Washington, D.C. – A federal court in the District of Columbia has sided with the U.S. Army, affirming its decision to use a special “Glomar” response in refusing to confirm or deny the existence of records sought by a former soldier under the Freedom of Information Act (FOIA). The ruling emphasizes the strong privacy protections afforded to military personnel, even when records are requested in connection with allegations of misconduct.
Jonathan Marin, a former Army mechanic who was court-martialed for sexual assault, had submitted several FOIA requests to the Army. He sought disciplinary and other records related to his accuser, identified as E.L., and materials concerning an investigation into “Apache Troop,” the unit where both he and E.L. served. The Army responded by issuing Glomar responses, a practice where an agency declines to confirm or deny whether it possesses the requested records, arguing that even such an acknowledgment would reveal information exempt from disclosure.
Marin subsequently sued, challenging the Army’s responses. However, U.S. District Judge Sparkle L. Sooknanan granted summary judgment to the Secretary of the Army, concluding that the Glomar responses were properly issued under FOIA Exemption 6, which protects personal privacy. The court also denied Marin’s separate motion to amend his complaint.
Understanding FOIA and the ‘Glomar’ Response
The Freedom of Information Act is a landmark statute designed to promote transparency by requiring federal agencies to make government records available to the public upon request. It embodies a “general philosophy of full agency disclosure.” However, FOIA includes nine specific exemptions that allow agencies to withhold or redact certain information to protect legitimate interests, such as national security, trade secrets, or personal privacy.
A “Glomar response” is a unique application of a FOIA exemption. It’s used in cases where merely confirming or denying the existence of responsive records would itself cause harm that a FOIA exemption is designed to prevent. The term “Glomar” originated from a CIA project involving a ship called the *Hughes Glomar Explorer*, where the agency famously refused to confirm or deny the existence of records about the vessel, as doing so would have revealed classified information.
In this case, the Army relied on FOIA Exemption 6, which permits agencies to withhold “personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy.” For a Glomar response to be justified under Exemption 6, the court must determine that the fact of the existence or non-existence of the records would itself constitute a clearly unwarranted invasion of personal privacy.
The Soldier’s Requests and the Army’s Refusal
Jonathan Marin’s FOIA requests were quite specific. He asked for:
1. A copy of an Army Regulation (AR) 15-6 Investigation related to “Apache Troop” and/or four named individuals, including E.L.
2. Any email communications from the investigator concerning “Apache Troop” and/or these four individuals.
3. Any administrative or disciplinary records pertaining to E.L., specifically records related to cocaine use and administrative discharge due to misconduct.
The Army’s Human Resources Command and Central Command responded with Glomar responses. They stated that, as a matter of policy and to protect the privacy interests of their personnel, they would not confirm or deny the existence of misconduct or investigation records. They further noted that such third-party records, if they existed, would be exempt from release under the Privacy Act and FOIA Exemption 6. Marin’s subsequent appeals within the Army were denied, leading him to file the lawsuit.
Court’s Analysis: Why Privacy Prevailed
Judge Sooknanan’s opinion meticulously applied the two-part test for Exemption 6, concluding that the Army’s Glomar responses were appropriate.
Records as “Personnel” or “Similar Files”
First, the court determined that the requested records, if they existed, would fall under the definition of “personnel” or “similar files.” This was straightforward for E.L.’s administrative or disciplinary records. For the AR 15-6 investigation records and emails, the court found that Marin’s inclusion of specific names, including E.L., indicated he believed these individuals were part of, or even targets of, the investigation. The court noted that records identifying individuals who may or may not have committed misconduct clearly fall within the “broad” meaning of “similar files” under Exemption 6.
Substantial Privacy Interest at Stake
Second, the court addressed whether disclosing the existence of these records would compromise a substantial privacy interest. The D.C. Circuit Court has consistently held that individuals implicated in investigatory or disciplinary files have a “substantial interest in nondisclosure.” The court found this particularly true here, as Marin’s requests sought information that could reveal drug use or other misconduct by E.L. and other named individuals. Such information, the court reasoned, can be “embarrassing or stigmatizing, resulting in negative and unwanted attention, and invite harassment.”
Marin attempted to argue that military servicemembers have no presumption of personal privacy, citing a Supreme Court case called *Solorio v. United States*. The court vehemently rejected this argument, calling it “frivolous and offensive to those who serve our country.” It clarified that *Solorio* did not support Marin’s interpretation and reaffirmed that “enlisted military personnel . . . like any individuals, have a recognized privacy interest in avoiding disclosure of personal information.”
No Significant Public Interest to Outweigh Privacy
With substantial privacy interests established, the burden shifted to Marin to demonstrate a “significant” public interest that would warrant overriding those privacy concerns. Marin initially stated his requests were for “personal use” and “legal purposes” related to his court-martial appeal. The court reiterated established law that an individual’s personal interest in challenging a criminal conviction does not qualify as a “public interest” under FOIA, as it reveals “little or nothing about an agency’s own conduct.”
Marin later argued that the records would shed light on “toxic leadership performance” in Apache Troop and “prosecutorial misconduct” by military judge advocates. While acknowledging some public interest in such allegations, the court found Marin offered little evidence that the alleged misconduct involved high-level officials or amounted to “nefarious or extreme government wrongdoing.” Crucially, the court also recognized a “strong countervailing public interest” in preserving the confidentiality of internal investigations to encourage truthful witness interviews and ensure the integrity of the fact-gathering process. This public interest, the court stated, “dovetails with the significant privacy interests” of individuals who might be implicated in the records.
No Prior Official Acknowledgment and No Segregability
Marin also argued that the records had already been “officially acknowledged” during his court-martial proceedings, specifically through sworn statements referencing an AR 15-6 investigation. However, the court clarified that information disclosed during *discovery* in a legal proceeding does not constitute a “public or official acknowledgment” sufficient to overcome a Glomar response. For such an acknowledgment to count, the documents would need to have been introduced in open court or marked as exhibits, which Marin failed to establish occurred.
Finally, Marin’s argument that the Army should release “reasonably segregable portions” of the records was also rejected. The court explained that when a Glomar response is justified, the agency is not required to conduct a search for responsive documents or perform an analysis to identify segregable portions. In this case, acknowledging the existence of records about E.L.’s misconduct or an investigation linking specific individuals to misconduct would inherently invade their privacy, leaving no reasonably segregable portions that could be released without confirming what the Glomar response sought to avoid.
Motion to Amend Denied
In addition to the FOIA claims, Marin attempted to amend his complaint to add a new FOIA claim against a different agency, the Defense Health Agency, regarding records about a bicep injury. The court denied this motion, finding that it was made too late (a year after the lawsuit was filed and during summary judgment briefing), involved a completely different request and defendant, and would unfairly prejudice the Secretary of the Army by effectively “resetting the clock” on the litigation.
Implications of the Ruling
The court’s decision underscores the robust protection for personal privacy under FOIA Exemption 6, especially concerning sensitive information like misconduct investigations and disciplinary actions involving military personnel. It reaffirms that agencies can legitimately use Glomar responses when the very act of confirming or denying the existence of such records would constitute an unwarranted invasion of privacy, particularly when the public interest in disclosure does not significantly outweigh those individual privacy rights.