The Glomar response is a judicially created doctrine that allows federal agencies such as the Central Intelligence agency (CIA), the Federal Bureau of Investigation (FBI), and the National Security Agency (NSA) to claim they can “neither confirm nor deny” the existence of records in response to a federal freedom of information request. This withholding mechanism has been recognized by every federal circuit court to consider it – but is not a part of the Freedom of Information Act (“FOIA”). Glomar was first recognized in two parallel FOIA cases in the D.C. Circuit, Phillippi v. CIA, (Phillippi I), 546 F.2d 1009, (D.C. Cir. 1976), and Military Audit Project v. Casey, 656 F.2d 724 (D.C. Cir. 1981), both involving requests for information about a secret CIA program to raise a sunken Soviet submarine using a privately registered salvage ship named the Hughes Glomar Explorer.
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. No other municipality, such as the NYPD or state agency has asserted Glomar in all 50 states in the United States.
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.
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.