Summary: This post summarizes a report adopted by the FOIA Advisory Committee on March 10, 2022, regarding the use of a Glomar response to neither confirm nor deny the existence of records responsive to a FOIA request.

Perhaps Howard Hughes is somewhere grimacing right about now.

In 1968, at the height of the Cold War, a Soviet submarine sunk in the depths of the Pacific Ocean.  The sunken submarine was a potential intelligence treasure trove for the United States.  But any effort to recover the sub would require a “cover story,” else the Soviets might interfere with the recovery efforts. The CIA enlisted Howard Hughes. He directed a building of a ship, the Glomar Explorer, to recover the sub, claiming that the ship was designed to extract manganese nodules from the ocean floor.  The ship was built in 1972, but the recovery effort two years later proved unsuccessful.

When journalist Harriet Ann Phillippi made a request under the relatively-recently enact Freedom of Information Act for the CIA’s records regarding the salvage operation, the CIA responded by refusing to either confirm or deny the existence of any such records, asserting that to do so would compromise national security.  The D.C. Circuit upheld the validity of such a response, Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976), despite the absence of any provision in FOIA authorizing agencies to refuse to confirm or deny the existence of responsive records.  Thus the “Glomar” response to FOIA requests was born.

The use of the Glomar response has expanded over time[1] and continues to be quite controversial.[2]

The National Archives and Records Administration “established the Federal Freedom of Information Act (FOIA) Advisory Committee in 2014 to foster dialog between the Administration and the requester community, solicit public comments, and develop consensus recommendations for improving FOIA administration and proactive disclosures.”  See Committee Home Page.  The FOIA Advisory Committee commissioned its Classification Subcommittee to study the use of the Glomar doctrine and to make recommendations related to agency use of the Glomar doctrine. 

The Subcommittee consisted of an academic, the co-chair of National Security Counselors (an ironically-named private transparency group), and the Associate General Counsel and Unit Chief of the FBI’s FOIA Litigation Unit.  The Subcommittee sought to conduct a survey of agency practices regarding invocation of the Glomar exception, which yielded only limited information due to the low agency response rate,[3] and ultimately produced a nine-page report dated March 1, 2022.  The full FOIA Advisory Committee adopted the report’s recommendations at its March 10, 2022 meeting.  Four Advisory Committee members voted against the report, and a fifth abstained.  See the FOIA Advisor Blog’s report on the meeting here; a recording of the meeting is accessible here.

This post summarizes the Classification Subcommittee’s findings and recommendations.

The Subcommittee noted that the use of the neither confirm nor deny (“NCND”) response had expanded beyond the national security context, to, for example protecting privacy in ongoing criminal investigations.  The common understanding, both among the requester community and in the Executive Branch, is that such a response is to be used only in extraordinary circumstances.  The Classifications Subcommittee concluded that the extant common understanding “is outdated and in need of revision.”[4]

The Subcommittee noted that in many cases agencies interpose an NCND response without even performing a search for records.  Moreover, it observed, while there are examples of Glomar assertions “being successfully pierced,” courts have been exceptionally deferential to such assertions and requesters have limited means to challenge the validity of such responses.  As a result, the Subcommittee concluded, more oversight (presumably executive branch or legislative) regarding agency assertion of NCND responses is necessary.

The Subcommittee offered four recommendations.

First, the Subcommittee recommended that the Office of Information Policy in the Department of Justice (“OIP”) issue guidance to government agencies that they use the internationally-recognized nomenclature of “neither confirm nor deny” to refer to Glomar responses.   In its view, the term “Glomar” is opaque to ordinary citizens.  Moreover, “Glomar” suggests that the response may only be used when invoking the (b)(1) exemption protecting classified information, despite its current use in conjunction with several other FOIA exemptions.  And finally the term “neither confirm nor deny” is widely used.

Second, the Subcommittee recommended each agency be required to track and report on an annual basis: (a) its total number of NCND responses, (b) whether those responses were in whole or in part, (c) the relevant FOIA exemptions invoked and the number of cases in which they were used, (d) the number of NCND responses affirmed on administrative appeal, and (e) the number of NCND responses upheld by a court.

In its view, both the requester community and the government had a “strong interest in understanding trends related to the use of those responses.”  It noted that “there is an impression” of “Glomar creep” on the federal, state, and local level.  The Subcommittee ultimately recommended that OIP direct that the data be provided in each agency’s Chief FOIA Officer’s Report, and that each Chief FOIA Officer “provide an explanation of the agency’s methodology for memorializing and tracking information related to NCND responses.”

