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FOIA Counselor: Questions & Answers

FOIA Update
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. § 552(b)(6). For example, an agency which maintains an alcohol abuse treatment program for its employees, with program records kept under each participating employee's name, surely would regard any outright list of program participants as entirely withholdable under Exemption 6, for the reason that the mere identification of a participant in such a program would be quite harmful. See, e.g., Rural Housing Alliance v. Department of Agriculture, 498 F.2d 73, 77 (D.C. Cir. 1974) (Exemption 6 protects such personal matters as medical condition and other characteristics likely to cause embarrassment). Yet in order to provide protection consistent with that, an agency must be prepared to resist any third-party request for such records regarding a particular named individual, lest the very same identities be disclosed indirectly. In such a situation, an agency must treat the request as if it were for a record which itself indicated whether the subject individual's name is on an existing list, and accordingly it should "Glomarize" in response to the request. Accord Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1012 (D.C. Cir. 1976).

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 ¶ 82,031 at 82,258 (D.D.C. 1980) (same). This logically holds true also where the requester has failed to pay FOIA fees assessed by another government agency. See Mason v. Bell, Civil No. 78-719-A, slip op. at 1 (E.D. Va. May 16, 1979). Moreover, where a requester has breached a previous commitment to pay fees, the agency may reasonably require advance payment of the full amount of the fees estimated to be involved in the second request, in addition to all fees previously owed. See, e.g., 28 C.F.R. § 16.10(f)(2) (1986) (Department of Justice fee regulation).

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. . . an agency decision-maker's judgment"); Lead Industries Ass'n v. Occupational Safety & Health Administration, 610 F.2d 70, 86 (2d Cir. 1979) ("If a segment appeared in the final version, it is already on the public record [or exempt for other reasons] and need not be disclosed. If the segment did not appear in the final version, its omission reveals an agency deliberative process. . . ").But see Texaco, lnc. v. Department of Energy, 2 GDS ¶ 81,296 at 81,833 (D.D.C. 1981) (ruling, without analysis, to the contrary). Of course, it should not be forgotten that an exception to this general rule of draft document protection comes into play whenever an agency cites a draft document as binding precedent or otherwise adopts it as working agency law. See, e.g., Taxation With Representation Fund v. IRS, 646 F.2d 666, 682 (D.C. Cir. 1981); Coastal States Gas Corp. v. Department of Energy, 617 F.2d 854, 860 (D.C. Cir. 1980). See also FOIA Update, Jan. 1983, at 6.

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Updated August 13, 2014