The deep-water recovery ship Glomar Explorer, built by the reclusive Hughes for use in a highly classified attempt to salvage a sunken Russian submarine, has given its name to the latest trick federal agencies are using to avoid providing legally required, proper answers to FOIA requests.
That maneuver—amounting to a reply that an agency “can neither confirm nor deny” the existence of information sought—is called the Glomar response (more on why in a moment), and its overuse has caused the American Civil Liberties Union (ACLU) to ask the Supreme Court to review a case that could result in an end to this particular method of squelching legitimate requests for information.
The ACLU’s request concerns a Glomar response received by attorney James Connell, who represents a detainee at Guantánamo Bay in Cuba. Connell’s client was being held in the notorious CIA facility known as Camp VII, and Connell filed a FOIA request seeking records on the CIA’s control of the facility.
But after producing certain documents, the CIA, in classic form, responded that they would neither confirm nor deny whether the rest of the requested records existed.
The CIA replied, “We can neither confirm nor deny” the existence of the information requested, in the first of what would become many such responses.
“The CIA’s claim to secrecy in this case is as extreme as it is absurd, given the extensive public record about the CIA’s connection to Camp VII,” Brett Max Kaufman, senior staff attorney with ACLU’s Center for Democracy, said.
“The CIA has once again stretched Glomar past its breaking point, and the courts should not be roped into endorsing a patent secrecy charade like this one. We hope the court takes this rare opportunity to break the CIA’s bad habit of using and abusing Glomar to evade crucial transparency and accountability.”
In 1968, the Russian submarine K-129 sank in the Pacific Ocean, and the CIA launched Project Azorian to attempt to steal the submarine and its secrets by salvage.
The effort had limited success, but was shrouded in such secrecy that it gave birth to the Glomar response when, shortly after the project, Rolling Stone reporter Harriet “Hank” Phillippi Ryan filed a FOIA request to obtain documents about CIA efforts to prevent media from covering the endeavor. The CIA replied, “We can neither confirm nor deny” the existence of the information requested, in the first of what would become many such responses. (Glomar is an acronym of Hughes’ company, Global Marine Development Inc.)
From that point forward, federal agencies wishing to refuse to provide information (in fact, most of them) jumped right on the Glomar bandwagon and began tossing Glomar responses around like confetti, right up to the present day.
Exhibit A: In 2022, the Reporters Committee for Freedom of the Press sent hundreds of FOIA requests to every federal agency in an effort to find out just how widespread use of the Glomar response had become.
What they discovered was shocking.
The report stated, “Some agencies denied the Reporters Committee’s FOIA requests for this project, including some agencies that frequently issue Glomar responses. The FBI, for example, denied the Reporters Committee’s FOIA request on the grounds that it purportedly required the agency to ‘answer inquiries, create records, conduct research, or draw conclusions concerning queried data.’
“Other agencies have simply failed to issue a substantive response. The State Department, for example, estimated that it would provide a final determination in January 2025. The CIA, for its part, has not provided an estimated completion date; as of March 14, 2024, its online FOIA status tracker simply indicates the request is ‘In Process.’”
Bureaucracies often value their own self-interest above the right of citizens to obtain information.
In spite of being balked at every turn, the Reporters Committee still managed to determine that, between fiscal years 2017 and 2021, the National Security Agency (NSA) was, by far, the body most commonly replying to FOIA requests with a Glomar response—averaging over 500 such responses per year between 2017 and 2021, or 2,700 in all.
Other agencies found to be commonly using Glomar responses included the Air Force Office of Special Investigations (608); the US Marshals Service (282); the Department of Veterans Affairs (202); the Department of Health and Human Services, Office of Inspector General (102); and the Department of Justice, Office of Professional Responsibility (96).
Overall, nearly 300 federal agencies used more than 5,000 Glomar responses between 2017 and 2021.
Agencies have only nine reasons to refuse to provide documents in response to FOIA requests. These include situations where there is a valid threat to national security, where the request would require the disclosure of personnel information or information whose release is prohibited by law, trade secrets, information violating attorney/client privilege or medical data and law enforcement investigative information.
But the Glomar response offers a 10th way to duck FOIA requests. And, judging by the numbers above, agencies clearly couldn’t be more eager to use it.
The problem is that the information being denied the American people is information they’re entitled to have in order to discover what their government is doing. They are not being well served by agencies that sit on their bureaucratic thrones and refuse to follow FOIA regulations.
The most infuriating part of the CIA’s Glomar response to the Guantánamo request is that the CIA’s operation of Camp VII was already well known.
The writ presented to the Supreme Court states, “Petitioner then pointed to public evidence that, he argued, made it plain that the CIA was indeed involved in operating Camp VII and that, therefore, the CIA’s Glomar response was illogical and implausible. Petitioner’s evidence included the CIA’s own documents; an official report by the Senate Select Committee on Intelligence; officially disclosed documents from the office of the Director of National Intelligence; the public sworn testimony of a military official at the Guantánamo military commissions; unclassified formal military commissions filings; and an unclassified military commission judicial opinion.”
In other words, everyone already knows the answers to the original FOIA request, yet the CIA still refused to provide them.
FOIA.gov states, “Since 1967, the Freedom of Information Act (FOIA) has provided the public the right to request access to records from any federal agency. It is often described as the law that keeps citizens in the know about their government.”
That’s how the act is supposed to work, but as long as agencies use avoidance trickery like the Glomar response, they are actively keeping Americans in the dark.
And maybe, just maybe, that’s where your government agencies want you to be.
Bureaucracies often value their own self-interest above the right of citizens to obtain information, and become adversarial when their little kingdoms are perceived to be “threatened” by FOIA requests.
This is anything but healthy for a functioning democracy. In fact, it’s downright dangerous.
“Government organized and conducted solely for self-interested individuals and groups gives the society a short life span,” L. Ron Hubbard wrote in The Way to Happiness. “This imperils the survival of everyone in the land; it even imperils those who attempt it. History is full of such governmental deaths....
“On the other hand, where a government is obviously working hard for ALL its people, rather than for some special interest group or insane dictator, one should support it to the limit.”
Here’s a novel idea for the bureaucrats: If you want the support and respect of those who pay your salaries, you should try working for them.
A fierce and relentless advocate of FOIA from its inception, the Church of Scientology was acknowledged by former director of the US Justice Department’s Office of Privacy and Information Appeals, Quinlan J. Shea Jr., for its work endeavoring “to shine more light on government.” The Church’s long and proud history of taking to task government agencies attempting to withhold information from the public is inspired by these words from Scientology Founder L. Ron Hubbard: “Democracy depends exclusively on the informedness of the individual citizen.”
