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.” (more…)
