Court upholds NSA’s “Glomar Response” to request for Google correspondence records

A federal appeals court recently upheld the National Security Agency’s (NSA) denial of a Freedom of Information Act (FOIA) request from the Electronic Privacy Information Center (EPIC) for communication records between the NSA and Google.

The records were in relation to the 2010 cyberattack on Google’s website in China. Google suggested that the Chinese government may have been behind the attacks, although the Chinese government has denied any involvement. Afterward, there were rumors that Google was working with the NSA to investigate the attack. However, EPIC’s request for records about the NSA’s relationship with Google drew a “Glomar” response from the agency, meaning that NSA refused to confirm or deny the existence of such records.

Glomar responses most often appear in response to requests that deal with national security. The name stems from the Glomar Explorer, a mining vessel used by the CIA in the 1970s to covertly salvage a sunken Soviet submarine. When information on the project was requested, the CIA refused to confirm or deny the existence of the project. Court precedent has consistently upheld Glomar responses.

In regards to the NSA case, Judge Janice Rogers Brown wrote in the appeals court panel’s unanimous ruling that “NSA need not make a specific showing of potential harm to national security in order to justify withholding information.” However, to advocates of government transparency, Glomar responses can seem like a loophole that acts in direct opposition to the goals of the FOIA.

You can read the full article at USA Today.

What are your feelings about Glomar responses to requests for government records under the FOIA?