significantly harm national security interests. Id.
at 207. Because the contractors played a “central role in the
relevant events,” their disclosure would be “tantamount to a
disclosure from the CIA itself.” Id. at 211. In a portion of the
opinion joined by only two other Justices, Justice Breyer drew
“some support” for this conclusion from FOIA cases, including
ours, id. at 210–11, for the proposition that disclosure from an
agency “insider,” id. at 208, like the contractors or the agency
itself, would carry greater weight, and thus inflict more
potential harm to national security interests, than mere public
speculation, id. at 207–09.
Connell argues that Zubaydah undermines our official
acknowledgement case law, and that now statements from
sufficiently credible non-agency actors (like, he says, the SSCI
here) waive an agency’s rights under FOIA. This argument
fails for at least two reasons. First, it is implausible to read the
Court in Zubaydah as casting doubt on our FOIA case law—to
the contrary, only three Justices joined the portion of the
opinion discussing the FOIA cases, and even those Justices
treated those cases as settled law and drew a “rough[]
analog[y]” from them to support their conclusion in the
different context presented in that case. Id. at 210. Second,
and in any event, those Justices found the analogy helpful only
because the contractors there were agency “insider[s],” id. at
208, who played a “central role in the relevant events,” id. at
211; neither characterization applies to the Committee here.
Connell’s other case, Ameziane v. Obama, 699 F.3d 488
(D.C. Cir. 2012), is also not a FOIA case. Ameziane considered
whether the government could adequately justify protecting
certain information under a protective order governing all
Guantanamo habeas litigation. Id. at 490. In holding that the
case was not mooted by certain unofficial disclosures of the

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information at issue, the court reasoned that if, as the plaintiff
requested, his attorney—a government official and officer of
the court—could disclose the information, that would be
treated as tantamount to a similar statement by the government
itself. Id. at 493. As with Zubaydah, however, Ameziane
nowhere casts doubt on our FOIA precedent, and (as our
description of the case shows) is both legally and factually
inapposite.
In short, our precedent squarely prohibits treating the
Committee’s statement that the detainees remained under the
CIA’s “operational control” as an official acknowledgment of
the same by the CIA, and the non-FOIA cases Connell points
to cast no doubt on that conclusion.
2
We turn next to the CIA-produced documents. As an
initial matter, the CIA’s production of some documents in
response to Connell’s FOIA request does not foreclose its
ability to assert a Glomar response as to others. See Wolf,
473 F.3d at 379; see also Mobley, 806 F.3d at 583–84
(affirming CIA’s reliance on partial Glomar response). Here,
the CIA explained that it identified three documents, two of
which it produced, from a database of records “that have been
previously disclosed to the public.” Blaine Decl. ¶ 20 (J.A. 41).
That limited disclosure does not categorically prevent the CIA
from invoking a Glomar response as to records showing a
classified or otherwise unacknowledged connection between
the CIA and the subject of Connell’s FOIA request. See Wolf,
475 F.3d at 379. And we are not persuaded that either of the
two CIA-produced documents specifically matches the
information protected by the CIA’s Glomar response. Neither
document reveals the existence or nonexistence of records
about a classified or otherwise unacknowledged connection
between the CIA and the subject of Connell’s FOIA request,

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namely, the CIA’s “operational control” over Camp 7 from
September 1, 2006 to January 31, 2007.
The itinerary and background memo refer to a December
21, 2006 visit by the CIA Director to Guantanamo and to the
CIA transferring detainees to Guantanamo. The only reference
to the CIA’s role is a description of the “CIA’s end game” as
“assist[ing] DoD in any way possible in the Military
Commission process, while at the same time protecting CIA
equities.” J.A. 322.
The MOA between DOD and the CIA “concerning the
detention by DOD of certain terrorists at a facility at
Guantanamo Bay Naval Station” indicates DOD, not CIA,
control over detainees at Guantanamo. J.A. 307. It refers to
“DoD’s detention of certain individuals,” who were
“transferred to DoD and whose detention by DoD is the subject
of this MOA” and states that these “DoD detainees [are] under
the exclusive responsibility and control of the Secretary of
Defense,” who “is solely responsible for the[ir] continued
detention, release, transfer, or movement.” J.A. 307. The only
reference to the CIA’s role is with respect to “coordinat[ion]
with [DOD] with regard to all communications with
Congress,” J.A. 313, and “on all public affairs matters and, as
necessary, other US agencies,” J.A. 314.
These documents do not suggest one way or the other
whether the CIA has still-undisclosed records about CIA
operational control over Camp 7 in the specified time period.
The documents indicate only that detainees had been in CIA
custody elsewhere before being transferred to DOD control at
Guantanamo, and that thereafter the CIA communicated with
DOD about issues relating to the detainees. Neither fact
reveals the existence or nonexistence of records concerning
CIA “operational control.” Indeed, Connell concedes that at
least the itinerary and background memo “on its face . . .

