United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 20, 2012 Decided March 15, 2013

No. 11-5320

AMERICAN CIVIL LIBERTIES UNION AND AMERICAN CIVIL

LIBERTIES UNION FOUNDATION,

APPELLANTS

v.

CENTRAL INTELLIGENCE AGENCY,

APPELLEE

Appeal from the United States District Court

for the District of Columbia

(No. 1:10-cv-00436)

Jameel Jaffer argued the cause for appellants. With him on

the briefs were Ben Wizner and Arthur B. Spitzer.

Ranjana Natarajan was on the brief for amici curiae The

Bureau of Investigative Journalism, et al. in support of

appellants.

Stuart F. Delery, Acting Assistant Attorney General, U.S.

Department of Justice, argued the cause for appellee. With him

on the brief were Ronald C. Machen Jr., U.S. Attorney, Beth S.

Brinkmann, Deputy Assistant Attorney General, and Matthew

M. Collette and Catherine Y. Hancock, Attorneys. Douglas N.

Letter and Sharon Swingle, Attorneys, entered appearances.
2

Before: GARLAND, Chief Judge, and TATEL and GRIFFITH,

Circuit Judges.

Opinion for the Court filed by Chief Judge GARLAND.

GARLAND, Chief Judge: The plaintiffs filed a Freedom of

Information Act request for records held by the Central

Intelligence Agency pertaining to the use of unmanned aerial

vehicles (“drones”) to carry out targeted killings. The Agency

issued a so-called Glomar response, refusing to confirm or deny

that it had any such records. The district court affirmed the

Agency’s response and granted summary judgment in its favor. 

The question on appeal is whether the Agency’s Glomar

response was justified under the circumstances of this case. We

conclude that it was not justified and therefore reverse and

remand for further proceedings.

I

On January 13, 2010, the American Civil Liberties Union

and American Civil Liberties Union Foundation (collectively,

the ACLU) submitted a Freedom of Information Act (FOIA)

request to the Central Intelligence Agency (CIA), seeking

“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.” FOIA Request 2 (J.A. 48); see 5 U.S.C. § 552(a). 

The CIA responded with what is commonly known as a

“Glomar response,” declining either to confirm or deny the

existence of any responsive records.1

 The CIA’s Agency

1

The name is derived from the facts of Phillippi v. CIA, in which

this court addressed the CIA’s refusal to confirm or deny whether it

had documents relating to Howard Hughes’ ship, the Glomar Explorer,
3

Release Panel accepted an administrative appeal, but failed to

make a determination within twenty days as FOIA requires. See

5 U.S.C. § 552(a)(6)(A)(ii). The ACLU then filed suit against

the CIA in the United States District Court for the District of

Columbia, seeking the immediate processing and release of the

requested records. See id. § 552(a)(4)(B).

The CIA moved for summary judgment. It asserted that the

answer to the question of whether it possessed responsive

records was itself exempt from disclosure under FOIA

Exemptions 1 and 3. See id. § 552(b)(1), (3). And it rejected

the ACLU’s contention that there had been official public

acknowledgments that warranted overriding the Agency’s

exemption claims. In support of those arguments, the CIA

submitted the affidavit of Mary Ellen Cole, the Information

Review Officer for the Agency’s National Clandestine Service,

who explained at some length why the CIA believed its Glomar

response was justified. See Declaration of Mary Ellen Cole

(Cole Decl.). 

On September 9, 2011, the district court granted the CIA’s

motion for summary judgment. Am. Civil Liberties Union v.

Dep’t of Justice, 808 F. Supp. 2d 280, 284 (D.D.C. 2011). The

court agreed with the CIA that the existence vel non of

responsive records was exempt under both Exemptions 1 and 3,

and that there had been no official acknowledgment sufficient to

override those exemptions. As a consequence, the court held,

the CIA was not required to confirm or deny that it had any

responsive records, let alone describe any specific documents it

might have or explain why any such documents were exempt

from disclosure. The ACLU filed a timely appeal.

which had reputedly been used in an attempt to recover a lost Soviet

submarine. 546 F.2d 1009 (D.C. Cir. 1976); see Military Audit

Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981).
4

II

This appeal concerns the intersection of two lines of FOIA

cases. The first is the Glomar line, which permits an agency to

“refuse to confirm or deny the existence of records” in limited

circumstances. Wolf v. CIA, 473 F.3d 370, 374 (D.C. Cir. 2007). 

