Normally, when you submit a FOIA request to a government agency, one of three things happens: You get the records you want, the agency says no such records exist, or the agency says the records are exempt from disclosure.
But there’s another possible outcome: You might be told that the agency can “neither confirm nor deny the existence or nonexistence” of the records. That’s been permissible under federal law since 1976. And now, thanks to a case raising concerns in media circles, it’s permissible under state law in New York—where, for the first time, an appellate court has affirmed the use of such a response under the state Freedom of Information Law (FOIL).
In the process, the court rejected arguments from a consortium of media organizations—including the Reporters Committee for Freedom of the Press, Bloomberg, the Online News Association, the New York Times Company, the Society for Professional Journalists, and many others—that had argued in an amicus brief that such responses hinder the media’s ability to keep the public informed. The ruling’s long-term implications aren’t yet clear, but it could represent a significant change in state open-records law.
The origins of “neither confirm nor deny”
In 1968, a Soviet submarine carrying nuclear missiles sank to the ocean floor northwest of Hawaii. After a Soviet fleet failed to find it, the CIA and Howard Hughes partnered to build a ship called the Glomar Explorer to recover it, as part of the six-year Project Azorian. The cover story was clever: Hughes said publicly that he was building the ship for use by his company to extract minerals from the ocean floor. In reality, the ship’s mission was secretly to salvage the submarine for intelligence purposes.
After several newspapers reported on the project, a journalist for Rolling Stone filed a federal FOIA request to obtain records related to the CIA’s efforts to discourage reporting on it. In response, the CIA said it would neither confirm nor deny the existence of the records—basically, because doing so would compromise national security by revealing secret agency methods and sources.
The journalist filed a lawsuit, but a federal appeals court ultimately affirmed the CIA’s argument. Since then, the term “Glomar response” has come to describe cases in which federal agencies claim they can “neither confirm nor deny” the existence of requested records. Those cases have been on the rise since 9/11, contributing to what Adam Marshall, a legal fellow at the Reporters Committee, called “an almost impenetrable veil of secrecy” on intelligence issues.
“An impregnable wall against disclosure”
Until recently, Glomar was a uniquely federal concept. But in the past three years, as Marshall wrote in 2015, there have been a few cases in which state or local law-enforcement agencies invoked the response, despite the fact that state public-records laws, like the federal FOIA, make no mention of its availability.
Two of those cases involve the New York Police Department’s surveillance of Muslim neighborhoods and organizations, first reported by The Associated Press in 2011. The AP report prompted various people to submit FOIL requests to find out whether they or their organizations had been surveilled—and when the NYPD issued Glomar responses, some requesters sued.
In one case, brought by a Rutgers student, the trial court ruled against the NYPD: applying Glomar to the state records law, the judge wrote, “would build an impregnable wall against disclosure of any information concerning the NYPD’s anti-terrorism activities.” But in a second case, brought by an imam, the trial court ruled in favor of the NYPD, which had argued that it had a “legitimate law enforcement need … to neither confirm nor deny the existence of responsive records.” The NYPD’s Glomar response, the judge held in that case, was “in keeping with the spirit of similar [federal] appellate court cases.” That ruling marked the first time a state court explicitly adopted the Glomar doctrine.
Sign of what’s to come?
When those cases were consolidated on appeal, the media groups intervened on behalf of the record requestors. They argued that Glomar responses are impermissible without statutory authorization—and that for the courts to incorporate Glomar into FOIL “would work a profound change to this state’s statutory open records regime that was not contemplated, let alone adopted, by the state legislature.” The media brief also called the Glomar doctrine “a creature of federal decisional law” that “was developed to address uniquely federal concerns … and has never been a feature of the public records laws of New York or any other state.”
The appeals court wasn’t persuaded. Bringing the Glomar doctrine into state law is “consistent with the legislative intent and with the general purpose and manifest policy underlying FOIL,” the court wrote last week, because “it allows an agency to safeguard information that falls under a FOIL exemption.” And with respect to the case’s underlying facts, the court said the NYPD’s intelligence chief had demonstrated in affidavits that responding to the requests would have caused harm under FOIL’s law-enforcement and public-safety exemptions. Its brusque conclusion: “Glomar responses were appropriate here.”
Unfortunately, given the significance and novelty of the ruling, the court didn’t address some of the media’s major concerns in much detail, or at all. It might have been plausible, for example, to spell out an argument that the “uniquely federal concerns” underpinning the Glomar doctrine are no longer so uniquely federal, in light of how wide-ranging the NYPD’s counterterrorism operations have become. The court didn’t do that.
Nor did it address concerns about abuse of Glomar at the federal level—e.g., its overuse and its inhibition of meaningful judicial review. And this argument from the media brief, that FOIL is a critical tool for informing the public about government activities, went unaddressed:
[T]he NYPD—the largest municipal police force in the United States—is already a notoriously opaque agency with a history of failing to comply with its obligations under FOIL. To permit state and local agencies like the NYPD to issue Glomar responses would only make it more difficult for the press to utilize FOIL as a tool to keep citizens informed about the activities of their government.
Let’s hope the court’s silence on those issues isn’t a sign of the silence or secrecy to come.