A proposed revision to Freedom of Information Act rules would allow federal agencies to lie to citizens and reporters seeking certain records, telling them the records don’t exist.
The Justice Department has proposed the change as part of a large revision of FOIA rules for federal agencies. Specifically, the rule would direct government agencies who are denying a request under an established FOIA exemption to “respond to the request as if the excluded records did not exist,” rather than citing the relevant exemption.
The proposed rule has alarmed government transparency advocates across the political spectrum, who’ve called it “Orwellian” and say it will “twist” public access to government.
The draft FOIA revisions were first published in March, but the Justice Department re-opened comment submissions in September after several open-government groups raised objections. A Justice Department spokesperson said the agency is committed to public input and transparency, which is why it re-opened public comments on the rule — an unusual step in the process.
In a public comment regarding the rule change, the ACLU, along with Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org, said the move “will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people.”
Anne Weismann, the chief counsel of CREW, said the Justice Department has a legitimate purpose behind the rules: to protect sensitive information about ongoing investigations. However, she said lying about the records “is an overbroad and improper response.”
“The problem is, if you’re a FOIA requester and the agency says they don’t have the records, you have no reason to doubt that,” Weismann said. “But if they cite an exemption, you have the option to sue.”
Those groups have suggested an alternate federal response that would not require any revisions to the rules. “We interpret all or part of your request as a request for records which, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we therefore will not process that portion of your request.”
Conservative government watchdog Judicial Watch has also lambasted the proposed rules change. (RELATED: Obama admin. pulls references to Islam from terror training materials, official says)
The news is “not surprising, coming from the Obama administration,” said Christopher J. Farrell, director of investigations and research at Judicial Watch.
“The Obama administration is already doing it right now by actively misleading the public concerning White House visitor logs,” Farrell said. “Every day, the Obama administration misrepresents and conceals the true, complete record of who is going in and out of the White House — all the while proclaiming themselves champions of transparency. It’s truly Orwellian. The proposed rule change should be rejected.”
However, the Justice Department says it has long had this standing authority. A 1987 memo from then-Attorney General Edwin Meese III advises the Justice Department that it has the legal authority to deny existence of records, using the same language as the new rule.
“Where an exclusion is employed, the agency is legally empowered to ‘treat’ the excluded records as not subject to the FOIA at all,” Meese wrote. “Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request ‘could not be located’ — most rationally and fairly implements an exclusion’s effect.”
If the new rule were to go into effect, there is a good chance it might be challenged in court. Courts have traditionally given the Justice Department fairly broad powers regarding records disclosure, but recent precedent may give the DOJ trouble.
In a case involving the FBI and records disclosure, U.S. District Judge Cormac Carney wrote that the “Government cannot, under any circumstance, affirmatively mislead the Court.”
Under current FOIA practice, the government may withhold information and issue a denial saying it can neither confirm nor deny the existence of records. Such a denial is known as a “Glomar response” — named after the legal battle between the Los Angeles Times and the CIA in the 1970s over records concerning the CIA’s attempts to salvage a sunken Soviet submarine.
Upon taking office, President Obama released a memorandum declaring his administration was “committed to operating with an unprecedented level of openness. Specifically, he pledged to bolster the strength of the FOIA act, calling it “the most prominent expression of a profound national commitment to ensuring an open government.”