“Because Glomar responses are an exception to the general rule

that agencies must acknowledge the existence of information

responsive to a FOIA request and provide specific,

non-conclusory justifications for withholding that information,

they are permitted only when confirming or denying the

existence of records would itself ‘cause harm cognizable under

an FOIA exception.’” Roth v. U.S. Dep’t of Justice, 642 F.3d

1161, 1178 (D.C. Cir. 2011) (quoting Wolf, 473 F.3d at 374)

(citation and internal quotation marks omitted); see, e.g., Miller

v. Casey, 730 F.2d 773, 775-78 (D.C. Cir. 1984); Gardels v.

CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982). Accordingly, “[i]n

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.” Wolf, 473 F.3d at

374; see, e.g., Gardels, 689 F.2d at 1103-07.

The second line of cases is the “official acknowledgment”

line, which provides that when an agency has officially

acknowledged otherwise exempt information through prior

disclosure, the agency has waived its right to claim an

exemption with respect to that information. In other words,

“‘when information has been “officially acknowledged,” its

disclosure may be compelled even over an agency’s otherwise

valid exemption claim.’” Wolf, 473 F.3d at 378 (quoting

Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C. Cir. 1990)). A

plaintiff mounting an official acknowledgment argument “must

bear the initial burden of pointing to specific information in the

public domain that appears to duplicate that being withheld.” Id.
5

(quoting Afshar v. Dep’t of State, 702 F.2d 1125, 1130 (D.C.

Cir. 1983)).

These two lines of cases converge when a plaintiff seeks to

rebut a Glomar response by establishing official

acknowledgment. In the Glomar context, the “specific

information” at issue is not the contents of a particular record,

but rather “the existence vel non” of any records responsive to

the FOIA request. Id. at 379 (emphasis omitted); see id. at 380. 

Accordingly, the plaintiff can overcome a Glomar response by

showing that the agency has already disclosed the fact of the

existence (or nonexistence) of responsive records, since that is

the purportedly exempt information that a Glomar response is

designed to protect. See id. at 379-80; Marino v. DEA, 685 F.3d

1076, 1081 (D.C. Cir. 2012). As we have explained, “in the

context of a Glomar response, the public domain exception is

triggered when ‘the prior disclosure establishes the existence (or

not) of records responsive to the FOIA request,’ regardless

whether the contents of the records have been disclosed.” 

Marino, 685 F.3d at 1081 (quoting Wolf, 473 F.3d at 379). 

“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.” 

Wolf, 473 F.3d at 374. However, “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

Miller, 730 F.2d at 776) (internal quotation marks omitted). 

“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.’” Id.

at 374-75; see Elec. Privacy Info. Ctr. v. NSA, 678 F.3d 926, 931

(D.C. Cir. 2012); Am. Civil Liberties Union v. U.S. Dep’t of

Def., 628 F.3d 612, 619 (D.C. Cir. 2011); see also CIA Br. 19
6

(acknowledging that “[t]he same standard applies when the

Government issues a Glomar response”).

In the district court, the CIA argued that it could neither

confirm nor deny that it had responsive documents because

confirming that it did would reveal that the CIA was either

involved in, or interested in, drone strikes (while denying that it

did would reveal the opposite). According to the Agency, its

involvement or interest in such strikes is exempt from disclosure

under FOIA Exemptions 1 and 3.2

 On behalf of the Agency,

Mary Ellen Cole declared that “[a]n official CIA

acknowledgment that confirms or denies the existence or

nonexistence of records responsive to Plaintiffs’ FOIA request

would reveal, among other things, whether or not the CIA is

involved in drone strikes or at least has an intelligence interest

in drone strikes.” Cole Decl. ¶ 12; see id. ¶ 19. “[T]he existence

or nonexistence of CIA records responsive to this request,” she

continued, “is a currently and properly classified fact, the

disclosure of which reasonably could be expected to cause

damage to the national security.” Id. ¶ 15. And she further

averred that, “[c]ontrary to Plaintiffs’ suggestion, no authorized

CIA or Executive Branch official has disclosed whether or not

2

Exemption 1 permits the government to withhold information

“specifically authorized under criteria established by an Executive

order to be kept secret in the interest of national defense or foreign

policy,” if that information has been “properly classified pursuant to

such Executive order.” 5 U.S.C. § 552(b)(1). Exemption 3 permits

the government to withhold information “specifically exempted from

disclosure by statute,” if such statute either “requires that the matters

be withheld from the public in such a manner as to leave no discretion

on the issue” or “establishes particular criteria for withholding or

refers to particular types of matters to be withheld.” Id. § 552(b)(3). 

