Three Glomars A Day: Officials Refuse To ‘Confirm Nor Deny’ Stuff At Least 1,000 Times A Year

The Freedom of Information Act does its best to free information, but it can only do so much when the same government that's supposed to follow it figures it shouldn't abide by a law another branch crafted.

Simple refusals are never welcome, but at least they say something: that the government does have these documents. It just doesn't want to share them. The same thing can be said about partial releases and excessive redactions. Documents exist, but aren't being released fully.

Thanks to a 1974 effort to secretly salvage a sunken Soviet submarine (yes, I enjoyed writing that), the federal government has a great way to thoroughly frustrate records requesters: the Glomar response.

The NSA is a huge fan of Glomar responses, something it has used in the past to do things like refuse to confirm nor deny the contents of a leaked Powerpoint slide, despite it very clearly being an actual thing the NSA produced.

But just how often are government agencies pulling the Glomar trigger? The Reporters Committee for the Freedom of the Press decided to ask. After a sustained FOIA carpet bombing, RCFP has compiled perhaps the most complete (so far) picture of federal agency Glomar use.

In the summer of 2022, the Reporters Committee for Freedom of the Press started an ambitious project to remedy the informational deficit surrounding Glomar, using (of course) FOIA requests. Specifically, the Reporters Committee wrote FOIA requests asking for response letters from agencies to requesters that included a number of phrases associated with the Glomar response and sent between fiscal years 2017 and 2021. The requests also gave agencies the option to simply report the number of Glomar responses issued each fiscal year, along with the exemption they were tied to. The Reporters Committee submitted the request to every federal department, agency, and subcomponent thereof across the government, totalling hundreds of submissions.

Hundreds of responses later, and the RCFP has a better idea which agencies use them most, and how many agencies are using.

Unsurprisingly, the NSA handed out the most Glomars, both annually and in total. 2,700 times over the five-year period surveyed, the NSA was unwilling to confirm or deny, making up more than half of the total across all agencies.

Unfortunately, the Glomar picture remains a little fuzzy. The RCFP is still waiting to hear from some heavy-hitters in the Glomar field.

Some agencies denied the Reporters Committee's FOIA requests for this project, including some agencies that frequently issue Glomar responses. The FBI, for example, denied the Reporters Committee's FOIA request on the grounds that it purportedly required the agency to answer inquiries, create records, conduct research, or draw conclusions concerning queried data."

Other agencies have simply failed to issue a substantive response. The State Department, for example, estimated that it would provide a final determination in January 2025. The CIA, for its part, has not provided an estimated completion date; as of March 14, 2024, its online FOIA status tracker simply indicates the request is In Process."

So, the number headlining this post will only remain accurate until the rest of the numbers come in. Not that they're likely to arrive any time soon. It will probably take a lawsuit to get the FBI to fulfill the request and the CIA is only slightly more cooperative than the FBI when it comes to FOIA responses. The DEA's response is still missing as well.

The full report breaks down the data even further, sussing out the government's favorite Glomar-attendant FOIA exemptions, as well as listing a few of the odder government components to issue this refusal. The heavy hitter is the Defense Department, of course, because the NSA is one of its component agencies.

Then there are the outliers: the agencies you never would expect to be put in the position to refuse to confirm or deny the existence of data or documents, like the Department of Health and Human Services and the US Department of Agriculture.

As the RCFP report notes, there's no sign the number of Glomar responses is increasing. Glomar response numbers have remained steady over the past five years, averaging about 1,000/year. I suppose that's a good sign, perhaps indicating Glomars aren't being abused. But that doesn't mean this option isn't frequently misused - especially by certain agencies - to hide things the public has a right to know. But with this massive effort, the RCFP has established a baseline to measure future Glomar use which, if nothing else, can be a trailing indicator of FOIA exception abuse.