Freedom of information act (FOIA)

Pages56-60
56 Volume 20, July–September 2014 international law update
© 2014 International Law Group, LLC. All rights reserved. ISSN 1089-5450, ISSN 1943-1287 (on-line) | www.internationallawupdate.com
FREEDOM OF
INFORMATION
ACT (FOIA)
S C  FOIA 
    
  U.S.   ;
    
      FOIA 
    
   M
e following case concerns an information
request based on the Freedom of Information Act
(FOIA), asking for documents about the death of
the U.S. citizens Anwar al-Awlaki, Samir Khan
and Abdulrahman al-Awlaki (son of Anwar)
in 2011. In particular, the Plaintis sought
documents prepared by the Department of Justice
(DOJ) Oce of Legal Counsel (OLC) about the
lawfulness of the drone strikes. e Plaintis do
not challenge the lawfulness of the drone strikes.
e case requires the Second Circuit to
address the conicting issues of public access to
Government records and the Executive’s attempts
to maintain secrecy about national security.
It all began with partially unsuccessful FOIA
requests: First, in June 2010, two New York Times
reporters, Charlie Savage and Scott Shane (jointly
“N.Y. Times”) submitted separate requests for
OLC memos regarding the legality of targeting
U.S. citizens abroad. e OLC refused to provide
the requested information.
“With respect to the portion of his request
that pertained to DOD, OLC initially submitted
a so-called ‘no number, no list’ response instead
of submitting the usual Vaughn index, numbering
and identifying by title and description documents
that are being withheld and specifying the FOIA
exemptions asserted. A no number, no list
response acknowledges the existence of documents
responsive to the request, but neither numbers
nor identies them by title or description. OLC
said that the requested documents pertaining to
DOD were being withheld pursuant to FOIA
exemptions 1, 3, and 5.” [Slip op. 4]
“As to documents pertaining to agencies other
than DOD, OLC submitted a so-called ‘Glomar
response.’ is type of response neither conrms
nor denies the existence of documents responsive
to the request. See Wilner v. National Security
Agency, 592 F.3d 60, 68 (2d Cir. 2009). OLC
stated that the Glomar response was given ‘because
the very fact of the existence or nonexistence of
such documents is itself classied, protected from
disclosure by statute, and privileged’ under 5
U.S.C. § 552(b)(1), (3), (5). CIA conrmed that
it requested DOJ to submit a Glomar response on
its behalf.” [Slip op. 4]
“OLC also denied Savage’s request. Declining
to submit either a Vaughn index or even a no
number, no list response, OLC submitted a
Glomar response, stating that, pursuant to
Exemptions 1, 3, and 5, it was neither conrming
nor denying the existence of documents described
in the request. Unlike its letter denying the Shane
request, OLC’s response to the Savage request did
not identify any responsive documents relating to
DOD.” [Slip op. 4] (footnotes omitted)
Second, in October 2011, the American Civil
Liberties Union Foundation (ACLU) submitted
FOIA requests to the DOJ, the Department of
Defense (DOD), and the Central Intelligence
Agency (CIA) on the subject of targeted killings
of U.S. citizens, and the killings of al-Awlaki, his
son, and Khan.
DOJ and CIA initially submitted Glomar
responses, refusing to conrm or deny the
existence of responsive documents. DOD initially
stated that it could not respond within the
statutory time period because of the complexity
of the request. e Government agencies modied
their responses slightly during the course of the
litigation.

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