The government relies on the National Security Act of 1947 and the

Central Intelligence Agency Act of 1949 as the relevant withholding

statutes under Exemption 3. See 50 U.S.C. §§ 403-1(i)(1), 403g.
7

the CIA possesses records regarding drone strikes or whether or

not the CIA is involved in drone strikes or has an interest in

drone strikes.” Id. ¶ 43; see id. ¶ 45.

In response, the ACLU argued both that: (1) the mere

existence or nonexistence of records responsive to its requests

was not exempt under FOIA Exemption 1 or 3; and (2) even if

it were, the existence of such records had already been officially

acknowledged by prior disclosure. The district court rejected

both arguments. See Am. Civil Liberties Union, 808 F. Supp. 2d

at 287-93, 298-301; id. at 293-98. On appeal, the ACLU

pursues only the second argument. Accordingly, that is the only

argument we consider, and we consider it de novo. See Elec.

Privacy Info. Ctr., 678 F.3d at 930.

III

For reasons that will become clear in a moment, the CIA

did not justify its Glomar response by contending that it was

necessary to prevent disclosing whether or not the United States

engages in drone strikes. Rather, as we have noted, the response

was justified on the ground that it was necessary to keep secret

whether the CIA itself was involved in, or interested in, such

strikes. Although the Agency’s brief repeatedly emphasizes the

first prong of this justification -- protecting whether the CIA

operates drones -- that is not the issue before us on this appeal. 

The plaintiffs requested the release of ten categories of

documents pertaining to drone strikes, each of which sought

documents about drones, but none of which was limited to

drones operated by the CIA. FOIA Request 5-8 (J.A. 51-54);

see Cole Decl. ¶ 7 (noting that plaintiffs’ request sought

“records pertaining to the use of . . . ‘drones’ . . . by the CIA and
8

the Armed Forces” (emphasis added)).3

 Nor was the CIA’s

Glomar response limited to documents about drones operated by

the Agency. Rather, the CIA asserted and the district court

upheld a sweeping Glomar response that ended the plaintiffs’

lawsuit by permitting the Agency to refuse to say whether it had

any documents at all about drone strikes. See Am. Civil

Liberties Union, 808 F. Supp. 2d at 287, 301. 

The CIA has proffered no reason to believe that disclosing

whether it has any documents at all about drone strikes will

reveal whether the Agency itself -- as opposed to some other

U.S. entity such as the Defense Department -- operates drones.4

There is no doubt, however, that such disclosure would reveal

whether the Agency “at least has an intelligence interest in drone

strikes.” Cole Decl. ¶ 12; see id. ¶ 19. The question before us,

then, is whether it is “logical or plausible,” Wolf, 473 F.3d at

375 (internal quotation marks omitted), for the CIA to contend

that it would reveal something not already officially

acknowledged to say that the Agency “at least has an

3

See ACLU Reply Br. 1 n.1 (confirmation by plaintiffs that their

FOIA request was for documents relating to the use of drones to carry

out targeted killings, not only for documents relating to the use of such

drones by the CIA); Oral Arg. Tr. 17. 

4

There might be a reason if it were unlikely that any entity other

than the CIA operates drones. But the CIA does not make that

argument. To the contrary, the Agency itself notes the possibility that

official acknowledgments of U.S. drone strikes may refer to operations

of “another federal entity such as the Department of Defense.” CIA

Br. 40. See also Robert M. Gates, Remarks by Secretary Gates at the

United States Air Force Academy, U.S.DEP’T OF DEF. (Mar. 4, 2011),

http://www.defense.gov/transcripts/transcript.aspx?transcriptid=4779

(“The Air Force now has 48 Predator and Reaper combat air patrols

currently flying . . . and is training more pilots for advanced UAVs

than for any other single weapons system.”).
9

intelligence interest” in such strikes. Given the extent of the

official statements on the subject, we conclude that the answer

to that question is no.

