In United States law, the term Glomar response, also known as Glomarization or Glomar denial, refers to a "neither confirm nor deny" (NCND) response to a Freedom of Information Act (FOIA) request. There are two types of instances in which a Glomarization has been used. The first is in a national security context, where to deny a request on security grounds would provide information that the documents or programs which the requester is seeking indeed exist. Glomarization is also used in the case of privacy, in which a response as to whether or not a person is or is not mentioned in law enforcement files may have a stigmatizing connotation.
Lower courts have thus far ruled the Glomar response to have potential merit if the secretive nature of the material truly requires it, and only if the agency provides "as much information as possible" to justify its claim. Otherwise, the principles established in FOIA may outweigh claims to secrecy.
Origin of the termEdit
The USNS Hughes Glomar Explorer was a large salvage vessel built by the Central Intelligence Agency (CIA) for its covert "Project Azorian"—an attempted salvaging of a sunken Soviet submarine. In February 1975, aware of the pending publication of a story in the Los Angeles Times, the CIA sought to stop the story's publication. Journalist Harriet Ann Phillippi requested that the CIA provide disclosure of both the Glomar project and its attempts to censor the story, to which the CIA chose to "neither confirm nor deny" both the project's existence and its attempts to keep the story unpublished. This claim stood, and Phillippi's FOIA request was rejected, though when the Ford administration was replaced by the Carter administration in 1977 after the 1976 presidential election, the government position on the particular case was softened and both of Phillippi's claims were confirmed.
The "Glomar response" precedent still stood, and has since had bearing in FOIA cases such as in the 2004 lawsuit American Civil Liberties Union v. Department of Defense, wherein Federal Judge Alvin Hellerstein rejected the Department of Defense and CIA's use of the Glomar response in refusing to release documents and photos depicting abuse at Abu Ghraib prison.
According to a Radiolab podcast, the original text of the Glomar response was written by Walt Logan (pseudonym), who was at that time an Associate General Counsel at the CIA. So as not to divulge to the Soviet Union either what the CIA knew or did not know, the response read:
"We can neither confirm nor deny the existence of the information requested but, hypothetically, if such data were to exist, the subject matter would be classified, and could not be disclosed."[not in citation given]
The original text of the CIA's reply of May 21, 1975, to Phillippi's FOIA request, seems to have been:
Mr. Duckett has determined that, in the interest of national security, involvement by the U.S. Government in the activities which are the subject matter of your request can neither be confirmed nor denied. Therefore, he has determined that the fact of the existence or non-existence of any material or documents that may exist which would reveal any CIA connection or interest in the activities of the Glomar Explorer is duly classified Secret in accordance with criteria established by Executive Order 11652. Acknowledgement of the existence or non-existence of the information you request could reasonably be expected to result in the compromise of important intelligence operations and significant scientific and technological developments relating to the national security, and might also result in a disruption in foreign relations significantly affecting the national security.
In 2014, the CIA opened its Twitter account with, "We can neither confirm nor deny that this is our first tweet."
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- FOIA Update, Vol. VII, No. 1, Page 3 (1986). "OIP Guidance: Privacy "Glomarization"". United States Department of Justice.
- Burleson, Clyde W (1997). The Jennifer Project. College Station: Texas A&M University Press.
- Varner, Roy D (1 January 1978). Matter of Risk: The Incredible Inside Story of the CIA's Hughes Glomar Explorer Mission to Raise a Russian Submarine. New York: Random House. ISBN 978-0394424323.
- "Neither Confirm Nor Deny". Radiolab. Radiolab, WNYC. 12 February 2014. Retrieved 18 February 2014.
- Quoted in the majority opinion penned by Circuit Judge J. Skelly Wright. Phillippi v. CIA, 1976. (LEXSEE 546 f2d 1009. Phillippi v. CIA, No. 76-1004, United States Court of Appeals for the District of Columbia Circuit. 178 U.S. App. D.C. 243; 546 F.2d 1009; 1976 U.S. App. LEXIS 6221; 2 Media L. Rep. 1208. Argued April 19, 1976; decided November 16, 1976.) Retrieved from https://nsarchive.gwu.edu/NSAEBB/ciacase/Phillipi.doc on 2017-10-04.
- Myre, Greg (18 September 2017). "How The CIA Found A Soviet Sub — Without The Soviets Knowing". National Public Radio. Retrieved 18 September 2017.