FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1983
FOIA Update
Vol. IV, No. 2

FOIA Counselor: Questions & Answers

Does the Justice Department's new fee waiver guidance (see FOIA Update, January 1983, at 3-4) in any way affect the common agency practice of establishing minimum thresholds for the charging of FOIA fees?

No. The Justice Department's recent governmentwide fee waiver policy memorandum provides guidance to agencies in determining when a waiver or reduction of FOIA search and duplication fees is appropriate because disclosure would "primarily benefit[] the general public" under the statutory fee waiver standard, 5 U.S.C. § 552(a)(4)(A).

By contrast, the use of minimum payment thresholds below which FOIA fees are not charged is a routine administrative practice reflecting, among other things, the fact that it costs the federal government a sum of money just to process a payment check and that the assessment of fees below that level can therefore be a losing proposition. This level is believed to vary considerably from federal agency to federal agency. Accordingly, each federal agency and component thereof is free to determine its own best dollar level below which to decline to assess FOIA fees as a matter of administrative discretion.

Is it possible for an agency to refuse to admit the existence of records sought in a FOIA request?

Yes, but only under very rare circumstances. The principle that an agency sometimes need "neither confirm nor deny" the existence of records responsive to a FOIA request was first recognized in Phillippi v. Central Intelligence Agency, 546 F.2d 1009, 1013 (D.C. Cir. 1976), a case involving national security considerations concerning Howard Hughes' Glomar Explorer submarine. Though a change in circumstances rendered this special defense moot before it could be adjudicated in the Phillippi case, an agency's refusal to confirm or deny the existence of records under the FOIA has come to be known as a "Glomar" denial, or as "Glomarization."

Subsequently, the "Glomarization" principle was applied successfully in several lower court cases, most notably a series of cases in which the CIA refused to confirm or deny the existence of any document reflecting covert activity at any particular university. See, e.g., Daily Orange Corp. v. Central Intelligence Agency, 532 F. Supp. 122, 124-26 (N.D.N.Y. 1982); Gardels v. Central Intelligence Agency, 510 F. Supp. 977, 979 (D.D.C. 1981); Medoff v. Central Intelligence Agency, 464 F. Supp. 158, 160-61 (D.N.J. 1978). Last fall, in the principal such "university" case, the U.S. Court of Appeals for the D.C. Circuit issued the first appellate opinion upholding the "Glomarization" defense, Gardels v. Central Intelligence Agency, 689 F.2d 1100 (D.C. Cir. 1982).

While this principle has been applied primarily where necessary to prevent harm to the national security, it is applied also by law enforcement agencies to protect the privacy of persons who are not publicly known to have been the subject of a law enforcement investigation. See FOIA Update, Sept. 1982, at 2; see also Rushford v. Civiletti, 485 F. Supp. 477, 479-80 (D.D.C. 1980), aff'd mem., 656 F.2d 900 (D.C. Cir. 1981). Logically, the principle should be applicable whenever a FOIA request is formulated in such a way that even the abstract acknowledgment of the existence or nonexistence of responsive records would itself be a disclosure causing harm cognizable under some FOIA exemption. Because of the special importance and delicacy of this principle, however, no agency should attempt to apply it without consulting with the Department of Justice.

Does one agency's official recommendation to another government entity constitute a "final opinion" or "statement of policy" which must be disclosed under the FOIA?

No, not necessarily. The status of agency-to-agency recommendations was resolved by the Supreme Court several years ago in Renegotiation Board v. Grumman Aircraft Engineering Corp., 421 U.S. 168, 188 (1974), when it held: "By including inter-agency memoranda in Exemption 5, Congress plainly intended to permit one agency possessing decisional authority to obtain written recommendations and advice from a separate agency not possessing such decisional authority without requiring that the advice be any more disclosable than similar advice received from within the agency" (emphasis in original). Hence, notwithstanding the general rule under Exemption 5 that "final" agency opinions cannot be withheld, such interagency recommendations can be protected.

The answer is not quite so clear when the recommendation is from an executive branch agency to another branch of government. Yet in a series of recent decisions involving documents sent to Congress by the Central Intelligence Agency, several judges of the United States District Court for the District of Columbia have ruled that agency recommendations to Congress can satisfy the requirements of Exemption 5. In Letelier v. United States Department of Justice, 3 GDS ¶ 82,257 at 82,714 (D.D.C. 1982), Judge Thomas A. Flannery explained that "documents reflecting consultations between CIA and Congress are protected by exemption 5 since such consultations are an integral part of the deliberative process and to discuss this process in public view would inhibit frank discussions" between the two branches of government. Likewise, in Allen v. Department of Defense, 3 GDS ¶ 83,106 at 83,682 (D.D.C. 1983), Judge Flannery held that "exemption 5 may, in an appropriate case, be applied to agency-congressional communications." See also Demetracopoulos v. Central Intelligence Agency, 3 GDS ¶ 82,508 at 83,283 (D.D.C. 1982) (Parker, J.); Paisley v. Central Intelligence Agency, 3 GDS ¶ 83,051 at 83,542 (D.D.C. 1982) (Gasch, J.) (appeal pending); Miller v. Central Intelligence Agency, 2 GDS ¶ 81,174 at 81,465 (D.D.C. 1981) (Penn, J.); but cf. Agee v. Central Intelligence Agency, 517 F. Supp. 1335, 1341 (D.D.C. 1981) (Gesell, J.). But see also Navasky v. Central Intelligence Agency, 499 F. Supp. 269, 278 (S.D.N.Y. 1980), aff'd mem., No. 81-6155 (2d Cir. 1981), cert. denied, 103 S. Ct. 51 (1982).

Lastly, though there is no case law yet on the point, it is likewise logical that sensitive recommendations from executive agencies to the judiciary should also fall within the protective ambit of Exemption 5.

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