23 May 1998
Excerpt on "Glomar response" for relevance to recent court decision in Payne v. National Security Agency to review NSA declaration in camera.
Another agency practice that has lead to excessive government secrecy in our country is the so-called "Glomar" response -- that is, when an agency refuses to even confirm or deny the existence or nonexistence of records. The courts have allowed agencies to provide a Glomar response when the agency demonstrates that disclosing the fact of a record's existence or nonexistence itself reveals information that a FOIA exemption seeks to protect. . . .
In a few cases -- most often those involving national security -- the court has conducted an in camera review (that is, the court reviews the documents in private). While we prefer to have the agency make a detailed public record explaining its rationale for withholding so that we can respond, an agency may complain in national security cases that it can not give a more detailed explanation without revealing classified information. In those situations, when we fail to get a more detailed explanation, we support in camera review so that the court may independently review whether the government's justification is valid. We have also sought in camera review when we question whether the agency has made a good faith effort to release all segregable portions of a document. While in camera review is sometimes appropriate, we oppose the submission of in camera affidavits because it gives the government a chance to make arguments that we cannot respond to. In those case where a court accepts an in camera affidavit over our objections, we ask for a redacted version of the affidavit.
Since the adoption of the United States Freedom of Information Act
(FOIA) more than 30 years ago, millions of Americans -- including scholars,
journalists, and private citizens -- have made use of the law to monitor
the government's activities and to hold the government accountable for its
actions. By giving the public an enforceable right of access to government
information, the FOIA has enabled American citizens to be informed of the
government's actions and to participate more effectively in the public debate
that is vital to a strong and vibrant democracy. No nation that shields the
workings of its government from the governed can rightly call itself a democracy.
In the thirty years since its adoption, the FOIA has become interwoven into the fabric of American life. Citizen advocacy groups like mine use the FOIA almost daily -- to learn about serious adverse effects of drugs, of the chemicals that are present at hazardous waste sites, and of nuclear power plant accidents and mishaps. Our efforts to organize and lobby on health and safety issues and to serve as a government watchdog fundamentally depend upon our ability to obtain access to government information.
Let me give you just a few examples of information obtained through FOIA over the years:
* Documents about the MK-ULTRA program, in which the Central Intelligence Agency (CIA) illegally conducted mind- control experiments on unwitting human subjects;
* Agriculture Department inspection reports of meat packing facilities;
* Reports showing that contrary to Forest Service claims, the agency was spraying herbicides in the national forests;
* EPA report showing that despite President Reagan's claims to the contrary, acid rain causes serious environmental harm.
And, just last month, under pressure from a FOIA lawsuit, the CIA broke a 50-year vow of silence to confirm for the first time that federal spending on intelligence matters at all agencies totaled $26.6 billion last year. The disclosure broke a tradition born when the CIA was established in 1947 of keeping the budget secret, and will allow the public to participate in the Congressional debate about how their tax dollars will be spent.
FOIA's phenomenal successes can be traced to four fundamental aspects
of the law. First, the FOIA creates a presumption in favor of public
access to all government information and against government secrecy.
The law presumes that all government records -- even electronic records,
films or tapes -- are available to the public and puts the burden on the
government to demonstrate that any particular piece of information falls
outside the presumption.
Second, the law clearly defines the categories of information that can be withheld from the public, and thus it places strict limits on the government's discretion to keep information secret. The presumption of public access can only be overcome if the information falls within nine narrowly drawn exemptions, whichprotect such matters as privacy, national security, law enforcement proceedings, and trade secrets. And, if part of a document falls within an exemption, the agency may withhold only that portion; it must still release the remainder of the document.
