4-4.12 Determining Whether to Neither Confirm Nor Deny the Existence of Records

In some circumstances, a FOIA request can be narrowly targeted so that by its very terms, merely acknowledging the existence of responsive records would cause harm. The records custodian may have to neither confirm nor deny the existence of any responsive records. In such cases, the records custodian is not required to conduct a search for records responsive to a request or perform an analysis to identify segregable portions of such records to the extent that it is appropriate to provide a response to the requester neither confirming nor denying the existence of responsive records. Such a response is appropriate when merely acknowledging the existence of responsive records would itself cause the harm one of the FOIAs exemptions is designed to prevent, most commonly one of the following:

1. FOIA Exemption 1 (records properly classified under executive order to be kept secret in national defense or foreign policy interest).
2. FOIA Exemption 6 (personnel, medical, and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy).
3. FOIA Exemption 7(C) (information or records compiled for law enforcement purposes the disclosure of which would constitute an unwarranted invasion of personal privacy).
4. FOIA Exemption 7(E) (information or records compiled for law enforcement disclosure of which would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law).

The U.S. Department of Justice’s Guide to the Freedom of Information Act available at http://www.justice.gov/oip/foia_guide09.htm includes guidance regarding when it is appropriate to provide a response to a requester neither confirming nor denying the existence of responsive records.