UPDATE: Since this piece was written, the Department of Justice has backed down from the proposed rule change described herein, the Daily Caller reports:
The Department of Justice has canceled a controversial planned revision to Freedom Of Information Act (FOIA) rules that opponents said would have allowed federal agencies to lie about the existence of records.
In a letter to Republican Sen. Chuck Grassley on Thursday, the DOJ wrote that the proposed rule “falls short” of its commitment to transparency, and it “will not include that provision when the Department issues final regulations.”
As part of larger revision of FOIA practices, the proposed rule would have allowed federal agencies to deny the existence of records when applying an exclusion, even if the records did exist.
Which is all well and good, so far as it goes. The problem here is there’s nothing stopping them from proposing this rule again when some larger issue is obscuring it. Legislation is rarely a good solution, but may be the right one in this case.
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Fox News reported last week that the Obama administration is promulgating a new rule which would allow Justice Department officials to lie about whether or not records exist when asked for as part of a Freedom of Information Act request:
A longtime internal policy that allowed Justice Department officials to deny the existence of sensitive information could become the law of the land — in effect a license to lie — if a newly proposed rule becomes federal regulation in the coming weeks.
The proposed rule directs federal law enforcement agencies, after personnel have determined that documents are too delicate to be released, to respond to Freedom of Information Act requests “as if the excluded records did not exist.”
An interesting position from “the most transparent administration ever.”
Their reasoning for this new policy is interesting as well, from an administration which has repeatedly slammed its predecessor as being secretive:
Justice Department officials say the practice has been in effect for decades, dating back to a 1987 memo from then-Attorney General Edwin Meese.
In that memo, and subsequent similar internal documents, Justice Department staffers were advised that they could reply to certain FOIA requests as if the documents had never been created. That policy never became part of the law — or even codified as a federal regulation — and it was recently challenged in court.
Earlier this year, in a case involving the Islamic Council of Southern California brought against the FBI after the plaintiffs learned about the existence of documents denied by the FBI, a federal judge in California expressed great concern about the agency using the internal policy not only in response to the FOIA but to mislead the court.
“The government, cannot, under any circumstance, affirmatively mislead the court. … The court simply cannot perform its constitutional function if the government does not tell the truth,” the judge wrote in a stinging rebuke.
According to Chris Farrell, Judicial Watch director of research, this ability has somewhat existed for decades, but was generally handled in one of two ways. (Judicial Watch is the largest and most frequent FOIA litigator in the country, and often handles PJ Media’s FOIA litigation.)
Rarely, the agency receiving the FOIA would give what is known as a “Glomar response,” referring to the Glomar Explorer, which the CIA used to recover a sunken Soviet submarine. In other words: “We will neither confirm nor deny the documents exist.”
The other, far more common, method, Farrell said, is to generate what is known as a “Vaughn Index.”
A Vaughn Index is a list of the documents generated by a FOIA search with attached reasoning for any denials: “Yes we have the records, but we’re not giving them to you, and here’s why.”
According to Farrell, now they’re seeking permission to affirmatively lie to the American people:
In theory down the road you could go back and see them after they were no longer classified. This is wildly different. They had an opinion that said they could do this, but it wasn’t a policy.
Farrell notes that, should this rule pass it would make lying in response to a FOIA request or FOIA litigation legal — as in not perjury:
There are things which are technically legal, but which are atrocious and that’s the direction they’re going down.
This is, of course, nothing new for an administration which has taken nearly two years to generate four blank pages on a routine FOIA request asking for highly routine information.
Farrell was perhaps more blunt:
The most transparent administration in history is going out of the way to be opaque. It’s Orwellian, it’s circular double talk. The law that exists is more than adequate (to preserve secrecy when needed.) They don’t have the guts to do this legislatively so they do it by regulation.
From Farrell’s point of view — and mine — this is deadly dangerous stuff from the standpoint of the health of the republic, coming as it does while Obama is signing yet more executive orders:
“It’s an incremental slide down the slope. It’s a corrosion of the public’s trust,” he said. “If the government is giving itself permission to affirmatively lie to you, how can you ever have accountability?”
There is some hope this egregious policy will not become a federal regulation with the force of law. Even the ACLU — not the most conservative of organizations, nor exactly enemies of the current administration — is howling bloody murder. According to Fox, there was so much pushback after the original public comment period that the proposed regulation was reopened for public comment a second time.
With supreme irony that is apparently lost on them, the DOJ is claiming their move to destroy transparency … has been open and transparent:
Melanie Ann Pustay, director of the Justice Department’s Office of Information Policy, said the entire consideration process for the proposal “has been open and transparent.”
She also notes that sensitive information requires special consideration.
“To ensure that the integrity of the exclusion is maintained, agencies must ensure that their responses do not reveal the existence of excluded records,” Pustay said.
Of course, that’s what the aforementioned Glomar response is for. Also left aside is who gets to decide what an excluded record is. Given this administration’s history of excluding even the most innocuous records on the flimsiest of pretexts, it would seem imprudent at best to give them more ability to do so.
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