Project for Privacy and Surveillance Accountability , Inc. v. United States Department of Justice , Et Al .

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued November 4, 2024 Decided July 18, 2025
No. 22-5303
PROJECT FOR PRIVACY AND SURVEILLANCE ACCOUNTABILITY ,
I NC.,
APPELLANT
v.
UNITED STATES DEPARTMENT OF J USTICE , ET AL .,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 1:20-cv-03657)
Gene C. Schaerr argued the cause for appellant. With him
on the briefs was Brian J. Field.
Bradley G. Silverman, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Matthew M.
Graves, U.S. Attorney at the time the brief was filed, and Brian
P. Hudak and Jane M. Lyons, Assistant U.S. Attorneys. R.
Craig Lawrence, Assistant U.S. Attorney, entered an
appearance.
Before: SRINIVASAN , Chief Judge, M ILLETT and W ILKINS ,
Circuit Judges.

-- 1 of 22 --

2
Opinion for the court filed by Circuit Judge M ILLETT .
M ILLETT , Circuit Judge: The Project for Privacy and
Surveillance Accountability, Inc. (“Project”) filed Freedom of
Information Act (“FOIA”) requests with six intelligence
agencies seeking all documents, reports, memoranda, or
communications regarding the upstreaming and unmasking of
forty-eight named current and former members of
congressional intelligence committees, from January 1, 2008,
to January 15, 2020. All six agencies issued Glomar responses
in which they refused to confirm or deny whether they had
responsive records on the ground that the existence or
nonexistence of such records was itself protected from
disclosure under multiple FOIA exemptions, including
Exemption 1, which covers classified national security
materials. The Project filed a lawsuit challenging the agencies’
Glomar responses. The district court granted summary
judgment for the agencies. We affirm because the agencies’
Glomar responses were proper under FOIA’s first exemption.
I
A
FOIA generally requires federal agencies to disclose their
records upon request unless those records fall within one of the
statute’s nine exemptions. 5 U.S.C. § 552(a)–(b); see
Department of Justice v. Julian, 486 U.S. 1, 8 (1988). While
FOIA generally “calls for broad disclosure of Government
records,” the statute exempts certain records from disclosure
where “legitimate governmental and private interests could be
harmed by release[.]” Julian, 486 U.S. at 8 (quotation marks
and citation omitted). In that way, FOIA “balance[s] the
public’s need for access to official information with the

-- 2 of 22 --

3
Government’s need for confidentiality.” Weinberger v.
Catholic Action of Hawaii/Peace Educ. Project, 454 U.S. 139,
144 (1981).
To withhold information under a FOIA exemption, an
agency usually must “acknowledge the existence of
information responsive to a FOIA request and provide specific,
non-conclusory justifications for withholding that
information.” Knight First Amend. Inst. at Columbia Univ. v.
CIA, 11 F.4th 810, 813 (D.C. Cir. 2021) (quoting Roth v.
Department of Justice, 642 F.3d 1161, 1178 (D.C. Cir. 2011)).
But sometimes even acknowledging the “existence or
nonexistence of agency records” could harm interests protected
by the exemptions. Id. (quotation marks omitted). In those
cases, the agency may “‘refuse to confirm or deny the
existence’ of the requested records” through what is known as
a “Glomar response.” Id. (quoting Wolf v. CIA, 473 F.3d 370,
374 (D.C. Cir. 2007)).1
The agencies in this case invoked FOIA Exemptions 1, 3,
6, and 7. 5 U.S.C. § 552(b)(1), (3), (6), (7)(A), (7)(C), (7)(E).
As relevant here, Exemption 1 authorizes an agency to
withhold 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
“properly classified pursuant to such Executive order[.]” Id.
§ 552(b)(1).
The relevant executive order in this case is Executive
Order 13,526. That Order allows for classification of
1 The Glomar response gets its name from a case in which the
Central Intelligence Agency refused to confirm or deny whether it
had records about an alleged operation involving a research ship
called the Hughes Glomar Explorer. See Phillippi v. CIA, 546 F.2d
1009 (D.C. Cir. 1976).

