HAWAII DOH FURTHER ATTEMPTS TO HIDE INFORMATION BY MISUSING STRAIGHTFORWARD DOJ TERM
by thinkwell, contributor and participant at The Post & Email
(Apr. 10, 2010) — In her blog, Butterdezillion states that the Hawaii Department of Health has recently been using a new tactic to justify further restrictions on information that they will release. They ominously claim that they must “Glomarize” their responses if the mere act of confirming or denying the existence of a record would inadvertently release other “protected” information. This term was unfamiliar to me, so I did a little research and found the following link that may be of interest to you (for the term’s historical origins, Wikipedia “Glomar Explorer”).
This
links to a reasonably tidy Department of Justice definition of “Privacy
Glomarization” as is being questionably applied against Butterdezillion
and Terri K by Obama’s co-conspirators at the DoH in Hawaii.
The
way I read it, Glomarization cannot be used to protect anything the
existence of which has already been established. Also, the policy states
that Glomarization “is justified only when it is determined that there
is a cognizable privacy interest at stake and that there is insufficient
public interest in disclosure to outweigh it.” Certainly there is a
great, very legitimate public interest in knowing whether a putative
President indeed meets Constitutional muster with regard to his or her
natural born citizenship. And, it can be reasonably argued that Obama
and his Hawaii minions have effectively waived any privacy rights by
what has already been disclosed via their various public statements,
including Obama directly having made reference (via his legal stooges)
to his online purported Certificate of Live Birth in at least one of the many court challenges to his legitimacy.[1]
In
fact, this principle is explicitly stated in the Glomar policy: “if the
third-party subject of a request has provided the requester with a
waiver of his privacy rights, then privacy exemptions cannot be invoked
on his behalf as regards that requester.” And: “there is a weighty
public interest compelling disclosure of records which reflect formal
and final agency determinations of official misconduct by senior
government employees.”
Obama,
at least for now, most certainly qualifies as a senior government
employee, so it would seem that “Glomarization” actually reinforces
existing Hawaiian DoH Freedom of Information Act policy.
Glomarization
is just another inappropriate and most likely illegal smokescreen being
used by the Hawaiian DoH to do more evil in thwarting the legitimate
requests of citizens to obtain basic qualifying information about a
public servant in We-the-People’s employ. I know life isn’t always fair,
but I do so look forward to the day of reckoning for the wicked usurper
of the White House and his flying monkeys in Hawaii.
Maybe
the time is ripe for a direct FOIA request for Obama’s COLB to be the
bucket of cold water that finally melts through the wickedness. If this
FOIA request is thrown at them along with a proactive reference to DoJ
Glomarization policy and Obama’s own claim to the legal legitimacy of his online COLB and the Hawaiian DoH’s own official policy regarding non-confidentiality of previously publicized information, that might just make the heads of the Hawaiian DoH lawyers explode. Just a (pleasant) thought.
______________________________
[1] It was in a footnote on page 2
of “Hollister v. Soetoro – Motion to Dismiss Plaintiff’s Complaint”
that Obama’s attorneys referred to the online COLB: “President Obama has
publicly produced a certified copy of a birth certificate showing that
he was born on August 4, 1961, in Honolulu, HI. See, e.g.,
Factcheck.org, “Born in the U.S.A.: The truth about Obama’s birth
certificate,” available here
(concluding that the birth certificate is genuine, and noting a
contemporaneous birth announcement published in a Honolulu newspaper).
[...]“
http://www.youtube.com/watch?
The term "Glomar Response" in law - meaning a "neither confirm nor deny" response to Freedom of Information Act requests - comes from a ship called the Hughes Glomar Explorer,
which was ostensibly owned by mysterious and eccentric billionaire Howard Hughes, but was actually a CIA project.
In 1972, Hughes was approached by the CIA to help covertly recover the sunken Soviet submarine K-129.
The Soviet sub, allegedly containing nuclear missiles, had sunk near
Hawaii four years earlier. Thus a special-purpose salvage vessel for "Project Azorian"
(aka "Project Jennifer") was born, and Hughes' involvement provided the
CIA with the plausible cover story of being a research vessel searching
for undersea manganese nodules in Hawaii.
