GOP Sen. Chuck Grassley wrote to Attorney General Eric Holder last week, denouncing a proposed revision to the Freedom Of Information Act that would instruct government agencies to deny the existence of requested records even if the records actually do exist.
Grassley, questioning the need for the legislation, wrote that he “will take all necessary action, including introducing legislation, to block [the measure] from ever taking effect.”
Under current FOIA guidelines, government agencies can only withhold documents that fall under one of nine exemptions in the law, and then only if they explain which exemption applies.
These exemptions can be invoked to protect national security interests, the privacy concerns of government employees, and information about internal decision-making processes, among other things.
The government can also issue something called a “Glomar response” in cases of national security or privacy — something remarkably similar to the proposals concerning Sen. Grassley’s complaint.
Glomar, named after a 1970s-era legal battle between the Los Angeles Times and the CIA, is a regulation — not a law — but it allows government agencies to issue denials without confirming or denying the existence of records requested by the public.
Sen. Grassley noted the potential redundancy in his letter, asking Holder why the DOJ proposed such an expansive reform when it could have opted instead for “merely codifying the ‘Glomar response’ in regulations”
The proposed revision, though, is fundamentally different: It would direct government agencies to respond to requests for sensitive information as if it didn’t exist.
A wide variety of transparency advocacy groups, including the ACLU, Citizens for Responsibility and Ethics in Washington, and OpenTheGovernment.Org, are firmly on Grassley’s side.
According to a statement released by the groups, the proposed FOIA revision “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.”
At the beginning of his term, wrote Grassley, President Obama urged government agencies to be more responsive to FOIA requests, even calling FOIA “the most prominent expression of a profound national commitment to ensuring an open government.”
The proposal seems intended to make it more difficult for citizens and journalists to sue the government over the denial of information covered under FOIA. But ironically, Grassley wrote, it may inspire more lawsuits, not fewer.
The proposal “could very likely result in an increase in FOIA litigation,” Grassley explained, “because as soon as requesters understand that a DOJ ‘no records’ response does not necessarily mean that there are no records, they will be forced to sue to discover whether there are any records.”