-- 3 of 22 --

4
information when an “original classification authority”—that
is, an individual authorized by the Order to classify information
in the first instance—“determines that the unauthorized
disclosure of the information reasonably could be expected to
result in damage to the national security, * * * and the original
classification authority is able to identify or describe the
damage.” See Classified National Security Information, Exec.
Order No. 13,526, § 1.1(a)(4), 75 Fed. Reg. 707, 707 (Dec. 29,
2009). Information that meets the substantive criteria of
Executive Order 13,526 and is properly classified pursuant to
that Order can be validly withheld under Exemption 1. Schaerr
v. Department of Justice, 69 F.4th 924, 929–930 (D.C. Cir.
2023).2
B
According to the complaint, the Project is a non-profit
corporation that “advocates for greater privacy and civil liberty
protections from government surveillance, and seeks to hold
such programs accountable to constitutional and statutory
limitations.” J.A. 10 (Compl. ¶ 5). In January 2020, the Project
filed identical FOIA requests with the Department of Justice,
the Office of the Director of National Intelligence (“ODNI”),
the National Security Agency (“NSA”), the Federal Bureau of
Investigation, the Central Intelligence Agency, and the
Department of State. The requests sought:
1. All documents, reports, memoranda, or
communications regarding the unmasking—including
all unmasking requests—of any person [on the
Project’s list] from January 1, 2008, to January 15,
2020;
2 Because this case can be resolved under Exemption 1, we need
not address the other exemptions invoked by the agencies.

-- 4 of 22 --

5
2. All documents, reports, memoranda, or
communications regarding the upstreaming—including
all requests for upstreaming—of any individual [on the
list] from Jan. 1, 2008, to Jan. 15, 2020.
See J.A. 17–23 (Compl. ¶¶ 27, 33, 38, 44, 50, 55). The relevant
list of persons about whom records were sought consists of
forty-eight then-current or former members of congressional
intelligence committees.3
“Upstreaming” and “unmasking” refer to agency practices
governed by the Foreign Intelligence Surveillance Act
(“FISA”), Pub. L. No. 95-511, 92 Stat. 1783 (1978) (codified
as amended at 50 U.S.C. § 1801 et seq.). FISA authorizes and
regulates “certain governmental electronic surveillance of
communications for foreign intelligence purposes.” Clapper v.
Amnesty Int’l USA, 568 U.S. 398, 402 (2013); see Schaerr, 69
F.4th at 926. Specifically, FISA authorizes “the targeting of
persons reasonably believed to be located outside the United
States to acquire foreign intelligence information.” 50 U.S.C.
§ 1881a(a). As relevant here, FISA prohibits the intentional
3 The Project’s FOIA requests sought records about: Adam
Schiff, Jim Himes, Terri Sewell, Andre Carson, Jackie Speier, Mike
Quigley, Eric Swalwell, Joaquin Castro, Denny Heck, Peter Welch,
Sean Patrick Maloney, Val Demings, Raj Krishnamoorthi, Devin
Nunes, Mike Conaway, Michael Turner, Brad Wenstrup, Chris
Stewart, Rick Crawford, Elise Stefanik, Will Hurd, John Ratcliffe,
James Risch, Marco Rubio, Susan Collins, Roy Blunt, Tom Cotton,
John Cornyn, Ben Sasse, Dianne Feinstein, Ron Wyden, Martin
Heinrich, Angus King, Kamala Harris, Michael Bennet, James
Lankford, Mark Warner, Peter King, Frank LoBiondo, Trey Gowdy,
Tom Rooney, Ileana Ros-Lehtinen, Jeff Miller, Lynn Westmoreland,
Joe Heck, Mike Pompeo, Luis Gutierrez, and Patrick Murphy. See
J.A. 16 –17 (Compl. ¶ 26).

