When he took office, Barack Obama promised "an unprecedented level of openness in government." As a major part of that commitment, he pledged fidelity to the Freedom of Information Act (FOIA), which he called "the most prominent expression of a profound national commitment to ensuring an open government."
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.
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.
ABOUT THE WRITER
Jacob Sullum is a senior editor at Reason magazine. Visit Reason at www.reason.com.