Whether a court may weigh all relevant evidence or only agency-acknowledged evidence when assessing the legality of a Glomar response under the Freedom of Information Act

QUESTION PRESENTED When a federal agency responds to a request for records under the Freedom of Information Act, 5 U.S.C. § 552, it may assert a “Glomar response,” neither confirming nor denying the existence of responsive records, on the theory that even a mere acknowledgment that the records do or do not exist is itself exempt from disclosure under one of the statute’s narrow exemptions. The question presented is whether, in assessing the legality of a Glomar response, a court may weigh any relevant evidence bearing on the existence of responsive records, as the Second Circuit has held, or may only look to evidence that the responding agency has waived protection over the existence of records through its own official acknowledgment, as the D.C. Circuit held in the decision below. i