-- 5 of 22 --

6
targeting of persons within the United States or U.S. persons
outside the United States. Id. § 1881a(b)(1)–(3).
“Upstreaming” is a “methodology for collecting
intelligence information from internet communications” that is
used under FISA. J.A. 156 (FBI Decl. ¶ 17). In an “upstream
collection,” an agency “collects a target’s communications as
they cross the backbone of the internet with the compelled
assistance of companies that maintain those networks.” Id.
While conducting upstream collection, agencies may
incidentally obtain information from or about U.S. persons.
When that happens, agencies must employ procedures to
“minimize the acquisition and retention, and prohibit the
dissemination, of nonpublicly available information
concerning unconsenting United States persons consistent with
the need of the United States to obtain, produce, and
disseminate foreign intelligence information[.]” 50 U.S.C.
§ 1801(h)(1). Minimization commonly involves substituting a
“generic phrase, or term, such as ‘U.S. person 1’ or ‘a named
U.S. person’” if disclosing the identity of the U.S. person
would “not meet dissemination criteria.” J.A. 155 (FBI Decl.
¶ 15). This minimization process is referred to as “masking”
the identity of the U.S. person. Id. Agencies may request to
“unmask” the identity of an individual if that person’s identity
is “necessary to understand foreign intelligence information or
assess its importance[.]” 50 U.S.C. § 1801(h)(2).
C
In response to the Project’s FOIA request, all six agencies
issued Glomar responses, declining to search for responsive
records and stating that the existence or nonexistence of these
records is a fact that itself is exempt from disclosure under
FOIA. Specifically, each agency attested that disclosing the

-- 6 of 22 --

7
fact of the existence or nonexistence of responsive records
would reveal intelligence sources and methods and pose a
threat to national security. In doing so, all six agencies invoked
Exemption 1. In addition, all agencies other than the Justice
Department invoked Exemption 3. The Justice Department
also claimed Exemptions 7(A) and 7(C), and the FBI
additionally relied on Exemptions 6, 7(C), and 7(E).
The Project filed this lawsuit in the United States District
Court for the District of Columbia challenging the agencies’
Glomar responses. The district court granted the agencies’
motion for summary judgment. See Project for Privacy &
Surveillance Accountability, Inc. v. Department of Justice, No.
20-CV-3657, 2022 WL 4365745 (D.D.C. Sept. 19, 2022). The
district court concluded that the agencies were not required to
conduct a search for responsive documents prior to issuing
their Glomar responses, and that the agencies’ affidavits
supported their Glomar responses. Id. at *6, *11, *13, *15.
The Project appealed.
II
The district court had original jurisdiction under 28 U.S.C.
§ 1331. We have appellate jurisdiction under 28 U.S.C. § 1291.
We review the district court’s grant of summary judgment in a
FOIA case de novo, including questions regarding FOIA’s
statutory requirements and limitations. National Sec. Archive
v. CIA, 104 F.4th 267, 271 (D.C. Cir. 2024). In deciding
whether a claimed exemption supports a Glomar response, we
also review de novo the district court’s conclusion that the
agencies’ Glomar responses were proper under the claimed
exemption. See Schaerr, 69 F.4th at 929; Knight First Amend.
Inst., 11 F.4th at 815.

-- 7 of 22 --

8
III
The Project argues that the agencies’ Glomar responses
were insufficient for two reasons. First, the Project insists that
FOIA requires agencies to search for records prior to issuing
Glomar responses. Second, the Project contends that its FOIA
requests are broad enough to encompass some records that are
not justifiably withheld under the cited exemptions, making a
categorical Glomar response improper.
Neither argument succeeds. The first is foreclosed by
precedent, and the second fails because the agencies’ Glomar
responses to the FOIA requests were properly justified based
on Exemption 1 for classified materials.
A
The Project first argues that the agencies were obligated to
search for records prior to issuing their Glomar responses.
Absent this initial search, the Project argues, it is impossible
for the agencies to know whether they possess any responsive
documents that do not necessitate a Glomar response.
That argument is foreclosed by circuit precedent. In
Schaerr, this court held directly that “an agency need not
search its records before invoking Glomar.” 69 F.4th at 928.
That makes sense because “‘the nature of a Glomar response’
is to ‘narrow the FOIA issue to the existence of records vel
non.’” Id. at 928–929 (quoting Wolf, 473 F.3d at 374 n.4); see
also Electronic Privacy Info. Ctr. v. National Sec. Agency, 678
F.3d 926, 934 (D.C. Cir. 2012) (same). Requiring agencies to
search for records, and then report the outcome of that search,
would inevitably confirm or deny the existence of responsive
records, which is precisely what a Glomar response is designed
to avoid. FOIA, after all, does not require searches for their

