Agreeing with a lower court ruling last year (see "TUOL" post 7/19/11), the United States Circuit Court of Appeals for the D.C. Circuit last week ruled the National Security Agency need not respond to a Freedom of Information Act request [5 U.S.C. sec. 552 et seq.] regarding an agreement that the NSA may or may not have forged with Google.
The decision in Electronic Privacy Information Center v. National Security Agency (Case No. 11-5233) said the NSA need not respond at all to the FOIA request by EPIC, a public interest watchdog group, as even a refusal to comply could provide information about a possible relationship between NSA and Google. In the parlance of the security arena, to neither confirm nor deny the existence of requested documents is a so-called Glomar response, named after a past case involving a journalist's efforts to obtain data from the CIA about an underwater vessel.
The appellate court ruled the NSA could properly invoke Exemption No. 1 of the nine FOIA exemptions, which allows a government agency to withhold: "Those documents properly classified as secret in the interest of national defense or foreign policy."
No word as yet about whether EPIC plans to appeal to the U.S. Supreme Court.