Glomar response

In United States law, the term Glomar response, also known as Glomarization or Glomar denial,[1] refers to a "neither confirm nor deny" (NCND) response to a Freedom of Information Act (FOIA) request. There are two types of instances in which a Glomarization has been used. The first is in a national security context, where to deny a request on security grounds would provide information that the documents or programs which the requester is seeking indeed exist. Glomarization is also used in the case of privacy, in which a response as to whether or not a person is or is not mentioned in law enforcement files may have a stigmatizing connotation.[1]

Lower courts have thus far ruled the Glomar response to have potential merit if the secretive nature of the material truly requires it, and only if the agency provides "as much information as possible" to justify its claim. Otherwise, the principles established in FOIA may outweigh claims to secrecy.

Origin of the term

The USNS Hughes Glomar Explorer was a large salvage vessel built by the Central Intelligence Agency (CIA) for its covert "Project Azorian"—an attempted salvaging of a sunken Soviet submarine. In February 1975, aware of the pending publication of a story in the Los Angeles Times, the CIA sought to stop the story's publication. Journalist Harriet Ann Phillippi requested that the CIA provide disclosure of both the Glomar project and its attempts to censor the story, to which the CIA chose to "neither confirm nor deny" both the project's existence and its attempts to keep the story unpublished. This claim stood, and Phillippi's FOIA request was rejected, though when the Ford administration was replaced by the Carter administration in 1977 after the 1976 presidential election, the government position on the particular case was softened and both of Phillippi's claims were confirmed.[2][3]

The "Glomar response" precedent still stood, and has since had bearing in FOIA cases such as in the 2004 lawsuit American Civil Liberties Union v. Department of Defense, wherein Federal Judge Alvin Hellerstein rejected the Department of Defense and CIA's use of the Glomar response in refusing to release documents and photos depicting abuse at Abu Ghraib prison.

"Glomar" is the syllabic abbreviation of Global Marine, the company commissioned by the CIA to build the Glomar Explorer.

The original text of the Glomar response was written by Walt Logan (pseudonym), who was at that time an Associate General Counsel at the CIA. So as not to divulge to the Soviet Union either what the CIA knew or did not know, the response read:

"We can neither confirm nor deny the existence of the information requested but, hypothetically, if such data were to exist, the subject matter would be classified, and could not be disclosed."[4]

Agencies Allowed to Use The Glomar Response

The most important fact to note about the Glomar response it that it is only available to certain federal agencies that possess authority to classify documents (FOIA exemptions 1 and 3), through Executive Orders. Or agencies vested with sweeping powers by Acts of Congress via statute such as the National Security Act and the Central Intelligence Act. No city or state agency possesses this power to assert the Glomar response. The New York Police Department (“NYPD”) Invocation of The Glomar Response Since 2014, the NYPD has unlawfully invoked the Glomar response to Freedom of Information Law (“FOIL”) request. The NYPD is not the CIA, FBI or NSA, or any other equivalent federal agency empowered/authorized to assert the Glomar response. This theory is afforded to federal agencies based on Act of Congress or Executive Order. This is also afforded to a federal agency under the federal theory of classified information. The NYPD’s use of the Glomar response is ultra vires and in contravention of New York State law. There is no state law permitting a state or city agency to assert Glomar.

The Glomar Response Effect on New Yorkers Rights Under FOIL

First and foremost, Glomar is not inherent in any statute, not in FOIA, nor in FOIL. Second, the Glomar response deprives litigants of information essential to litigation, by severely limiting litigants’ ability to contest agencies’ withholding of records. Third, it restricts judicial review of the withheld records. Fourth, the Glomar response facilitates excessive secrecy. All these four factors run contrary to the provisions of FOIL, which calls for “Open Government” See Public Officers Law §84.

Active Litigation


The Law Firm of Omar T. Mohammedi, LLC, is actively litigating the landmark first impression FOIL cases against the NYPD for its invocation of the Glomar response to FOIL requests. The cases are now jointly under appeal before the New York State Court of Appeals. The matters are fully briefed and are currently pending oral arguments. The NYPD has asserted the Glomar response in subsequent FOIL requests by New Yorkers, some of whom have also filed suit against the NYPD.

See also

References

  1. 1 2 FOIA Update, Vol. VII, No. 1, Page 3 (1986). "OIP Guidance: Privacy "Glomarization"". United States Department of Justice.
  2. ↑ Burleson, Clyde W (1997). The Jennifer Project. College Station: Texas A&M University Press.
  3. ↑ Varner, Roy D (1 January 1978). Matter of Risk: The Incredible Inside Story of the CIA's Hughes Glomar Explorer Mission to Raise a Russian Submarine. New York: Random House. ISBN 978-0394424323.
  4. ↑ "Neither Confirm Nor Deny". Radiolab. Radiolab, WNYC. 12 February 2014. Retrieved 18 February 2014.
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