-- 8 of 22 --

9
own sake. Searches are a means to the end of making
disclosures or withholdings. That process has no application
in a Glomar case because an agency could not even disclose
the outcome of its search without defeating the point of its
Glomar response.
The Project nonetheless argues that Schaerr runs afoul of
the FOIA statute. Project Opening Br. 52. This panel is bound
by Schaerr regardless. See Honeywell Int’l, Inc. v. EPA, 705
F.3d 470, 471 (D.C. Cir. 2013); LaShawn A. v. Barry, 87 F.3d
1389, 1395 (D.C. Cir. 1996) (“One three-judge panel * * *
does not have the authority to overrule another three-judge
panel of the court.”).
In any event, the Project’s arguments are without merit.
First, the Project points out that FOIA directs agencies to
“make reasonable efforts to search for the [requested]
records[.]” 5 U.S.C. § 552(a)(3)(C). True enough. But
“reasonable efforts” do not include searches the results of
which can never be publicly disclosed or discussed without
damaging the very interests protected by FOIA exemptions.
Avoiding any such disclosure is the whole purpose of Glomar.
See Wolf, 473 F.3d at 374 n.4 (“[T]he nature of a Glomar
response * * * narrows the FOIA issue to the existence of
records vel non. Indeed, ‘[w]hen the Agency’s position is that
it can neither confirm nor deny the existence of the requested
records, there are no relevant documents for the court to
examine other than the affidavits which explain the Agency’s
refusal.’”) (second alteration in original) (quoting Phillippi,
546 F.2d at 1013).
Second, the Project cites to FOIA’s requirement that
“whenever the agency determines that a full disclosure of a
requested record is not possible[,]” an agency must “consider

-- 9 of 22 --

10
whether partial disclosure of information is possible” and “take
reasonable steps necessary to segregate and release nonexempt
information[.]” 5 U.S.C. § 552(a)(8)(A)(ii)(I) & (II).
That argument does not work either. The cited provisions
apply when record-specific decisions are made about the
disclosure or withholding of individual documents. They have
no role when even acknowledging the existence or absence of
records will harm statutorily protected interests.
In short, Glomar applies when even answering the
question posed by a FOIA request—do responsive documents
exist?—would harm the United States’ interests. The Project’s
efforts to circumvent that harm by asking the subsidiary
question of whether records can be searched or redacted
fundamentally misunderstands the function of the Glomar
response and the vital national interests that it protects.
B
The Project separately argues that the agencies did not
properly invoke Glomar in this case. In deciding whether a
claimed exemption supports a Glomar response, courts can
resolve the case “based on agency affidavits alone.” Schaerr,
69 F.4th at 928 (citation omitted). The agency bears the burden
of establishing that the claimed exemption supports its
response. 5 U.S.C. § 552(a)(4)(B). An agency is entitled to
summary judgment if its affidavit “(1) describes the
justifications for nondisclosure with ‘reasonably specific
detail’; and (2) is not substantially called into question by
contrary record evidence or evidence of agency bad faith.”
Schaerr, 69 F.4th at 929 (quoting Wolf, 473 F.3d at 374). The
agency’s justification must be “logical or plausible.” Id. at 929
(citing Electronic Privacy Info. Ctr., 678 F.3d at 931).

-- 10 of 22 --

11
In the national security context, courts exercise “great
caution” before compelling an agency to disclose protected
information. Schaerr, 69 F.4th at 929 (citation omitted). In
reviewing FOIA withholdings, we “defer[] to executive
affidavits predicting harm to national security[.]” ACLU v.
Department of Defense, 628 F.3d 612, 624 (D.C. Cir. 2011)
(quoting Center for National Sec. Studies v. Department of
Justice, 331 F.3d 918, 927 (D.C. Cir. 2003)).
Each agency invoked Exemption 1 in support of its
Glomar response. By way of reminder, Exemption 1 imposes
both substantive and procedural requirements. Substantively,
the exemption authorizes the withholding of information
“specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national
defense or foreign policy[,]” which here is Executive Order
13,526. 5 U.S.C. § 552(b)(1)(A). Procedurally, Exemption 1
requires the information to be “properly classified pursuant to
such Executive order[.]” Id.
As the district court concluded, Exemption 1 supports each
agency’s Glomar response in this case. Project for Privacy &
Surveillance Accountability, Inc., 2022 WL 4365745, at *11.
1
Each agency met the substantive criteria for classification
set by Executive Order 13,526. The Order allows information
to be classified if “unauthorized disclosure of the information
reasonably could be expected to result in damage to the
national security,” and the agency “identif[ies] or describe[s]
the damage.” Exec. Order No. 13,526 § 1.1(a)(4); see also
Judicial Watch, Inc. v. Department of Defense, 715 F.3d 937,
941 (D.C. Cir. 2013).

