United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 16, 2006 Decided January 16, 2007

Nos. 05-5394 and 06-5072

PAUL WOLF,

APPELLANT

v.

CENTRAL INTELLIGENCE AGENCY AND

FEDERAL BUREAU OF INVESTIGATION,

APPELLEES

Appeals from the United States District Court

for the District of Columbia

(No. 01cv00729)

Paul Wolf, pro se, argued the cause for the appellant.

Alan Burch, Assistant United States Attorney, argued the

cause for the appellees. Kenneth L. Wainstein, United States

Attorney at the time the brief was filed, and R. Craig Lawrence

and Diane M. Sullivan, Assistant United States Attorneys, were

on brief for the appellees. Michael J. Ryan, Assistant United

States Attorney, entered an appearance.

Before: HENDERSON, RANDOLPH and GRIFFITH, Circuit

Judges.

Opinion for the court filed by Circuit Judge HENDERSON.
2

KAREN LECRAFT HENDERSON, Circuit Judge: The appellant,

Paul Wolf (Wolf), filed a Freedom of Information Act (FOIA),

5 U.S.C. §§ 552 et seq., request with the Central Intelligence

Agency (CIA or Agency), seeking all records related to Jorge

Eliecer Gaitan (Gaitan), a former (and deceased) Colombian

politician. After the CIA refused to either confirm or deny the

existence of such records, Wolf filed this suit. The CIA

subsequently moved for summary judgment on the basis of two

FOIA exemptions. In response, Wolf asserted that the Agency

waived the exemptions through official acknowledgment of

records regarding Gaitan during a 1948 congressional hearing.

The district court rejected Wolf’s official acknowledgment

argument and upheld the CIA’s exemption claims, granting

summary judgment to the Agency. Wolf appeals. We affirm

the district court except to the extent the Agency officially

acknowledged the existence of records before the Congress in

1948; as to the latter, we remand to the district court for further

proceedings.

I.

On April 9, 1948, Gaitan, a former Colombian presidential

candidate, was assassinated in Bogota, Colombia. In the wake

of his assassination, riots erupted in Bogota which prompted a

congressional investigation into the alleged failure of the CIA to

predict such unrest. At the hearing, then-CIA Director Admiral

R. K. Hillenkoetter (Hillenkoetter) testified that the Agency had

in fact predicted the explosive situation brewing in Bogota in

1948. A half century later, Wolf, a historical researcher

interested in the life and death of Gaitan, submitted a FOIA

request to the CIA seeking “all records about Jorge Eliecer
3

1

 Wolf made a similar request for records of the Federal Bureau of

Investigation (FBI), which failed to respond until after Wolf filed suit.

That request is not part of this appeal.

2

See infra p. 5.

Gaitan.” Reprinted at Appellant’s App. at 2.1 On September 22,

2000, the CIA issued a Glomar response2 to Wolf’s request,

neither confirming nor denying the existence of records

regarding Gaitan. Following an unsuccessful administrative

appeal, Wolf filed suit in April 2001 seeking to compel the CIA

to release responsive documents.

Before the district court, the CIA submitted the affidavit of

Kathryn Dyer (Dyer Affidavit), the Agency’s Information and

Privacy Coordinator, in support of its Glomar response. See

Dyer Affidavit, reprinted in Appellee’s App. at 28. The Dyer

Affidavit explained that official confirmation or denial of the

existence of such records might damage both national security,

through revelation of intelligence sources or methods, and

foreign relations. More specifically, according to the Dyer

Affidavit, acknowledgment of such records could disclose the

identities of individuals, or categories of individuals, “in which

the CIA is interested and upon which it focuses its methods and

resources,” thereby allowing foreign intelligence services to

more effectively implement countermeasures to CIA

information-gathering. Id. at 38–39. Moreover, the Agency

asserted that acknowledgment of such records could upset

diplomatic relations with foreign governments whose citizens

had CIA files. As a consequence, the CIA claimed that the

existence of records regarding a foreign national constitutes
4

3

Exemption 1 permits an agency to withhold “matters” from FOIA

disclosure if such matters are “(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.” 5 U.S.C.

