FOIA Tip No. 7—The Glomar Response
Last week the Second Circuit US Federal Appeals Court upheld a lower court ruling that agencies have the right to “neither confirm nor deny” that they possess sensitive documents—a tactic, informally known as the “The Glomar Response.” The court ruled that National Security Agency and US Department of Justice are allowed to “neither confirm nor deny” that they possess documents detailing the secret surveillance of communications between lawyers and their clients at Guantanamo Bay. The National Security Archive filed an amicus brief on behalf of the plaintiffs, arguing that “The government justified its Glomar Response with generalized and abstract explanations that are insufficient to carry the government’s burden of justifying its refusal to confirm or deny.”
The Glomar Response is different than a regular FOIA denial—when an agency states that it has the records but that it will not release them. When an agency replies with a Glomar Response, it refuses even to admit that documents exist; this makes research (and the appeals process) much more difficult. Today we’ll do a quick overview of the ins and outs of this FOIA “Catch-22.”
So… what the heck is a “Glomar?” The term comes from a very large ship named the Glomar Explorer built by the CIA with help from Howard Hughes. In 1968 it was used in “Operation Jennifer,” an attempt to recover a sunken Soviet submarine. Seymour Hersh, of the New York Times sniffed a story, but the CIA successfully convinced The Times to suppress publication. A year later a journalist, Ann Phillippi, filed a FOIA request for documents about the Glomar Explorer and the CIA’s attempts to censor press coverage. The CIA, citing FOIA law, claimed it could “neither confirm nor deny” that documents about either the ship or the censorship existed. The name stuck.
The two types of requests most commonly “Glomar’ed” are requests about national security intelligence information and requests which the agency feels may invade an individual’s privacy. Typically, Glomar requests are hard to appeal, but here are some strategies which the Archive has found somewhat effective:
- Argue prior disclosure. If you can show that the information “neither confirmed nor denied” has already been disclosed, the agency may release it. Take a look at official statements or testimony about the matter you are interested in and see whether you can find something that can be characterized as a public disclosure. Look at other documents you have obtained or books written by former officials. Keep in mind, that these previously disclosed documents must be virtually identical the Glomar’ed document, and must have been released through a documented official disclosure, not public speculation or a leak.
- Refile with a broader scope. If an agency has publicly acknowledged something, it cannot Glomar the request. So, one strategy is to find a broad subject which the agency has publicly acknowledged (i.e., warrantless wiretapping) and refile your request in the hope the documents you desire will fall under the scope of this broad, previously disclosed, subject.
- Finally, a successful Glomar appeal does not necessarily mean that the documents will be released. It is likely that the agency will admit that the documents exist, and then deny their release due to another FOIA exemption. Still, knowing that specific documents exist and which exemptions were used to deny them makes the appeals process easier.
If you encounter a privacy Glomar, you also might consider FOIA Tip Number 3, which discusses how to ask for information about individuals.
I can “neither confirm nor deny” that Glomar responses can be tricky obstacles for FOIA requesters to navigate.