Vol. VII, No. 2
FOIA Counselor: Questions & Answers
Can the "Glomarization" defense be used to protect the privacy of persons mentioned in records other than those compiled for law enforcement purposes?
Yes. The special "Glomarization" defense under the FOIA -- by which an agency refuses to confirm or deny the existence of any record responsive to a request -- is theoretically applicable whenever a FOIA request is formulated in such a way that any other response to it, even the withholding of any existing records in their entireties, would cause one of the harms covered by a FOIA exemption. The "Glomarization" principle was developed and first applied in the particularly sensitive national security area, but it already has been accepted by the courts in the privacy area as well. In the last issue of FOIA Update, the use of "Glomarization" to protect privacy interests in law enforcement records was examined in detail. See FOIA Update, Winter 1986, at 3-4. Such protection, available through Exemption 7(C), is based upon the fact that even the acknowledgment of the existence of a law enforcement file maintained on a named individual would invade that person's privacy. See e g., Antonelli v. FBI, 721 F.2d 615, 617-19 (7th Cir. 1983), cert. denied, 467 U.S. 1210 (1984).
In this same vein, a "Glomarization" defense could properly be raised for particularly sensitive non-law enforcement records, based upon Exemption 6, whenever a request is phrased m such a way that the mere acknowledgment of the existence or non-existence of records responsive to it would cause "a clearly unwarranted invasion of personal privacy." 5 U.S.C.
To date, no court has had occasion to consider the "Glomarization" defense in the Exemption 6 context, but it is highly likely that such a case will someday arise. Cf. United States Department of State v. Washington Post Co., 456 U.S. 595, 596-97 (1982) (discussing Exemption 6's applicability to "Glomarization"-like situation). As was recognized in one of the first "Glomarization" cases years ago, the uses that can be made of FOIA requests "are limited only by the ingenuity brought to bear to fashion them." Gardels v Central Intelligence Agency, 510 F. Supp. 977, 980 (D.D.C. 1981), aff'd, 689 F 2d 1100 (D.C. Cir. 1982). Because of the novelty and delicacy of this defense, though, all federal agencies are urged to consider its application only in careful consultation with the Office of Information and Privacy. See FOIA Update, Spring 1983. at 5.
When a requester fails to pay properly assessed search and/or duplication fees, despite his previous commitment to pay such an amount, may the agency refuse to process subsequent requests until that outstanding balance is paid?
Yes. An agency is not required to process a request for records until all fees previously incurred by that requester have been paid. See Crooker v. United States Secret Service, 577 F. Supp. 1218, 1219-20 (D.D.C. 1983) (dismissal based upon failure to "exhaust all administrative remedies" because requester was in default for fees assessed on prior request to same agency); Mahler v. United States Bureau of Prisons, 2 GDS
Does a draft document have to differ from the final document to be protectible under Exemption 5?
No. Deliberative process privilege protection under Exemption 5 is available to a draft document regardless of whether it differs from its final version. As one court has phrased it, there "is no merit to [the] argument that in order to establish the privileged character of a draft, [an agency] must show to what extent the draft differs from the final document. The effect of this would be to expose what occurred in the deliberative process between the draft's creation and the final document's issuance." Exxon Corp. v. Department of Energy, 585 F. Supp. 690, 698 (D.D.C. 1983) (emphasis in original). See also, e.g., Russell v. Department of the Air Force, 682 F.2d 1045, 1049 (D.C. Cir. 1982) ("a simple comparison between the pages sought and the official document would reveal
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