What is a Glomar response?
Agencies can make a variety of determinations to your FOIA request. One of these is a “no records” or Glomar determination. When using Glomar response agencies are categorically refusing to even confirm or deny the existence of the records you requested. Glomar responses have no statutory backing, rather the Central Intelligence Agency (CIA) created this form of FOIA determination itself in the case Phillippi v. CIA where the CIA refused to confirm or deny its ties to a submarine retrieval ship called the “Glomar Explorer.” This is called a judicially created response and courts have found that it should only be used in rare circumstances where confirming or denying the existence of records can be reasonably suspected to cause “cognizable harm” under a FOIA exemption.
Is the Glomar response you received sufficient?
Agencies are required to provide detailed evidence to demonstrate that the Glomar response is appropriate. Agencies will often not provide any explanation and rely on boilerplate language, linking their denial to one or more FOIA exemptions and citing things like the National Security Act of 1947 and the CIA Act of 1949 to justify their categorical denial of your request. The law requires that they do more than this—if you think they haven’t, you can administratively appeal their denial within 90 days of receiving their response, and they must respond to your appeal in 20 working days.
What if the information you’re seeking is already out there?
If the requested information is already in the public domain as a result of an agency declaration, meaning the agency itself has communicated or acknowledged the existence of the records you are seeking through a public, legal, official or other documented disclosure, then they have waived their right to a Glomar response. However, if a different agency than the one you are appealing has made that disclosure, it won’t count as an agency declaration. The disclosure must come directly from the agency from which you are seeking records.