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Posted Date: November 27, 2011
Last Updated: November 28, 2011
In some cases, admitting that records exist or do not exist would reveal an exempt fact (for instance, whether an agency was conducting a criminal probe of an individual or entity). To protect that fact, an agency may choose to neither confirm nor deny the existence of records in response to a FOIA request. This is called a “Glomar response” (see below for the background of this term).Glomar responses are generally used in response to FOIA requests for records pertaining to national security or criminal law enforcement matters. However, a Glomar response may be appropriate in connection with any of FOIA’s nine exemptions.
An agency should not assert a Glomar response when there is evidence that an official of the agency has publicly and officially revealed acknowledged a fact that would establish a basis for concluding that records about a subject exist (or existed). A report by a news organization does not equate to confirmation of information or a fact by a government official.
The name Glomar comes from a CIA program in the early 1970’s for which Howard Hughes built the Glomar Explorer, a deep sea drillship platform, to raise a sunken Soviet nuclear submarine from the Pacific Ocean. Two years later, the Los Angeles Times reported the link between the Glomar Explorer and a secret U.S. government operation. Stories by other news organizations followed, including that the CIA allegedly tried to convince the media not to make public what they knew about the once-secret ship. Journalist Harriet Ann Phillippi filed a FOIA request for CIA records related to the reported contacts with the media. Her request was answered with a refuse-to-confirm-or-deny response, upheld in 1976 by the U.S. Court of Appeals for the District of Columbia. (Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976)) Since then, when an agency will neither confirm nor deny the existence of records under FOIA, this is known as a “Glomar” or a “Glomarization.”
Executive Order 12958
Executive Order 13526
DOJ Guide, Exemption 1
DOJ Guide, Exemption 7(C)