The Glomar Response: An Ultimate Guide to "We Can Neither Confirm Nor Deny"

LEGAL DISCLAIMER: This article provides general, informational content for educational purposes only. It is not a substitute for professional legal advice from a qualified attorney. Always consult with a lawyer for guidance on your specific legal situation.

Imagine you ask the public library if they have a specific, controversial book. Instead of saying “yes, we have it” or “no, we don't,” the librarian looks at you sternly and says, “I can neither confirm nor deny the existence of any records responsive to your request.” You'd be baffled. Is the book so secret that even admitting it exists is a problem? This strange, circular answer is the essence of a Glomar response. In the legal world, it’s a tool used by U.S. government agencies, most often intelligence services like the central_intelligence_agency, when responding to requests for information under the freedom_of_information_act. They use it when they believe that simply admitting they have the records you're asking for would, in itself, reveal sensitive or classified information. It’s the ultimate legal stonewall, a statement that simultaneously says nothing and everything about the secrecy of the subject you're asking about.

• Key Takeaways At-a-Glance:
  • The Ultimate Sidestep: A Glomar response is an official government reply to a freedom_of_information_act_request that refuses to confirm or deny the existence of the requested documents.
  • Your Right to Know vs. National Security: The use of a Glomar response pits a citizen's right to government transparency directly against the government's claimed need to protect national_security secrets.
  • You Have Options: Receiving a Glomar response is not a dead end; you have the right to challenge it through an administrative_appeal and, if necessary, a lawsuit in federal court.

The story behind the Glomar response sounds like it was ripped from a Hollywood script, involving a sunken Soviet submarine, a reclusive billionaire, and a top-secret central_intelligence_agency operation. In 1968, a Soviet K-129 submarine carrying nuclear ballistic missiles catastrophically sank in the Pacific Ocean. The Soviets couldn't find it, but the United States did. The CIA, seeing an intelligence goldmine—nuclear codes, technology, and cryptographic equipment—launched a clandestine mission to recover it from three miles below the surface. This mission was called Project Azorian. To pull this off, they needed a cover story. The CIA secretly contracted with Howard Hughes's company to build a massive, one-of-a-kind ship called the Hughes Glomar Explorer. The public story was that Hughes, the eccentric industrialist, was embarking on a pioneering effort to mine manganese nodules from the deep seabed. It was a brilliant cover. In 1974, the *Glomar Explorer* successfully recovered a portion of the submarine. However, in 1975, journalists at the Los Angeles Times caught wind of the story. They filed a freedom_of_information_act_request with the CIA, asking for records about the agency's connection to the ship and its secret mission. The CIA was in a bind. If they admitted they had documents, they would be confirming a highly classified operation. If they denied having documents, they would be lying. So, their lawyers invented a novel legal argument: they stated they could “neither confirm nor deny” the existence of any such records. This novel response was immediately challenged in court. In the landmark case Phillippi v. CIA (1976), the D.C. Circuit Court of Appeals sided with the CIA. The court reasoned that in certain exceptional cases involving national_security, the very act of confirming that records exist could cause “harm to national security.” This ruling officially created the legal doctrine we now know as the Glomar response, forever named after the ship at the center of the controversy.

The Glomar response is not explicitly written into any law. Instead, it is a legal doctrine created by courts, built upon the exemptions within the freedom_of_information_act (FOIA). FOIA is a landmark law that presumes government documents are accessible to the public. However, it contains nine specific exemptions that allow agencies to withhold information. The Glomar power stems primarily from two of these exemptions:

• Exemption 1: Classified National Security Information: This allows the withholding of information that is “(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order.” When an agency issues a Glomar response, it is arguing that confirming the existence of a record about a specific person, event, or program would itself reveal properly classified information.
• Exemption 3: Information Exempted by Other Statutes: This is a catch-all that protects information that is specifically exempted from disclosure by another federal law. For example, the national_security_act_of_1947 requires the Director of National Intelligence to protect “intelligence sources and methods.” An agency might issue a Glomar response arguing that confirming the existence of records about a particular surveillance method would violate this act, regardless of the content of the records themselves.

It is critical to understand the difference between a Glomar response and a more common “no records” response.

