KAREN LeCRAFT HENDERSON, Circuit Judge.
This case arises under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. Appellant Thomas E. Moore, III (Moore) challenges the Central Intelligence Agency's (CIA or Agency) Glomar response to his request for "all information or records relevant to . . . Sveinn B. Valfells" (Valfells Sr.), in which response the Agency neither confirmed nor denied whether it maintained any such records.
The relevant facts in this case are undisputed. By letters dated November 19, 2007, Moore submitted a series of FOIA requests to the United States Department of Justice (DOJ), the CIA and the United States Department of State on behalf of his client, Sveinn Valfells (Valfells). The requests sought information regarding Valfells' grandfather, Valfells Sr., an Icelandic textile merchant who spent time in the United States during the 1940s and 1950s and who allegedly had ties to the Icelandic Communist Party (ICP).
On December 17, 2007, the CIA responded to Moore's request, stating that "the CIA can neither confirm nor deny the existence or nonexistence of records responsive to this part of your request." Letter from Scott Koch to Moore at 1 (Dec. 17, 2007). The CIA relied on FOIA exemptions (b)(1) and (b)(3) to support its response.
On July 23, 2009, after Moore's efforts to obtain the requested records from the CIA failed, Moore filed suit in the district court challenging its Glomar response. The CIA moved to dismiss or, in the alternative, for summary judgment and submitted the declaration of CIA Information Review Officer Ralph DiMaio (DiMaio) in support of its motion. In his declaration, DiMaio confirmed inter alia that in April 2008 the CIA "ask[ed] the FBI to withhold certain CIA-originated information [from the FBI Report] . . . in order to protect intelligence sources and methods." Moore subsequently cross-moved for partial summary judgment, arguing that, given DiMaio's acknowledgment, the CIA had waived its right to issue a Glomar response.
The district court disagreed and, on June 17, 2010, it granted summary judgment to the CIA and denied Moore's cross-motion. Valfells v. CIA, 717 F.Supp.2d 110 (D.D.C.2010). First, the court noted that the FBI lacked the authority to make an official acknowledgment on behalf of the CIA; thus, the release of the Report by the FBI had no bearing on the CIA's ability to issue a Glomar response. Id. at 118. Second, the court found that, although DiMaio's declaration made clear that some CIA-originated information had been withheld from the FBI Report, his declaration officially acknowledged, at most, the specific information redacted from the Report. Id. at 120. Because
"[A]n agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exception." Gardels v. CIA, 689 F.2d 1100, 1103 (D.C.Cir.1982). Such a response— commonly known as a Glomar response—is proper if the existence vel non of an agency record is itself exempt from disclosure. Wolf, 473 F.3d at 374 (citing Hunt v. CIA, 981 F.2d 1116, 1118 (9th Cir.1992); Phillippi v. CIA, 546 F.2d 1009, 1011 (D.C.Cir.1976)). If, however, the agency has officially acknowledged the existence of the record, the agency can no longer use a Glomar response, id. at 378, and instead must either: (1) disclose the record to the requester or (2) establish that its contents are exempt from disclosure and that such exemption has not been waived, id. at 379-80.
In his appeal, Moore does not challenge the CIA's reliance on exemptions (b)(1) and (b)(3) nor does he dispute that a Glomar response is proper where the existence or nonexistence of an agency record falls within a FOIA exemption. Instead, Moore argues that the CIA has officially acknowledged that it maintains information responsive to Moore's FOIA request and, therefore, can no longer use a Glomar answer in responding to his request. Specifically, Moore points to the October 8, 2008 DiMaio declaration in which DiMaio recited that the CIA asked the FBI to redact some "CIA-originated information" from the Report in order to protect CIA intelligence sources and methods. In our view, the DiMaio declaration does not constitute an official acknowledgment sufficient to waive Glomar.
