FOIAengine Explores the Widespread Use of “Neither Confirm Nor Deny”
By John A. Jenkins
We’re taking a look this week at a frequently used Freedom of Information Act exemption that isn’t mentioned anywhere in the statutory language. It’s known as “Glomar” among the federal agencies that invoke it.
Glomar, a euphemism for “neither confirm nor deny (NCND),” shows up frequently in PoliScio Analytics’ competitive-intelligence database FOIAengine, which tracks FOIA requests in as close to real-time as their availability allows. It’s been logged as a shorthand description for FOIA denials at least 189 times since 2021 by the Federal Trade Commission, the Securities and Exchange Commission, the Food and Drug Administration, and a raft of other federal agencies and departments. And that’s just the tip of the iceberg, says the Reporters Committee for Freedom of the Press. That organization spent the last two years investigating what appears to be Glomar’s expanding use – “the first systematic review of Glomar responses in contemporary FOIA practice.”
The Reporters Committee sent FOIA requests “to every federal department, agency, and subcomponent thereof across the government, totaling hundreds of submissions,” in an effort, for the first time, to determine how often Glomar is invoked to deny a FOIA request. Agencies aren’t required to compile this information, and many agencies declined to answer.
The group published preliminary findings earlier this year. The 300 agencies that have responded so far reported issuing over 5,000 Glomar denials during the five-year period from 2017 through 2021.
The Reporters Committee, which intends to publish further analyses and, eventually, all the data for further examination, isn’t the only group calling attention to the use of Glomar. Questions were also raised by the federal FOIA Advisory Committee responsible for suggesting improvements in how FOIA works.
“There is an impression among FOIA advocates of ‘Glomar creep,’ or an increasing use of NCND responses throughout government — at the federal, state, and local levels,” the FOIA Advisory Committee – a panel comprised of 10 FOIA experts from government and 10 users from academia, non-profits, and media – reported at the end of its two-year term in 2022. The committee recommended four modest steps the government could take to rein in use of the Glomar exemption – including ditching altogether the “Glomar” appellation and replacing it with the more generic “NCND.” Two years later, the recommendations are listed as either “pending” or “in progress;” none of the recommendations has been implemented.
How, exactly, did the non-statutory Glomar exemption come into such widespread use? We wanted to learn more. First stop after FOIAengine: a blog post titled “What the FOIA is Glomar?” from the FOIA ombudsman at the National Archives, the agency responsible for overseeing FOIA’s government-wide implementation.
“FOIA can be a challenge for even the most seasoned requester, and jargony language and acronyms make things even more confusing,” the blogger, Kimberlee Ried, wrote in January. “The term ‘Glomar’ is often used to describe a FOIA response where the agency neither confirms nor denies the existence of responsive records. Knowing where this term comes from can help understand why agencies issue this type of response.”
It’s an unlikely backstory. The Glomar exemption traces its origins to a secret 1968 Central Intelligence Agency mission to raise a sunken Soviet submarine. At the center of the drama was a man the CIA knew would keep its secret, the reclusive billionaire Howard Hughes.
The Soviet submarine, known as K-129, went down in the Pacific Ocean in 1968 with 98 sailors and three nuclear-armed ballistic missiles aboard. The Soviet Navy tried unsuccessfully for months to locate it, and finally gave up. After the Soviets abandoned their search, the U.S. military found the 2,000-ton sub, hundreds of miles from where the Soviets had been looking, at a depth of 16,500 feet – too deep for any salvage vessel. There was no way to bring an object that big to the surface.
Thus began what the CIA code-named Project Azorian. Capturing the sub, the agency later explained, would give the U.S. “immense . . . intelligence on Soviet strategic capabilities.” But to accomplish the mission, the CIA would need a bigger boat.
The CIA turned to Hughes for help. The billionaire tycoon controlled vast holdings in aviation, ship building, oil drilling, and medical technology. And although he hadn’t been seen in public since 1953, he maintained ties, through his various companies, to the CIA and the Defense Department.
A plan was hatched. The CIA funneled $350 million (about $2.7 billion in today’s dollars) to one of Hughes’ companies, which spent the next four years building the world’s biggest salvage ship, with a huge mechanical claw and hydraulic lift, for the secret mission to raise the Soviet sub.
As the CIA later explained it, “the ship would be called the Hughes Glomar Explorer, ostensibly a commercial deep-sea mining vessel built and owned by Hughes, who provided the plausible cover story that his ship was conducting marine research at extreme ocean depths and mining manganese nodules lying on the sea bottom.”
The CIA considered the operation to be one of the greatest intelligence coups of the Cold War: “Project Azorian remains an engineering marvel, advancing the state of the art in deep-ocean mining and heavy-lift technology.” But, in the CIA’s later telling, the Glomar Explorer brought up only a portion of the submarine before word leaked about Glomar’s mission. Soon, journalists were swarming all over the story.