§ 552(b)(1). Exemption 3 shields matters “specifically exempted from

disclosure by statute . . ., provided that such statute (A) requires that

the matters be withheld from the public in such a manner as to leave

no discretion on the issue, or (B) establishes particular criteria for

withholding or refers to particular types of matters to be withheld.”

5 U.S.C. § 552(b)(3).

classified information, making its Glomar response appropriate

under FOIA Exemptions 1 and 3.3

The CIA moved for summary judgment on the strength of

the Dyer Affidavit. Wolf responded by filing a cross-motion for

summary judgment, contending that the Agency waived the

exemptions as a result of Hillenkoetter’s 1948 congressional

testimony. During his testimony, Wolf alleged, Hillenkoetter

read from official CIA dispatches referencing Gaitan, thereby

acknowledging that the CIA had responsive records.

Concluding that the Dyer Affidavit explained in reasonably

specific detail the danger to intelligence sources and methods if

the existence of responsive records were disclosed, the district

court held that Exemptions 1 and 3 applied. Because the district

court found “no indication from the transcript [of the

congressional hearing] that the CIA director was reading from

anything more than a prepared statement for the hearing,” Wolf

v. CIA, 357 F. Supp. 2d 112, 118 (D.D.C. 2004), the court held

that the Agency did not waive the FOIA exemptions through

official acknowledgment of records regarding Gaitan. As a

result, the district court granted the CIA’s motion for summary

judgment. Wolf now appeals.
5

4

Wolf challenges the general concept of a Glomar response,

claiming that de novo review of the Agency’s response requires the

district court to order the Agency to search for responsive records and

to submit a Vaughn index. See Appellant’s Brief at 9; Vaughn v.

Rosen, 484 F.2d 820 (D.C. Cir. 1973). His argument misunderstands

the nature of a Glomar response, which 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

II.

The FOIA mandates broad disclosure of government records

to the public, CIA v. Sims, 471 U.S. 159, 166 (1985), subject to

nine enumerated exemptions. See 5 U.S.C. § 552(b). Given the

FOIA’s broad disclosure policy, the United States Supreme

Court has “consistently stated that FOIA exemptions are to be

narrowly construed.” U.S. Dep’t of Justice v. Julian, 486 U.S.

1, 8 (1988). Nevertheless, the CIA “may refuse to confirm or

deny the existence of records where to answer the FOIA inquiry

would cause harm cognizable under an FOIA exception.”

Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982); see also

Miller v. Casey, 730 F.2d 773, 776–77 (D.C. Cir. 1984);

Phillippi v. CIA, 546 F.2d 1009, 1012 (D.C. Cir. 1976). Such an

agency response is known as a Glomar response and is proper

if the fact of the existence or nonexistence of agency records

falls within a FOIA exemption. See, e.g., Hunt v. CIA, 981 F.2d

1116, 1118 (9th Cir. 1992); Phillippi, 546 F.2d at 1011

(acknowledging CIA refusal to confirm or deny existence of

records regarding activities of ship named Hughes Glomar

Explorer). In determining whether the existence of agency

records vel non fits a FOIA exemption, courts apply the general

exemption review standards established in non-Glomar cases.

See, e.g., Gardels, 689 F.2d at 1103–05.4
6

than the affidavits which explain the Agency’s refusal.” Phillippi, 546

F.2d at 1013.

Under the FOIA, “the burden is on the agency to sustain its

action,” 5 U.S.C. § 552(a)(4)(B), and we review de novo the

agency’s use of a FOIA exemption to withhold documents.

Miller, 730 F.2d at 776. Yet in conducting de novo review in

the context of national security concerns, courts “must ‘accord

substantial weight to an agency’s affidavit concerning the details

of the classified status of the disputed record.’” Id. (quoting

Military Audit Project v. Casey, 656 F.2d 724, 738 (D.C. Cir.

