(CN) – Records about cyberattacks against Iran remain secret but a district court must manage a search of related records in former Secretary of State Hillary Clinton’s emails, the D.C. Circuit ruled last week.
New York Times investigative reporter David Sanger wrote a story in June 2012 about the U.S. government’s alleged classified cyberattacks on Iran, according to the ruling.
Watchdog group Freedom Watch filed a Freedom of Information Act request the same day Sanger’s story was published, seeking NSA, CIA, Defense Department and State Department records pertaining to the alleged cyberattacks.
The CIA, NSA and Defense Department all denied the request, issuing a Glomar response that said the agencies could neither confirm nor deny the existence of any responsive records.
A Glomar response was named after a 1976 court decision involving the CIA refusing either to confirm or deny its ties to a submarine retrieval ship, according to the Department of Justice website.
The State Department told Freedom Watch it was processing the request. After 20 days, the watchdog group sued, but a court ruled in favor of the CIA, NSA and Defense Department. The D.C. district court also granted summary judgment for the State Department on all but one of Freedom Watch’s records requests – information that was released to Sanger.
The State Department ultimately produced 79 responsive records and released 58 in full, 20 in part and withheld one, last week’s ruling states. The district court denied Freedom Watch’s motion to depose a State Department records custodian and granted summary judgment to the department, finding that it met its burden to conduct an adequate search.
Freedom Watch appealed, challenging the adequacy of the State Department’s records search and the Glomar responses from the CIA, NSA and Defense Department.
The organizations also sought to expand the State Department’s search due to news that former Secretary of State Hillary Clinton used a private email account on a private server.
On Friday, the D.C. Circuit upheld the denial of the requested records but remanded the case to the district court and ruled that it must manage a search of related records in Clinton’s emails.
“Based on the government’s representations, we shall deny Freedom Watch’s motion to supplement the record and remand to the district court to manage record development and oversee the search of the former secretary’s emails for records responsive to Freedom Watch’s FOIA request,” Judge David Tatel wrote for a three-member panel. “In doing so, we remind the State Department that, although it may choose of its own accord to release the emails to the public at large, it has a statutory duty to search for and produce documents responsive to FOIA requests ‘in the shortest amount of time.’ The district court should therefore determine the most efficient way to proceed under FOIA.”
Tatel also ruled against Freedom Watch’s objections to summary judgment in favor of the State Department, holding that the group never objected to the department’s keyword searches and did not file a sure reply relating to the department’s search.
As for the CIA, NSA and Defense Department Glomar responses, the D.C. Circuit found that the district court correctly ruled in their favor because Freedom Watch did not internally appeal the CIA and NSA’s denial. The Defense Department’s denial based on national security grounds was justified, Tatel wrote.
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