Third, judicial review is available to ensure government agencies comply with the law. As might be expected, agencies sometimes try to withhold information to hide embarrassing actions or to limit public debate on controversial issues. When this occurs, the requester may go to court. This right to judicial review gives the law its teeth. The court will make an independent determination of whether the requested information falls within the particular withholding criteria of FOIA. In making this determination, the courts do not give deference to the agency's judgment, and do not even need to rely on the government's description of the material. Instead, the court may review the information, or a sample of it, in private in order to determine for itself whether the information should be disclosed or withheld under the terms of FOIA.
The Act ensures that filing a lawsuit is convenient for requesters by allowing the suit to be filed in one of three places -- where he or she lives, in Washington, D.C., or where the records are maintained. Moreover, if a requester has to file a lawsuit in order to obtain information that should have been disclosed in the first place, a court may order the government to pay the requester's attorney's fees and litigation costs. Indeed, my office's annual budget relies in part on attorney's fee awards forour work in FOIA cases.
Fourth, what ultimately makes FOIA successful is its simplicity and accessibility to the public. Under FOIA, anyone can make a request for information. A person making a request does not have to show any particular need for the information, nor does the requester even have to be a U.S. citizen or resident. The only requirement for the request is that it must "reasonably describe" the records sought. Specific documents need not be identified; the requester may instead ask for any information pertaining to a particular subject.
In the early days of FOIA, agencies routinely violated its provisions and subjected requesters to exorbitant fees and interminable delays. In 1974, in the wake of the Watergate scandal and cover-up, Congress amended FOIA to remove the financial barriers and to set time limits to address the delay problems.
Under the 1974 amendments and a subsequent one in 1986, we now have a tiered fee structure designed to enable ordinary citizens to use FOIA without incurring a heavy financial burden. First, fees are divided into three types: copying costs, search costs (locating the responsive information) and review costs (reviewing information to determine whether it is exempt from disclosure). On the one hand, commercial requesters -- the majority of FOIA users -- are charged all three types of fees. On the other hand, non-commercial requesters, like individual citizens and public interest organizations, are entitled to the first 2 hours of search time and the first 100 pages of copying for free, and are not charged at allfor review time. Journalists, scholars, and scientists are charged only copying costs and get the first 100 pages free. And of great significance for groups like mine is the public interest fee waiver; FOIA requires agencies to waive all fees for requests that seek information that will increase public understanding of government operations or activities. The fee and fee waiver provisions are intended to promote the democratic uses of FOIA, and are designed to prevent an agency from charging fees as a means of keeping information out of the public's hands.
The 1974 amendments also sought to address the most common complaint about FOIA -- the government's long delays in responding to requests. Thus, in 1974, Congress established time limits within which the government is obligated to respond to requests: 10 working days to respond to initial requests, and 20 working days to respond to administrative appeals. Unfortunately, these limits are more often honored in the breach, so that for example, the worst offender -- the Federal Bureau of Investigation -- routinely takes two to ten years to process a FOIA request, most of which come from prison inmates. Many agencies do comply with the time limits, but still, 30 years after FOIA was enacted, the biggest complaint I hear repeatedly from requesters is about the delay in receiving a response.
The delays are, in large part, due to the widespread use of FOIA by the public. About 600,000 people file FOIA requests every year, and agencies like the FBI have a large backlog of requests. To address the significant delay problem and to take advantage ofthe unique opportunities offered by the Internet and emerging electronic technologies, Congress passed the Electronic Freedom of Information Act Amendments (EFOIA) in 1996.
