From Wilner v. Nat’l Security Agency, 2009 U.S. App. LEXIS 28610 (2d Cir. Dec. 30, 2009):
Plaintiffs submitted FOIA requests to the NSA and DOJ seeking records showing whether the government has intercepted plaintiffs' communications relating to the representation of their detainee clients. The NSA and DOJ served and filed so-called Glomar responses — neither confirming nor denying the existence of such records — pursuant to FOIA Exemptions 1 and 3; the FBI also filed a similar response pursuant to FOIA Exemption 1. Whether, as a general matter, agencies may invoke the Glomar doctrine and whether, in particular, the NSA may invoke the Glomar doctrine in response to a FOIA request for records obtained under the Terrorist Surveillance Program ("TSP" or "program") are both questions of first impression for our Court.
[Footnote 1] Exemption 1 permits the nondisclosure of records relating to matters that are "(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order." 5 U.S.C. § 552(b)(1). Exemption 3, at the time this suit was filed, permitted nondisclosure of records relating to matters that are "specifically exempted from disclosure by statute . . . provided that such statute (A) requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld." Id. § 552(b)(3), amended by Pub. L. No. 111-83, § 564(b), 123 Stat. 2142, 2184 (Oct. 28, 2009).
We affirm the judgment of the District Court upholding the NSA's Glomar response and hold that (1) agencies may invoke the Glomar doctrine when responding to FOIA requests, and thus may refuse to confirm or deny the existence of the requested records to prevent cognizable harm under a FOIA exemption; (2) Glomar responses are available, when appropriate, to agencies when responding to FOIA requests for information obtained under a "publicly acknowledged" intelligence program, such as the TSP, at least when the existence of such information has not already been publicly disclosed; (3) the NSA properly issued a Glomar response to plaintiffs' request for information pursuant to FOIA Exemption 3 (specifically, pursuant to section 6 of the National Security Agency Act of 1959); (4) the government's affidavits sufficiently support its invocation of the Glomar doctrine in this case and we therefore decline to review ourselves or require the District Court to review ex parte and in camera any classified affidavits the NSA might proffer in further support of its Glomar response; and (5) we find no evidence in this record that the NSA invoked Glomar for the purpose of concealing illegal or unconstitutional activities. ***
Plaintiffs note that they began representing detainees after undergoing security clearance. ***
I. The Glomar Doctrine
As the District Court noted in its opinion, "[t]he Second Circuit has never opined on the Glomar Response." . . . We take this opportunity now to address the availability of the Glomar doctrine to an agency when it responds to a FOIA request.
The Glomar doctrine originated in a FOIA case concerning records pertaining to the Hughes Glomar Explorer, an oceanic research vessel. See Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). In Phillippi, the Central Intelligence Agency ("CIA") claimed that the "existence or nonexistence of the requested records was itself a classified fact exempt from disclosure under . . . FOIA." Id. at 1012. The CIA then responded to the plaintiff's FOIA request by asserting that, "in the interest of national security, involvement by the U.S. government in the activities which are the subject matter of [plaintiff's] request can neither be confirmed nor denied." . . . This principle — that an agency may, pursuant to FOIA's statutory exemptions, refuse to confirm or deny the existence of certain records in response to a FOIA request — has since become known as the Glomar doctrine. . . .The government urges us to adopt the Glomar doctrine as Circuit law, and plaintiffs do not object to our doing so. Mindful that mere stipulation by the parties, standing alone, cannot serve as the basis for our conclusions of law, we turn to that question.
The Glomar doctrine and government use of the Glomar response is firmly established in other Circuits. [Citations omitted.] The Glomar doctrine is well settled as a proper response to a FOIA request because it is the only way in which an agency may assert that a particular FOIA statutory exemption covers the "existence or nonexistence of the requested records" in a case in which a plaintiff seeks such records. *** "[FOIA's] exemptions cover not only the content of the protected government records but also the fact of their existence or nonexistence, if that fact itself properly falls within the exemption."***
We now join our sister Circuits in holding that "an agency may refuse to confirm or deny the existence of records where to answer the FOIA inquiry would cause harm cognizable under a  FOIA exception." *** To properly employ the Glomar response to a FOIA request, an agency must "tether" its refusal to respond *** to one of the nine FOIA exemptions — in other words, "a government agency may . . . refuse to confirm or deny the existence of certain records . . . if the FOIA exemption would itself preclude the acknowledgment of such documents." ***
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