Keywords
Freedom of Information Act; FOIA; Glomar response; official acknowledgment doctrine; administrative law; national security law; government transparency; external disclosures; intelligence agencies
Abstract
The Freedom of Information Act (FOIA) requires federal agencies to disclose records upon request from the public, subject to statutory exemptions. Increasingly, agencies have relied on a nonstatutory mechanism, known as the Glomar response, to avoid disclosure. This mechanism, which allows agencies to refuse to confirm or deny the very existence of records, prevents courts and FOIA requesters from receiving even the basic information necessary for judicial review. As courts attempt to adapt FOIA’s review framework to the increased evidentiary constraints of Glomar responses, they are divided over whether to consider disclosures from outside the agency responding to the FOIA request.
This Note argues that the apparent circuit split on the consideration of these external disclosures reflects a broader doctrinal instability, rather than a clean division of approaches. To resolve the unsettled state of the law, this Note proposes statutory and judicial guidance to standardize Glomar review and prevent agencies from exercising unfettered discretion when refusing to confirm or deny.
Recommended Citation
Claire Paulanne Kurzweil,
The Glomar of It All: The Role of External Disclosures in Agency Refusals to Confirm or Deny Under FOIA,
94 Fordham L. Rev. 2257
(2026).
Available at: https://ir.lawnet.fordham.edu/flr/vol94/iss6/5