In passing EFOIA, Congress emphasized the important role FOIA has played in disclosing waste, fraud, abuse and wrongdoing in the U.S. Government, and stressed FOIA's role in the identification of unsafe consumer products, harmful drugs, and serious health hazards. Recognizing the increase in the government's use of computers to store publicly valuable information, EFOIA requires agencies to use this new technology to enhance public access to government information through a number of provisions. First, the EFOIA settles, once and for all, what many courts had already determined -- that government records in electronic format, like e- mail messages and databases, are subject to FOIA. Second, the new law allows the public to request records in a particular electronic format and requires agencies to search electronically to identify and retrieve requested information. While EFOIA does not require agencies to accept FOIA requests through e-mail, a few agencies are now beginning to accept FOIA requests made through e-mail. Third, EFOIA requires agencies to make certain types of records (agency opinions and interpretations, staff manuals and instructions to staff that affect the public) available on-line. Most significantly, agencies must make records that have been, or are likely to be, requested by several people available on-line. Agencies are just now beginning to comply with this new requirement, but, for example, the FBI has already placed on theWeb (http:\\www.fbi.gov) records of popular interest, like the FBI's files related to Elvis Presley, Amelia Earhard, Jackie Robinson, Project Blue Book (a UFO study), and Klaus Barbie. Now that these files are publicly available on the Internet, a person who wants information on one of these popular subjects no longer has to file a FOIA request. This speeds up access for requesters and helps the government at the same time because it diverts potential requests for previously-released records from FOIA- processing altogether.
Another important mechanism to reduce delays and enhance access for the public is EFOIA's requirement that agencies develop indexes of all the agency's major information systems with a description of each system, and eventually make these indexes available on-line. These indexes will enable the public to better describe the records they seek, and speed up the ability of the agency to search for and identify the requested records.
At the same time that FOIA has been an overall success in expanding
public access to government information, the Act has certain weaknesses.
First, as I've just discussed, is the problem of delays. I am hopeful that
EFOIA and continued Congressional oversight will speed up the FOIA process
and significantly reduce delays in the future.
A second problem area -- and one not addressed by Congress in EFOIA -- is that agencies have used broad or vague terms in an exemption to expand secrecy beyond the purpose the exemption ismeant to serve. Unfortunately, at times, the courts have upheld the government's broad interpretations and withholding decisions. For example, a significant loss for our office and for those who support broad access to government information was the Critical Mass Energy Project v. NRC decision in 1992. In Critical Mass, we sought access to analytical safety reports about nuclear power plants submitted to the Nuclear Regulatory Commission (NRC) by a non-profit organization created by the nuclear industry after the accident at Three Mile Island. Although the reports were circulated widely within the industry, they were not available to the public. Thus, Critical Mass dealt with FOIA's exemption for access to trade secret and confidential commercial information; the exemption applies to information that is submitted to the government by outside entities, not to information generated by the government. In Critical Mass, the court distinguished between information that is voluntarily submitted to the government and information that must be submitted to the government either because of regulatory requirements or as a condition for a government benefit. If submission of information is mandatory, that information will be disclosed to the public unless the disclosure would cause substantial competitive harm to the company. However, Critical Mass allows the government to withhold information that was voluntarily submitted so long as the submitter can show that it does not customarily release the information to the public. In practice, this allows a company that submits information voluntarily to prevent any of its information from being disclosedto the public. After all, a company is not likely to customarily release information that reflects badly on its products or that is embarrassing, even if the release would not cause it competitive harm. Indeed, those were exactly the type of documents at issue in the Critical Mass case -- because all of the nuclear power industry already had access to the reports at issue, no claim of competitive harm could be made; instead, the industry did not want the public to have access to reports evaluating the operations of nuclear plants because it reflected unfavorably on the industry.
The Critical Mass decision has the potential to be quite expansive in its impact because it could lead to government agencies and industry conspiring to keep information from the public by agreeing to the voluntary submission of information that the agency has the power to compel. This is of particular concern whenever the public is interested in industry information submitted to any law enforcement agency with subpoena power. For example, imagine the following scenario:
The Federal Trade Commission (FTC) is investigating false advertising by the breakfast cereal industry and issues a broad subpoena for pricing information. In response, the industry lawyers object to the subpoena as invalid or overbroad, but offer to provide the material "voluntarily" subject to a strict confidentiality order. The FTC is likely to accept the offer so that the agency can obtain the documents right away, rather than having to fight for several months about the subpoena's validity.
