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FOIA Update: FOIA Counselor: Questions & Answers

January 1, 1989
FOIA Update
Vol. X, No. 3

FOIA Counselor:  Questions & Answers

How should Exemption 7(C) "Glomarization" be implemented in light of the Supreme Court's recent decision in Reporters Committee?

"Glomarization" -- an agency's express refusal even to confirm or deny the existence of any records responsive to a FOIA request -- has long been recognized as an appropriate response, based upon the privacy protection afforded by Exemption 7(C), to requests for law enforcement records pertaining to any living person (who has not granted a privacy waiver) other than the requester himself. See FOIA Update, Winter 1986, at 3-4. In the past, before an agency could give such a response, it was required to check the requested records -- if any existed -- for any official acknowledgement of the investigation (e.g., as a result of criminal prosecution) or for any overriding public interest in disclosure that would render "Glomarization" inapplicable. Id. at 4. However, the Supreme Court's decision in Department of Justice v. Reporters Committee for Freedom of the Press, 109 S. Ct. 1468 (1989), compels a revision of this procedure.

Preliminarily, it should be noted that the Supreme Court in Reporters Committee in effect "Glomarized" (without using that term) the very fact of whether there existed an FBI "rap sheet" on the subject of the request, holding that disclosure in any such case pertaining to a "private citizen" would result in an unwarranted invasion of that person's privacy. 109 S. Ct. at 1485. In reaching this result, the Court pointedly observed that "disclosure of records regarding private citizens, identifiable by name, is not what the framers of the FOIA had in mind." Id. at 1477.

In its opinion, the Supreme Court eliminated the need to consider whether there has been a prior public acknowledgement of an investigation when it expressly "recognized the privacy interest inherent in the nondisclosure of certain information even where the information may have been at one time public." 109 S. Ct. at 1478. Since the very fact of an arrest and conviction of a person, as reflected on his FBI "rap sheet," creates a privacy interest cognizable under Exemption 7(C), surely any underlying investigative file, containing a far more detailed account of the subject's encounter with a criminal law enforcement agency, gives rise to an even greater privacy interest.

Further, in Reporters Committee the Supreme Court significantly narrowed the concept of "public interest" under the FOIA, see FOIA Update, Spring 1989, at 6, by requiring that requested records directly "shed[] light on an agency's performance of its statutory duties." 109 S. Ct. at 1481. In this context, the Court explained that it is "matters of substantive law-enforcement policy that are properly the subject of public concern," as they are what is relevant to "the public's understanding of the Government's operation." Id. at 1478 n.18. The Court's own analysis thus indicates that the very existence of routine law enforcement investigations does not implicate this narrowed "public interest" concept.

It is also quite relevant to privacy "Glomarization" that the Court in Reporters Committee established "categorical balancing" under Exemption 7(C), as a means of achieving "workable rules" for processing FOIA requests. 109 S. Ct. at 1483-85. In so doing, it recognized that entire categories of cases can properly receive uniform disposition "without regard to individual circumstances; the standard virtues of bright-line rules are thus present, and the difficulties attendant to ad hoc adjudication may be avoided." Id. at 1485.

This broadened categorical approach, together with the Court's refined concepts of both privacy and public interest, leads to the conclusion that Exemption 7(C) "Glomarization" can be undertaken without review of any responsive records, in response to third-party requests for routine law enforcement records pertaining to living private citizens who have not consented to disclosure.

Can a federal agency accept FOIA requests that it receives via a facsimile ("fax") machine?

Yes. The FOIA's general disclosure provision, 5 U.S.C. § 552(a)(3), is triggered by "any request . . . made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." Most agencies' FOIA regulations address this point indirectly, by specifying only that FOIA requests must be made in writing -- see, e.g., 28 C.F.R. § 16.3(a) (1988) (Justice Department FOIA regulation) -- which is entirely consistent with "the need to have an adequate written record of . . . a FOIA request" in case of any eventual confusion or dispute over the request's scope. Washington Post Co. v. Department of Defense, Civil No. 84-3400, slip op. at 3 (D.D.C. Apr. 1, 1985). Absent a specific regulation to the contrary, there is no basis for treating a written FOIA request delivered by "fax" differently than one delivered by conventional means.

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