1981)) (emphasis in original); see also Krikorian v. Dep’t of

State, 984 F.2d 461, 464 (D.C. Cir. 1993) (noting deference to

expertise of agencies engaged in national security and foreign

policy). Indeed, “[s]ummary judgment is warranted on the basis

of agency affidavits when the affidavits describe ‘the

justifications for nondisclosure with reasonably specific detail

. . . and are not controverted by either contrary evidence in the

record nor by evidence of agency bad faith.’” Miller, 730 F.2d

at 776 (quoting Military Audit Project, 656 F.2d at 738).

Moreover, a reviewing court “must take into account . . . that

any affidavit or other agency statement of threatened harm to

national security will always be speculative to some extent, in

the sense that it describes a potential future harm.” Halperin v.

CIA, 629 F.2d 144, 149 (D.C. Cir. 1980). Ultimately, an

agency’s justification for invoking a FOIA exemption is

sufficient if it appears “logical” or “plausible.” See Gardels,

689 F.2d at 1105; Hayden v. NSA, 608 F.2d 1381, 1388 (D.C.

Cir. 1979).

III.

The CIA submitted the Dyer Affidavit to support its refusal

to either confirm or deny the existence of records pertaining to
7

5

Executive Order 12958 provides agency heads with original

classification authority. See Exec. Order No. 12,958, 60 Fed. Reg.

19,825, 19,827 § 1.4(a)(2) (Apr. 17, 1995); see also Exec. Order No.

13,292, 68 Fed. Reg. 15,315 (Mar. 25, 2003) (amending, in other

respects, Executive Order 12958). Classification authority may also

be exercised by subordinate officials to whom such authority is

delegated, 60 Fed. Reg. at 19,827 § 1.4(a)(3), by an agency head, id.

§ 1.4(c)(2)–(3), in writing, id. § 1.4(c)(4). Through an internal

Agency memorandum, the Director of the CIA delegated original

classification authority to the Director of Information Management

(Director). See Admin. Rec. 70-3, Annex A, Original Classification

Authorities at 1, 3 (June 3, 1997). Further, the Director chairs the

Agency Release Panel (ARP), 32 C.F.R. § 1900.41(c)(1) (2006),

which makes final determinations regarding administrative appeals

under the FOIA. See 32 C.F.R. § 1900.41(a)–(c)(2). In this case, the

ARP, chaired by the Director, determined that the existence or

nonexistence of records responsive to Wolf’s FOIA request is

classified information that would tend to reveal intelligence sources

and methods. Appellee’s App. at 30–31. Dyer, as Information and

Privacy Coordinator, serves as the ARP Executive Secretary. 32

C.F.R. § 1900.41(c)(2). Thus, the Dyer Affidavit reflects personal

knowledge, obtained in Dyer’s official capacity, regarding the

Jorge Gaitan. The question, then, is whether the existence of

Agency records regarding an individual foreign national

constitutes information itself protected by either FOIA

Exemption 1 or Exemption 3. Proper invocation of, and

affidavit support for, either Exemption, standing alone, may

justify the CIA’s Glomar response. See Miller, 730 F.2d at 775;

Gardels, 689 F.2d at 1107 (noting Exemptions 1 and 3 may be

invoked independently).

A.

The Agency justifies its Glomar response under Exemption

1 based on the classification criteria of Executive Order 12958.5
8

classified nature of information related to the existence or

nonexistence of records responsive to Wolf’s FOIA request.

Appellee’s App. at 29, 31.

See Appellee’s Brief at 7; 60 Fed. Reg. 19,825 (Apr. 17, 1995).

Executive Order 12958 permits an original classification

authority to classify information only if “the original

classification authority determines that the unauthorized

disclosure of the information reasonably could be expected to

result in damage to the national security . . . and . . . is able to

identify or describe the damage.” 60 Fed. Reg. at 19,826 §

1.2(a)(4). Such damage to national security may be claimed

only with respect to certain categories of information,

specifically information that “concerns . . . intelligence sources

or methods” or the “foreign relations . . . of the United States.”

