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FOIA Update: FOIA Counselor: Questions & Answers

FOIA Update
Vol. XII, No. 2

FOIA Counselor: Questions & Answers

When responding to a request for records on a named third party, should an agency advise the FOIA requester of the identity of a law enforcement agency to which it makes a record referral?

No. Individuals who are associated with law enforcement investigations, even if their names merely are mentioned in law enforcement files, have a substantial privacy interest in the nondisclosure of that sensitive abstract fact. See, e.g., SafeCard Servs., Inc. v. SEC, 926 F.2d 1197, 1205-06 (D.C. Cir. 1991). In recognition of that strong privacy interest, law enforcement agencies, when responding to third-party requests for records concerning targeted individuals, generally refuse to confirm or deny the existence of any responsive records. See, e.g., Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749, 755 (1989); see also FOIA Update, Summer 1989, at 5; FOIA Update, Winter 1986, at 3-4. By utilizing this so-called "Glomar" response, the law enforcement agency avoids the privacy invasion that would otherwise occur through even the mere confirmation that a responsive record exists. See, e.g., Antonelli v. FBI, 721 F.2d 615, 618 (7th Cir. 1983), cert. denied, 467 U.S. 1210 (1984). Yet this same privacy invasion can occur, albeit inadvertently, where a non-law enforcement agency advises a requester that records responsive to his third-party request have been referred to an identified law enforcement agency. By advising the requester of the existence of responsive law enforcement records, the referring agency precludes any "Glomar" response.

To ensure that such appropriate FOIA responses are not so foreclosed, all such referrals, in response to requests for records on living third parties who have not consented to disclosure, should be made "in the blind" -- i.e., by advising only that responsive records have been referred to some other, unnamed agency. Then, if the recipient law enforcement agency determines that "Glomarization" is warranted, it will be free to use it. In that event, the law enforcement agency should contact the referring agency so that the referring agency can in turn advise the requester that the referral process has been completed and that no additional information can be disclosed. On the other hand, if the law enforcement agency determines that it can confirm the existence of responsive records -- because, for example, the investigation has been officially acknowledged -- it should respond to the requester directly regarding the referred documents in a conventional fashion. While it is always possible that some sophisticated requester might suspect that such a "blind" referral procedure is being used because responsive law enforcement records exist, the use of this procedure is the best way possible to ensure that agencies make no indirect, unwarranted disclosure of the existence of sensitive law enforcement records on identified third parties.

Does "government operations" under Reporters Committee mean federal government operations only?

Yes. In Department of Justice v. Reporters Committee for Freedom of the Press, 489 U.S. 749 (1989), the Supreme Court interpreted the term "public interest" for purposes of the balancing of privacy and public interests under Exemptions 6 and 7(C), to encompass only information which, if disclosed, would advance the "core purpose" of the FOIA by "'contribut[ing] significantly to public understanding of the operations or activities of the government.'" Id. at 775 (emphasis in original). Although the particular facts of Reporters Committee did not require the Supreme Court to address the question of whether disclosure of information regarding the operations of state and local government entities qualifies as a "public interest" as now so defined, it seems evident that it should not. Clearly, state and local activities were not within the contemplated scope of the FOIA, as the statute's application is strictly limited to the records of the federal government. Indeed, the Supreme Court emphasized repeatedly in Reporters Committee that the FOIA's focus is on records that shed light on the activities of a "Government agency or official," showing something "about an agency's own conduct," i.e., "the conduct of the agency that has possession of the requested records." Id. at 773 (emphasis added). Consequently, although one district court recently found a "public interest" in information in FBI files that might indicate whether alleged misconduct by state law enforcement officials prejudiced the rights of a criminal defendant, see Landano v. Department of Justice, 758 F.Supp. 1021, 1026 (D.N.J. 1991) (appeal pending), and while disclosures concerning nonfederal governmental activities may be of "some public interest," it should be concluded that "that interest falls outside the ambit of the public interest that the FOIA was enacted to serve." 489 U.S. at 775 (emphasis in original).

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Updated August 13, 2014