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FOIA COMMENTARY BY ACCESS REPORTS

IV. ANALYSIS

N. Exclusions

Text:

(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and

(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that --

(i) the subject of the investigation or proceeding is not aware of the pendency, and

(ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

Discussion:

In the final 1986 change, Congress added a new subsection (c) (see text above) which appears to have codified Glomar denials for situations where even to reveal whether an agency had records within the scope of a request would disclose information of the types described in (c)(1), (c)(2), and (c)(3). There has been little case law as of yet, but it is doubtful that Congress intended this amendment to preclude the use of a Glomar denial in other situations previously sanctioned by the courts. E.g., see discussion of Exemption 1 above.

The Department of Justice, however, takes the position that "an agency applying an exclusion to an FOIA request will respond to the request as if the excluded records did not exist." 1987 Blue Book at 18. It goes on to make clear that, in its view, agencies may tell requesters "that no records responsive to his FOIA request exist" when the only records they have are covered by an exclusion. 1987 Blue Book at 22.

This interpretation seems both highly questionable and unnecessary (i.e., because an agency can accomplish the same result through proper use of Glomar denials). Final resolution, however, must await judicial interpretation.

In Benavides v. DEA, 968 F.2d 1243 (D.C. Cir. 1992), the court advanced an interpretation of this section contra to that in the 1987 Blue Book described above. In response to a motion for reconsideration, however, it vacated this portion of its opinion and left open the question of whether section (c) did any more than codify Glomar responses. Benavides v. DEA, 976 F.2d 751 (D.C. Cir. 1992).

Next Section: O. Requirement to Disclose