SEC Glomar response to Freedom of Information (FOIA) request for copies of interviews with Empire State Building investors.  Click here

These interviews were conducted by SEC lawyers during the review process for Empire State Realty
Trust (ESRT)

FOIA exemptions 7A and 7C are cited.

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iii. Glomar Response


The government sometimes takes the position that even acknowledging that someone was involved in or the target of a criminal investigation would be a privacy violation. Courts have in some occasions sanctioned the practice of providing a “Glomar” response in such situations.

If you receive a Glomar response under Exemption 7(C) that refuses to confirm or deny the existence of records, you may attempt to overcome it by asserting an overriding public interest, such as those described above.

For example, a court held that the public interest in knowing whether the FBI withheld information that linked three individuals to the agency’s investigation of a murder — which could exonerate a death-row inmate — overrode their privacy interest in avoiding being associated with the homicide, and therefore overrode the agency’s Glomar response.122

For more information on overcoming “Glomar” responses, see the Glomar section within Exemption 1.

122 Roth v. U.S. Dep’t of Justice, 642 F.3d 1161, 1181 (D.C. Cir. 2011).
http://www.rcfp.org/federal-foia-appeals-guide/exemption-7/ii-harm-disclosure/c-7c/iii-glomar-response

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7(A)“…could reasonably be expected to interfere with enforcement proceedings”

Under this exemption, an agency must demonstrate that the records “relate to any ongoing investigation or . . . would jeopardize any future law enforcement proceedings.”26 The government must make a greater showing of interference than a conclusory statement that “the withheld information was clearly related to (an ongoing investigation).”27 If possible, you should provide evidence that an agency’s investigation is not — or has ceased — “gather[ing] evidence for a possible future . . . case” that “would be jeopardized by the premature release of that evidence.”28

http://www.rcfp.org/federal-foia-appeals-guide/exemption-7/ii-harm-disclosure/7a