Department of Justice Glomar Response Would Gut the Freedom of Information Act

“Didn't they show it to you?" Yossarian demanded, stamping about in anger and distress.

"Didn't you even make them read it?"

"They don't have to show us Catch-22," the old woman answered. "The law says they don't have to."

"What law says they don't have to?"

​"Catch-22."

- Joseph Heller
Catch-22

In January, the Project for Privacy and Surveillance Accountability filed a brief asking the U.S. Court of Appeals for the D.C. Circuit to compel six government agencies to respond to a Freedom of Information Act (FOIA) request by searching for documents related to the surveillance of campaign and transitions officials in the 2016 presidential election.
 
The U.S. Department of Justice (DOJ) has now replied with a brief that, if taken seriously, would allow claims of national security to prevent the government from even looking for and assessing documents in its possession.
 
At stake is whether the public will be allowed to learn if our government surveilled key actors, including Members of Congress, in a presidential election. DOJ is asking the court to pull the curtain on even a possibility of answering that question. The DOJ’s brief shows how far the government has taken the Glomar response – a judicial doctrine that allows the government to neither confirm nor deny that certain documents exist.
 
The FOIA request in this case, dating from 2017, had asked the government, including the FBI and CIA, to produce documents relating to the possible “unmasking” of Trump campaign and transition officials surveilled in communications with foreigners. It also asked for production of records in which U.S. agencies might have pulled data on these individuals in “upstreaming,” or collection of communications crossing the backbone of the internet.
 
The government not only rejects PPSA’s appeal on national security grounds, it claims that national security prevents it from searching for documents at all. DOJ’s brief claims that judicial precedent overrides FOIA’s statutory mandates, and thus rejects “the argument that agencies must first search for documents before issuing a Glomar response refusing to confirm or deny the existence or nonexistence of such documents.”
 
A suggestion for our reader: Go the kitchen and pour yourself something cold to drink. Sit down and take a deep breath. Read the above again. Taken literally, it means that the existence or nonexistence of such records cannot be known even by the relevant agencies. The very act of looking for them might compromise national security.
 
Question: How does an agency know if all the relevant documents are classified or involve national security without looking for them?
 
PPSA has consistently argued that these agencies, because they failed to fulfill their FOIA statutory duty to search for the requested records, cannot logically rule out the possibility of some safely releasable records. We countered DOJ’s position by noting that D.C. Circuit Court precedent does allow the government to assert a narrowed Glomar response – after searching for and releasing safely disclosable records.
 
That the courts entertain the possibility of such a second Glomar response puts the lie to any claim that merely conducting an internal agency search, in and of itself, will open the cupboard of government secrets, sources and methods.
 
DOJ’s filing reveals loophole creep at its worst. The Glomar response is a judicial solution devised in the 1970s to protect an extremely sensitive CIA covert mission (in that instance, the raising of a sunken Soviet nuclear-powered submarine). If the court affirms DOJ’s stance, the expansion of this judicial doctrine will take a steel file to the Freedom of Information Act and grind it down to a tiny nub.