"[W]hen information has been `officially acknowledged,' its disclosure may be compelled even over an agency's otherwise valid exemption claim." Fitzgibbon v. CIA, 911 F.2d 755, 765 (D.C.Cir. 1990). But "[a] strict test applies to claims of official disclosure." Wilson v. CIA, 586 F.3d 171, 186 (2d Cir.2009). To be officially disclosed: "(1) the information requested must be as specific as the information previously released; (2) the information requested must match the information previously disclosed; and (3) the information requested must already have been made public through an official and documented disclosure." Am. Civil Liberties Union v. U.S. Dep't of Def., 628 F.3d 612, 620-21 (D.C.Cir.2011). Thus, "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 v. Dep't of State, 702 F.2d 1125, 1130 (D.C.Cir.1983).
In Wolf v. CIA, where we first addressed the official acknowledgment doctrine in the Glomar context, we again applied it strictly. There, we made plain that, in order to overcome an agency's Glomar response based on an official acknowledgment, the requesting plaintiff must pinpoint an agency record that both matches the plaintiff's request and has been publicly and officially acknowledged by the agency. See Wolf, 473 F.3d at 378-79;
In Wolf, the plaintiff, a historical researcher, requested "all records about Jorge Eliecer Gaitan" (Gaitan), a Colombian presidential candidate who was assassinated in Bogota, Colombia in 1948. 473 F.3d at 372-73 (internal quotation marks omitted). After the CIA issued a Glomar answer to Wolf's request, Wolf filed suit. He claimed that the CIA had waived its right to issue a Glomar response because former CIA director Admiral R.K. Hillenkoetter (Hillenkoetter) publicly acknowledged the existence of CIA records regarding Gaitan nearly 50 years before Wolf's request. Specifically, Wolf pointed to Hillenkoetter's congressional testimony shortly after Gaitan's assassination in 1948, during which testimony Hillenkoetter read excerpts from CIA dispatches referencing Gaitan, his associates and their ties to the communist party in Colombia. The district court rejected Wolf's official acknowledgment argument and granted summary judgment to the Agency.
We reversed the district court, holding, in light of Hillenkoetter's congressional testimony, that "the Agency's Glomar response [did] not suffice regarding the dispatch excerpts that reference Gaitan because the same `officially acknowledge' the fact that CIA records `about Jorge Eliecer Gaitan' exist." Id. at 379. Although we concluded that the Agency had waived its Glomar response as to those officially acknowledged dispatches, we also held that it had not waived its Glomar response as to all records about Gaitan. Instead, Wolf was entitled to disclosure of "the existence of CIA records about Gaitan that have been previously disclosed (but not any others)." Id. (emphasis added). We thus remanded the case to the district court to "determine whether the contents—as distinguished from the existence—of the officially acknowledged records" were exempt from disclosure. Id. at 380 (emphasis removed).
Unlike in Wolf, DiMaio's declaration does not identify specific records or dispatches matching Moore's FOIA request. Indeed, because the CIA-originated information was redacted before the FBI released its Report to him, Moore cannot show that the redacted information even relates to Valfells Sr. All Moore can establish is that some unspecified "CIA-originated information" was redacted from the Report. Whereas Wolf identified specific records that had been officially acknowledged by Hillenkoetter's testimony quoting therefrom, Moore can only speculate as to what (if any) records the CIA might have about Valfells Sr. In the highly sensitive context involving issues of national security, however, "[a]n agency's official acknowledgment . . . cannot be based on. . . speculation, no matter how widespread." Id. at 378. As we noted in Wolf, "[t]he insistence on exactitude recognizes `the Government's vital interest in information relating to national security and foreign affairs.'" Id. at 378 (quoting Pub. Citizen v. Dep't of State, 11 F.3d 198, 203 (D.C.Cir.1993)). The CIA has properly answered Moore's FOIA request with a Glomar response.
For the foregoing reasons, we affirm the district court's judgment.
So ordered.
Exemption (b)(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) (effective Nov. 27, 2002 to Dec. 30, 2007). The National Security Act of 1947, as amended, mandates that the Director of National Intelligence protect intelligence sources and methods from unauthorized disclosure. See 50 U.S.C. § 403g; id. § 403-1(i)(1). In his appeal, Moore does not challenge whether the CIA appropriately asserted its (b)(1) and (b)(3) exemptions.