Unfortunately, the FTC's decision in this scenario not only determines how the agency will spend its time and resources on the investigation, but because of the Critical Mass standard, also means that the public is prevented from having access to the material the agency receives -- information that is potentially of significant public interest. Indeed, in the Critical Mass case itself, the NRC had ample statutory authority to compel the production of the information sought, but had not done so.
The research and advocacy efforts of my own organization have not been impacted by the Critical Mass standard as much as we feared because much of the industry-submitted information we seek is "required" to be submitted to the agency and therefore does not qualify for the broader protection afforded to "voluntary" submissions. For example, our organization often uses the FOIA to seek safety and effectiveness data submitted to the Food and Drug Administration (FDA) for drugs and medical devices, or to obtain information submitted by the auto industry to the National Highway Traffic Safety Administration. This data is required to be submitted under our country's extensive regulatory reporting scheme, and so falls outside of the Critical Mass decision and may be released unless the company shows substantial competitive harm. Indeed, the FDA routinely releases a wide variety of documents, including study protocols and adverse reaction reports, once a drug is approved for sale in the United States in order to allow the public to scrutinize the basis for FDA decisions. Similarly, the U.S. environmental laws require industries to provide detailed dataon their toxic emissions into the environment, and that information is publicly available. Thus, the harmful impacts of Critical Mass on public access are somewhat minimized by virtue of the significant reporting requirements established by Congress and by the regulations of our nation's health and safety agencies. The Critical Mass standard would be much more dangerous in a society with a less-developed regulatory structure.
Another agency practice that has lead to excessive
government secrecy in our country is the so-called "Glomar" response -- that
is, when an agency refuses to even confirm or deny the existence or nonexistence
of records. The courts have allowed agencies to provide a Glomar response
when the agency demonstrates that disclosing the fact of a record's existence
or nonexistence itself reveals information that a FOIA exemption seeks to
protect. For example, the CIA invoked the Glomar response in answer to a
FOIA request seeking:
All information on attempts by the U.S., U.K., and other western countries to infiltrate intelligence agents and potential guerrillas into Albania during the period between the end of World War II and the death of Stalin.
Given the specificity of the request, the Court found that "an answer as to whether the files existed would be tantamount to declaring whether the mission occurred," and therefore, would harm national security. Similarly, glomarization has been upheld in the law enforcement context because simply revealing that an individualhas been investigated for criminal activity is likely to be an invasion of privacy.
While there are times when a Glomar response is appropriate, some agencies abuse the practice. For example, our office recently challenged the CIA's categorical rule of refusing to disclose the existence of records whenever someone files a FOIA request seeking information on any foreign national. We represented a journalist working on a biography of Morris "Two-Gun" Cohen, a Canadian citizen who was an aide-de-camp to Sun Yat-sen in the 1920s. Although our client had successfully used FOIA to obtain files about Cohen from the Department of State and the FBI and the records were decades old, the CIA refused to disclose whether they had any responsive records. The CIA did not point to any harm from the response to this particular FOIA request but instead relied on justifying the agency's categorical rule. Unfortunately, the court upheld the CIA's rote application of the Glomar doctrine in that case.
However, in the same year that we lost the case involving the CIA's use of the Glomar response, another FOIA requester won a similar challenge to the doctrine when the court rejected a law enforcement agency's categorical rule to provide a Glomar response whenever someone asked for records related to an individual. In that case, The Nation magazine asked the Customs Service for records related to Presidential candidate Ross Perot -- not because Perot had been investigated for criminal activity but because Perot may have donated money to Customs to aid their drug indictionefforts. The court refused to allow the agency to give a Glomar response because confirming that some records existed would not implicate Perot in any criminal activity. Thus, the courts generally limit the application of the Glomar response to those few situations involving national security or law enforcement records when a specific FOIA request is framed in such a way that simply confirming documents exist reveals information protected by a FOIA exemption.