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doesn’t necessarily point to operational control.” Oral
Argument Tr. 12:18–19; see also id. at 23:8–16. Our precedent
“insist[s] on exactitude” in matching the prior disclosure with
the information protected by the Glomar response. Moore,
666 F.3d at 1333 (quoting Wolf, 473 F.3d at 378). There is no
such specific match here.
Perhaps recognizing the problem, Connell seeks to reshape
his FOIA request to fit what the CIA-disclosed documents
show. Specifically, Connell argues that his FOIA request
sought records showing any CIA “connection to, relationship
with, and authority (or partial authority) over” Camp 7 in the
specified time period. Appellant’s Brief 30. Because the CIA-
produced records do show some connection between the CIA
and Camp 7 in the specified time period, Connell argues, they
officially acknowledged the existence of such records.
But Connell’s request did not seek records of “any
connection” between the CIA and Camp 7 in the specified time
period. It sought records about, in the SSCI’s words, the CIA’s
“operational control” of Camp 7 during that period. As
explained, nothing in the documents the CIA produced
discloses that the CIA had such control, much less discloses
whether the CIA has other, previously undisclosed documents
related to that request.
Finally, Connell argues that because the CIA identified the
itinerary and background memo and CIA-DOD MOA as
responsive, the CIA did, in fact, confirm that the documents
show “operational control.” Oral Argument Tr. 9:20–23; see
also id. at 9:5–8. But Connell’s request specifically referenced
the SSCI executive summary and its footnote citations. That
the CIA produced these as responsive documents indicates only
that the SSCI report cited them, not that the CIA was
confirming that they showed “operational control” on any
independent understanding of the term by the CIA.

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Ultimately, as we have explained, what Connell needed to
show was a CIA disclosure that addresses whether other CIA
records exist that are responsive to the request. See Wolf,
473 F.3d at 379 (even where CIA had officially acknowledged
the existence of some records pertaining to a specific person, it
was required to disclose the “existence of CIA records about
[him] that have been previously disclosed (but not any others)”
(emphasis added)). He has not done so.
B
Even though the CIA has not waived its Glomar response,
it must still show that it properly issued that response to be
entitled to summary judgment. “An agency properly issues a
Glomar response when its affidavits plausibly describe the
justifications for issuing such a response, and these
justifications are not substantially called into question by
contrary record evidence.” Schaerr v. DOJ, 69 F.4th 924, 926
(D.C. Cir. 2023); see ACLU, 710 F.3d at 427 (“Ultimately, an
agency’s justification for invoking a FOIA exemption, whether
directly or in the form of a Glomar response, is sufficient if it
appears logical or plausible.” (cleaned up)).
1
Recall that the CIA’s Glomar response asserted that the
existence or nonexistence of records reflecting a classified or
otherwise unacknowledged connection between the CIA and
the subject of Connell’s FOIA request was protected from
disclosure by Exemptions 1 and 3. [J.A. 43.] Because our
analysis of Exemption 3 is dispositive on the issue, we do not
discuss or reach Exemption 1. See Wolf, 473 F.3d at 375
(“Proper invocation of, and affidavit support for, either
Exemption, standing alone, may justify the CIA’s Glomar
response.”); Larson v. Dep’t of State, 565 F.3d 857, 862–63
(D.C. Cir. 2009) (similar).