The CIA, hoping to contain the rumors (or, in the view of some skeptics, to spread disinformation), had quietly briefed some reporters about the mission – all but assuring the story would come out. Sure enough, the secret didn’t hold. A Rolling Stone reporter, Harriet Phillippi, got an ACLU lawyer and filed a FOIA lawsuit.
Since she knew the CIA had already privately confirmed the mission to some journalists, Phillippi appeared to have the spymasters boxed in. Rather than ask about the secret mission itself, she shrewdly asked for “all records related to attempts by Central Intelligence Agency personnel . . . to persuade any members of the news media not to broadcast, write, publish, or in any other way make public the events relating to the activities of the Glomar Explorer.”
The CIA, still seeking to maintain plausible deniability about its involvement, needed an out. The Glomar exception – neither confirming nor denying the existence of agency records – was created. After years of litigation, the federal courts upheld it.
“An acknowledgement by the CIA of the existence of related records would have constituted an official acknowledgement of the project,” explained Reid, the archives staffer, in her blog post earlier this year. “Since the existence of the project was itself classified, the CIA used the NCND response. From this point forward, responses that neither confirm nor deny the existence of responsive records were referred to in shorthand as a ‘Glomar’ response.”
Although the federal courts’ acceptance of Glomar originally was in connection only with FOIA’s Exemption 1 (protecting matters of national security or foreign policy), the Reporters Committee found that NCND responses are now routinely used across almost all FOIA exemptions.
FOIAengine confirms this, and the SEC offers a case in point: For our coverage of the criminal stock-fraud case against short-seller Andrew Left, we made a FOIA request and reviewed correspondence between Left and the SEC. The documents showed how, in 2023, Left was chasing Kazakhstan-based Freedom Holdings, and its CEO, Timor Turlov. Since Freedom Holdings is publicly traded, Left filed a FOIA request with the SEC on April 22 of that year for “all information regarding” the Public Company Accounting Oversight Board’s disciplinary action against Freedom Holdings’ auditors. In a follow-up email to the SEC, Left called the sanctions against the auditors “one of the most damning decisions I have ever read regarding a company committing fraud. . . . I did not know where to go, but figured a FOIA was a good start.”
The agency responded two weeks later by invoking the Glomar response. “We can neither confirm nor deny the existence of any records responsive to this portion of your request, the agency’s FOIA officer replied. “Even to acknowledge the existence of such records could interfere with the personal privacy protections provided by FOIA Exemptions 6 and/or (7)(C). Further, if such records were to exist, they may also be exempt from disclosure pursuant to these exemptions. Under Exemption 6 the release of this type of information would constitute a clearly unwarranted invasion of personal privacy. Under Exemption 7(C) release of such information could reasonably be expected to constitute an unwarranted invasion of personal privacy. By outlining the provisions of these exemptions, we do not mean to imply in any way that records responsive to this portion of your request exist.”
Although the Glomar exemption is entrenched, the archivist’s office isn’t giving up: “The Hughes Glomar Explorer was never used again for covert operations. It was renamed the GSF Explorer and continued operation in the private sector as an oil drilling rig; it was eventually scrapped in 2015, just as we hope agencies will retire the term Glomar.”
FOIAengine access now is available for all professional members of Investigative Reporters and Editors, a non-profit organization dedicated to improving the quality of journalism. IRE is the world’s oldest and largest association of investigative journalists. Following the federal government’s shutdown of FOIAonline.gov last year, FOIAengine is the only source for the most comprehensive, fully searchable archive of FOIA requests across dozens of federal departments and agencies. FOIAengine has more robust functionality and searching capabilities, and standardizes data from different agencies to make it easier to work with. PoliScio Analytics is proud to be partnering with IRE to provide this valuable content to investigative reporters worldwide.
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Next: Hedge fund requests to the SEC and the FDA.
John A. Jenkins, co-creator of FOIAengine, is a Washington journalist and publisher whose work has appeared in The New York Times Magazine, GQ, and elsewhere. He is a four-time recipient of the American Bar Association’s Gavel Award Certificate of Merit for his legal reporting and analysis. His most recent book is The Partisan: The Life of William Rehnquist. Jenkins founded Law Street Media in 2013. Prior to that, he was President of CQ Press, the textbook and reference publishing enterprise of Congressional Quarterly. FOIAengine is a product of PoliScio Analytics (PoliScio.com), a new venture specializing in U.S. political and governmental research, co-founded by Jenkins and Washington lawyer Randy Miller. Learn more about FOIAengine here. To review FOIA requests mentioned in this article, subscribe to FOIAengine.
Write to John A. Jenkins at [email protected].
