Peter Janangelo v. Treasury Inspector General for Tax Administration

The Supreme Court of the United States has never addressed the propriety of a Federal Agency invoking the so-called “Glomar Response” to a request for information under the Freedom of Information Act (FOIA). A Glomar Response is an oddity of Federal common law which is nowhere codified in the FOIA statutes. It is where a Federal Agency, the Treasury Inspector General for Tax Administration in this case, responds to a FOIA request by stating that it “can neither confirm nor deny” the existence of information or documents that would be responsive to the request instead of either 1) denying the existence of any responsive documents or 2) identifying responsive information or documents, but withholding them under one of the nine (9) statutory exemptions to disclosure under 5 U.S.C. §552(b). The questions presented in this case are as follows:

1. If Glomar Responses are permitted should they be limited to instances involving national security, public safety, or public health?

2. Under what circumstances should a Federal Agency be denied use of a Glomar Response in litigation under FOIA and instead be required to provide a Vaughn Index and litigate the actual merits of the FOIA exemption it asserts as applicable?

3. Under what circumstances is it an abuse of a District Court’s discretion to uphold the use of a Glomar Response instead of utilizing protective orders under Fed. R. Civ. P. 26(c) and in camera inspections under 5 U.S.C. §552(a)(4)(B) in