Understanding this distinction is crucial. A Glomar response is not an admission of failure; it's an active legal strategy by the government to protect a secret it deems vital.

A true Glomar response has three essential components that work together to create a legal wall of silence.

This is the famous, often frustrating, core phrase: “We can neither confirm nor deny the existence of records responsive to your request.” This language is deliberate and precise. The agency is not denying your request in the traditional sense (by withholding documents they admit they have). Instead, they are refusing to even engage with the first step of the FOIA process: acknowledging that records exist. They are, in effect, refusing to answer the question “Do you have anything on this topic?”

• Hypothetical Example: A journalist files a FOIA request with the national_security_agency for “all records pertaining to a surveillance program codenamed 'Project Nightingale'.” If Project Nightingale is a highly classified, active program, the NSA's acknowledgment that they even have a file on it would confirm the program's existence to foreign adversaries. The NSA would issue a Glomar response to avoid this disclosure.

The agency cannot simply say “we can't tell you.” They must tie their refusal to a specific legal justification under FOIA. This is almost always Exemption 1 (national security) or Exemption 3 (other statutes). The agency's response letter will explicitly state that their refusal to confirm or deny is based on one or both of these exemptions.

• Why this matters: This is the legal hook for your appeal. The agency must convince an administrative_appeal officer, and potentially a federal judge, that the harm of confirming the records' existence is real and falls squarely within the meaning of the cited exemption.

This is the underlying logic. The agency must explain *why* confirming the existence of records would cause harm. Often, they rely on a concept called the “mosaic theory.” The theory posits that while one piece of information may seem harmless on its own, it can be combined with other publicly available information by adversaries to reveal a larger, classified picture—like assembling a mosaic from individual tiles.

• Hypothetical Example: You file a FOIA request for any records indicating whether John Smith, an American academic, was ever a paid informant for the CIA in a specific country. The CIA might issue a Glomar response. Their reasoning (the mosaic theory) would be: “If we say 'yes, we have records,' our enemies will know Smith was an asset. If we say 'no, we have no records,' and they later find out he was, our credibility is destroyed, and other assets will fear we can't protect them. Even if we say 'no' for every academic they ask about except one, they can deduce the one we Glomar'd is the spy. Therefore, the only way to protect our sources and methods is to give the same 'neither confirm nor deny' answer for every such request.”

• The Requester: This could be anyone—a journalist, an academic, a historian, an activist, or an ordinary citizen. Their goal is to obtain information and promote government transparency.
• The Government Agency: This is typically an intelligence or law enforcement agency like the central_intelligence_agency, national_security_agency, or federal_bureau_of_investigation. Their goal is to fulfill their FOIA obligations while vigorously protecting information they believe is vital to their mission and national_security.
• The Agency's FOIA Office: These are the civil servants who process your request. They are bound by the law but also by the classification decisions made by their agency's subject-matter experts.
• The Federal Courts: If a requester sues the government over a Glomar response, a federal judge becomes the ultimate referee. The judge has the power to review the classified information “in camera” (privately, in their chambers) to determine if the agency's secrecy claim is legitimate or an overreach of its authority.

Receiving a Glomar response can feel like hitting a brick wall, but it's often the beginning of a new phase in your information request, not the end.

Don't just see the “neither confirm nor deny” and give up. Read the entire letter.

• Identify the Exemptions: Which specific FOIA exemptions did the agency cite? Exemption 1? Exemption 3? Both?
• Understand the Justification: Did the agency provide any reasoning, however vague, for its response? Sometimes they will include a paragraph explaining the general harm of revealing information about a certain topic.
• Check the Appeal Deadline: The letter must inform you of your right to an administrative_appeal and provide a deadline, which is typically 90 days from the date of the letter. This is a hard deadline you must not miss.

The strength of a Glomar response depends on context. Ask yourself:

• Has the government ever officially acknowledged this program or topic before? If a president, agency director, or other high-ranking official has publicly discussed the subject of your request, the agency's claim that its existence is a secret becomes much weaker. This is known as an “official acknowledgment.”
• Has there been a significant, credible media report on the topic? While not as strong as an official acknowledgment, widespread reporting can undermine the claim that the information is a closely guarded secret.
• Is there a plausible national security reason for secrecy? Be honest with yourself. A request about CIA operations in a current conflict zone is more likely to receive a legitimate Glomar than a request about a historical event from 70 years ago.

