FOR IMMEDIATE RELEASE: Appeal to D.C. Circuit Court Challenges Government’s “Neither Confirm Nor Deny” Responses
WASHINGTON – Gene Schaerr, general counsel of the Project for Privacy and Surveillance Accountability (PPSA), today notified the U.S. Court of Appeals for the D.C. Circuit that the federal government cannot duck its disclosure obligations under the Freedom of Information Act (FOIA) by issuing boilerplate “neither confirm nor deny” responses.
“It turns out that the emperor has been naked all along,” said Schaerr. “The whole doctrine is legally suspect.”
PPSA has used FOIA requests to press the CIA, NSA, ODNI, Department of Justice, and Department of State to provide information about whether the U.S. intelligence community illegally spied on the Trump campaign and transition team. These agencies have largely evaded PPSA’s requests by relying on so-called Glomar responses, a judicial invention allowing such agencies to respond to FOIA requests by claiming that they can “neither confirm nor deny” even the existence of the requested information.
“The D.C. federal district court recently approved these agencies’ ability to issue Glomar responses to FOIA requests,” Schaerr said. “We have a strong basis to challenge the court’s application of the Glomar doctrine, even its validity.”
The filing of a statement of issues notified the court that the appeal will include the issue of whether government agencies “could lawfully rely on the judicially created Glomar doctrine to satisfy their statutory disclosure obligations” under FOIA.
Issuing “neither confirm nor deny” responses has become standard practice among intelligence agencies. PPSA will urge the courts not to apply the Glomar doctrine beyond its bare requirements, and if necessary will challenge Glomar itself as an inappropriate judicial amendment to the government’s FOIA obligations.
“The U.S. Supreme Court has never had the occasion to deeply examine this widely used doctrine to evade the legal requirement for disclosure,” Schaerr said. “We hope the Court of Appeals will comply with Congress’s direction on freedom of information disclosures. If it doesn’t, we’re prepared to appeal to the Supreme Court.”