The President of the United States has himself publicly

acknowledged that the United States uses drone strikes against

al Qaeda. In response to a question about drone strikes on a live

internet video forum, the President said:

I think that we have to be judicious in how we use

drones. But understand that probably our ability to

respect the sovereignty of other countries . . . is

enhanced by the fact that we are able to pinpoint-strike

an al Qaeda operative in a place where the capacities of

th[e] military in that country may not be able to get

them. So obviously a lot of these strikes have

been . . . going after al Qaeda suspects who are up in

very tough terrain along the border between

Afghanistan and Pakistan.5

Similarly, in a speech at the Woodrow Wilson International

Center, the President’s counterterrorism advisor, then-Assistant

to the President for Homeland Security and Counterterrorism

John Brennan, said:

So let me say it as simply as I can. Yes, in full

accordance with the law . . . the United States

Government conducts targeted strikes against specific

5

President Obama Hangs out with America, WHITE HOUSE BLOG

(Jan. 30, 2012), http://www.whitehouse.gov/blog/2012/01/30/

president-obama-hangs-out-america; The White House, Your

Interview with the President - 2012, YOUTUBE, at 28:37-29:23 (Jan.

30, 2012), http://www.youtube.com/watch?v=eeTj5qMGTAI; see id.

at 26:20-30:18. 
10

al-Qaida terrorists, sometimes using remotely piloted

aircraft, often referred to publicly as drones. And I’m

here today because President Obama has instructed us

to be more open with the American people about these

efforts.6

Although these statements do not acknowledge that the CIA

itself operates drones, they leave no doubt that some U.S.

agency does. The CIA does not dispute that these statements

qualify as official acknowledgments of at least that much. Oral

Arg. Tr. 25-26. To the contrary, it concedes that “Mr. Brennan

officially acknowledged that the United States conducts drone

strikes,” albeit without “reveal[ing] whether the CIA (as opposed

to another federal entity such as the Department of Defense) is

involved in these drone strikes.” CIA Br. 40.7

6

John O. Brennan, The Ethics and Efficacy of the President’s

Counterterrorism Strategy, WILSON CENTER (Apr. 30, 2012),

http://www.wilsoncenter.org/event/the-efficacy-and-ethics-uscounterterrorism-strategy [hereinafter Wilson Center Speech]; see id.

(“The United States is the first nation to regularly conduct strikes

using remotely piloted aircraft in an armed conflict.”)

7

We have permitted agencies to give a Glomar response despite

the prior disclosure of another, unrelated agency. See, e.g., Frugone

v. CIA, 169 F.3d 772, 774-75 (D.C. Cir. 1999) (upholding the CIA’s

ability to make a Glomar response despite official disclosure of the

same information by the Office of Personnel Management). That rule

does not apply, however, where the disclosures are made by an

authorized representative of the agency’s parent. See Marino, 685

F.3d at 1082 (disallowing a Glomar response by the DEA where a

U.S. Attorney released documents because both are “component[s]

within the Department of Justice”); see id. (noting the court’s holding

in Davis v. Department of Justice that “the FBI -- likewise part of DOJ

-- could not withhold the specific portions of recordings that the

plaintiff showed were played in federal court” by a federal prosecutor)
11

Given these official acknowledgments that the United States

has participated in drone strikes, it is neither logical nor

plausible for the CIA to maintain that it would reveal anything

not already in the public domain to say that the Agency “at least

has an intelligence interest” in such strikes, Cole Decl. ¶ 12. 

The defendant is, after all, the Central Intelligence Agency. And

it strains credulity to suggest that an agency charged with

gathering intelligence affecting the national security does not

have an “intelligence interest” in drone strikes, even if that

agency does not operate the drones itself.

But there is more. Counterterrorism advisor Brennan did

not merely acknowledge that the United States “regularly

conduct[s] strikes using remotely piloted aircraft.” Wilson

Center Speech. He also stated that, in deciding whether to carry

out a strike, “[w]e . . . draw[] on the full range of our

intelligence capabilities” and “may ask the intelligence

community to . . . collect additional intelligence or refine its

analysis so that a more informed decision can be made.” Id.

“We listen to departments and agencies across our national

security team,” he said, and “don’t just hear out differing views,

we ask for them and encourage them.” Id. Needless to say, by

statutory definition the Central Intelligence Agency is part of

“the full range” of the nation’s “intelligence capabilities.” See

50 U.S.C. §§ 403-4, 403-4a. 

And there is still more. In 2009, then-Director of the CIA

Leon Panetta delivered remarks at the Pacific Council on

International Policy. In answer to a question about “remote

(citing Davis v. U.S. Dep’t of Justice, 968 F.2d 1276, 1279-82 (D.C.

