FOIA Material that can Neither be Confirmed Nor Denied
What happens when you try to FOIA secret documents
On the plane back from my long weekend Alaska Airlines had the Mission Impossible movies. There are over half a dozen, and I watched a few. For those into easy action movies they’re perfect. Tom Cruise runs, then an explosion. Tom Cruise jumps, then another explosion. Look, there’s Simon Pegg etc. These movies aren’t supposed to be watched by critics and for a flight they’re perfect, especially when Tom Cruise jumps onto a taxing airplane.
In one movie there is a scene in front of Congress. Jeremy Renner and Alec Baldwin square off in front of a Congressional Committee on the subject of the “Impossible Mission Force.” After a spirited minute or two of defending the IMF, Renner gives a Glomar response. He can neither confirm nor deny the allegations. What IMF does is shrouded in secrecy.
“Neither confirm nor deny” is not just Hollywood make believe. The response is real and is still used to this day. The phrase was first popularized by the CIA in response to a FOIA request and the phrase is the subject of today’s newsletter.
Background
During the Cold War the Soviets lost a nuclear-powered submarine that sank to the bottom of the sea floor. Naturally, the CIA wanted to raise the submarine and dissemble it for secrets. However, the CIA could hardly announce to the Soviets that the CIA was looking for the sub and, when found, that they had no intention of telling the Soviets they had found the submarine. As a cover story, the CIA asked Howard Hughes to announce an eccentric but ostensibly savvy business venture to mine deep sea mineral deposits. The Hughes Glomar Explorer was then built in 1970 by a company called Global Marine, which was actually the CIA. The name of the covert operation was called “Project Azorian.” The Glomar Explorer arrived over the site and lifted the submarine.
After stories had been published about the CIA's attempts to stop publication of information about Project Azorian, a journalist filed a Freedom of Information Act request with the CIA for any records about the CIA's attempts to lift the submarine. The CIA refused to either confirm or deny the existence of such documents. The journalist, or at least her lawyers, appealed the CIA’s administrative decision. After all, the Freedom of Information Act allows agencies to disclose records or exempt them. There is no third option.
The CIA tried a bold move. The agency asserted that there was an antecedent question the agency had to answer. The decision to either release or not release was information covered by FOIA's exemption for information "specifically exempted from disclosure by statute." 5 U.S.C. § 552(b)(3). Plaintiff's administrative appeal was rejected by the Agency on the ground that existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under Section (b)(3) of FOIA. As the U.S Appellate Court for the District of Columbia explained,
In effect, the situation is as if appellant had requested and been refused permission to see a document which says either "Yes, we have records related to contacts with the media concerning the Glomar Explorer" or "No, we do not have any such records."
Philippi v. CIA, U.S. Court of Appeals, 211 U.S. App. D.D. 95, June 25, 1981.
The case was remanded to the D.C. District Court where the CIA won, capping a string of Project Azorian FOIA Requests that could be neither “confirmed nor denied.” From then on the CIA’s novel “Glomar” response colonized our collective vocabulary.
As we discuss a few more cases below you’ll see how Glomar responses, also called “Glomarization,” have produced a threshold determination where plaintiffs and requestors must “pierce the Glomar veil,” or they must make the agencies pierce the veil for them.1
The Two Exemption Pillars to Glomar Responses
The Freedom of Information Act’s relevant exemption language starts simply enough.
Then the statue goes on to list the matters (1), (2), (3) etc.
Thus, “matter” (6) becomes (b)(6) and “matter” (7) becomes (b)(7). (b)(7)(C) is just as easy, (C) is a specific type of (b)(7).
All that said, Glomar responses use up all the exemptions. The most common, however, are four: (b1), (b)(3), (b)(6), and (b)(7)(C).
Briefly, (b)(1) and (b)(3) are used in Glomar responses for the same effect and are the same principal applied in two ways. I sometimes call them the first “pillar” because they really ought to be grouped. Same concept for (b)(6) and (b)(7)(C) as the second “pillar.” (b)(1) and (b)(3) is the national security pillar. (b)(6) and (b)(7)(C) is the privacy pillar.