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Exemption 3 applies to “matters” that are “specifically
exempted from disclosure by statute,” 5 U.S.C. § 552(b)(3),
recognizing that Congress can protect particular matters from
FOIA’s broad disclosure requirements. To show Exemption 3
applies, an agency must establish only “the existence of a
relevant statute and the inclusion of withheld material within
the statute’s coverage.” Morley v. CIA, 508 F.3d 1108, 1126
(D.C. Cir. 2007). In invoking Exemption 3 here, the CIA relied
on the National Security Act, which commands the Director of
National Intelligence to “protect . . . intelligence sources and
methods from unauthorized disclosure.” 50 U.S.C.
§ 3024(i)(1). “By delegation,” the CIA Director “must do the
same.” Leopold, 987 F.3d at 167. As Connell does not dispute,
the National Security Act is a qualifying “withholding statute
under Exemption 3.” CIA v. Sims, 471 U.S. 159, 167 (1985).
The CIA’s burden was therefore to establish that disclosing
whether it has other records responsive to Connell’s FOIA
request would itself reveal intelligence sources and methods
protected by the National Security Act.
To meet that burden, the CIA relied on Blaine’s
declaration. We accord “substantial weight” in the national
security context to an agency’s determinations as to whether
particular information is related to intelligence sources and
methods or is otherwise classified. Knight First Amend. Inst.,
11 F.4th at 818 (quoting Wolf, 473 F.3d at 374) (emphasis
omitted); see also Sims, 471 U.S. at 179 (determinations of
intelligence officials “familiar with ‘the whole picture,’ as
judges are not,” as to whether information relates to
intelligence sources and methods “are worthy of great
deference given the magnitude of the national security interests
and potential risks at stake”). We “do not require a degree of
specificity that would itself possibly ‘compromise intelligence
methods and sources.’” Knight First Amend. Inst., 11 F.4th at
821 (quoting Mil. Audit Project v. Casey, 656 F.2d 724, 751
(D.C. Cir. 1981)).

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Here, the CIA’s declaration explains that a “defining
characteristic of the CIA’s intelligence activities is that they are
carried out through clandestine means, and therefore they must
remain secret in order to be effective.” Blaine Decl. ¶ 23 (J.A.
41–42). Accordingly, “the CIA generally does not confirm or
deny the existence, or disclose the target, of specific
intelligence collection activities of the operations it conducts or
supports.” Id. ¶ 44 (J.A. 52). Turning to the specific request
here, the declaration states that “acknowledging the existence
or nonexistence of records reflecting a classified or otherwise
unacknowledged connection to the CIA in this matter would
reveal information that concerns intelligence sources and
methods, which the National Security Act is designed to
protect.” Id. ¶ 39 (J.A. 49); see also id. ¶ 16 (J.A. 39) (defining
scope of Glomar response as to “any records that may reveal a
classified connection between the Agency and the subject of
Plaintiff’s Amended FOIA Request”). The declaration also
states that “confirmation or denial of the existence or
nonexistence of such records would reveal sensitive
information about the CIA’s intelligence interests, personnel,
capabilities, authorities, and resources.” Id. ¶ 34 (J.A. 47). A
Glomar response was further needed to avoid “reveal[ing]
sensitive details about CIA’s intelligence sources and methods
and jeopardiz[ing] the safety of the CIA employees and the
employees of other agencies” and to avoid “provid[ing]
adversaries with insight into the CIA’s priorities, resources,
capabilities, and relationships with other agencies.” Id.
Though the CIA could arguably have provided additional
detail as to what intelligence sources and methods would be
revealed here, the CIA met its burden of justifying its Glomar
response. It is plausible that revealing the existence or
nonexistence of records of a classified or otherwise
unacknowledged connection between the CIA and the subject
of Connell’s FOIA request could reveal intelligence sources
and methods information. It is also plausible that stating

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whether the CIA has records about its operational control (or
partial control or utter lack thereof) over Camp 7 would reveal
information about the CIA’s “relationships with other
agencies,” including DOD, or information about the CIA’s
“priorities,” “capabilities,” and “resources.” Id. ¶ 34 (J.A. 47).
Furthermore, as we have recognized, protecting
intelligence sources and methods information under the
National Security Act allows the CIA to withhold even
“superficially innocuous information on the ground that it
might enable an observer to discover” an intelligence source or
method. Sims, 471 U.S. at 178. Because “bits and pieces of
data may aid in piecing together bits of other information even
when the individual piece is not of obvious importance itself,”
the CIA’s protection of intelligence sources and methods can
cover “what may seem trivial to the uninformed,” but “may
appear of great moment to one who has a broad view of the
scene” and can “put the questioned item of information in its
proper context.” Id. (cleaned up). The CIA’s declaration here
makes precisely this point. See Blaine Decl. ¶ 32 (J.A. 46)
(“Terrorist organizations, foreign intelligence services, and
other hostile groups . . . search continually for information
regarding the activities of the CIA and are able to gather
information from a myriad of sources, analyze this information,
and devise ways to defeat CIA activities from seemingly
disparate pieces of information.”).
Connell does not dispute any of those points. He does not
argue that the declaration lacks sufficient specificity about
which intelligence sources and methods would be revealed or
how, nor does he dispute that the CIA’s explanation for its
Glomar response was otherwise sufficiently logical or
plausible on its own terms.