Indeed, experienced FOIA requesters are often able to escape glomarization by the way they frame their FOIA request: Instead of referring to particular individuals, the request refers to events the individual was involved in. Thus, for example, instead of asking for records related to Morris "Two-Gun" Cohen, a historian could file a FOIA request for all records related to particular events Cohen was involved in, drawing upon information revealed in the documents from other government agencies. Even if the CIA redacts the name of the individuals from the files (names the historian already knows), the historian has access to documents that may provide new and interesting information.
Both because of court limitations on the doctrine and because many FOIA requesters have learned to design their FOIA requests to escape glomarization, I have had little experience challenging agency glomar responses. In virtually all of the cases I have been involved with, the agency acknowledges it has the records, but refuses to disclose them. In the vast majority of these cases, the court reviews the agency's withholding decisions based on a Vaughn Index (an Index which provides a summary of the information withheld and the government's rationale for the withholding) and on the legal arguments made by the agency and by our office on behalf of the FOIA requester. In a few cases -- most often those involving national security -- the court has conducted an in camera review (that is, the court reviews the documents in private). While we prefer to have the agency make a detailed public record explaining its rationale for withholding so that we can respond, an agency may complain in national security cases that it can not give a more detailed explanation without revealing classified information. In those situations, when we fail to get a more detailed explanation, we support in camera review so that the court may independently review whether the government's justification is valid. We have also sought in camera review when we question whether the agency has made a good faith effort to release all segregable portions of a document. While in camera review is sometimes appropriate, we oppose the submission of in camera affidavits because it gives the government a chance to make arguments that we cannot respond to. In those case where a court accepts an in camera affidavit over our objections, we ask for a redacted version of the affidavit.
In my experience, glomarization is not a significant problem in the United States because the courts have limited its application and required the agencies to submit detailed affidavits explaining why glomarization is necessary. However, extension of the doctrine to additional circumstances -- either in the nationalsecurity area or beyond, to confidential commercial information for example -- poses a real danger to public access. Glomarization creates a huge loophole to FOIA by allowing the government to refuse to even tell the public what records it has in its files.
In the United States, we continue our efforts to eliminate government
secrecy beyond the FOIA context. For example, Congress recently established
the Commission on Protecting and Reducing Government Secrecy to investigate
the workings of secrecy in the United States government. The non-partisan
Commission finished its two year investigation and released its report in
March criticizing existing government practices that keep too much information
confidential but fail to protect secrets critical to national security. According
to the Commission, "the classification system is used too often to deny the
public an understanding of the policymaking process, rather than for the
necessary protection of intelligence activities and other highly sensitive
matters." The report stressed the benefits of reducing government secrecy:
Greater openness permits more public understanding of the Government's actions and also makes it more possible for the government to respond to criticism and justify those actions. It makes free exchanges of scientific information possible and encourages discoveries that foster economic growth. In addition, by allowing for a fuller understanding of the past, it provides opportunities to learn lessons from what has gone before -- making it easier to resolve issues concerning theGovernment's past actions and helping prepare for the future.
The Commission made several recommendations in order to put some check on the government's unrestrained discretion to create secrets and to establish an effective mode of declassification. Currently, classification and declassification is governed by presidential executive order and has been for nearly fifty years. The Commission recommended that Congress set forth the principles for what may be declared secret in statute. Such legislation has been introduced in both houses of Congress as the Government Secrecy Act, but is not expected to become law anytime soon. Even if it were enacted, it would not impact the public's right of access under FOIA to unclassified information; it would simply determine what information is appropriately withheld for national security reasons.
In conclusion, the Freedom of Information Act has revolutionized public
access to information in the United States.
At the same time, however, more must be done in our country to improve the FOIA process, make government records more accessible to the public, and to reduce government secrecy. I hope that here in Japan, you will be able to learn from our experiences -- to adopt what has been successful and to improve upon the weaknesses in our law. I congratulate you on your efforts to open up government action to public scrutiny and wish you the best.