Case No. VFA-0236, 27 DOE ¶80,147

June 17, 1998

DECISION AND ORDER

OF THE DEPARTMENT OF ENERGY

Appeal

Name of Petitioner:Lee M. Graham

Date of Filing: October 30, 1996

Case Number: VFA-0236

Lee M. Graham filed an appeal from a determination issued to him on October 18, 1996, by the Albuquerque Operations Office (Albuquerque) of the Department of Energy. In that determination, Albuquerque stated that it could neither confirm nor deny the existence of the records that Mr. Graham sought in the request for information that he filed on August 29, 1994, pursuant to the Freedom of Information Act (FOIA), 5 U.S.C. § 552.

The FOIA requires that documents held by federal agencies generally be released to the public upon request. In this Decision we review the nature of Albuquerque’s response and reach a determination that the response was proper.

I. Background

In his request, Mr. Graham sought copies of documents that related to information described in a specified, published news article concerning instrumentation aboard a specified satellite. In its October 18, 1996 response, Albuquerque stated, “We can neither confirm nor deny the existence of the documents you have requested.”

In his Appeal, Mr. Graham limits his request by stating that he seeks information about the satellite’s instrumentation only if the “instrumentation is being used to detect the UFO phenomena.”

II. Analysis

Although the Department rarely responds to requests for information in this manner, Albuquerque’s statement that it will neither confirm nor deny the existence of records is not without precedent. This type of response is commonly called a Glomar response, which refers to the first instance in which the adequacy of such a response was upheld by a Federal court. In Phillippi v. CIA, the agency responded to a request for documents pertaining to a submarine-retrieval ship named the Hughes Glomar Explorer by neither confirming nor denying the existence of any such documents. Phillippi v. CIA, 546 F.2d 1009 (D.C. Cir. 1976). Agencies have typically used this response where the existence or non-existence of requested documents is itself a classified fact exempt from disclosure under Exemptions 1 and 3 of the Freedom of Information Act, see, e.g., id. at 1012, or where admission that documents exist would indicate that the agency was involved in a certain issue, Gardels v. CIA, 689 F.2d 1100 (D.C. Cir. 1982), or that an individual is the target of investigation or surveillance, Marrera v. Department of Justice, 622 F. Supp. 51 (D.D.C. 1985). In addition, this Office has upheld the DOE’s Glomar response where, as here, the existence or non-existence of requested documents is classified. A. Victorian, 25 DOE ¶ 80,188 (1996).

The Director of the Office of Security Affairs (SA) has been designated as the official who shall make the final determination for the DOE regarding FOIA appeals involving the release of classified information. DOE Delegation Order No. 0204-139, Section 1.l (December 20, 1991). Upon referral of this appeal from the Office of Hearings and Appeals, the Director of SA reviewed the circumstances surrounding Mr. Graham’s request and Albuquerque’s determination, and considered Mr. Graham’s attempt, in his appeal, to limit the scope of his request. Based on the review that the Director of SA performed, the DOE has determined that Albuquerque’s response was correct and that the DOE’s response must continue to be that it can neither confirm nor deny the existence of documents responsive to Mr. Graham’s request, even as modified in his appeal.

It Is Therefore Ordered That:

(1) The Appeal filed by Lee M. Graham on October 30, 1996, Case No. VFA- 0236, is hereby denied.

(2) This is a final order of the Department of Energy from which any aggrieved party may seek judicial review pursuant to 5 U.S.C. § 552(a)(4)(B). Judicial review may be sought in the district in which the requester resides or has a principal place of business, or in which the agency records are situated, or in the District of Columbia.

George B. Breznay

Director

Office of Hearings and Appeals

Date: June 17, 1998