-- 11 of 22 --

12
Each agency submitted an affidavit explaining that
disclosing whether it had records concerning the upstreaming
or unmasking of any individuals listed in the FOIA request
during the specified time periods would gravely harm national
security and intelligence activities. The agencies then
explained that such harm would result because the records
would reveal whether that agency had—or had not—
intercepted communications of one or more of the named
persons through FISA surveillance, the time period in which
the surveillance was undertaken, and whether intelligence
reports about FISA surveillance identified those persons. See
J.A. 93–97 (NSA Decl. ¶¶ 19–27); J.A. 133–138 (CIA Decl. ¶¶
10–20); J.A. 157–162 (FBI Decl. ¶¶ 19–37); J.A. 211–218
(Justice Dep’t Decl. ¶¶ 10–21); J.A. 244–249 (State Dep’t
Decl. ¶¶ 9–19); J.A. 256–261 (ODNI Decl. ¶¶ 16–26). Those
disclosures, in turn, would reveal information about the scope
of FISA surveillance during the designated years. In particular,
the disclosures could inform individuals interacting with the
listed members of Congress either that those individuals were
being monitored, allowing them to take evasive activities, or
that they were not being monitored, revealing gaps in the
government’s surveillance methods.
Each agency also explained that disclosing the existence
or non-existence of such records would reveal agency
intelligence priorities, capabilities, activities, and methods.
J.A. 136 (CIA Decl. ¶ 16); J.A. 95–96 (NSA Decl. ¶ 24); J.A.
162 (FBI Decl. ¶ 36); J.A. 216–217 (Justice Dep’t Decl. ¶ 20);
J.A. 244–245 (State Dep’t Decl. ¶ 9); J.A. 259–260 (ODNI
Decl. ¶ 24). For example, if an agency were to admit publicly
in response to a FOIA request that “no intelligence information
about Persons A or B exists,” but then in response to a request
about Person C “state only that no response could be made,”
that would indicate that “Person C is or has been a target” of an
intelligence investigation, “in communication with a target,” or

-- 12 of 22 --

13
“the subject of a collected communication.” J.A. 96 (NSA
Decl. ¶ 25). At the same time, “adversaries would also know
that communications of Persons A and B were secure and not
subject to * * * surveillance.” Id.
Similarly, if Person X has communications with Person Y,
and an agency denies that it has intelligence records on Person
Y, it would “necessarily reveal to our adversaries that Person
X’s communications are secure and not subject to * * *
surveillance.” J.A. 96 (NSA Decl. ¶ 25). On the other hand, if
an agency confirms that it has intelligence records on Person
Y, it would reveal “intelligence priorities” and that “Person X’s
communications may be unsecure and subject to
surveillance[.]” Id. “Over time, the accumulation” of this
information “would disclose the targets and capabilities, and
therefore the sources and methods,” of an agency’s intelligence
collection. Id.
In that same way, disclosure of the existence or non-
existence of records capturing communications of the listed
individuals would reveal areas where the agencies had a lack
of interest, inability to obtain information, or general gaps and
limitations in their capabilities during the relevant time period.
J.A. 96–97 (NSA Decl. ¶ 26); J.A. 161–162 (FBI Decl. ¶ 36);
J.A. 260 (ODNI Decl. ¶ 24).
The agencies added that disclosing whether responsive
records exist would give “targets, their cohorts, foreign
intelligence agencies, and others intent on interfering with
[these] investigative efforts information necessary to take
defensive actions to conceal criminal activities,” as well as to
“develop and implement countermeasures to elude detection.”
J.A. 217 (Justice Dep’t Decl. ¶ 20). The affidavits explain that
even piecemeal disclosures can provide targets with “a guide
or ‘road map’ that instructs them on which communication

