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Wednesday, January 06, 2010
Federal Agencies Need Not Confirm or Deny Electronic Surveillance under FOIA
The U.S. Court of Appeals for the Second Circuit affirmed that the National Security Agency and the Department of Justice do not need to confirm or deny the existence of electronic surveillance records under FOIA. The appellate court found that federal agencies are allowed to file "Glomar" responses, which were first judicially recognized in 1976 and grant an agency express refusal to even confirm or deny the existence of any records responsive to a FOIA request in the national security context.
The lawsuit was brought by advocates for former Guantanamo Bay detainees after the agencies invoked FOIA exceptions to information request regarding warrantless electronic surveillance conducted by the Terrorist Surveillance Program.