This month, we discuss Wilner v. National Security Agency,1 in which the U.S. Court of Appeals for the Second Circuit affirmed a district court decision holding that the National Security Agency (NSA) may respond to a Freedom of Information Act (FOIA) request with a Glomar response—that is, a response that neither confirms nor denies the existence of the requested records—where a response to the FOIA inquiry would cause harm cognizable under an FOIA exception.
The Second Circuit’s decision, written by Judge José A. Cabranes and joined by Judge Debra Ann Livingston and District Judge Edward R. Korman (sitting by designation), adopts the Glomar doctrine as circuit law. The case presented several matters of first impression for the Second Circuit, which had never previously considered whether a government agency may invoke the Glomar doctrine, or, more specifically, whether the NSA may invoke the Glomar doctrine in response to an FOIA request for records obtained under the Terrorist Surveillance Program.
Procedural History
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