-- 13 of 22 --

14
modes or personnel remain secure” and which do not. J.A. 95–
96 (NSA Decl. ¶ 25). That could reveal “the success of any
evasive techniques.” J.A. 260 (ODNI Decl. ¶ 24).
In addition, the State Department’s affidavit explained that
“[o]fficial public disclosures * * * acknowledge only that the
[NSA] engages in upstream collection[,]” meaning that as to all
of the other agencies, disclosing whether they have responsive
records could reveal whether or not they even engage in
upstreaming, or would at least “provide information about how
intelligence is shared, analyzed, and used” among the agencies.
J.A. 247 (State Dep’t Decl. ¶ 14).
By providing that information, the agencies’ affidavits
properly justified their Glomar responses for the same reasons
the affidavits sustained the agencies’ invocations of Glomar in
Schaerr. 69 F.4th at 929–930. In that case, the FOIA claimant
similarly sought documents concerning the unmasking or
upstreaming of twenty-one named individuals during a specific
time period. Id. at 926–927. There, as here, the agency
affidavits averred that “confirming or denying the existence of
records related to upstreaming or unmasking would damage
national security by disclosing agency priorities, capabilities,
and methods[,]” as well as “weaknesses, and gaps in
intelligence coverage.” Id. at 929–930. Here, as there, the
agencies’ careful explanations were sufficient to support the
Glomar responses.
The Project nonetheless argues that its FOIA requests are
broad enough to encompass “policy documents” that would not
merit withholding under Glomar, such as “a hypothetical
agency document titled, ‘A Guide to Unmasking of Members
of Congress[,]’” “correspondence regarding unmasking of
members of Congress generally[,]” or “a letter from a member
of Congress informing the FBI that she contemplated

-- 14 of 22 --

15
enshrining” procedures to govern the dissemination of
intelligence information referring to congressmembers or their
staff “by statute[.]” Project Opening Br. 26, 46; Project Reply
Br. 7.
That argument fails for the simple reason that the Project’s
FOIA requests do not seek any such generic policy documents.
Instead, the FOIA requests seek exclusively “documents,
reports, memoranda, or communications regarding” the
“unmasking” and “upstreaming”—“including all requests” for
“unmasking” and “upstreaming”—only “of any person” on the
list of named individuals, and even then, only for the January
1, 2008 to January 15, 2020 time period. So the Project’s
requests are, by their own terms, limited to documents
regarding the unmasking and upstreaming of named
individuals during certain years. Nothing more. As a result,
the requests are not written to encompass general policy
documents. In other words, the Project’s “request was not
broadly drawn; it made a specific inquiry,” and the “agenc[ies]
[were] bound to read it as drafted, not as * * * [the Project]
might wish it was drafted.” Miller v. Casey, 730 F.2d 773,
776–777 (D.C. Cir. 1984) (rejecting the argument that an
agency’s Glomar response was improper because the agency
should have “construed [a] request more broadly”).
The Project argues that our decision in People for the
Ethical Treatment of Animals v. National Institutes of Health,
745 F.3d 535 (D.C. Cir. 2014), requires reading its request to
include such policy documents. Not so. The two FOIA
requests and bases for Glomar responses are quite dissimilar.
In particular, the FOIA request in People for the Ethical
Treatment of Animals sought all records involving
“investigations into complaints filed” from 2005 to 2007
“regarding” three named National Institutes of Health grant-