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18
2
Connell instead argues that the CIA cannot plausibly claim
that it has no further documents in light of “contrary record
evidence,” Schaerr, 69 F.4th at 926—the documents the CIA
produced and disclosures from other government entities. See
Appellant’s Brief 31 (“If the record establishes that it is not
logical or plausible that the agency has no such records, the
CIA must acknowledge that it does, in fact, have them . . . .”).
In other words, he argues that there is nothing for the CIA’s
Glomar response to protect because based on already-public
information it is obvious, at least to him, that the CIA does have
other documents responsive to his FOIA request.
Connell bases this argument not only on the two CIA
documents the agency produced, but also on an array of non-
CIA materials, such as statements from various parties and a
judge in military commission proceedings. See also infra at
note 4. Because Connell’s argument turns primarily on the
non-CIA documents, we address those first. Connell’s key
legal argument in asking us to focus on these materials is that
even if statements that are not from the CIA or an authorized
representative of its parent cannot qualify as official
acknowledgments under our waiver cases, they are still
relevant evidence to consider when assessing whether it is
plausible for the CIA to state that confirming or denying the
existence of responsive records would reveal something that is
not already public. See Appellant’s Brief 32–35. We reject
that argument, as agreeing with Connell would amount to an
end-run around our official acknowledgment cases and
contravene both their logic and results.
As detailed above, the rationale underlying our official
acknowledgment cases, as applied to Glomar responses, is that
confirmation that an agency has responsive records (or not) by
the agency itself is different from statements to that effect by

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other sources—even trusted government sources—because
confirmation by the agency itself removes “any lingering
doubts” on the issue. Knight First Amend. Inst., 11 F.4th at
816; see Frugone, 169 F.3d at 774–75. For that reason, “other
agencies of the Executive Branch” cannot “obligate agencies
with responsibility in [the national security] sphere,” like the
CIA here, to reveal protected intelligence information.
Frugone, 169 F.3d at 775. The upshot for present purposes is
that when an agency has not officially acknowledged whether
it has records responsive to a FOIA request, we cannot assume
the answer to that question based on “public speculation, no
matter how widespread,” Wolf, 473 F.3d at 378; see Casey,
656 F.2d at 745 (“We cannot assume, as the appellants would
have us, that the CIA has nothing left to hide.”). Yet that is
exactly what Connell’s theory would have us do: assume the
CIA has responsive documents based on non-CIA statements.
To take just one concrete example from our case law, we
held in Frugone that the CIA could plausibly maintain a
Glomar response to a request for an individual’s personnel
records even where the Office of Personnel Management had
stated in no uncertain terms that such records were “maintained
by the CIA.” 169 F.3d at 773. Because the statement was not
made by the CIA, and the CIA explained why Exemptions 1
and 3 justified a Glomar response, we upheld that response. Id.
On Connell’s theory, however, the plaintiff there could have
sidestepped that holding by arguing that even if that non-CIA
statement could not amount to an official acknowledgement,
that statement (from an undoubtedly trustworthy speaker)
nonetheless rendered it implausible for the CIA to assert that it
might not have such records and that protected information
would be revealed if the CIA itself confirmed or denied the
records’ existence. Connell’s approach would undermine not

