In the world of FOIA, this kind of response is known as a “Glomar” —a reference to a 1981 FOIA case (Phillippi v. CIA, 655 F.2d 1325, 1327 (D.C. Cir. 1981), in which the D.C. Circuit Court of Appeals ruled that the CIA could refuse to confirm or deny even the very existence of information on a topic if the fact of its existence was itself deemed classified.
The 1981 case revolved around the efforts of a Rolling Stone reporter to get records of conversations between CIA Director William Colby and the heads of various news organizations that had learned about a Tom Clancy‐like CIA operation to raise a sunken Soviet sub from the Pacific Ocean. The CIA’s argument, which the Court accepted, was that even the revelation of Colby’s efforts to kill the story would tip off the Soviets that the CIA might, in fact, have managed to salvage at least something from the sunken Soviet sub.
Since that 1981 D.C. appellate court decision, other federal courts have generally upheld executive branch invocations of Glomar responses to FOIA requests. In my view, those ill‐considered decisions have now led to a much wider and far more dubious resort to Glomar responses by federal agencies and departments, in this case by the FBI as it relates to immigration policy activism by domestic U.S. groups.
For the five groups in question in my FOIA actions, the FBI is asserting FOIA’s “national security” or (b)(1) exemption in a Glomar context. How can the provision of legal advice, counseling or other services to immigrants represent “a threat to national security?”
A Role for Congress
Congress should investigate whether the FBI is targeting these groups in the absence of a legitimate criminal investigative predicate and is using the Glomar exception (or other dubious FOIA evasion tactics) to conceal that activity from the public and the courts. As for the courts, federal judges should cease taking executive branch Glomar assertions at face value and should require the production of all relevant documents for in camera reviews whenever a federal agency or department invokes Glomar to dodge a FOIA request.
The FBI and other federal departments and agencies are trying to erect an impenetrable legal shield over their potentially illegal surveillance activities via the misuse of FOIA exemptions, either statutory or court‐constructed, as in the case of Glomar. For the Constitution to have meaning and force, the public —including the Congress, the courts, and the press —must be able to establish what the executive branch is doing in our name and with our tax dollars, particularly when it comes to the use —or misuse —of federal surveillance powers. If we are on the cusp of a de facto COINTELPRO 2.0, the infamous Cold War‐era FBI program of domestic spying and organizational disruption, we need to end it. Now.