Can Freedom of Information Act Survive Agencies’ Stonewalling?

U.S. Government Claims Internal Search for Documents Would Harm National Security

Intelligence agencies represented by the Department of Justice continue to maintain that if they conduct an internal agency search for documents relevant to surveillance of Trump officials in the 2016 campaign and transition, the very act of such an internal search would somehow compromise national security.
 
At stake is the viability of the Freedom of Information Act (FOIA), a law designed by Congress to specifically require the government to fully or partially disclose unreleased documents and information.
 
Gene Schaerr, PPSA general counsel, filed the latest reply brief this week after multiple legal rounds with the government. His reply brief responds to the absurdity of the government’s argument (and that, unfortunately, of a lower court ruling) before the U.S. Court of Appeals for the District of Columbia.
 
At stake is whether the Glomar response – a judicially crafted doctrine that allows the government to neither confirm nor deny extremely sensitive covert programs and highly classified material – can be used as a blanket refusal to search for documents, as required by FOIA.
 
The government maintains that complying with its obligations under FOIA to even search for records would itself constitute an inevitable and harmful disclosure – an expansive reading of Glomar that flips the law. If allowed to stand, the once-narrow Glomar exception would become a mechanism by which the government could issue a blanket refusal to respond to FOIA at all.
 
To the contrary, any such search would not trigger Glomar-related harms because, Schaerr’s brief notes, “the tools of segregation, redaction, and even post-search Glomar responses provide adequate protections for any truly protected information.”
 
“The government has a statutory duty to search for all responsive records and to disclose any records that are not protected by Glomar or a FOIA exemption,” Schaerr said.
 
Schaerr’s brief notes that Glomar, as a judicial doctrine, must be narrowly construed in light of the broad disclosure mandates Congress intended when it passed FOIA. Schaerr said:
 
“If this new twist is allowed to stand, we will have essentially allowed a judicial doctrine designed for extreme cases to gut a law debated, formulated and sent to the president’s desk by Congress. This would allow the unelected to render the actions of the Congress, the president and the voters who elected them meaningless.”