US FOIA: adequate search, no records and Glomar responses

What counts as an agency record

FOIA reaches agency records only. The Department of Justice guide explains the Supreme Court's two-part test from DOJ v. Tax Analysts: a record is an agency record if the agency created or obtained it and controlled it at the time of the request ¹. In Forsham v. Harris, the Court held that research data generated by a private grantee were not agency records where the agency never obtained them ¹.

The D.C. Circuit weighs four factors on control, starting with the intent of the document's creator to keep or give up control, and the ability of the agency to use and dispose of the record as it sees fit ¹. A request for something outside this definition can close as not an agency record. That outcome covered 1.48% of processed requests in fiscal year 2025 ⁵.

How courts judge a search

• The FOIA defines search as reviewing agency records, manually or by automated means, to locate records responsive to a request ¹.
• Courts require a search reasonably calculated to uncover all relevant documents ¹.
• A requester is entitled to a reasonable search, not a perfect one, as one court quoted in the guide put it ¹.
• Failing to find every responsive record does not by itself make an otherwise reasonable search inadequate ¹.
• Courts have held that an agency need not attempt to recover deleted electronic data to perform a reasonable search ¹.
• An agency must pursue a lead it cannot in good faith ignore, meaning one that is both clear and certain ¹.

The cut-off date

The date chosen to close the search window affects what is found. The guide notes that the D.C. Circuit favoured a date-of-search cut-off in Public Citizen v. Department of State, as it might retrieve more responsive documents than a cut-off at the date of the request ¹. Courts have found that an agency choosing a different cut-off may need to give a compelling justification ¹.

Glomar responses and exclusions

A Glomar response is the situation in which an agency expressly refuses to confirm or deny the existence of records responsive to a request ². The guide traces the name to Phillippi v. CIA, a 1976 D.C. Circuit case about records on the Glomar Explorer submarine-retrieval ship ³. A Glomar response is tied to a FOIA exemption, so the agency still reveals that it is withholding and on what grounds ².

An agency loses the ability to use Exemption 1 for information it has officially acknowledged ³. Under the D.C. Circuit's Fitzgibbon test, the requester must show, among other things, that the information sought is as specific as the information already released ³.

Exclusions are different. Congress added them in 1986 for three categories of sensitive law enforcement information ². Under section 552(c), an agency may treat these records as not subject to the Act, which the guide describes as necessary in situations where even a Glomar response would not protect the information ^2,4.

How often searches find nothing

Federal agencies processed 1,635,055 requests in fiscal year 2025 ⁵.

Comparable rules elsewhere

Other systems set their own search standard. Australia's Information Commissioner says an agency refusing under section 24A must show a thorough and systematic search that is undertaken and documented ⁶. Australia's section 25 lets an agency neither confirm nor deny documents that would be exempt under sections 33, 37(1) or 45A ⁶. The UK ICO says neither confirm nor deny can apply even where nothing is held, and must be used consistently ⁷.