Obama himself suggested where such unbridled discretion can lead. "The government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears," he declared in 2009. But who can say whether that is happening if agencies can evade oversight by lying?
The ACLU suggests a FOIA response that avoids disclosing information shielded by Section 552(c) but is nevertheless accurate and preserves the possibility of judicial review: "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." In an Oct. 28 letter to Attorney General Eric Holder, Charles Grassley R-Iowa, the ranking Republican on the Senate Judiciary Committee, demanded to know why that option is unsatisfactory and threatened to block the Obama administration's mendacious alternative.
It may be too late for that. Last spring, U.S. District Judge Cormac Carney rebuked the government for falsely denying the existence of records sought under FOIA, not only to the requesters but to him. Carney noted that "it is impossible for the court to determine compliance with the law and to protect the public from government misconduct if the government misleads the court." The Justice Department says its new rule merely codifies a practice dating to the Reagan administration, which means they've been lying to us all along.
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