Third, the Subcommittee recommended that “agencies provide information to requesters on their websites regarding circumstances that will likely result in an NCND response, and, where possible, recommendations on how to avoid such a response.”  It noted that such discussions were currently not the practice.  (Indeed, an agency suggesting how a requester might avoid a technique historically used to protect classified information might seem, at first glance, a bit odd.)

The Subcommittee suggested that for each exception an agency anticipates citing as a basis for an NCND response, it should provide a set of criteria that it uses to evaluate whether to issue such a response. (Presumably many of the invocations, at least in the national security context, are sui generis, meaning that any rules would need to be stated at such a high level of generality as to be unhelpful.) With regard to providing advice regarding strategies to avoid receiving such a response, the Subcommittee discussed FOIA requests for documents regarding third-party individuals. An agency should advise requesters that such information will be provided only if the requester presents evidence that the subject of the request is deceased, presents a privacy waiver from the subject, or establishes a public interest that would outweigh any privacy interest.[5] With regard to the first option, the agency could provide guidance as to what documents provide sufficient proof of the subject’s death.

Fourth, the Subcommittee recommended that the Archivist of the United States identify a relevant governmental office to: (1) conduct a review of the use and practice of NCND responses across government, and (2) formulate a set of recommendations to ensure that these responses are being used in a manner consistent with the goals of the FOIA.  It noted that “much remains unknown about the use of NCND responses across the government.”  Among the questions of interest are current practices with respect to invoking NCND response, trends in the use of such responses (i.e., has the use increased over time, and if so, why?), and the circumstances under which agencies assert an NCND response (a) without conducting an initial search of their records systems, and (b) only after conducting such an initial search.

In the Subcommittee’s view any recommendations produced by such a study “should be addressed to Congress and the Executive Branch,” because addressing the issues might require actions by both branches of government.

Will “Glomar” disappear from the FOIA nomenclature?  Will the Subcommittee’s other recommendations be embraced and implemented?    We’ll just need to wait and see.

In any event, happy Sunshine Week 2022!

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[1] Since at least 2013, the government has sought acceptance of a variant of a Glomar response, in which it acknowledges the existence of responsive documents, but little else — the “no number, no list” response.  See, e.g., New York Times v. U.S. Department of Justice, 756 F.3d 100, 122–23 (2d Cir. 2014); ACLU v. CIA, 710 F.3d 422, 433 (D.C. Cir. 2013); Open Society Justice Initiative v. CIA, 2021 WL 4150522 (S.D.N.Y. 2021); Reporters Committee for Freedom of the Press v. FBI, 548 F. Supp. 3d 185, 198-199  (D.D.C. 2021); Zynovieva v. U.S. Department of State, 2021 WL 3472628, at *1, *3-*4 (D.C. Cir. 2021); ACLU v. CIA, 109 F. Supp. 3d 220, 232 (D.D.C. 2015).  In James Madison Project v. Department of Justice, 208 F. Supp. 3d 265 (D.D.C. 2016), a district court held that when DOJ invokes exemption 5 to protect responsive documents that provide legal analyses, DOJ can use a Vaughn index that does not identify the number of documents being withheld on that bases. Id. at 286. 

[2] See, e.g., A. Jay Wagner, Controlling Discourse, Foreclosing Recourse: The Creep of the Glomar Response, 21 COMMUNICATION LAW AND POLICY, 539 (2016); Jameel Jaffer, The Torture Report and the “Glomar Fig Leaf”, JUST SECURITY, Dec. 10, 2014; Nathan Freed Wessler, “[We] Can Neither Confirm nor Deny the Existence or Nonexistence of Records Responsive to Your Request”: Reforming the Glomar Response Under FOIA, 84 N.Y.U. L. Rev. 138 (2010). Links to each of the documents is provided in the Subcommittee Report.

[3] Ironically, of the six agency responses, two “employed a Glomar response.”  Report, at 4.

[4] The Report was not entirely without humor.  It observed that when the CIA sent its first Twitter message, from a verified account with the handle “@CIA,” it proclaimed: “We can neither confirm nor deny that this is our first tweet.”  Report at 2, n.1.

[5] In this context, the Committee did not mention the “official acknowledgement” doctrine, which would presumably also apply to documents an agency seeks to withhold on privacy grounds.  Thus, in Sea Shepherd Conservation Society v. Internal Revenue Service, 208 F. Supp. 3d 58, 89-91 (D.D.C. 2016), the IRS’s Whistleblowers Office sought to make a Glomar response.  Sympathetic as it was to the IRS’s view that it should be able to withhold information regarding whether the source of its information was a whistleblower, the Court held that the IRS could not justify its invocation of Glomar because it had already revealed the existence of whistleblowers in response to a FOIA request lodged by the taxpayer.