OIP Guidance
Privacy "Glomarization"
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. STIGMATIZING CONNOTATION
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). COGNIZABLE PRIVACY INTEREST
Analytically,
though, use of the "Glomarization" approach under Exemption 7(C) is
justified only when it is determined that there is a cognizable privacy
interest at stake and that there is insufficient public interest in
disclosure to outweigh it. See, e.g., Common Cause v. National Archives & Records Service,
628 F.2d 179, 184-86 (D.C. Cir. 1980) (balancing required by Exemption
7(C) even for identities of uncharged subjects of law enforcement
investigation). In this regard, it should be remembered that there are
three circumstances in which the fact that an individual is mentioned in
a law enforcement file does not give rise to a privacy interest
cognizable under Exemption 7(C).
First, there is the principle that deceased persons are possessed of no protectible privacy interests under the FOIA; therefore, when an agency is aware of the record subject's death, either because the requester has provided proof of this fact or because it is reflected in the responsive records, neither of the FOIA's privacy exemptions may be invoked. See, e.g., Tigar & Buffone v. United States Department of Justice, Civil No. 80-2382, slip op. at 9-10 (D.D.C. Sept. 30, 1983); Diamond v. FBI, 532 F. Supp. 216, 227 (S.D.N.Y. 1981), aff'd on other grounds, 707 F.2d 75 (2d Cir. 1983), cert. denied, 465 U.S. 1004 (1984); Rabbitt v. Department of the Air Force, 383 F. Supp. 1065, 1070 (S.D.N.Y. 1974), on motion for reconsideration, 401 F. Supp. 1206, 1210 (S.D.N.Y. 1975); see also FOIA Update, Sept. 1982, at 5. But see also Kiraly v. FBI, 728 F.2d 273, 277-79 (6th Cir. 1984). Note, however, that information about a decedent may, in some very unusual cases, also directly implicate the privacy interests of a relative or close personal associate who does qualify for FOIA exemption protection. See, e.g., Price v. United States Department of Justice, Civil No. 84-330-A, slip op. at 6-7 (M.D. La. June 25, 1985). Second, if the third-party subject of a request has provided the requester with a waiver of his privacy rights, then privacy exemptions cannot be invoked on his behalf as regards that requester. Because of the strict nondisclosure requirements of the Privacy Act of 1974, 5 U.S.C. § 552a(b), it is essential that such authorizations be set out specifically in writing. See Perry v. FBI, 759 F.2d 1271, 1276 (7th Cir. 1985); Taylor v. Orr, Civil No. 83-0389, slip op. at 5 n.6 (D.D.C. Dec. 5, 1983). Third, if the federal government has already officially confirmed that the third party was or is the subject of a federal investigation -- usually by indicting and prosecuting him -- then the very fact that an agency maintains a corresponding investigatory file cannot be regarded as a "private" fact about that person. See, e.g., Heimerle v. United States Department of Justice, Civil No. 83-1944-(MEL), slip op. at 5 (S.D.N.Y. Mar. 4, 1985) ("[I]ndividuals whose identities were withheld can no longer claim privacy interests with respect to the subject matter in question due to their public participation in criminal proceedings."); Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. 538, 544 (D.D.C. 1977) (no privacy protection for fact of "prior convictions"); Tennessean Newspapers, Inc. v. Levi, 403 F. Supp. 1318, 1321 (M.D. Tenn. 1975) (ordering disclosure of records reflecting recent arrests and indictments). It is possible, though, that under some circumstances a lengthy passage of time may be found to have effectively removed such a fact from the "public domain." Cf. Roshto v. Herbert, 413 So. 2d 927, 931-33 (La. App. 1982) (common law cause of action for invasion of privacy recognized for recounting of circumstances of 25-year-old criminal conviction); Briscoe v. Reader's Digest Association, 93 Cal. Rptr. 866, 875, 483 P.2d 34, 43 (Cal. 1971) (same for 11-year-old criminal conviction). But cf. Montesano v. Donrey Media Group, 668 P.2d 1081, 1088 (Nev. 1983) (no such cause of action recognized regarding details of 14-year-old criminal conviction). BALANCING THE INTERESTS
Once
a cognizable privacy interest is found to exist, the next analytical
step in the "Glomarization" process is to review all responsive records
to determine if there is any public interest in disclosure which might
outweigh the individual's privacy interest. To be sure, the public
interest in disclosure would have to be particularly acute in order to
override the privacy considerations of an individual who would be
exposed as a subject of a criminal law enforcement investigation under
circumstances which he would not be afforded the benefit of a public
trial to defend his reputation. See, e.g., Fund for Constitutional Government v. National Archives & Records Service,
656 F.2d at 863-66 (identities of those investigated but not charged
must be protected unless "exceptional interests militate in favor of
disclosure"); Congressional News Syndicate v. United States Department of Justice, 438 F. Supp. at 545.