Id. at 19, 827 § 1.5(c)–(d). Further, the Supreme Court has

recognized the broad sweep of “intelligence sources” warranting

protection in the interest of national security. See Fitzgibbon v.

CIA, 911 F.2d 755, 760–63 (D.C. Cir. 1990) (including

“unsuspecting,” “potential” and past sources of information)

(emphasis in original) (citing Sims, supra). 

The Dyer Affidavit asserts that confirmation or denial of the

existence of records regarding a foreign national could

reasonably be expected to damage national security or foreign

relations. See Appellee’s App. at 29 (describing “conclusions

[Dyer] reached and determinations [she] made”). Consequently,

if the Dyer Affidavit plausibly explains the danger, the existence

of records vel non is properly classified under Executive Order

12958 and justifies the Agency’s invocation of Exemption 1.

See Gardels, 689 F.2d at 1105; Hayden, 608 F.2d at 1388.

Initially, Dyer describes the CIA’s interest in an individual

foreign national as an intelligence source or method, an interest

that could “be thwarted or made more difficult, reducing the
9

CIA’s effectiveness,” upon disclosure that the Agency has such

records. See Appellee’s App. at 40–41. More specifically, Dyer

asserts that the Agency utilizes foreign nationals as sources in

order to carry out its intelligence-gathering duties and also

targets foreign nationals as subjects of surveillance. See id. at

34, 36–37. With regard to foreign nationals as sources of

information, “the Agency must often depend upon information

that can only be garnered from knowledgeable sources under an

arrangement of absolute secrecy.” Id. at 33. Indeed, human

resources abroad often refuse to aid the CIA absent assurances

of confidentiality because “official confirmation of [a source’s]

cooperation [with the Agency] could cause the target

government to take retaliatory action against that person, or, if

he is no longer alive, against his surviving family and friends.”

Id. at 34. Thus, the Dyer Affidavit explains, acknowledgment

that the Agency maintains contact with a specific foreign

national “would . . . seriously damage this nation’s credibility

with all other current intelligence sources and undermine CIA’s

ability to attract potential intelligence sources in the future.” Id.

at 35; see also id. (“If the U.S. Government were to breach this

confidentiality, whether three or 30 years later, present and

potential sources throughout the world could reasonably be

expected to conclude that the U.S. Government is unable to

maintain such confidentiality.”). 

Moreover, the Dyer Affidavit explains that revealing that the

CIA maintains records regarding specific foreign nationals could

potentially reveal targets of CIA surveillance and, thus, CIA

methods. See id. at 38. According to the Agency, the existence

or nonexistence of records regarding a foreign national would

signal to a foreign intelligence service “the specific persons and

areas in which the CIA is interested and upon which it focuses

its methods and resources.” Id. Because “[e]very country or

group has limited resources[,] [t]he disclosure to a potential U.S.
10

intelligence target of the areas and persons of CIA interest

would indicate to that target how the CIA is allocating its

resources [and] [t]herefore, the target may array its

counterintelligence and security resources most efficiently to

frustrate the CIA.” Id. at 38–39.

In addition to the likely damage to intelligence sources and

methods, the Dyer Affidavit outlines the potential harm to

foreign relations that would reasonably result from confirming

or denying the existence of Agency records about a foreign

national. Id. at 41–42. Specifically, Dyer asserts that a foreign

government, “whether friend or adversary,” could construe the

fact “that the CIA maintains information concerning a covert

relationship with a particular foreign national” as evidence “that

the CIA has collected intelligence information on or recruited

one of its citizens or resident aliens.” Id. at 41. Not

surprisingly, the Agency asserts, “[s]uch a perception could be

expected to affect adversely U.S. foreign relations with that

nation[,] . . . especially . . . where U.S. allies are concerned.” Id.