(b)(1) exempts material that must be kept secret in the interest of national defense or foreign policy. (b)(3) is a catch-all exemption that exempts information that “other statutes” make exempt. For example, the National Security Act.
(b)(6) exempts "personnel and medical files and similar files" when the disclosure of such information "would constitute a clearly unwarranted invasion of personal privacy."(b)(7) exempts "records or information compiled for law enforcement purposes,” emphasis on law enforcement. (b)(7)(C) is a specific type of law enforcement called out by Congress for exemption, which is any information that could “reasonably be expected to constitute an unwarranted invasion of personal privacy.”
An Example
Heads might already be spinning, so let’s make this a real-world example that distinguishes between the two pillars.
We already have an example of a secret CIA underwater claw attempting to raise a Soviet nuclear submarine under the cover story that Howard Hughes is having a semi-manic episode involving precious deep-sea minerals. Since I can hardly top real life, let’s use real life again.
In 1995, Ross Perot was just done duking it out as an independent candidate against Republic George H. W. Bush and Bill Clinton. Requesters from Nation Magazine submitted a request to what was then called the Customs Service that named H. Ross Perot. The request went on to specify that the requesters "were 'especially interested in documents and records that pertain to [reported] offers by Mr. Perot to assist the Customs Service in the interdiction of illegal drugs.'"
Some might recall that during the course of Perot’s candidacy, the media reported several statements by Perot and his advisors regarding Perot's efforts to provide the federal government with assistance in stopping the importation of illegal drugs. i.e., Ross Perot’s private “War on Drugs.” Notably, the Washington Post got a 1981 memorandum from a senior Ross Perot advisor sent to senior Customs officials that called for Perot to establish "an aircraft refueling station, to be operated by Perot-financed commandos doubling as undercover informants for the Customs Service." The Post also reported that Perot hired a former Green Beret named Richard Meadows to assist Customs.
Obviously, very fun stuff.
However, given such a request, Customs delivered an across-the-board "Glomarization" response. The D.C. District Court agreed and granted Customs’ motion for summary judgment. Undeterred, Nation Magazine filed an appeal. The D.C. Circuit Court of Appeals found the blanket Glomarization response to be inappropriate, observing that there was in effect a bifurcated interest in the agency’s documents: the agency’s and Perot’s. The two shared some interests, but the agency was going too far in claiming Perot’s privacy interest for themselves under (b)(7)(C). Reading between the lines, the agency’s real desire was to keep their otherwise non-exempt investigative records secret on the pretext they were preserving Perot’s privacy. Nation Magazine v. Department of State, No. 92-2303, slip op. at 23-24 (D.D.C. Aug. 18, 1995).
Importantly, Nation Magazine contended that the district court erred in allowing Customs to categorically refuse to confirm or deny the existence of responsive records in the enforcement files on the basis of (b)(7)(C). The D.C. Circuit went to distinguish how the two pillars of (b)(1) and (b)(3), and (b)(6) and (b)(7)(C) build off each other. (b)(7)(C) only allows withholding documents (or confirming or denying the existence of the records) if releasing the documents would violate the privacy of an individual. For example, if the Custom records associated the individual named in the request with criminal activity.
If the documents do not, then the agency can hardly turn around and neither confirm nor deny simply because the agency doesn’t want to reveal its investigative practices. The privacy interest is Perot’s, not Customs’. If an agency doesn’t want to reveal its investigative practices, it’ll need to go to Congress and get Congress to pass a law that exempts their records. e.g., National Security Act, which would then trigger (b)(1) and (b)(3).
Unlike the private activities in Reporters Committee and the cases cited from our own circuit, however, what makes Perot's activities significant is their connection to agency conduct. Appellants want to find out whether Perot offered to help a federal agency fulfill its statutory duties to interdict drugs, and if so, how that agency responded to his overtures. Although Perot himself may be a target of their investigative work, appellants also expressed interest in the "privatization of government functions," particularly operations which are covertly funded. The district court acknowledged as much, in stating that appellants sought to determine whether "Customs planned to privatize certain components of the nation's drug interdiction efforts." Id. at 6-7. These concerns are about "agency activity," not just Perot's private activities. As such, their disclosure may serve the public's interest in knowing "what their government is up to." Reporters Committee, 489 U.S. at 773.
