Via Federal Express
Information and Privacy Coordinator
Central Intelligence Agency
Washington, DC 20505[IH2]
Re: Freedom of Information Act Appeal Reference Number: F-2022-00259[s3]
To Whom It May Concern:
This is a Freedom of Information Act (“FOIA”) appeal of the determination of the Central Intelligence Agency (“CIA”) to deny our FOIA Request F-2022-00259 (“the Request”), in a letter from the CIA dated March 10, 2022 (“CIA Response”). See Attachment 1. The Request, made on behalf of the Muslims for Human Rights (“MUHURI”), the Center for Constitutional Rights (“CCR”), and the Global Justice Clinic of New York University Law School (“GJC”), seeks information regarding U.S. government involvement in the disappearances and deaths of Kenyans. As stated in our Request, we seek this information in order to obtain justice for the individuals and families impacted.[IH4]
The CIA Response amounts to a Glomar response[IH5] , containing no substantive reasoning for the denial. The CIA Response instead simply recited conclusory allegations of exemptions without providing reasonably specific detail to demonstrate the appropriateness of such exemptions. CCR, MUHURI and GJC hereby appeal this denial of our Request.
Glomar functions to protect legitimate government interests, not to conceal unconstitutional activity. As such, Glomar responses are meant to be reserved for those requests where either confirming or denying the existence of responsive records would cause cognizable harm to the agency (Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976)). [IH6] The use of a Glomar response by the CIA here is inappropriate for several reasons. The CIA has tethered its Glomar denial to FOIA exemptions (b)(1) and (b)(3) without adequately proving that the requested information is properly classified pursuant to Executive Order 13526 (hereafter “The Order”) or that the requested information satisfies the criteria of Section 6 of the CIA Act of 1949 and Section 102A(i)(1) of the National Security Act of 1947[s7] .
A. The Subject of CCR’s FOIA Request Is Not “Properly Classified” and Therefore Not Exempt from Disclosure Under Exemption 1.[s8]
Exemption 1 allows an agency to withhold properly classified information, 5 U.S.C. § 552 (b)(1), which includes information whose disclosure “could reasonably be expected” to harm national security (Exec. Order No. 13526 § 1.4).[s9]
To withhold information under Exemption 1, an agency must show that the information “falls within one or more of the categories of information listed in section 1.4 of this order; and…that the disclosure of the information reasonably could be expected to result in damage to the national security…” (Exec. Order No. 13526 §1.1(a)). The requested information must also fall within one of the categories enumerated in §1.2 of The Order, designating the requested information as either “Top Secret”, “Secret” or “Confidential”. The CIA here has not shown that the release of the records requested would divulge the intelligence information enumerated in §1.4 of The Order[s10] .
Instead, the CIA appears to be using The Order to withhold information for the unintended and prohibited purposes of concealing violations of law, preventing agency embarrassment and unduly delaying the release of information which does not require protection in the interest of national security (Exec. Order No. 13526 §1.7). Denying our request in this way acts to subvert the use of FOIA as a means to “pierce the veil of administrative secrecy and to open agency action to the light of public scrutiny.” Dep’t of Air Force v. Rose, 425 U.S. (1976)[s11] . The CIA has not met its burden in demonstrating that release of the requested records, which span a time frame of 17 years, could be reasonably expected to harm national security. By denying our request without demonstrating in reasonable detail that the requested information meets the exemptions identified, the CIA is relying on boilerplate language to undermine the force of FOIA and simultaneously hampering the efforts of MUHURI community organizers actively advocating for the return of disappeared peoples. The public has a particularly critical need for information on the nature of U.S. support for abusive police and paramilitary operations in Kenya, and the CIA’s denial here is inappropriate and lacking.
B. Exemption 3 Does Not Justify the Present CIA Glomar Response [s12]
Exemption 3 allows an agency to withhold information from release by statute. When assessing whether a statute protects information, courts look to whether the statute “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; and if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to this paragraph”(5 U.S.C. §552 (b)(3)).