In light of the substantial weight accorded agency assertions

of potential harm made in order to invoke the protection of

FOIA Exemption 1, the Dyer Affidavit both logically and

plausibly suffices. See Gardels, 689 F.2d at 1105; Hayden, 608

F.2d at 1388. It is plausible that either confirming or denying an

Agency interest in a foreign national reasonably could damage

sources and methods by revealing CIA priorities, thereby

providing foreign intelligence sources with a starting point for

applying countermeasures against the CIA and thus wasting

Agency resources. See Gardels, 689 F.2d at 1106 (“The CIA

has the right to assume that foreign intelligence agencies are

zealous ferrets.”). Indeed, “‘[w]e must take into account . . . that

each individual piece of intelligence information, much like a

piece of jigsaw puzzle, may aid in piecing together other bits of
11

6

The structure and responsibilities of the United States intelligence

community have undergone reorganization in recent years. As a

consequence, the duties of the CIA Director are described as they

information.’” Fitzgibbon, 911 F.2d at 763 (quoting Gardels,

689 F.2d at 1106) (alteration in original).

Moreover, it is logical to conclude that the need to assure

confidentiality to a foreign source includes neither confirming

nor denying the existence of records even decades after the

death of the foreign national. For example, in Fitzgibbon we

recognized that the passage of thirty years from the individual’s

death failed to negate the necessity of confidentiality because

“the Government has a compelling interest in protecting . . . the

appearance of confidentiality so essential to the effective

operation of our foreign intelligence service.” See id. at 763–64

(emphasis in original) (internal quotation omitted).

Accordingly, we conclude that the existence or nonexistence of

Agency records regarding Gaitan is properly classified

information and therefore shielded from disclosure under

Exemption 1.

B.

The CIA invokes Exemption 3 as an alternative basis of its

Glomar response. As noted earlier, Exemption 3 permits an

agency to withhold information “specifically exempted from

disclosure by statute.” 5 U.S.C. § 552(b)(3). In this regard, the

CIA maintains that the existence or nonexistence of records

about a foreign national is protected from disclosure under the

National Security Act, 50 U.S.C. §§ 401 et seq. See, e.g.,

Krikorian, 984 F.2d at 465; Gardels, 689 F.2d at 1103.

Specifically, the National Security Act makes the CIA Director

responsible for “protect[ing] intelligence sources and methods

from unauthorized disclosure.” 50 U.S.C. § 403-3(c)(6) (2000).6
12

existed at the time of Wolf’s FOIA request in 2000. Under the

Intelligence Reform and Terrorism Prevention Act of 2004, Pub. L.

No. 108-458, the new Director of National Intelligence is similarly

required to “protect intelligence sources and methods from

unauthorized disclosure.” 50 U.S.C. § 403-1(i)(1).

Indeed, information is exempt under section 403-3(c)(6) if the

Agency “demonstrates that an answer to the query can

reasonably be expected to lead to unauthorized disclosure.”

Gardels, 689 F.2d at 1103 (internal quotation omitted).

The Supreme Court gives even greater deference to CIA

assertions of harm to intelligence sources and methods under the

National Security Act. See Sims, 471 U.S. at 168–69 (“The

plain meaning . . . of the National Security Act . . . indicates that

. . . Congress entrusted [the CIA] with sweeping power to

protect its ‘intelligence sources and methods.’”). Because “the

purpose of national security exemptions to the FOIA is to

protect intelligence sources before they are compromised and

harmed, not after,” Halperin, 629 F.2d at 149, “the Director of

Central Intelligence may protect all intelligence sources,

regardless of their provenance,” Fitzgibbon, 911 F.2d at 762. As

with Exemption 1, the Agency relies on the Dyer Affidavit to

establish that disclosure of information regarding whether or not

CIA records of a foreign national exist would be unauthorized

under Exemption 3 because it would be reasonably harmful to

intelligence sources and methods. See Gardels, 689 F.2d at

1103–04. As discussed earlier, Dyer’s detailing of harm

satisfies the requirements of Exemption 1 and, coupled with the

greater deference afforded the Agency under the National

Security Act, we believe that the CIA also properly invoked

Exemption 3 in support of its Glomar response.
13

IV.