A Further Wrinkle
What if we reversed the concept and created a scenario where an agency wanted to keep records exempted under (b)(1) or (b)(3), but couldn’t adequately identify a privacy interest for (b)(6) or (b)(7)(C)?
Put yourself in the shoes of Jeremy Renner (or Alec Baldwin, your choice). Tom Cruise has just blown up a Russian extremist (again) in a foreign capital. For ease, let’s track the movie’s scene and say while Tom Cruise was dealing with the Russian General the General was able to get off a nuclear missile to San Francisco. The Impossible Mission Force save the day, but not before the missile clips the San Francisco skyline. The CIA confirms the event, but does not confirm anything else.
Later, but not much later, a plucky upstart journalist files a FOIA request. The CIA issues a Glomar response just like Jeremy Renner tells the Congresspeople.
The district court and later circuit court present the plucky journalist with a seemingly difficult question to answer. “How do you pierce the Glomar veil?”
Easily enough, the journalist might respond. There’s no privacy interest in events that happened on national TV. The CIA could have all the (b)(1) and (b)(3) arguments lined up, but the journalist is going to go to war over getting a real answer of some kind from the CIA.
The answer was not necessarily clear until ACLU v. CIA, 710 F.3d 422, 428–32 (D.C.Cir.2013).
In ACLU v. CIA the CIA issued a Glomar response to prevent disclosure of whether it had intelligence interest in drone strikes. However, its official public statements had made clear its interest, and the statement had confirmed the existence of the strike and who the strike had killed. In effect, the CIA had waived any privacy claim. A Glomar response was like locking the barndoors after the horse had already escaped.
Thus the Circuit Court reasoned that even though the CIA could go on and issue a limited type of Glomar response if the requestor followed up asking for the CIA’s own protected conduct, the agency could hardly provide a blanket Glomar response because, again, the agency had just confirmed the strike.
Conclusion
Thank you for getting to the end of the newsletter. After a few more edits, I note the length ended up longer than I intended. “I have made this longer than usual because I have not had time to make it shorter” etc.
Let me quickly conclude with the following quote:
As discussed above, when an agency issues a Glomar response, it refuses to either confirm or deny whether records exist. But, as the U.S. Court of Appeals for the Sixth Circuit explained, the “standard” Glomar response requires “a public explanation of the exemption that would apply if the records existed.” ACLU v. FBI, 734 F.3d 460, 469, 470 (6th Cir. 2013). In other words, there’s a small but charismatic nuance here that doesn’t quite rise to a Circuit split so much as it is simply unexamined. One day there will be a legitimate reason to not provide any public explanation, and it’ll be interesting to see how the text of the Act interacts with the demonstrated need.
Again, thanks for following the in’s and out and have a great afternoon.
Citizens for Responsibility & Ethics in Washington v. U.S. Dep't of Justice, 746 F.3d 1082, 1092 (D.C. Cir. 2014) (“[The FBI] pierced the Glomar veil and admitted the existence of records.”)
Fascinating, as always. Who knew I could have so much fun learning a corner of FOIA law??
Wow, that was an awesome article. You should submit this to the “Atlantic”.
I saw the first Tom Cruise Mission Impossible film when I was in college and I can’t believe they’re still getting cranked out. I was living in Vienna during one of the films (I forget which one). But I remember going out to the Vienna Opera House where the scene was being filmed and seeing Tom Cruise in person. And he was shorter than I thought he would be. He was standing outside the building with stunt harnesses on and it was nighttime and they were readying Austrian patrol cars for an external action sequence of some sort. I ended up going to get coffee in one of the cafes, because things were about a little too noisy. My nerves are easily rattled.