Cuban Diplomat’s Son Gets New Shot at CIA Records

     (CN) — The Second Circuit remanded a son’s case seeking records about his Cuban diplomat father, finding the FBI’s release of declassified documents contradicts the CIA’s claim that it could neither confirm nor deny the existence of responsive records.
     Sergio Florez, a managing editor at the New York Times, filed a Freedom of Information Act, or FOIA, request in November 2013 in his quest to find out more information about his father, Dr. Armando J. Florez, a month after his death from Alzheimer’s disease.
     During the height of the Cold War, the elder Florez served as a high-ranking diplomat in Washington, D.C. on behalf of the Republic of Cuba. He defected to the U.S. in 1968 after growing disillusioned with the Castro regime and became a U.S. citizen in 1979, according to court records.
     The CIA initially denied the younger Florez’s request on national security grounds, saying it could neither confirm nor deny whether it had any files on Florez. Such a response is called a Glomar response, named for the Hughes Glomar Explorer, a ship used in a classified CIA project to raise a sunken Soviet submarine from the Pacific Ocean.
     Florez filed an administrative appeal, and also sued the CIA for the release of the requested records.
     But while Florez was appealing the CIA’s decision, the FBI released several declassified documents in a separate FOIA request that “appear to suggest that multiple government departments and agencies were investigating, monitoring, and had an intelligence interest in Dr. Florez,” according to Thursday’s Second Circuit ruling.
     “At minimum, the FBI disclosures are germane to the CIA’s asserted rationale for asserting a Glomar response” Judge Chester Straub wrote for the majority of a three-judge panel.
     To ignore this disclosure “would accomplish little more than cosign Mr. Florez to filing a fresh FOIA request”, an outcome that “makes little sense and would merely set in motion a multi-year chain of events leading inexorably back to a new panel of this Court considering the precise question presented here,” Straub wrote.
     The Second Circuit sent the case back to the lower court for reconsideration of Florez’s CIA request.
     “We conclude that the FBI disclosures are relevant to the issues raised in this appeal and that those documents should be considered in this case,” Straub wrote. “Accordingly, we remand the case to the district court with instructions to enter an order that states whether its prior conclusion that the CIA adequately justified its Glomar response must be revised in light of the FBI disclosures and any post-remand submissions.”
     In her dissent, Judge Debra Ann Livingston disagreed on the relevance of the FBI documents, noting they “disclose little regarding Dr. Florez and say nothing at all about any connection to the CIA” and “are simply not helpful in assessing the logic and plausibility” of the CIA’s claims of national security.
     On remand, the district court will now “weigh the significance of the documents in the first instance” and the CIA can submit declarations addressing the FBI disclosures, according to Thursday’s ruling.
     Florez is represented by David E. McCraw in New York City. The government is represented by Jessica Jean Hu of the U.S. Department of Justice.

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