Although the CIA properly invoked Exemptions 1 and 3,

Wolf asserts that the Agency waived both of them by officially

acknowledging the existence of records regarding Gaitan during

the 1948 congressional testimony of then-CIA Director

Hillenkoetter. Indeed, “when information has been ‘officially

acknowledged,’ its disclosure may be compelled even over an

agency’s otherwise valid exemption claim.” Fitzgibbon, 911

F.2d at 765. An agency’s official acknowledgment of

information by prior disclosure, however, cannot be based on

mere public speculation, no matter how widespread. Afshar v.

Dep’t of State, 702 F.2d 1125, 1130 (D.C. Cir. 1983) (rejecting

suggestion that public speculation about CIA liaison with

Iranian government constituted prior disclosure). Instead, an

official acknowledgment must meet three criteria:

First, the information requested must be as specific as

the information previously released. Second, the

information requested must match the information

previously disclosed . . . . Third, . . . the information

requested must already have been made public through

an official and documented disclosure.

Fitzgibbon, 911 F.2d at 765; see also Public Citizen v. Dep’t of

State, 11 F.3d 198, 202 (D.C. Cir. 1993); Afshar, 702 F.2d at

1133. Thus, the fact that information exists in some form in the

public domain does not necessarily mean that official disclosure

will not cause harm cognizable under a FOIA exemption. See

Fitzgibbon, 911 F.2d at 766.

As a consequence, “a plaintiff asserting a claim of prior

disclosure must bear the initial burden of pointing to specific

information in the public domain that appears to duplicate that

being withheld.” Afshar, 702 F.2d at 1130. Prior disclosure of

similar information does not suffice; instead, the specific
14

information sought by the plaintiff must already be in the public

domain by official disclosure. Public Citizen, 11 F.3d at 201,

203. The insistence on exactitude recognizes “the Government’s

vital interest in information relating to national security and

foreign affairs.” Id. at 203; see also Military Audit Project, 656

F.2d at 752–53 (rejecting claim that public disclosure of some

information overlapping with content of requested material

results in waiver as to all information).

While FOIA requesters often invoke agency waiver in order

to overcome FOIA exemptions, the “official acknowledgment”

standard has not yet been applied in the context of a Glomar

response. In most waiver cases, the inquiry turns on the match

between the information requested and the content of the prior

disclosure. For instance, in Fitzgibbon we rejected the

plaintiff’s argument that congressional testimony establishing

the existence of a CIA station in the 1960s waived Exemption

3's protection of records about the station in the 1950s because

the time period specified in the plaintiff’s FOIA request did not

match the time period of the prior disclosure. See 911 F.2d at

765–66.

Wolf requested “[a] copy of all records about Jorge Eliecer

Gaitan.” Appellee’s App. at 29. The CIA’s Glomar response

pinpointed the “specific information at issue” as the existence of

Agency “records about Jorge Eliecer Gaitan” vel non. Id. In the

Glomar context, then, if the prior disclosure establishes the

existence (or not) of records responsive to the FOIA request, the

prior disclosure necessarily matches both the information at

issue—the existence of records—and the specific request for

that information.

Wolf asserts that former CIA Director Hillenkoetter’s

testimony before the Congress in 1948 established the existence

of Agency “records about” Gaitan. See Appellant’s Br. at 23.
15

7

At one point during the hearing, Representative Clarence Brown

asked Hillenkoetter whether he had “conclude[d] [his] prepared

statement for the record.” Appellant’s App. at 28. Hillenkoetter

indicated that he had completed his prepared statement, thereby

opening the hearing to further questions. Id.