Although it has sometimes been suggested that an individual's status as a public figure should diminish the extent to which his privacy is protected, see, e.g., Common Cause v. National Archives & Records Service, 628 F. 2d at 866; but see also FOIA Update, Sept. 1982, at 5, the FOIA case law firmly supports use of the "Glomar denial" for requests seeking investigatory records which would reflect uncharged criminal misconduct by even such prominent individuals. See, e.g., Knight Publishing Co. v. United States Department of Justice, Civil No. C-C-84-510-P, slip op. at 1-2 (W.D.N.C. Mar. 28, 1985) (governor, lieutenant governor and attorney general of North Carolina); Ray v. United States Department of Justice, Civil No. 3-84-1234, slip op. at 2-3 (M.D. Tenn. Nov. 30, 1984) (state senator); Rushford v. Civiletti, 485 F. Supp. at 479-81 (federal judges). On the other hand, there is a weighty public interest compelling disclosure of records which reflect formal and final agency determinations of official misconduct by senior government employees. See, e.g., Cochran v. United States, 770 F. 2d 949, 957 (11th Cir. 1985) ("information relating to a misappropriation of government funds . . . by a high level government official qualifies as a textbook example of information the FOIA would require to be disclosed"); Stern v. FBI, 737 F.2d 84, 93 (D.C. Cir. 1984) (high-level FBI official censured for deliberate misrepresentation); Sullivan v. Veterans Administration, 617 F. Supp. 258, 260-61 (D.D.C. 1985) (senior official reprimanded for misuse of government vehicle and failure to report accident); see also Bast v. United States Department of Justice, 665 F.2d 1251, 1255-56 (D.C. Cir. 1981) ("public importance of judicial impartiality outweighs the privacy interest" of federal judge in particular case). RECORD SEARCH AND REVIEW
Thus,
in order to properly respond to a FOIA request for law enforcement
records pertaining to a third party, it is necessary that an agency
search for and conduct a sufficient review of all responsive records to
determine whether they reflect (1) the death of the subject, (2) an
official acknowledgment of the investigation, or (3) a public interest
in disclosure sufficient to override the subject's privacy interests.
The cases which have expressly addressed the logical requisites of
Exemption 7(C) "Glomarization" have made these agency requirements
clear. See Gilday v. United States Department of Justice, Civil
No. 85-292, slip op. at 5-10 (D.D.C. July 23, 1985) (agency must
conduct record search and review even in "Glomarization" situation); Shaw v. FBI, 604 F. Supp. 342, 344-45 (D.D.C. 1985) (same); see also Ely v. FBI, 781 F. 2d 1487, 1491-94 (11th Cir. 1986) (public and in camera affidavit requirements).
Prior to commencing such a search and review, it is of course permissible for an agency to seek additional information from the requester to assist in resolving questions of waiver, the subject's death, official acknowledgment and any public interest in disclosure. In conducting its review, an agency may assess search fees for its efforts expended in locating the responsive files, but not for the document review necessary to make the required determinations. Obviously, any interim response soliciting a requester's promise to pay search fees (in those instances in which such fees exceed the agency's minimum fee threshold) should carefully explain the agency's "Glomarization" policy, including the fact that it is quite possible that the agency ultimately will be unable to acknowledge the existence of any records responsive to such a request. CONCLUSION
In
sum, the legitimate personal privacy interests of individuals
referenced in law enforcement files can be protected only through the
uniform application of the "Glomarization" principle to third-party
requests. Such a response is appropriate only after the agency has
conducted a search and record review, together with a careful analysis
and weighing of all personal privacy and public interest considerations.
