On July 18, a D.C. Circuit panel decided that an agency could invoke Freedom of Information Act (“FOIA”) Exemption 1 (the national security exemption), even though it had not met some of the procedural requirements related to classification set forth in Executive Order 13,526.  Project for Privacy and Surveillance Accountability v. Department of Justice, slip op. (D.C. Cir. July 18, 2025). Essentially, the panel distinguished some of the Executive Order’s procedural requirements from others ─ some must precede a proper classification, others governed agency obligations only after a document has been properly classified. The Court also made two other points of interest to those who follow FOIA.

The case involved the following FOIA request from the Project for Privacy and Surveillance Accountability (“the Project”) for:

1. All documents, . . . regarding the unmasking—including all unmasking requests—of any person [on the Project’s list of forty-eight then-current or former members of congressional intelligence committees] from January 1, 2008, to January 15, 2020;

2. All documents, . . . regarding the upstreaming—including all requests for upstreaming—of any individual [on the list of intelligence committee members] from Jan. 1, 2008, to Jan. 15, 2020.

The requests related to interceptions of communication under the Foreign Intelligence Surveillance Act (“FISA”).  In an “upstream collection,” an intelligence agency “collects a target’s communications as those communications cross the backbone of the internet with the compelled assistance of companies that maintain those networks.”  When, in the course of conducting upstream collection, agencies obtain information from or about U.S. persons, those persons’ identities must be masked.  However, agencies may make a request to “unmask” the identity of an individual if that person’s identity is “necessary to understand foreign intelligence information or assess its importance[.]” Slip op at 5-6 (citing 50 U.S.C. §1801(h)(2)).[1]

In Project for Privacy and Surveillance Accountability, the agency defendants issued neither confirm nor deny responses, i.e., invoked Glomar, in response to the Project’s requests,[2] asserting that any records that might exist would be protected by Exemption 1.  Exemption 1 covers documents that are properly classified pursuant to Executive Order 13,526’s substantive and procedural requirements.

The Project asserted that the government had failed to satisfy two procedural provisions of the Executive Order, sections 1.5(a) and 1.6(b), and thus forfeited reliance on Exemption 1.  Slip op. at 18.

Section 1.5(a) provides that, “[a]t the time of original classification, the original classification authority shall establish a specific date or event for declassification . . .”  Section 1.6(a) provides that, “[a]t the time of original classification,” the agency must mark the classification level, the original classification authority, the agency and office of origin, declassification instructions, and a concise reason for classification.” 

The Court held that failure to comply with the two provisions did not invalidate the agencies’ invocation of Exemption 1.  Each of the two procedural requirements were not requirements for the proper classification of information or documents, but rather took effect only after a proper classification decision had been made.  Slip op. at 18-21.

With respect to section 1.5(a), the panel explained that “until a classification judgment is validly made, there is no need for a declassification date.”  The Executive Order defined “classified information” as “[1] information that has been determined pursuant to this order or any predecessor order to require protection against unauthorized disclosure and [2] is marked to indicate its classified status when in documentary form.”  That definition did not make a declassification date an essential component of the term “classified information.”  Moreover section 1.5(a) itself contemplated that some information would lack a declassification date, such as any information not “in documentary form.”  In short, “nothing in the Executive Order mandates that a declassification date be set before information can validly be classified.” Slip op. at 20 (emphasis added).

Likewise, section 1.6 sets requirements that occur “at the time of original classification,” but are not themselves part of the process for the original act of classification.  Indeed, the marking requirement could not apply to the critical fact issue raised by the Project’s request. No markings can be made when the relevant fact does not take the documentary form, as in the case before the panel when the critical fact was an abstract expert mental judgment made by the original classifier.  The Executive Order anticipates that result, defining the types of “[i]nformation” that can be classified as including “any knowledge that can be communicated or documentary material, regardless of its physical form or characteristics[.]”  (Emphasis added.) Indeed, the Executive Order specifically authorizes Glomar (i.e., neither confirm nor deny) responses.  Slip op. at 20-21.

Two other aspects of the panels opinion warrant mention.

First, the decision reaffirms that an agency need not conduct a search for documents prior to issuing a Glomar (neither confirm nor deny) response. Slip op. at 8-10 (reaffirming Schaerr v. Department of Justice, 69 F.4th 924 (D.C. Cir. 2023).

Second, the panel refused to read the Project’s very specific request for “unmaking” and “upstreaming” requests from congressional intelligence committee members to include policy documents relating to unmasking and upstreaming.  Slip op. at 14-17.  In doing so, the panel distinguished its approach from that taken by the Circuit previously when Glomar had been raised with regard to Exemption 7’s privacy exemption in People for the Ethical Treatment of Animals v. National Institutes of Health, 745 F.3d 535, 544–545 (D.C. Cir. 2014).

Brief Comment. It seems sensible to protect information from disclosure despite the failure to satisfy procedures that do not go the the heart of the legitimacy of the judgment to classify the document. However, one problem afflicting the classification system is the failure to promptly declassify information when appropriate. The procedural requirements that the Court found not to be a part of the classification judgment go directly to the issue of prompting timely declassification of documents. The lack of a declassification date, when documents are classified, and the subsidiary information provided by markings, including the reason for the classification, are important for courts in deciding cases in which classified document are requested long after the initial classification decision has been made. Perhaps in such cases, the failure to follow such post-classification-judgment procedures might impact the courts’ de novo assessment of whether a document remains properly classified at the time of the FOIA request.

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[1] Requests for unmasking, particularly toward the end of the Obama Administration became a matter of political controversy, see By Julian E. Barnes and Charlie Savage,  List of Obama Aides Fuels Attacks on Russia Inquiry, N.Y. Times (May 14, 2023), accessible on New York Times website under title Republicans Release Names of Obama-Era Officials in ‘Unmaskings’ That Revealed Flynn.

[2] The FOIA Advisory Committee has urged that the term “neither confirm nor deny” response be substitute for the term “Glomar” response.  Bernard W. Bell, Shhh! Don’t Say Glomar Anymore Yale J. Reg.: Notice and Comment Blog (March 14, 2022) .