8

At oral argument, the CIA did not dispute that the references to

Gaitan in Hillenkoetter’s testimony constitute “records” about Gaitan

within the meaning of the FOIA. Cf. Tobey v. NLRB, 40 F.3d 469,

471 (D.C. Cir. 1994) (under Privacy Act definition of “record,” 5

U.S.C. § 552a(a)(4), inclusion of individual’s name in document does

The district court rejected this contention, concluding that “there

is no indication from the transcript that the CIA director was

reading from anything more than a prepared statement for the

hearing. Moreover, Admiral Hillenkotter [sic] never made a

specific reference in his testimony to reading from any report or

other official document.” Wolf, 357 F. Supp. 2d at 118. We do

not agree.

Although Hillenkoetter’s testimony appears to be a prepared

statement, see Special Subcommittee of the Committee on

Expenditures in the Executive Departments (April 15, 1948),

reprinted in Appellant’s App. at 28,7 the CIA Director also

explicitly “read some excerpts of dispatches relating to the[]

disturbances” that followed Gaitan’s assassination. Id. at 22

(reciting information “obtained by people working for Central

Intelligence” in Colombia). The excerpts included references to

Gaitan, his followers and their associates in connection with

possible communist activity in Colombia. See id. at 22–23

(reading report from January 2, 1948 describing “[a] professor

at the national university and a member of the Colombian Soviet

Cultural Exchange” who “is known to be close to and an advisor

of Gaitan”).8

 Further, Hillenkoetter suggested that the
16

not constitute “information . . . ‘about’” individual and thus “record”

subject to disclosure); Doe v. FBI, 936 F.2d 1346, 1353 (D.C. Cir.

1991) (FOIA definition of “law enforcement record” applied to

Privacy Act in light of similarity of statutory language).

dispatches were Agency documents containing sensitive

information typically passed on to the Department of State. Id.

at 28–29 (confirming that dispatches “[were] forwarded to the

State Department”). Because the “specific information at issue,”

Public Citizen, 11 F.3d at 203, is the existence vel non of

“records about Jorge Eliecer Gaitan,” Appellee’s App. at 29,

Hillenkoetter’s testimony confirmed the existence thereof.

Accordingly, the Agency’s Glomar response does not suffice

regarding the dispatch excerpts that reference Gaitan because the

same “officially acknowledge” the fact that CIA records “about

Jorge Eliecer Gaitan” exist.

We must now resolve the nature of the information to which

Wolf is entitled. The CIA’s official acknowledgment waiver

relates only to the existence or nonexistence of the records about

Gaitan disclosed by Hillenkoetter’s testimony. As a result, Wolf

is entitled to disclosure of that information, namely the existence

of CIA records about Gaitan that have been previously disclosed

(but not any others). Cf. Fitzgibbon, 911 F.2d at 765 (agency

may be compelled to disclose officially acknowledged

information) (citing Afshar, 702 F.2d at 1133). To determine

whether the contents—as distinguished from the existence—of

the officially acknowledged records may be protected from

disclosure by Exemptions 1 and 3 (or both), however, we

remand the case to the district court where the CIA must either

disclose any officially acknowledged records or establish both

that their contents are exempt from disclosure and that such

exemption has not also been waived by the 1948 congressional

testimony. See Am. Civil Liberties Union v. Dep’t of Def., 389
17

F. Supp. 2d 547, 566 (S.D.N.Y. 2005) (finding that government

officially acknowledged existence of memorandum and

requiring that government either produce document or “prove

that the [contents of related documents] are exempt from

production”).

V.

In sum, we affirm the district court’s holding that the

existence or nonexistence of records about Gaitan is itself

classified information and protected from disclosure by

Exemptions 1 and 3 of the FOIA. We reverse the district court,

however, to the extent that it held that the existence of Agency

records about Gaitan was not officially acknowledged by the

CIA in testimony before the Congress in 1948. We therefore

remand the case to the district court for proceedings consistent

with this opinion.

So ordered.