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just Frugone but decades of settled precedent, and we decline
to endorse it.3
Accordingly, the non-CIA statements on which Connell
seeks to rely could not render illogical or implausible the CIA’s
assertion that it would reveal protected intelligence information
to confirm or deny the existence or nonexistence of records
3 Connell identifies one case that arguably relied on nonofficial
statements in the way he urges: Florez v. CIA, 829 F.3d 178 (2d Cir.
2016). We do not find that out-of-circuit case persuasive. In Florez,
a divided Second Circuit panel addressed whether FBI disclosures
that post-dated the district court’s summary judgment opinion
required remand for the district court to reconsider whether the CIA
was entitled to summary judgment on its Glomar response. Id. at
180–81. The majority did not find that FBI disclosures rendered the
CIA’s Glomar response implausible, but it concluded that the
disclosures were “relevant” and remanded for the district court to
consider in the first instance. Id. at 186–87. The dissent, however,
reasoned that FBI disclosures that did not mention the CIA at all, let
alone the existence of CIA records responsive to the FOIA request at
issue, could not affect the adequacy of the CIA’s justification that its
Glomar response was necessary to avoid unauthorized disclosures of
intelligence sources and methods information under Exemptions 1
and 3. Id. at 191–95 (Livingston, C.J., dissenting). Further, the
dissent pointed out—correctly, in our view—that “[t]he majority’s
error in deeming these irrelevant documents germane thus appears to
invite by the back door what the official acknowledgment doctrine
prohibits at the front.” Id. at 196. To the extent the Florez majority
characterized the FBI disclosures as “relevant” to the CIA’s
justification for its Glomar response, we find the dissent’s
explanation of how this improperly circumvents the official
acknowledgment doctrine persuasive and in accord with this court’s
case law, at least as applied to our analysis of Connell’s argument
here.

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21
showing a classified or unacknowledged connection between
the CIA and the subject of Connell’s request.4
Connell also relies heavily on our 2013 decision in ACLU
v. CIA, but that case only confirms our conclusion. The FOIA
request there sought CIA records regarding the United States’
use of drone strikes, and the CIA issued a Glomar response “on
the ground that it was necessary to keep secret whether the CIA
itself was involved in, or interested in, such strikes.” 710 F.3d
at 428 (emphasis omitted). The question was therefore whether
it was logical or plausible “for the CIA to contend that it would
reveal something not already officially acknowledged to say
that the Agency ‘at least has an intelligence interest’ in [drone]
strikes.” Id. at 429. The problem for the CIA there was that
repeated official statements—from the President, his
counterterrorism advisor, and the CIA Director—revealed that
the United States used drone strikes. Id. at 429–30. As a result
of those official statements, we held that it “strains credulity”
for the CIA—“an agency charged with gathering intelligence
4 These materials include the SSCI executive summary’s
footnote reference to a site daily report and cable (which, we note,
does not correspond to the dates of Connell’s FOIA request and is
thus not responsive); November 2006 interagency meeting materials
produced by the Office of the Director of National Intelligence in
response to a separate FOIA request, which show, at most, inter-
agency communication related to Camp 7; testimony from Camp 7’s
commander, which never identifies the CIA; a military judge’s
decision and factfinding in a case concerning a Guantanamo
detainee, which does not correspond to the dates of Connell’s FOIA
request; the protective order in Connell’s client’s case before the
military commission; and a government response to motions to
compel discovery related to the CIA’s role at Camp 7. Although we
do not resolve the question, we note that it is far from clear that these
materials are properly read to undermine the CIA’s justification for
its Glomar response even if they were accorded the same status as
statements from the CIA itself.

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22
affecting the national security”—to maintain that it did not at
least have an “intelligence interest” in that subject. Id. at 430.
ACLU indicates that even when official statements do not
precisely match the secret protected by the Glomar response as
required for waiver through official acknowledgment, such
statements can render a Glomar response insufficiently logical
or plausible if they directly undermine the justification given
for that response. But the statements in ACLU were, crucially,
official. Everything our cases have said about the special
import of official statements (those from the agency or an
authorized representative of the agency’s parent) was therefore
not in tension with our rationale there. ACLU did not turn in
any respect on the type of nonofficial statements Connell asks
us to consider here.
And, unlike in ACLU, the official statements Connell
identifies here do not undermine the CIA’s justification for its
Glomar response. As discussed above, the two CIA-produced
documents indicate that detainees had been in CIA custody
elsewhere before being transferred to DOD control at
Guantanamo, and that the CIA communicated with DOD about
issues relating to the detainees. But records revealing prior
custody and ongoing inter-agency communication do not make
it implausible that the CIA’s confirmation of the existence or
nonexistence of records showing a classified or
unacknowledged connection between the CIA and “operational
control” over Camp 7 in the specified time period would reveal
intelligence sources and methods protected by the National
Security Act or information about the CIA’s relationships with
other agencies, priorities, or resources.
* * *
In sum, the CIA did not waive its ability to assert a Glomar
response through official acknowledgment. On Connell’s
articulation of the topic of his FOIA request, neither the SSCI

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executive summary nor the CIA-produced documents support
waiver. Further, though its declaration could have provided
more detail, the CIA’s justification for its Glomar response was
logical and plausible. Connell’s “contrary record evidence”
does not indicate otherwise.
III
For the foregoing reasons, the judgment of the district
court is affirmed.
So ordered.

