B00M: Giving Out Tinubu’s Records Could Damage National Security, Jeopardise Its Secret Nature, Expose Classified Information And Sources; CIA Tells US Court
United States’ law enforcement agencies have invoked the Glomar response over requests seeking criminal investigative documents concerning President Bola Tinubu and others.
This followed numerous Freedom of Information Act (“FOIA”) requests that Plaintiff Aaron Greenspan submitted to the FBI, CIA, DEA, Executive Office for U.S Attorneys, Department of State, and the Department of Treasury, Internal Revenue Service (IRS).
The case in the District Court Of Columbia is numbered 1:23-cv-01816-BAH, with Greenspan v. Executive Office for U.S. Attorneys et al.
The requests sought criminal investigative documents concerning third-parties, Bola Ahmed Tinubu (Tinubu), Lee Andrew Edwards, Mueez Abegboyega Akande, and Abiodun Agbele (Agbele), who, according to Plaintiff, participated in “an international drug trafficking and money laundering ring with operations in Chicago, Illinois.”
The agencies insisted that giving out information on Nigerian president, Bola Tinubu, could “cause damage to U.S. national security.”
The position was stated in a memorandum filed by the Central Intelligence Agency, the Federal Bureau of Investigation, and the Drug Enforcement Administration before the United States District Court for the District of Columbia.
Last year, the court declined an emergency application seeking to compel top US law enforcement agencies to hasten the release of confidential information on President Bola Tinubu.
In an update on the case, the three US agencies had filed their defence against the summary judgment concerning President Bola Tinubu’s investigation records.
The CIA provided an additional rationale for its Glomar response, saying “the CIA does not reveal the identity of its human sources [because] revealing the identity of a confidential source could expose Agency tradecraft, other human sources, and specific intelligence interests and activities.”
Mary C. Williams, the Litigation Information Review Officer for the Information Review and Release Division at the CIA further explained, “Human sources can be expected to furnish information to the CIA only when they are confident the CIA can and will do everything in its power to prevent the public disclosure of their cooperation.
“In the case of a person who has been cooperating with the CIA, official confirmation of that cooperation could cause the targets to take retaliatory action against that person or against their family or friends.
“It also places in jeopardy every individual with whom the cooperating individual has had contact. Thus, the indiscretion of one source in a chain of intelligence sources can damage an entire spectrum of sources.
“As such, confirming or denying the existence of records on a particular foreign national, like Tinubu, reasonably could be expected to cause damage to U.S. national security by indicating whether or not the CIA maintained any human intelligence sources related to Tinubu, and identifying any access or lack of access any such sources had to intelligence concerning him.”
According to the court document, the remaining disputes involve Defendants’ Glomar responses to Plaintiff’s request for records about Tinubu and the DEA’s Glomar response to Plaintiff’s request for records about Agbele.
The Plaintiff also sued the Executive Office for U.S Attorneys, Department of State, and the Department of Treasury, Internal Revenue Service, but on August 13, 2024, he voluntarily dismissed those defendants.
The phrase “Glomar response” originated from a FOIA case that sought information concerning a ship named the “Hughes Glomar Explorer,” and the CIA refused to confirm or deny its relationship with the Glomar vessel because to do so would compromise the national security or divulge intelligence sources and methods.
According to the court document, Glomar responses are proper “if the fact of the existence or nonexistence of agency records falls within a FOIA exemption.”
The FBI and DEA properly asserted Glomar responses under FOIA Exemptions 6 and 7(C) “because the requests seek criminal investigative documents pertaining to third parties that, if they existed, would interfere with the third parties’ substantial privacy interests in not being associated with law enforcement investigative records”.
The CIA “properly asserted Glomar responses under FOIA Exemptions 1 and 3 because confirming or denying the existence or nonexistence of records
related to Tinubu would reveal classified information that is protected from disclosure by executive order and statute. To the extent that Plaintiff attempts to argue that the existence of the requested records have been officially acknowledged, such that a Glomar response could not be used, this argument will not succeed for numerous reasons—not the least of which Plaintiff never demonstrated that such an acknowledgement had ever been publicly and officially made by Defendants.
The document reads, “There are three central questions before the Court, and Plaintiff’s case fails at each step.
“First, whether an affidavit of an agent of the Department of Treasury, IRS, pierces the Glomar responses of the Defendants, who are not part of the Department of Treasury. That is, whether the affidavit of an IRS agent constitutes an official acknowledgment of the FBI, DEA, and CIA that the records requested by Plaintiff exist. Under Circuit precedent, the answer is no.
“Second, whether a complaint brought by United States Attorney’s Office of the Northern District of Illinois seeking forfeiture of seized funds in Tinubu’s bank accounts, based on the IRS agent’s affidavit, transforms the affidavit into an official and documented public disclosure confirming that the FBI, DEA, and CIA records requested by Plaintiff exist. The answer to that question is also no.
“Third, even if it is presumed that the affidavit from an agent of one agency is imputed to other agencies (which the law forbids), Plaintiff must establish that the prior disclosure matches.
“Here, the FBI and DEA properly asserted Glomar under Exemptions 6 and 7(C), and the CIA properly asserted Glomar under Exemptions 1 and 3.”
“Satisfying the threshold step, the FBI and DEA explained in their declarations why their Glomar responses were appropriate and established that the privacy interests of the third parties in their criminal investigative files outweigh the public interest in the release of the requested information. The agencies’ justifications were, at the very least, logical and plausible…” the court document reads.
It said, “Moreover, release of names and/or other personal information about third parties and their activities could cause unsolicited and unnecessary attention and harassment to be directed toward that person.
“For this reason, the names of third parties in law enforcement records are almost always exempt from disclosure.”
It noted that the “FBI’s justification for asserting Glomar under Exemptions 6 and 7(C) is compelling, let alone logical and plausible”.
Michael G. Seidel, the Section Chief of the Record/Information Dissemination Section, Information Management Division, explained in his declaration, “The FBI relies on a Glomar response in instances where, if responsive records existed, even acknowledging their existence would result in harm to an interest protected by one or more FOIA exemptions.
“To be credible and effective, the FBI must use a Glomar response in all similar cases regardless of whether responsive records exist, including instances in which the FBI does not possess records responsive to a particular request.”
Also, CIA’s Mary C. Williams, further explained, “A defining characteristic of the CIA’s intelligence activities is that they are carried out through clandestine means, and therefore they must remain secret in order to be effective.
“In the context of FOIA, this means that the CIA must carefully evaluate whether its response to a FOIA request could jeopardize the clandestine nature of the Agency’s intelligence activities or otherwise reveal previously undisclosed information about CIA sources, methods, capabilities, authorities, interests, relationships with domestic or foreign entities, strengths, weaknesses, personnel, and/or resources.”
The document further noted that the “CIA invokes the response consistently, in all cases where the existence or nonexistence of records responsive to a FOIA request is a classified fact, including instances in which the CIA does not possess records responsive to a particular request.
“If the Agency were to invoke a Glomar response only in instances where it possessed responsive records, that response could be interpreted as an admission that responsive records exist and could have the effect of confirming classified information.
“This practice would reveal the very information that the CIA must protect in the interest of national security.”
Ms. Williams explained that “the CIA issued a Glomar response stating that it could neither confirm nor deny the existence or nonexistence of records concerning Tinubu during the relevant time period referenced in the request.
“An acknowledgement confirming or denying the existence or nonexistence of such records would reveal classified intelligence information and jeopardize the clandestine nature of the Agency’s intelligence activities and/or disclose information about CIA’s sources and methods.”