Cir. 1992)). A disclosure made by the President, or by his

counterterrorism advisor acting as “instructed” by the President, falls

on the “parent agency” side of that line.
12

drone strikes” in the tribal regions of Pakistan, Director Panetta

stated:

[O]bviously because these are covert and secret

operations I can’t go into particulars. I think it does

suffice to say that these operations have been very

effective because they have been very precise in terms

of the targeting and it involved a minimum of collateral

damage. . . . I can assure you that in terms of that

particular area, it is very precise and it is very limited

in terms of collateral damage and, very frankly, it’s the

only game in town in terms of confronting and trying

to disrupt the al-Qaeda leadership.8

 

It is hard to see how the CIA Director could have made his

Agency’s knowledge of -- and therefore “interest” in -- drone

strikes any clearer. And given these statements by the Director,

the President, and the President’s counterterrorism advisor, the

Agency’s declaration that “no authorized CIA or Executive

Branch official has disclosed whether or not the CIA . . . has an

interest in drone strikes,” Cole Decl. ¶ 43; see CIA Br. 43, is at

this point neither logical nor plausible.

It is true, of course, that neither the President nor any other

official has specifically stated that the CIA has documents

relating to drone strikes, as compared to an interest in such

strikes. At this stage of this case, however, those are not distinct

issues. The only reason the Agency has given for refusing to

disclose whether it has documents is that such disclosure would

reveal whether it has an interest in drone strikes; it does not

8

Director’s Remarks at the Pacific Council on International

Policy, CENT. INTELLIGENCE AGENCY (May 19, 2009),

https://www.cia.gov/news-information/speeches-testimony/

directors-remarks-at-pacific-council.html.
13

contend that it has a reason for refusing to confirm or deny the

existence of documents that is independent from its reason for

refusing to confirm or deny its interest in that subject. And

more to the point, as it is now clear that the Agency does have

an interest in drone strikes, it beggars belief that it does not also

have documents relating to the subject.9

But again, there is more. In the above-quoted excerpt from

the CIA Director’s Pacific Council remarks, the Director spoke

directly about the precision of targeted drone strikes, the level of

collateral damage they cause, and their usefulness in comparison

to other weapons and tactics. Given those statements, it is

implausible that the CIA does not possess a single document on

the subject of drone strikes. Unless we are to believe that the

Director was able to “assure” his audience that drone strikes are

“very precise and . . . very limited in terms of collateral damage”

without having examined a single document in his agency’s

possession, those statements are tantamount to an

acknowledgment that the CIA has documents on the subject. In

short, although the President and Messrs. Brennan and Panetta

did not say that the CIA possesses responsive documents, what

they did say makes it neither “logical” nor “plausible” to

maintain that the Agency does not have any documents relating

to drones.10

9

Compare Moore v. CIA, 666 F.3d 1330 (D.C. Cir. 2011), which

upheld the CIA’s Glomar response to a request for “all information or

records relevant to . . . Sveinn B. Valfells,” notwithstanding the CIA’s

official acknowledgment that it “asked the FBI to redact some ‘CIAoriginated information’” from a report on Valfells, because the

plaintiff could not “show that the redacted information even relates to

Valfells.” Id. at 1331, 1333-34.

10Although the statements by the President and Mr. Brennan

postdated the district court’s grant of summary judgment, the CIA

does not argue that we may not take judicial notice of them on appeal. 
14

The Glomar doctrine is in large measure a judicial

construct, an interpretation of FOIA exemptions that flows from

their purpose rather than their express language. In this case, the

CIA asked the courts to stretch that doctrine too far -- to give

their imprimatur to a fiction of deniability that no reasonable

person would regard as plausible. “There comes a point

where . . . Court[s] should not be ignorant as judges of what

[they] know as men” and women. Watts v. Indiana, 338 U.S.

49, 52 (1949) (opinion of Frankfurter, J.). We are at that point

with respect to the question of whether the CIA has any

documents regarding the subject of drone strikes.

Indeed, the CIA itself now appears to have recognized the

indefensibility of its position. Shortly after filing its appellate

brief defending its Glomar response in this case, the Agency

filed pleadings in litigation in the Southern District of New York

acknowledging that it does have documents concerning targeted

killings. Declaration of John Bennett ¶¶ 17, 27, 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) (Bennett Decl.). It gave as examples

two public speeches on the subject, one by Attorney General

Eric Holder, and the other the remarks of counterterrorism

advisor John Brennan that we have quoted above. Id. ¶ 27. 

Thereafter, the Agency filed a motion for remand in this case,

stating that the New York filing “officially acknowledges the

CIA’s possession of some records that could potentially be

responsive to plaintiffs’ FOIA requests in this case as well.” 

Remand Mot. 4. The motion went on to hint that the Agency

might abandon its Glomar response in favor of something less

absolute, if only slightly less. See id. at 5. 

