"All federal agencies realize that the processing of third-party requests under the Freedom of Information Act -- requests for records on other named individuals -- can involve sensitive personal privacy considerations. But when such requests are made to a federal law enforcement agency, or to any agency which maintains investigatory files, the special privacy consideration involved can call for the careful utilization of a special FOIA response.

"Specifically, a FOIA request seeking records which would indicate that a particular political figure, prominent businessman or even just an ordinary citizen has been the subject of a law enforcement investigation may require an agency to flatly refuse to confirm or deny whether such records exist. Such an extraordinary response can be justified only when the confirmation or denial of the existence of responsive records would, in and of itself, reveal exempt information. See FOIA Update, Spring 1983, at 5. This response, colloquially known as a "Glomar denial" or "Glomarization," was first judicially recognized in the national security context, see Phillippi v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976) (raising issue of whether CIA could refuse to confirm or deny its ties to Howard Hughes' submarine retrieval ship, the Glomar Explorer), but it surely is applicable elsewhere.

The application of "Glomarization" in the privacy context is appropriate because disclosure of the mere fact that an individual is mentioned in an agency's law enforcement files carries a stigmatizing connotation, one certainly cognizable under FOIA Exemption 7(C), 5 U.S.C. § 552(b)(7)(C).See, e.g., Fund for Constitutional Government v. National Archives & Records Service, 656 F.2d 856, 865 (D.C. Cir. 1981) ("The disclosure of [the fact that specific individuals were the subjects of a criminal investigation] would produce the unwarranted result of placing the named individuals in the position of having to defend their conduct in the public forum outside of the procedural protections normally afforded the accused in criminal proceedings."); Baez v. Department of Justice, 647 F.2d 1328, 1338 (D.C. Cir. 1980) ("There can be no clearer example an unwarranted invasion of personal privacy than to release to the public that another individual was the subject of an FBI investigation."); see also Miller v. Bell, 661 F.2d 623, 631 32 (7th Cir. 1981) (identities of individuals merely mentioned in law enforcement records protected), cert. denied sub nom. Miller v. Webster, 456 U.S. 960 (1982); Maroscia v. Levi, 569 F.2d 1000, 1002 (7th Cir. 1977) (same).

"Indeed, only through the consistent application of this masked response to third-party requests, regardless of whether responsive records do actually exist, can the privacy of those who are in fact mentioned in law enforcement files be protected. For example, if an agency provided a "no records" response to its first nine requests for third-party investigatory files, it could not then respond to the tenth request -- where records in fact do exist by "refusing to confirm or deny" without, in effect, disclosing the very fact sought to be protected. See, e.g., Antonelli v. FBI, 721 F.2d 615, 616-19 (7th Cir. 1983), cert. denied, 104 S. Ct. 2399 (1984); Rushford v. Civiletti, 485 F. Supp. 477, 478-80 (D.D.C. 1980), aff'd mem. sub nom. Rushford v. Smith, 656 F.2d 900 (D.C. Cir. 1981); see also Gardels v. CIA, 689 F.2d 1100, 1104-06 (D.C. Cir. 1982) (operation of "Glomarization" in national security context).