A so-called "Glomar" response is one in which an agency refuses to confirm or deny the existence of responsive records.
History of the Glomar Response
The term “Glomar” originates from a case related to the CIA’s classified Glomar Explorer project, in which the agency sought to recover materials for military and intelligence purposes from a sunken Soviet submarine in the Pacific Ocean. After a document describing the project was leaked, the CIA attempted to convince the news media not to publish the story, and a journalist submitted a FOIA request seeking records related to these attempts by the agency. However, the court held the agency could classify the fact of the existence of responsive records itself.
Courts have held that agencies “may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a FOIA exception.”
In the context of litigation, an agency defending a Glomar response must provide the court with “a public affidavit explaining in as much detail as is possible the basis for its claim that it can be required neither to confirm nor to deny the existence of the requested records.” It is difficult to overcome the high level of deference courts accord agencies in the context of Glomar responses. In upholding the CIA’s issuance of a Glomar response to a request for CIA drone information, a court ruled that the standard to be applied was not whether it subjectively, wholly agreed with the agency’s evaluation of the harm in release, but whether “the Agency’s judgment objectively survives the test of reasonableness, good faith, specificity, and plausibility.”
In the national security context, EO 13526 provides that agencies may issue Glomar responses “whenever the fact of their existence or nonexistence is itself classified under this order or its predecessors.”
For example, a court upheld the CIA’s refusal to confirm or deny whether it maintained records on a particular foreign national, accepting the CIA’s argument that even revealing the existence of related records could compromise national security by revealing agency sources or methods. All federal appellate courts to address such a response have recognized such a mechanism.
Under the “compilation theory,” agencies have successfully applied “Glomarization” to compilations of even unclassified information based on the rationale that disclosure of large segments of national security-related information could, in their aggregate, cause harm.
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Strategies for challenging Glomar responses
A requester seeking to overcome an agency’s Glomar response can argue that the agency’s justifications for nondisclosure contradict other evidence in the record. Additionally, where possible, they can demonstrate that the agency is withholding the records in bad faith.
A requester may also challenge a Glomar response by showing that the fact of the existence of the information has been officially acknowledged to the public. “If the government has admitted that a specific record exists, a government agency may not later refuse to disclose whether that same record exists or not.” For example, a court held that the CIA had waived its right to invoke a Glomar response to at least those portions of the records which a former CIA director had referred to in testifying before Congress. However, in showing “official acknowledgement,” the requester must demonstrate that the information sought is “as specific as the information previously released,” matches the previously disclosed information, and was publicized through an official, documented disclosure. A general acknowledgement of intelligence activity in a certain initiative will almost never suffice to overcome a Glomar response as to specific details of an operation that have not been officially acknowledged by the government. Further, statements contained in media reports of government officials who are not authorized to speak for the agency do not constitute “official acknowledgement by an authoritative source.” Instead, in arguing that the information for which an agency issued a Glomar response was officially acknowledged, the requester must point to a statement made by an official authorized to speak for the agency that discloses the fact of its existence.
Recent district court cases regarding Glomar responses
- Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981).
- Phillippi v. CIA, 546 F.2d 1009, 1011-13 (D.C. Cir. 1976).
- Wilner v. Nat’l Sec. Agency, 592 F.3d 60, 68 (2d Cir. 2009) (quoting Gardels v. CIA, 689 F.2d 1100, 1103 (D.C. Cir. 1982)) (internal quotation marks omitted).
- Phillippi, 546 F.2d at 1013.
- See Am. Civil Liberties Union, 2011 WL 4005324 at *16.
- Id. (quoting Gardels, 689 F.2d at 1105) (internal quotation marks omitted).
- Exec. Order No. 13526 § 3.6(a).
- Wolf, 473 F.3d at 376-77.
- See, e.g., Phillippi, 546 F.2d at 1011-13; Wilner, 592 F.3d at 68; Bassiouni v. CIA, 392 F.3d 244, 246 (7th Cir. 2004), cert. denied, 125 S.Ct. 2945 (2005); Minier v. CIA, 88 F.3d 796, 800 (9th Cir. 1996); Carpenter v. U.S. Dep’t of Justice, 470 F.3d 434, 436-37 (1st Cir. 2006).
- See, e.g., Am. Friends Serv. Comm. v. Dep’t of Def., 831 F.2d 441, 445-46 (3d Cir. 1987).
- See Wilner, 592 F.3d at 68.
- See id.
- Id. at 70.
- Wolf, 473 F.3d at 378-80.
- Int’l Counsel Bureau v. U.S.C.I.A., 774 F.Supp.2d 262, 274-75 (D.D.C. 2011) (citingWolf, 473 F.3d at 378).
- Am. Civil Liberties Union v. Dep’t of Def., 752 F.Supp.2d 361, 366-67 (S.D.N.Y. 2010).