Jarvik v CIA cited in ACLU CIA FOIA Case Decision

Interestingly,the court said the decision in my case was unusual, yet it was a precedent for denial on appeal of an ACLU FOIA request for information on drone strikes by DC Circuit Court of Appeals Chief Judge Merrick B. Garland. Stay tuned...

Story here:
http://www.lawfareblog.com/2013/03/d-c-circuit-rejects-glomar-response-in-aclucia-drone-foia-suit/

Ruling here: http://www.cadc.uscourts.gov/internet/opinions.nsf/6471FF102FC611A685257B2F004DEA2A/$file/11-5320-1425559.pdf

In the New York litigation, the CIA said that it did not want to file a Vaughn index at all, but instead submit what it called a “no number, no list” response -- acknowledging that it had responsive documents, but declining to “further describe or even enumerate on the public record the number, types, dates, or other descriptive information about these responsive records.” Bennett Decl. ¶ 28. Although the CIA’s New York filings speak as if the notion of a “no number, no list” response is well- established, it has not previously been considered by this court. Indeed, at the time of those filings, there were only two previously reported instances of such a response: it was briefly mentioned in one district court case in this circuit, Jarvik v. CIA,741 F. Supp. 2d 106, 123 (D.D.C. 2010), and was litigated once before the Seventh Circuit, Bassiouni v. CIA, 392 F.3d 244, 246-47 (7th Cir. 2004). There are now two more reported instances: another brief mention by a district court in this circuit, Nat’l Sec. Counselors v. CIA, No. 11-443, 2012 WL 4903377, at *38(D.D.C. Oct. 17, 2012), and the district court’s recent grant of summary judgment in favor of the CIA in the New York litigation, New York Times Co. v. U.S. Dep’t of Justice, No. 11-cv-9336, 2013 WL 50209 (S.D.N.Y. Jan. 3, 2013). [Editor's note: This last ruling declares the importance of my case to FOIA law: "Neither Bassiouni nor Jarvik, the two cases upon which the Government principally relies..."]

Citing the Seventh Circuit’s view that a “no number, no list” response is “legally identical” to a Glomar response, Bassiouni, 392 F.3d at 247, the plaintiffs argue that, if the CIA is not entitled to make a Glomar response in this case, it is also not entitled to make a “no number, no list” response. Pls.- Appellants’ Opp’n to Remand Mot. 4-5. At least in a case like this, however, there is a material difference between a “no number, no list” response and a Glomar response. A Glomar response requires the agency to argue, and the court to accept, that the very fact of the existence or nonexistence of responsive records is protected from disclosure. That is conceptually different from conceding (or being compelled by the court to concede) that the agency has some documents, but nonetheless arguing that any description of those documents would effectively disclose validly exempt information. There may be cases where the agency cannot plausibly make the former (Glomar) argument with a straight face, but where it can legitimately make the latter. 

Indeed, a “no number, no list” response might be viewed as a kind of Vaughn index, albeit a radically minimalist one. Such a response would only be justified in unusual circumstances, and only by a particularly persuasive affidavit. Nor is there any reason to regard this approach as subject to an on/off switch. As we have just noted, once an agency acknowledges that it has some responsive documents, there are a variety of forms that subsequent filings in the district court may take. A pure “no number, no list” response is at one end of that continuum; a traditional Vaughn index is at the other. Not quite as minimalist as a pure “no number, no list” response might be a “no number, no list” response (or even a Glomar response) with respect to a limited category of documents, coupled with a Vaughn index for the remainder.

But we are getting ahead of ourselves. None of these issues has been litigated in this case, either in this court or in the district court, because summary judgment was granted in the face of an unqualified, across-the-board Glomar response.13 No government affidavit has yet been filed in this case that even attempts to justify a “no number, no list” response. And neither a traditional Vaughn index nor affidavits justifying an alternative submission have been filed. Accordingly, all such issues remain open for the district court’s determination upon remand.

V
For the foregoing reasons, we reverse the judgment of the district court and remand the case for further proceedings consistent with this opinion.
So ordered.