-- 15 of 22 --

16
recipient researchers at Auburn University. 745 F.3d at 539.
As the court recognized, that language would include not just
investigations into the researchers themselves, but any
investigation into their employing institution and its own
practices and procedures. Id. at 544–545. For example, a
complaint that Researcher X was operating without sufficient
supervision could prompt an investigation into the supervisory
rules and requirements at the University just as much as it could
prompt an investigation into the individual researcher. See id.
In addition, the government’s Glomar response in People
for the Ethical Treatment of Animals rested on Exemption 7(C),
which protects personal privacy, not classified materials. See
5 U.S.C. § 552(b)(7)(C). As a result, to justify a Glomar
response, the agency had to make a focused showing that the
named individuals’ personal privacy could reasonably be
expected to be invaded, and that the public interest did not
outweigh those privacy interests. People for the Ethical
Treatment of Animals, 745 F.3d at 544–545; see 5 U.S.C.
§ 552(b)(7)(C). But when it came to the University itself, those
privacy interests were “diminished,” if they existed at all.
People for the Ethical Treatment of Animals, 745 F.3d at 545;
see FCC v. AT&T Inc., 562 U.S. 397, 409–410 (2011) (“The
protection in FOIA [Exemption 7(C)] against disclosure of law
enforcement information on the ground that it would constitute
an unwarranted invasion of personal privacy does not extend to
corporations.”).
Tellingly, the Project does not point to any language in its
FOIA request that could be read to reach beyond its pointedly
focused language. Quite the opposite, that the Project took the
time to list by name each of the forty-eight individuals about
whom it sought information—some in Congress and some no
longer in Congress—says quite clearly that the request did not
seek information about other unlisted persons, let alone the

-- 16 of 22 --

17
entire Congress. While “[a]gencies have ‘a duty to construe a
FOIA request liberally,’” agencies are under no obligation to
rewrite them. People for the Ethical Treatment of Animals, 745
F.3d at 540 (quoting Nation Magazine v. United States
Customs Service, 71 F.3d 885, 890 (D.C. Cir. 1995)).
Finally, the Project points out that “ODNI released in 2020
a once-classified, redacted list of executive branch officials
who requested the unmasking of former National Security
Advisor Michael Flynn[,]” and insists that this “undermines the
Agencies’ claim that acknowledging any records related to
unmasking or upstreaming would necessarily threaten national
security.” Project Reply Br. 9.
That argument tilts at windmills. Nothing in the agency
affidavits says that every potential record generically relating
to unmasking or upstreaming would automatically trigger a
Glomar response. And “we have repeatedly rejected the
argument that the government’s decision to disclose some
information prevents the government from withholding other
information about the same subject.” ACLU, 628 F.3d at 625
(collecting cases).
For all of those reasons, the agencies have each shown that
their Glomar responses met the substantive criteria of
Executive Order 13,526.
2
The second requirement for invoking Exemption 1 is that
each agency must show that the information it seeks to
withhold was “classified in accordance with the procedural
criteria of the governing Executive Order[.]” Judicial Watch,
715 F.3d at 943 (quoting Lesar v. Department of Justice, 636

-- 17 of 22 --

18
F.2d 472, 483 (D.C. Cir. 1980)). The agencies have each
cleared that hurdle.
Under Executive Order 13,526, only “an original
classification authority” can classify information. Exec. Order.
13,526, § 1.1(a)(1). Those vested with original classification
authority are “(1) the President and Vice President; (2) agency
heads and officials designated by the President; and (3) United
States Government officials delegated this authority” under the
Order. Id. § 1.3(a).
Each agency’s affidavit showed that the declarant had
original classification authority under the Order. See J.A. 86,
92–93 (NSA Decl. ¶¶ 1, 18, 19) (Chief of Policy, Information,
Performance, and Exports Linda M. Kiyosaki); J.A. 129–130,
134–135 (CIA Decl. ¶¶ 2, 13) (CIA Information Review
Officer Vanna Blaine); J.A. 151, 160 (FBI Decl. ¶¶ 2, 31)
(Chief of the Record/Information Dissemination Section
Michael G. Seidel); J.A. 210, 213 (Justice Dep’t Decl. ¶¶ 3, 14)
(General Counsel of the National Security Division Patrick N.
Findlay); J.A. 241, 249 (State Dep’t Decl. ¶¶ 1, 19) (Deputy
Assistant Secretary for Analysis and Production of the Bureau
of Intelligence and Research Victor Raphael); J.A. 252, 258–
259 (ODNI Decl. ¶¶ 3, 19, 23) (Chief of the Information
Management Office Gregory M. Koch). That “removes any
doubt that a person with original classification authority has
approved the classification decision[.]” Judicial Watch, 715
F.3d at 944.
The Project invokes two other provisions of the Executive
Order—Sections 1.5 and 1.6. Neither affects the validity of the
Glomar responses.
First, Section 1.5 provides that, “[a]t the time of original
classification, the original classification authority shall