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GINSBURG , Senior Circuit Judge, concurring:
I concur fully in the opinion of the Court. I write sepa-
rately to make two additional points.
First, Connell’s reliance on the Second Circuit’s decision
in Florez v. CIA, 829 F.3d 178 (2016), is misplaced. In that
case, the Second Circuit deemed Glomar responses “justified
only in ‘unusual circumstances, and only by a particularly per-
suasive affidavit.’” Id. at 182 (quoting N.Y. Times v. Dep’t of
Just., 756 F.3d 100, 122 (2d Cir. 2014)). The Second Circuit
borrowed that wording from our opinion in ACLU v. CIA, 710
F.3d 422 (2013), but it misread that opinion. There we ex-
plained that when an agency must disclose the existence of a
document requested under the FOIA, but believes the content
of the document is exempt from disclosure, it may issue either
a “no number, no list” response or a “Vaughn index.”* See id.
at 432–35. Observing that “there is a material difference be-
tween a ‘no number, no list’ response and a Glomar response,”
we held that a “no number, no list” response, unlike a Glomar
response, is justified under the FOIA only “in unusual circum-
stances, and only by a particularly persuasive affidavit.” Id. at
433. We made clear that a Glomar response, unlike a “no num-
ber, no list” response, is to be judged under “the same general
exemption review standards established in non-Glomar cases.”
Id. at 426 (quoting Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir.
2007)). That is the standard the FOIA requires for a Glomar
* As we have previously explained, a “Vaughn index” is a filing that
lists the documents an agency has withheld and explains why each is
subject to a particular FOIA exemption. See, e.g., DiBacco v. U.S.
Army, 795 F.3d 178, 186 n.2 (D.C. Cir. 2015), ACLU, 710 F.3d at
432–33; Judicial Watch, Inc. v. FDA, 449 F.3d 141, 145–46 (D.C.
Cir. 2006). A “no number, no list” response is a filing in which an
agency admits it has responsive documents but declines to enumerate
or describe them at all. See, e.g., ACLU, 710 F.3d at 432–33; N.Y.
Times, 756 F.3d at 105.

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2
response, as we reiterated three terms ago in Knight First
Amendment Institute at Columbia University v. CIA, 11 F.4th
810, 819 (2021).
Second, a litigant that challenges an agency’s justification
for a Glomar response by pointing to publicly available infor-
mation related to the subject of the documents it seeks would
do well to remember that the touchstone of FOIA Exemption 1
is whether the document in question “‘pertains to’ either ‘intel-
ligence activities’ or ‘intelligence sources or methods’” and
“‘could reasonably be expected to cause identifiable or describ-
able damage to the national security’ if disclosed.” Knight
Inst., 11 F.4th at 813 (quoting Exec. Order No. 13,526, § 4(c),
75 Fed. Reg. 707, 709 (2009)). It is for this very reason that
our past decisions “have unequivocally recognized that the fact
that information resides in the public domain does not elimi-
nate the possibility that further disclosures can cause harm to
intelligence sources, methods[,] and operations.” Fitzgibbon v.
CIA, 911 F.2d 755, 766 (D.C. Cir. 1990). We give substantial
weight to the CIA’s judgment regarding that possibility, for as
we have often repeated, “[t]he assessment of harm to intelli-
gence sources, methods[,] and operations is entrusted to the
Director of Central Intelligence, not to the courts.” ACLU v.
U.S. Dep’t of Def., 628 F.3d 612, 624 (2011) (first alteration in
original); Assassination Archives & Rsch. Ctr. v. CIA, 334 F.3d
55, 58 (2003); Students Against Genocide v. Dep’t of State, 257
F.3d 828, 835 (2001); Fitzgibbon, 911 F.2d at 766.

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