The Glomar Response to Freedom of Information Law (FOIL) Requests: Is it Applicable to State and City Agencies?

Under state and local Freedom of Information Laws (FOIL), government agencies are required to provide documents requested under FOIL unless they can point to a specific exemption law that allows them to withhold the information. The burden is on the agency to prove that the document is exempted. These laws favor disclosure and open government.

Like most of these state and local laws, New York state and local FOIL offer exemptions allowing the agency to not produce documents if disclosure of the information requested would interfere with a law enforcement investigation, would reveal non-routine criminal investigative techniques, or could endanger the life or safety of any person. However, the law still requires that the existence of the information be acknowledged, and that the agency state the reason the information is exempt from production.

For federal agencies, there is a judicial theory known as the “Glomar Doctrine”, which allows federal agencies with the ability to classify documents (such as the CIA and NSA) to respond to Freedom of Information Act (FOIA) requests without admitting to or denying the existence of requested documents if revealing the documents could jeopardize national security. This doctrine, which is rarely used by federal agencies, has strict requirements based on an Act of Congress or Executive Order, and allows federal agencies to respond to FOIA requests by stating that the agency “Can neither Confirm nor Deny the Existence of these Documents.”

Recently, the question has arisen whether or not the Glomar response might be invoked by state or city agencies such as the NYPD in responding to FOIL requests. This course will discuss this question by outlining the basic principles of “Open Government” which underlie FOIA and FOIL, defining the requirements of the Glomar doctrine, and discussing what impact the doctrine has on the efficacy of FOIA and FOIL as a measure of open government.

Learning Objectives: 

1. Understand the principles of open government underlying FOIA and FOIL 
2. Outline typical state and local FOIL requirements
3. Discuss the Glomar doctrine in federal law, and whether it may be applicable to state and local agencies