Your administrative_appeal is a formal letter to a higher authority within the same agency, asking them to review and overturn the initial Glomar response. This is a critical step and must be done professionally.

• State Your Case Clearly: Begin by stating that you are appealing the Glomar response to your FOIA request (provide the case number).
• Argue Against the Glomar: This is the core of your appeal. Make legal and factual arguments. For example:
  • “The agency's reliance on Exemption 1 is improper because the existence of this program has been officially acknowledged by [Official's Name] in a speech on [Date].”
  • “The subject of my request pertains to historical events from the 1950s, and the agency has not met its burden to show how confirming the existence of these 70-year-old records could reasonably be expected to harm national security today.”
  • “The public interest in the disclosure of this information—concerning potential government misconduct—outweighs any minimal harm from confirming the records' existence.”
• Demand a Proper Search: Conclude by demanding that the agency reverse its Glomar stance, conduct a thorough search for responsive records, and process them for release.

The agency has 20 working days to decide on your appeal (though they often take longer).

• If you win the appeal: The agency will reverse the Glomar, acknowledge the records (if they exist), and begin processing them. They may still withhold some information under other exemptions, but the Glomar wall has been broken.
• If you lose the appeal: The agency will affirm its original Glomar response. At this point, your only remaining option is to file a lawsuit against the agency in U.S. District Court. This step, known as FOIA litigation, almost always requires the assistance of an experienced attorney.

• The FOIA Request: This is the document that starts the whole process. It should be a clear, concise letter that “reasonably describes” the records you are seeking. Be as specific as possible to avoid an overly broad rejection. You can find sample letters and submit requests via agency websites or dedicated portals like MuckRock.
• The Glomar Response Letter: This is the agency's formal denial. Save it carefully, as it contains your case number and the specific legal justifications you will need to address in your appeal.
• The Administrative Appeal Letter: This is your written argument to the agency explaining why their Glomar response was legally incorrect. It is your primary tool for challenging the secrecy claim without going to court.

• The Backstory: As detailed earlier, journalist Harriet Ann Phillippi filed a FOIA request seeking records about the Hughes Glomar Explorer's mission. The CIA issued the first-ever “neither confirm nor deny” response.
• The Legal Question: Can a government agency refuse to even confirm or deny the existence of records in response to a valid FOIA request?
• The Court's Holding: The D.C. Circuit Court of Appeals created a new legal doctrine, holding that yes, it can. The court found that in exceptional cases, where the existence or non-existence of a record is itself a properly classified fact, a Glomar response is a permissible way to protect national security under FOIA Exemption 1.
• Impact on You Today: This case is the bedrock of all Glomar responses. It gives intelligence agencies a powerful tool to protect their most sensitive secrets, but it also set the stage for all future legal battles over the limits of that power.

• The Backstory: The ACLU filed a FOIA request for records about the CIA's targeted killing program using drones, specifically seeking information on the legal basis for the program. The CIA issued a Glomar response, refusing to confirm or deny it had any records on the drone program.
• The Legal Question: Can the CIA maintain a Glomar response about a program that has been extensively discussed in public by the President and other senior officials?
• The Court's Holding: The D.C. Circuit Court of Appeals rejected the CIA's Glomar response. The court ruled that the numerous public statements by officials—including President Obama—constituted an official acknowledgment of the drone program's existence. The court stated, “The CIA has not explained how confirming that it has records on this subject would damage national security in a way that the President's statements have not already.”
• Impact on You Today: This case powerfully affirmed the “official acknowledgment” doctrine. It means the government cannot hide behind a Glomar response for a topic it has already chosen to discuss publicly. It provides a crucial check on the overuse of government secrecy.