Where an agency follows this procedure, it will be able to defend its
use of this extraordinary FOIA procedure.
|
Neil Abercrombie and The Hawaii Department of Health’s latest excuse for non-release of Obama’s records
http://www.youtube.com/watch?v=8h6rGrzD2VY
The term "Glomar Response" in law - meaning a "neither confirm nor deny" response to Freedom of Information Act requests - comes from a ship called the Hughes Glomar Explorer, which was ostensibly owned by mysterious and eccentric billionaire Howard Hughes, but was actually a CIA project.
In 1972, Hughes was approached by the CIA to help covertly recover the sunken Soviet submarine K-129.
The Soviet sub, allegedly containing nuclear missiles, had sunk near
Hawaii four years earlier. Thus a special-purpose salvage vessel for "Project Azorian"
(aka "Project Jennifer") was born, and Hughes' involvement provided the
CIA with the plausible cover story of being a research vessel searching
for undersea manganese nodules in Hawaii.
HAWAII DOH FURTHER ATTEMPTS TO HIDE INFORMATION BY MISUSING STRAIGHTFORWARD DOJ TERM
by thinkwell, contributor and participant at The Post & Email
(Apr. 10, 2010) — In her blog,
Butterdezillion states that the Hawaii Department of Health has
recently been using a new tactic to justify further restrictions on
information that they will release. They ominously claim that they must
“Glomarize” their responses if the mere act of confirming or denying
the existence of a record would inadvertently release other “protected”
information. This term was unfamiliar to me, so I did a little research
and found the following link that may be of interest to you (for the term’s historical origins, Wikipedia “Glomar Explorer”).
This links to a reasonably tidy
Department of Justice definition of “Privacy Glomarization” as is being
questionably applied against Butterdezillion and Terri K by Obama’s
co-conspirators at the DoH in Hawaii.
The way I read it, Glomarization cannot
be used to protect anything the existence of which has already been
established. Also, the policy states that Glomarization “is justified
only when it is determined that there is a cognizable privacy interest
at stake and that there is insufficient public interest in disclosure to
outweigh it.” Certainly there is a great, very legitimate public
interest in knowing whether a putative President indeed meets
Constitutional muster with regard to his or her natural born
citizenship. And, it can be reasonably argued that Obama and his Hawaii
minions have effectively waived any privacy rights by what has already
been disclosed via their various public statements, including Obama
directly having made reference (via his legal stooges) to his online
purported Certificate of Live Birth in at least one of the many court challenges to his legitimacy.[1]
In fact, this principle is explicitly
stated in the Glomar policy: “if the third-party subject of a request
has provided the requester with a waiver of his privacy rights, then
privacy exemptions cannot be invoked on his behalf as regards that
requester.” And: “there is a weighty public interest compelling
disclosure of records which reflect formal and final agency
determinations of official misconduct by senior government employees.”
Obama, at least for now, most certainly
qualifies as a senior government employee, so it would seem that
“Glomarization” actually reinforces existing Hawaiian DoH Freedom of
Information Act policy.
Glomarization is just another
inappropriate and most likely illegal smokescreen being used by the
Hawaiian DoH to do more evil in thwarting the legitimate requests of
citizens to obtain basic qualifying information about a public servant
in We-the-People’s employ. I know life isn’t always fair, but I do so
look forward to the day of reckoning for the wicked usurper of the White
House and his flying monkeys in Hawaii.
Maybe the time is ripe for a direct FoIA
request for Obama’s CoLB to be the bucket of cold water that finally
melts through the wickedness. If this FoIA request is thrown at them
along with a proactive reference to DoJ Glomarization policy and Obama’s own claim to the legal legitimacy of his online CoLB and the Hawaiian DoH’s own official policy regarding non-confidentiality of previously publicized information, that might just make the heads of the Hawaiian DoH lawyers explode. Just a (pleasant) thought.
________________________________________________________________
[1] It was in a footnote on page 2
of “Hollister v. Soetoro – Motion to Dismiss Plaintiff’s Complaint”
that Obama’s attorneys referred to the online CoLB: “President Obama
has publicly produced a certified copy of a birth certificate showing
that he was born on August 4, 1961, in Honolulu, HI. See, e.g.,
Factcheck.org, “Born in the U.S.A.: The truth about Obama’s birth
certificate,” available here
(concluding that the birth certificate is genuine, and noting a
contemporaneous birth announcement published in a Honolulu newspaper).
[...]“
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