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Public Comments Submitted by Lauren Harper & Claire Harvey on December 9, 2021 - Comments for the 2020-2022 FOIA Advisory Committee’s Discussion of Glomar Denials

National Security Archive
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December 9, 2021 

Alina Semo 
Director, Office of Government Information Services 
National Archives and Records Administration 
Washington, D.C. 

Re: Comments for the 2020-2022 FOIA Advisory Committee’s Discussion of Glomar Denials 

The National Security Archive applauds the FOIA Advisory Committee’s Classification Subcommittee’s examination of agencies' pernicious use of the Glomar response. The Archive urges the full committee to recommend that agencies be required to report on the number of Glomars they issue each fiscal year in their annual Freedom of Information Act (FOIA) reports to the Department of Justice’s Office of Information Policy. This incremental step is necessary to begin a substantive discussion of reining in agencies’ use of this denial, which is regularly abused - particularly by the CIA - in instances where the existence of records is already public knowledge, or when acknowledging the existence of the records is clearly in the  public interest. 

As the subcommittee knows, a “Glomar” response is when an agency refuses to confirm or deny  the existence of documents in response to a FOIA request because “the existence or nonexistence of requested records is currently and properly classified.” The tactic has been adopted by several  federal agencies and has even inspired the New York Police Department to invoke this denial  (ultimately unsuccessfully). Lack of data has historically hampered investigating how often, and how appropriately, agencies invoke the Glomar response. Agencies are not currently required to  report the number of times they issue this specific response when they submit their annual FOIA reports to OIP; rather, Glomar data is likely incorporated into agencies’ larger bucket of Reported Full Denials, although there is no way to be sure. 

Archive staff have tried to fill in some of the blanks in this reporting data by combing through our in-house database of agency replies to our FOIA requests: 

  • To date in calendar year 2021 alone, the Archive has received 70 Glomar responses out of a total or 2527 agency FOIA responses, meaning that Glomar denials accounted for nearly 3 percent of all agency responses. 
     
  • The vast majority of these came from the CIA - with nearly 20 percent of all CIA responses being Glomars. It is also worth noting that the percentage of Glomars the CIA has issued has increased over time; between 2011 and 2016 Glomars were roughly 5 percent of all agency responses to the Archive; with a heavy increase beginning in 2017 that continues through today. 
     
  • The CIA is the chief offender, but it is not alone. The NSA has consistently issued Glomars in 15 percent of its responses to the Archive’s FOIA requests over the last five years. 
     
  • The FBI has increased its use of Glomar denials, beginning in 2017, when the Bureau began issuing one Glomar out of every 10 responses. 8
     
  • The DEA has not typically issued Glomars in response to the Archive’s FOIA requests, but this year alone 20% of its FOIA responses were Glomars. 


To add insult to injury, Glomar responses are notoriously difficult to appeal, and often border on insulting. Here are a few egregious examples: 
 

  • In 2019, Open The Government’s Freddy Martinez filed a FOIA request with Special Operations Command (USSOC) in an attempt to settle the debate surrounding the sex of Conan, the dog that participated in the raid that killed ISIS leader Abu Bakr al-Baghdadi. President Trump awarded the pup a medal for his service using male pronouns, but was quickly corrected by a White House official, who was in turn contradicted by the DOD, which maintained the dog was male. When Martinez filed a FOIA for the final word on the dog’s sex, USSOC issued a Glomar, which Martinez appealed and ultimately sued over. The DOJ agreed to voluntarily release the records after the 2020 election, and the documents show that Conan is a boy - but in its release, USSOC inexplicably redacted his  breed (Belgian Malinois) and his coat color. 
     
  • BuzzFeed News reporter Jason Leopold had a significant FOIA win against the CIA’s expansive use of the Glomar exemption in 2019. In July 2017, the Washington Post ran a story about the Trump administration’s termination of a covert CIA program to pay and arm Syrian rebels; a week later the President tweeted that “the Amazon Washington Post fabricated the facts on my ending massive, dangerous, and wasteful payments to Syrian rebels fighting Assad.” Several weeks later Leopold filed a FOIA request with the Agency concerning the terminated program. The CIA tried to respond with a Glomar, but Leopold sued, citing President Trump’s acknowledgement of the issue in an official Twitter statement. The court ruled in Leopold’s favor, finding that “Because the President’s tweet makes it implausible for any reasonable person to truly doubt the existence of at least some CIA records that are responsive to at least some of the nine categories of documents that Buzzfeed requested, Buzzfeed has managed to overcome the Agency’s Glomar response and the Agency has failed to meet its burden in this case.”
     
  • The court also ruled against the FBI in 2019 in a FOIA case brought by the Reporters Committee for the Freedom of the Press (RCFP). RCFP filed the initial FOIA request after learning the bureau impersonated documentary filmmakers as part of a ruse to interview rancher Cliven Bundy and his family during the 2014 standoff between the Bundys and the Bureau of Land Management; the request sought records related to the incident and the FBI’s practice of impersonating film crews more broadly. The FBI issued a Glomar response pursuant to FOIA’s Exemption 7(E), which concerns law enforcement techniques, but the D.C. Circuit ruled in favor of the Plaintiff, saying, “The Court does not see how disclosing whether any records exist could reduce or nullify the technique’s  effectiveness.” 
     
  • In 2014, the National Security Agency sent two FOIA response letters to former Freedom of the Press Foundation reporter Jason Leopold. The first response refused to confirm or deny the existence of project DISHFIRE, an operation which captures SMS text messages. Bafflingly, the second letter – despite the NSA’s earlier attempts to shroud the  very existence of DISHFIRE in mystery – confirmed the existence of DISHFIRE so that it could deny his request for expedited processing. (Several NSA employees touted their involvement in Operation DISHFIRE on their LinkedIn profiles, making the Glomar response even more ridiculous.)
     
  • The National Security Archive’s own Mike Evans published a piece, also in 2014, about another National Security Agency refusal to confirm or deny the existence of documents this time on its involvement in a Top Secret U.S. intelligence facility in Mexico City – despite a previously declassified Department of Defense memodescribing the National Security Agency’s role in conducting “high value targeting” from this facility. 


The National Security Archive hopes that the subcommittee’s work will shed further light on agency trends concerning Glomar responses, and encourages the full committee to recommend that agencies report specifically on their Glomar responses to OIP as an initial step to getting a handle on the severity of the Glomar problem government-wide. 

Sincerely, 

Lauren Harper 
Director of Public Policy 
National Security Archive 

Claire Harvey 
FOIA Associate 
National Security Archive 


An independent non-governmental research institute and library located at the George Washington University, the Archive collects and publishes declassified documents obtained through the Freedom of Information Act. Publication royalties and tax-deductible contributions through The National Security Archive Fund, Inc. underwrite the Archive’s budget.

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