Project for Privacy and Surveillance Accountability, Inc. v. Department of Justice, et al.

In response to requests for records under the Freedom of Information Act (FOIA) regarding potential domestic surveillance abuse, the respondent agencies issued so-called Glomar responses that refuse to confirm or deny the existence of any responsive record on the supposed grounds that doing so would reveal information protected by a FOIA exemption. Worse, the agencies issued those responses without even searching for responsive records. The D.C. Circuit approved the agencies’ searchless Glomar responses on the mistaken theory that FOIA allows agencies to decline even to search for responsive records if the agency believes such records—were they to exist—would be subject to a Glomar response. The questions presented are:

1. Does FOIA allow agencies invoking any of the exemptions in 5 U.S.C. § 552(b), including those not based on national security, to refuse to confirm or deny the existence of any records responsive to a FOIA request?

2. Assuming FOIA allows such a response, may an agency issue it without first searching for responsive records to determine whether its concern actually applies to all responsive records and/or whether some can be released in segregated or redacted form?