In a case addressing the extent of obligations owed under the Freedom of Information Act (FOIA), the US Court of Appeals for the District of Columbia Circuit held on Friday that intelligence agencies are not required to confirm nor deny the existence of records relating to whether the agencies were aware of an imminent threat to Jamal Khashoggi, a Saudi journalist who was murdered in a Saudi consulate in 2018.
Under FOIA, federal agencies are usually required to disclose records that are requested by the public. There are nine exemptions to this obligation, one of which allows the agencies to deny requests for information on matters that are “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and are “properly classified pursuant to such Executive order.”
The requests at issue in this case were submitted by the Knight First Amendment Institute at Columbia University and the Committee to Protect Journalists. These organizations submitted the requests in October 2018, shortly after Khashoggi’s murder. The organizations requested “[a]ll records concerning the duty to warn under Directive 191 as it relates to Jamal Khashoggi.”
The appeals court held that the intelligence agencies “logically and plausibly explained why the existence or nonexistence of responsive records is classified information.” As such, one of the available FOIA exemptions protecting relevant classified information applied, and the agencies were not required to disclose whether or not there was documentation demonstrating the agencies’ knowledge of an imminent threat to Khashoggi.