Friday, March 15, 2013

D.C. Circuit Allows FOIA Case for Drone Files to Move Forward

The D.C. Circuit today rejected the CIA's non-response to the ACLU's FOIA request for documents related to the government's drone program and allowed the case to move forward.  Still, the ruling doesn't ensure that anyone will actually receive documents.  That's a question for the district court on remand.

The case, ACLU v. CIA, involves the ACLU's FOIA request for "records pertaining to the use of unmanned aerial vehicles ('UAVs')--commonly referred to as 'drones' . . .--by the CIA and the Armed Forces for the purpose of killing targeted individuals."  The CIA responded with a Glomar response--declining either to confirm or deny the existence of any responsive records.  The CIA claimed that confirming the existence of documents would confirm that it is involved in, or interested in, drone strikes, while denying the existence would confirm the opposite.  According to the CIA, its involvement or interest in drone strikes fell under exceptions to the FOIA.

The D.C. Circuit disagreed.  It ruled that the government had already publicized the targeted-killing-by-drone program, and that even the CIA chief had revealed its existence and the Agency's interest in it.  Because the reasons for withholding the documents wasn't really a reason, in light of these disclosures, the court said that the CIA can't hide behind a Glomar response.  

Moreover, the CIA justified its Glomar response on the ground that it was necessary to keep secret whether the CIA itself was involved in, or interested in, drone strikes.  But the ACLU's request swept more broadly--to any government drone strikes.  And the CIA's Glomar response also swept more broadly--too broadly.

The court also noted that the government appears to have acknowledged that the CIA has some records that could be responsive to the FOIA request.

The court remanded the case to the district court to sort out what documents the CIA has, and which ones, if any, it might have to turn over.  It's not clear that the CIA will ultimately have to turn over any documents.  The court gave specific suggestions to the district court as to how it might evaluate CIA records and determine which ones it has to release.


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