The CIA’s New York filing was unclear as to whether it

was acknowledging that the Agency had anything responsive to

the requests in that case beyond the two public speeches it noted. 

At oral argument in this case, CIA counsel appeared to
15

acknowledge that it did. Oral Arg. Tr. 33-35. Even if we are

overreading that acknowledgment, however, the official

statements of the President and Messrs. Brennan and Panetta

render it impossible to believe that those two speeches are the

only documents related to drone strikes in the Agency’s files. 

Accordingly, the CIA’s broad Glomar response is untenable,

and we therefore reverse the district court’s judgment dismissing

the plaintiffs’ FOIA action.11

IV

The collapse of the CIA’s Glomar response does not mark

the end of this case. FOIA contains exemptions, including

particularly Exemptions 1 and 3, that the government argues

permit withholding. “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[,] . . . we [must] remand the case to the

district court” for further proceedings. Wolf, 473 F.3d at 380;

see Marino, 685 F.3d at 1082-83. With the failure of the CIA’s

broad Glomar response, the case must now proceed to the filing

of a Vaughn index or other description of the kind of documents

the Agency possesses, followed by litigation regarding whether

the exemptions apply to those documents. See generally

Vaughn v. Rosen, 484 F.2d 820 (D.C. Cir. 1973). This has not

occurred here because, by accepting the CIA’s Glomar response,

the district court permitted the Agency to end the litigation

11Because the ACLU does not make the argument on appeal, we

do not consider whether -- in light of those official statements -- a

Glomar response would also be unwarranted on the ground that it is

implausible that revealing that the CIA merely has an interest in drone

strikes “would cause harm cognizable under [a] FOIA exception.” 

Wolf, 473 F.3d at 374.
16

without acknowledging the existence of any responsive

documents, let alone indicating their nature or contents.

Just how detailed a disclosure must be made, even in an

index, is another matter. A Vaughn index indicates in some

descriptive way which documents the agency is withholding and

which FOIA exemptions it believes apply. As the plaintiffs

acknowledge, there is no fixed rule establishing what a Vaughn

index must look like, and a district court has considerable

latitude to determine its requisite form and detail in a particular

case. Oral Arg. Tr. 57-58 (plaintiffs’ acknowledgment that the

district court has “a lot of leeway” in determining the degree of

detail required in a Vaughn index); see Judicial Watch, Inc. v.

FDA, 449 F.3d 141, 145-46 (D.C. Cir. 2006); Tax Analysts v.

IRS, 214 F.3d 179, 185 (D.C. Cir. 2000). In the usual case, the

index is public and relatively specific in describing the kinds of

documents the agency is withholding. See Lykins v. U.S. Dep’t

of Justice, 725 F.2d 1455, 1465 (D.C. Cir. 1984); Hayden v.

NSA, 608 F.2d 1381, 1384-85 (D.C. Cir. 1979). But a Vaughn

index may also contain brief or categorical descriptions when

necessary to prevent the litigation process from revealing the

very information the agency hopes to protect. Judicial Watch,

449 F.3d at 146.12 “Indeed, an agency may even submit other

measures in combination with or in lieu of the index itself. 

Among other things, the agency may submit supporting

affidavits or seek in camera review of some or all of the

documents.” Id. at 146 (citation omitted); see Tax Analysts, 214

F.3d at 185. And in some circumstances, the court may permit

12See Gallant v. NLRB, 26 F.3d 168, 173 (D.C. Cir. 1994) (“[T]he

government need not justify its withholdings document-by-document;

it may instead do so category-of-document by category-of-document,

so long as its definitions of relevant categories are sufficiently distinct

to allow a court to determine . . . whether the specific claimed

exemptions are properly applied.” (internal quotation marks omitted)).
17

in camera submission of the index itself. See Hayden, 608 F.2d

at 1385 (finding in camera review appropriate where “public

itemization and detailed justification would compromise

legitimate secrecy interests”). In short, “‘[t]he materials

provided by the agency may take any form so long as they give

the reviewing court a reasonable basis to evaluate the claim of

privilege.’” Gallant, 26 F.3d at 173 (quoting Delaney, Migdail

& Young, Chartered v. IRS, 826 F.2d 124, 128 (D.C. Cir.

1987)).

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 wellestablished, 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).

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
18

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
19

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.

13For this reason, we also do not decide whether the government

would be warranted in making a more limited Glomar response to one

or more of the specific categories of documents “pertaining to drone

strikes” included in the plaintiffs’ FOIA request.