-- 18 of 22 --

19
establish a specific date or event for declassification based on
the duration of the national security sensitivity of the
information.” Exec. Order. 13,526 § 1.5(a). The Project is
correct that no such date was set at the time of classification.
But setting such a date is not a procedural precondition to the
original classification under the Order. It is a requirement that
attaches “[a]t the time of original classification”—that is, once
classification has occurred. Id. (emphasis added). It is not part
of the process of establishing a permissible basis for
classification. That makes sense. Until a classification
judgment is validly made, there is no need for a declassification
date.
Another section of the Executive Order makes that
distinction even more apparent. Section 6.1 of the Order
defines “classified information” as “information that has been
determined pursuant to this order or any predecessor order to
require protection against unauthorized disclosure and is
marked to indicate its classified status when in documentary
form.” Exec. Order. 13,526 § 6.1(i) (emphasis added). So
while the Order requires that a document be marked to be
validly classified, the Order does not similarly make
identifying a declassification date a prerequisite to valid
classification.
In addition, Section 1.5 itself anticipates that there may be
“classified information” that does not have a declassification
date. Section 1.5 states that “[n]o information may remain
classified indefinitely” and provides that “classified
information that * * * lacks declassification instructions shall
be declassified in accordance with [P]art 3 of [the] [O]rder.”
Exec. Order. 13,526 § 1.5(d) (emphasis added). By the express
terms of Section 1.5, therefore, information may properly be
classified even if it lacks a declassification date.

-- 19 of 22 --

20
In sum, to properly invoke Exemption 1, the agencies were
required to show that their Glomar facts were “properly
classified pursuant to” the Executive Order, not that they met
every post-classification requirement in the Order. 5 U.S.C.
§ 552(b)(1)(B). The issue here is simply one of ordering. And
because nothing in the Executive Order mandates that a
declassification date be set before information can validly be
classified, any delay in setting that date here is beside the point.
The Project also relies on Section 1.6 of the Order, which
provides that, “[a]t the time of original classification,” the
agency must mark the classification level, the original
classification authority, the agency and office of origin,
declassification instructions, and a concise reason for
classification. Exec. Order. 13,526 § 1.6(a).
Like Section 1.5, Section 1.6 sets requirements that occur
“at the time of original classification,” but are not themselves
part of the process for the original act of classification. And
while the Order defines “classified information” in part as
“information that * * * is marked to indicate its classified status
when in documentary form[,]” that requirement, by its very
terms, only applies when the classified information is “in
documentary form.” Exec. Order. 13,526 § 6.1(i) (emphases
added).
That marking requirement cannot apply to the Glomar fact
at issue here—the fact that any response would imperil national
security and intelligence operations—since no markings can be
made when the relevant fact takes the form not of a physical
document, but of an abstract expert mental judgment made by
the original classifier who works at the agency. In this case,
there simply was no physical record capable of receiving such
markings.

-- 20 of 22 --

21
The Executive Order anticipates that result. The Order
defines the types of “[i]nformation” that can be classified as
including “any knowledge that can be communicated or
documentary material, regardless of its physical form or
characteristics[.]” Exec. Order. 13,526 § 6.1(t). That
definition includes Glomar facts because the Order says so
specifically. See id. § 3.6(a) (“An agency may refuse to
confirm or deny the existence or nonexistence of requested
records whenever the fact of their existence or nonexistence is
itself classified under this order[.]”).
So the Executive Order expressly allows for the
classification of information that is knowledge, and not just
information that is in the form of markable documentary
material. The Project recognizes as much. See Revised Oral
Argument Tr. 19:8–16 (conceding that “the executive order
* * * does[ not] obligate everything that[ is] classified to be
reduced to documentary form”). And such information is not
required to be “marked to indicate its classified status” to be
properly classified under the Order. Exec. Order. 13,526
§ 6.1(i).
In short, each agency’s determination that it could neither
confirm nor deny the existence of any records complied with
those substantive and procedural prerequisites for
classification raised by the Project.
* * * * *
Because the agencies’ Glomar responses complied with
both the substantive and procedural classification criteria of
Executive Order 13,526, the agencies properly declined to
respond to the Project’s FOIA requests under Exemption 1.

-- 21 of 22 --

22
IV
For the foregoing reasons, we affirm the judgment of the
district court.
So ordered.

-- 22 of 22 --