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Freedom of Information Act (FOIA) Glomar Response

The public has a right to know. "Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government. Federal agencies are required to disclose any information requested under the FOIA unless it falls under one of nine exemptions which protect interests such as personal privacy, national security, and law enforcement." Anyone can make a Freedom of Information Act (FOIA) request and has the ability to challenge the denial of the production of records in a United States District Court.

Judge Walker of the Court of Appeals quite eloquently sums up this case against the CIA which evokes a Glomar Response:

"This case lies at the intersection of two important competing interests: the need for the public to know what its government is doing and the need to keep secret certain government activity the disclosure of which could compromise national security, including by revealing clandestine sources and methods used to acquire foreign intelligence and to conduct covert operations."

Like other cases start, the Freedom of Information Act was made and, for the most part, denied. Such Freedom of Information Act (FOIA) request was based upon, among other things, statements made by the President of the United States. "On August 22, 2017, the Times filed the complaint in this case, asking the district court to compel disclosure of any records responsive to its FOIA request. By letter dated August 23, 2017, the CIA issued its Glomar response,[1] informing the Times that it could neither confirm nor deny the existence or nonexistence of records responsive to the request, pursuant to FOIA Exemptions 1 and 3." It sounds like a non-response, which it is, but it is a court-approved response done for national security reasons.

The Court notes that "the CIA submitted two declarations by Antoinette B. Shiner, an Information Review Officer for the agency." In response, the CIA submits a Glomar response: "Shiner asserted that confirming the existence of responsive records would, for instance, 'confirm the existence and the focus of sensitive Agency activity that is by definition kept hidden to protect U.S. government policy objectives,' and that denying their existence would 'confirm the absence of specific foreign policy objectives . . . or the Agency's inability to successfully carry out the purported operational activities . . . .' "

The Glomar Defense means that the information is so confidential simply to acknowledge its existence would itself be problematic, the Glomar response "refuses to confirm nor deny the existence of records related to the covert program at issue..." As the court describes:

To properly invoke a Glomar response, an agency must "tether its refusal to one of the nine FOIA exemptions."[5] The agency can do this by submitting affidavits or declarations that provide sufficient detail as to why an exemption is appropriate.[6] We review an agency's justification de novo,[7] but when the information requested concerns national security, courts "must accord substantial weight to an agency's affidavit concerning the details of the classified status of the disputed record."[8] "Ultimately, an agency's justification for invoking a FOIA exemption is sufficient if it appears logical or plausible."[9]

The CIA claims the following exemptions along with the Glomar Response: "The CIA contends that the records are classified under the criteria set forth in Executive order 13,526," "pointed to Section 102(A)(i)(1) of the National Security Act of 1947, as amended by 50 U.S.C. § 3024(i)(1) (the National Security Act), which mandates that the Director of National Intelligence "shall protect intelligence sources and methods from unauthorized disclosure." Ultimately, unless the Supreme Court of the United States says otherwise, the refusal to produce documentation on this grounds is upheld.

The case is New York Times v. Central Intelligence Agency, Court of Appeals, (2nd Circuit 2020).

The case ends with the dissent by Cheif Judge Katzmann who starts his dissent with the summation:

The justifications the CIA provides for issuing a Glomar response are neither "logical [n]or plausible" given the President's public acknowledgement of the program the CIA purportedly seeks to keep secret. Wilner v. Nat'l Sec. Agency, 592 F.3d 60, 73 (2d Cir. 2009).[1] And while the majority speculates that a Glomar response may additionally be appropriate to disguise any "intelligence interest" the CIA has in the program, the CIA never advances this as a justification for its response and we are thus foreclosed from justifying the CIA's nondisclosure on this basis. See id. at 68 (the "agency resisting disclosure of the requested records" bears the burden of justifying application of a FOIA exemption). A Glomar response is "justified only in unusual circumstances, and only by a particularly persuasive affidavit." Florezv. CIA, 829 F.3d 178, 182 (2d Cir. 2016). Because I do not believe this is such a circumstance, I respectfully dissent.

The Freedom of Information Act helps people hold the government accountable and allow access to what the government, here the CIA, does in the name of 'We the People.' The Chief Judge's dissent is worth-while reading for those who wish to learn more about why news corporations would engage in such costly litigation to obtain these records.

Cory H. Morris, Esq. New York and Florida, Injury, Addiction, Accident, Call the Law Offices of Cory H. Morris, 631-450-2515 (NYS) (954) 998-2918 (FLA)


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