It is hard to reconcile these lofty memos with the Justice Department's proposed rule instructing federal agencies to falsely deny the existence of records sought under FOIA. But at least the Obama administration is open about its desire to mislead us.
Enacted in 1966, FOIA "encourages accountability through transparency," as Obama put it in his 2009 memo. The law created a general assumption that Americans have a right to information about their government unless there is a good reason to withhold it, such as when disclosure would violate people's privacy, undermine a criminal investigation or threaten national security.
Congress amended FOIA in 1986, adding Section 552(c), which addresses situations where confirming the existence of records would tip off the target of a criminal investigation, compromise a confidential informant or reveal classified information. In such cases, agencies "may treat the records as not subject to the requirements of" FOIA, which the courts and leading members of Congress have long understood to mean issuing a response that neither confirms nor denies the records' existence.
But the Obama administration prefers to lie. Under the rule proposed by the Justice Department, an agency with records believed to be exempt under Section 552(c) "will respond to the request as if the excluded records did not exist."
As the American Civil Liberties Union, OpenTheGovernment.org, and Citizens for Responsibility and Ethics in Washington note in their comments on the rule, it would "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." The rule also would impede judicial review of agencies' decisions to withhold records, since requesters would be led to believe that no records were being withheld.
Since requesters cannot demand a justification for withholding records they do not know exist, agencies would not have to convince a court that the information they believe qualifies for a FOIA exemption actually does. And while the lies supposedly would be limited to the three situations described in Section 552(c), agencies would be sorely tempted to deny the existence of any records they would rather not reveal.
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