• The Backstory: Attorneys for Guantanamo Bay detainees filed FOIA requests with the NSA seeking records of the government's warrantless surveillance of their clients. The NSA issued a Glomar response, arguing that confirming whether it had intercepted specific communications would reveal its intelligence capabilities and targets.
• The Legal Question: Can the NSA use a Glomar response to conceal whether it has spied on specific American citizens or legal residents?
• The Court's Holding: The Second Circuit Court of Appeals upheld the NSA's Glomar response. The court accepted the NSA's “mosaic theory” argument that confirming it had targeted certain individuals would allow adversaries to piece together how the surveillance program worked, who it targeted, and how to evade it.
• Impact on You Today: This case highlights the immense deference courts often give to intelligence agencies in matters of signals intelligence. It shows how the Glomar response can be used to shield vast surveillance programs from public scrutiny, making it incredibly difficult for individuals to find out if they have been spied on by their own government.

The central debate over the Glomar response is a classic one in American democracy: the tension between an open, transparent government and the necessity of secrecy in national defense. Proponents, primarily within the intelligence community, argue that Glomar is an indispensable tool. They contend that in a world of sophisticated state and non-state adversaries, protecting sources, methods, and ongoing operations is paramount. They argue that the “mosaic theory” is not a theoretical exercise but a daily reality, and that Glomar is a tailored, lawful response to this threat. Critics, including civil liberties groups and transparency advocates, argue that the doctrine is overused and has become a reflexive tool to evade accountability. They claim agencies invoke “national security” to hide embarrassing mistakes, illegal activities, or controversial programs from the public and Congress. The core of their argument is that without the ability to even know if a record exists, the public cannot have an informed debate about the government's actions.

Emerging technologies are poised to make the debates around the Glomar response even more complex and urgent.

• Big Data & Artificial Intelligence: Government agencies are now capable of collecting and analyzing data on an unimaginable scale. How will the Glomar doctrine apply to requests about the existence of vast, AI-driven surveillance or predictive policing programs? An agency could argue that confirming it holds records on a person generated by an AI algorithm would reveal the algorithm's secret parameters, justifying a Glomar.
• Cyber Operations: As conflict moves into the digital realm, requests for information on offensive cyber operations or defenses against foreign hackers will almost certainly be met with Glomar responses. Agencies will argue that confirming they possess records of a specific cyber-attack would reveal their knowledge and capabilities to the very actors they are fighting.
• Erosion of Public Trust: In an era of increasing skepticism toward government institutions, the “neither confirm nor deny” response can fuel public distrust and conspiracy theories. The future legal challenge will be to balance the legitimate need for secrecy with the democratic need for a government that is accountable to its people. The courts will be forced to grapple with whether the deference traditionally shown to intelligence agencies is still appropriate in the 21st century.

• administrative_appeal: The formal process of asking a higher authority within an agency to review an adverse FOIA decision.
• central_intelligence_agency: (CIA) A primary U.S. foreign intelligence service, central to the Glomar doctrine's history.
• classified_information: Information officially designated by the government as requiring protection against unauthorized disclosure for reasons of national security.
• exemption: A provision in a law that allows for a specific exception to that law's general rule; in FOIA, there are nine exemptions.
• federal_bureau_of_investigation: (FBI) The primary domestic intelligence and federal law enforcement agency in the U.S.
• freedom_of_information_act: (FOIA) The federal law that provides the public the right to request access to records from any federal agency.
• foia_litigation: The act of suing a government agency in federal court to compel the release of records.
• in_camera_review: A legal procedure where a judge privately reviews confidential documents to determine if they must be disclosed.
• mosaic_theory: The intelligence analysis concept that small, unclassified pieces of information can be combined to reveal a larger classified secret.
• national_security: The security and defense of the United States, including its citizens, economy, and institutions.
• national_security_agency: (NSA) A U.S. intelligence agency responsible for global monitoring, collection, and processing of information and data for foreign and domestic intelligence and counterintelligence purposes.
• official_acknowledgment: A legal standard where a government agency can no longer claim something is a secret if a high-ranking official has already publicly confirmed it.
• project_azorian: The secret CIA project to recover a sunken Soviet submarine, which led to the creation of the Glomar response.

• freedom_of_information_act
• national_security_act_of_1947
• privacy_act_of_1974
• classified_information
• central_intelligence_agency
• state_secrets_privilege
• whistleblower_protection_act