While the statutes cited, of Section 6 of the CIA Act of 1949 and Section 102A(i)(1) of the National Security Act of 1947 are all “statutes of exemption” according to Exemption 3, the CIA here has not provided “reasonably specific detail” (See Elec. Frontier Found. v. Dep’t of Justice, 384 F. Supp. 3d1, 9 (D.D.C. 2019) to illustrate that the statutes in fact require the requested information to be withheld from the public such that there no discretion exists; or establishes criteria by which the requested information is to be withheld (5 U.S.C. § 552 (b)(3)).
The CIA’s use of the National Security Act of 1947 and the CIA Act of 1949 are used instead as blanket statutes by which the agency is withholding information from the public. As stated in our request, involvement by the United States and specifically CIA operations in Kenya is public knowledge and continues to be reported on. There is an urgent need to inform the public [s13] on the policies and decision-making regarding U.S. and Kenyan government involvement in the training and conduct of Relevant Operations by Kenyan police and paramilitary forces. Agencies should be reminded that “FOIA exemptions are to be narrowly construed” U.S. Dep’t of Defense v. Julian, 486 U.S., (1988), rather than expansively used to justify a shroud of secrecy over agency action. The CIA has again failed to meet its burden in demonstrating that the requested information logically falls within Exemption 3 and is instead relying on a conclusory allegation of exemptions to withhold information from the public.
The unsubstantiated Glomar contradicts government policy urging greater transparency. The Attorney General affirmed a March memorandum urging a presumption of openness[s14] , advising heads of executive departments and agencies to go so far as to not withhold requested information even when it may technically fall within an exemption if the agency is unable to identify a foreseeable harm or legal disclosure, stating that “In case of doubt, openness should prevail.” Transparency in government operations is a priority, and FOIA has been a vital tool for ensuring this accessibility and accountability in government for over fifty years. For all these reasons, the requesters appeal CIA’s decision to deny our request.
Requesters seek vital information that will help the public and MUHURI community organizers understand the nature of U.S. support for abusive police and paramilitary operations in Kenya, circumstances which demand immediate attention. We look forward to your reply to this appeal within twenty (20) working days, as required under 5 U.S.C. § 552(a)(6)(A)(ii). [s15] Should you have any questions in this matter, please contact me via email below.
Senior Legal Worker
Center for Constitutional Rights
666 Broadway, 7th Flr.
New York, NY 10012
 Memorandum for heads of Executive Departments and Agencies: Freedom of Information Act, Attorney-General Merrick Garland, 15 March 2022, available at
[s3]Make sure you identify your request with the number the agency has assigned, and make clear that this is an appeal.
[IH4]Begin by very briefly summarizing your request, the date it was submitted and the agencies it was sent to. Reference the agency communication you are responding to and the date it was received. It is always helpful to attach all previous correspondence.
[IH5]Even though the CIA did not cite to the Glomar case in its response, it’s helpful to make it clear up front that you know what kind of response this is and why you’re appealing.
[IH6]Reminder that we welcome people to cut and paste any and all language from this example! Just make sure what you use applies to your specific FOIA response.
[s7]Here you may cite to the exemptions, statutes or Acts the agency has cited to in their denial. We find it helpful to reference the specific federal statutes and regulations in our response, but it is not required to include.
[s8]If the agency has denied your request under more than one exemption, organize your appeal into separate responses responding to each exemption.
[s9]We find it helpful to briefly cite the specific language of the exemption at the beginning of the argument.
[s10]Below that you can explain the purpose of the exemption and lay the foundation for why the exemption is inappropriate.
[s11]While you don’t have to cite to FOIA cases, it can be helpful to include citations from case law that controls in your jurisdiction, either from a case in your Circuit Court or the Supreme Court. Taking a look at other appeals filed in these courts by organizations like CCR can be helpful place to start when looking for relevant case law.
[s13]It can be helpful to emphasis the urgency of your request and remind the agency that you intend to share the information you or your organization receive with the public, and emphasize that you and/or your organization have no “commercial interest” in the information you seek.
[s14]While you don’t have to cite to these, there are often updated memoranda from the Attorney General’s office or the current administration urging agency heads to treat FOIA requests with openness and transparency that can help support your appeal.
[s15]Remind the agency that they must reply to your appeal within 20 working days and provide them contact information to reach you by.