Anyone who makes Freedom of Information Act (FOIA) requests to military or intelligence agencies is familiar with the “we can neither confirm nor deny” non-answer and how frustrating it can be. Sadly, the government’s win rate on those claims is extremely high, due to the deference courts give to the government. But on September 30, Loevy & Loevy won a rare victory in such a case on behalf of Raw Story against the Department of the Navy.
Raw Story had filed a FOIA request with the Navy for records of an investigation into Jordan Duncan, a former Marine and Navy contractor with alleged white supremacist ties. Raw Story sought the records to shed light on how the government investigates and prosecutes alleged extremists in the military. Citing Duncan’s privacy concerns, the Navy issued a so-called Glomar response, where it refuses to confirm or deny if it possesses responsive records. Loevy & Loevy sued on Raw Story’s behalf. Once in litigation, Navy added FOIA’s national security exemption as a further reason for refusing to confirm or deny if it had responsive records.
The court, however, rejected the Navy’s exemptions. On national security, Navy failed to show that whether Navy does—or doesn’t—possess records of an investigation into Duncan was a classified fact. And, as the court pointed out, agencies can—and often do—confirm that they have documents about classified records without revealing any classified information in those records.
The court also rejected Navy’s speculative claims about harm to national security, finding that not even substantial deference to the government on national security matters could make up for how vague they were.
On the privacy issue, the court considered both Duncan’s privacy interests and the public interest in disclosure. It found Duncan’s privacy diminished—at least as to Justice Department investigations—because those investigations were already a matter of public record. It also found that the public has a strong interest in understanding how government investigates and prosecutes extremism in the military, and that this interest outweighed Duncan’s privacy.
Since the Navy’s Glomar response was invalid, it will now need to confirm or deny whether it possesses responsive records, and produce any records subject to FOIA’s exemptions. We look forward to reviewing the records and reading Raw Story’s reporting on this important issue.
