The Second Circuit Court of Appeals upheld a ruling for the CIA against The New York Times‘ Freedom of Information Act (FOIA) lawsuit on Thursday.
In filing the suit, the New York Times hoped the CIA would acknowledge the existence of records regarding a program that allegedly armed and trained Syrian rebel forces.
The New York Times submitted a FOIA request for information regarding a tweet from US President Donald Trump. In response, the CIA said they could neither confirm nor deny the existence of the program. This response, known as the Glomar response, is permitted when the information in question was authorized to remain secret through an executive order or statute.
Further, the New York Times argued that the tweet by Trump acknowledged the existence of the program, thereby waiving the right to utilize the Glomar response.
Yet, the majority determined an acknowledgment of the existence of the program was not enough to waive the right to the Glomar response. To meet the waiver requirement, an acknowledgment of the records themselves was necessary. Therefore, President Trump’s tweets did not inadvertently declassify the information.
Chief Judge Katzmann filed a dissent, stating:
Unlike the majority, I believe that President Trump’s public statements cannot be logically interpreted as anything other than an acknowledgement of the existence of “payments to Syrian rebels.” The justifications the CIA provides for issuing a Glomar response are neither “logical [n]or plausible” given the President’s public acknowledgement of the program the CIA purportedly seeks to keep secret.