Government Reform

File Not Found

Why does the most open and transparent administration in history prefer to lie about government records?

|

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 October 28 letter to Attorney General Eric Holder, Charles Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, demands to know why that option is unsatisfactory and threatens 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.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist.

© Copyright 2011 by Creators Syndicate Inc.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

79 responses to “File Not Found

  1. See the flaw in your logic is that you assumed what a politician says is somehow connected to what a politician does. One has nothing to do with the other for politicians.

    1. “You fucked up – you trusted me.”

        1. Ron Paul Exposed
          Exposing the lies of Paul and his supporters
          https://ronpaulexposed.wordpress.com/

          1. Is someone playing the race card already?

            1. Oh my god! It’s a wordpress site! That’s how you KNOW it’s true!

              1. No way am I clicking a link that says “Ron Paul Exposed”. There are a lot of people I want to see naked, but Ron Paul isn’t one of them.

          2. Listen Maxx, no matter how many times you ask him, Ron Paul is not going to let you suck his dick. Get over it, get some therapy, and stop being a bitter cunt.

          3. What a pathetic site. It’s a hatchet job that is big on rhetoric and speculation, and deficient when it comes to solid reasons to oppose Ron Paul. (Racist! Fraud! Vagina doctor! See, I can write an entry for you already!)

    2. It’s kind of sad how many Reason contributors fell for this guy’s bullcrap.

      1. [] If POLITicians constantly lie, and

        [] If POLICe constantly lie,

        []Then is the POLIS (city-State, or civilization) itself a lie?

        Seems like standard POLIcy for the POLI (city-slickers) to lie.

        1. Oh yes…oh Yes…oh YES…OH YEAH BABY YEAH!!!

          Read my muthafukking stupid muthafukkas! READ IT!

        2. Then is the POLIS (city-State, or civilization) itself a lie?

          Probably! But until you have something better nature girl it’s what we’re working with. Shouldn’t you be out trying to gambol some of that Twinkie and Yoo Hoo weight away?

        3. Does the way she tries to “subtley” convey some sort of connection between unrelated words remind anyone else of the utterly insane scrawlings of Laugner? Or am I the only one?

      2. does this mean that seas aren’t going to stop rising and the Earth isn’t healing?

    3. Great question. We are stupid if we believe most politians.

    1. Government lying? It’s baked in the cake. Dominators always lie, and dominators always have an excuse to lie.

      I define civilization in general as an alliance between dominator consciousness and exploitation-enabling techniques, creating a society that systematically takes more than it gives.

      Seven Lies About Civilization
      by Ran Prieur
      November 24, 2003
      http://ranprieur.com/essays/7lies.html

      1. Read my stupid muthfukkas! READ IT!

      2. Tribal chieftain, am I free to gambol about your hunting and gathering grounds, and sleep with your daughters?

        1. Rohrlich-Leavitt (1976) noted, “The data show that gatherer-hunters are generally nonterritorial and bilocal; reject group aggression and competition; share their resources freely; value egalitarianism and personal autonomy in the context of group cooperation; and are indulgent and loving with children.”

          As for one of the basic underpinnings of violence in more complex societies, Barnes (1970) found that “reports in the ethnographic literature of territorial struggles” between gatherer-hunters are “extremely rare.” !Kung boundaries are vague and undefended (Lee 1979); Pandaram territories overlap, and individuals go where they please (Morris 1982); Hazda move freely from region to region (Woodburn 1968); boundaries and trespass have little or no meaning to the Mbuti (Turnbull 1966); and Australian Aborigines reject territorial or social demarcations (Gumpert 1981, Hamilton 1982). An ethic of generosity and hospitality takes the place of exclusivity (Steward 1968, Hiatt 1968).

          ~John Zerzan
          Future Primitive
          http://www.primitivism.com/future-primitive.htm

          1. Yeah, baby yeah!

            Read my muthafukking stupid muthafukkas! READ IT!

          2. But, tribal chieftain, I have this book here that says you’ll be totally cool with my helping myself to free meals.

            1. Dozens of studies stress communal sharing and egalitarianism as perhaps the defining traits of such groups (e.g. Marshall 1961 and 1976, Sahlins 1968, Pilbeam 1972, Damas 1972, Diamond 1974, Lafitau 1974, Tanaka 1976 and 1980, Wiessner 1977, Morris 1982, Riches 1982, Smith 1988, Mithen 1990). Lee (1982) referred to the “universality among foragers” of sharing, while Marshall’s classic 1961 work spoke of the “ethic of generosity and humility” informing a “strongly egalitarian” gatherer-hunter orientation. Tanaka provides a typical example: “The most admired character trait is generosity, and the most despised and disliked are stinginess and selfishness.”

              ~John Zerzan
              Future Primitive
              http://www.primitivism.com/future-primitive.htm

              It’s your culture of deliberate scarcity that puts food under lock and key, not the Original Affluent Society’s abundance-based Gift Economy

              1. Chieftain, after you off me, can you depict my murder on an animal skin, so that future ethnographers will have a record?

                1. Robert Ardrey (1961, 1976) served up a bloodthirsty, macho version of prehistory, as have to slightly lesser degrees, Desmond Morris and Lionel Tiger. Similarly, Freud and Konrad Lorenz wrote of the innate depravity of the species, thereby providing their contributions to hierarchy and power in the present.

                  Fortunately, a far more plausible outlook has emerged, one that corresponds to the overall version of Paleolithic life in general. Food sharing has for some time been considered an integral part of earliest human society (e.g. Washburn and DeVore, 1961). Jane Goodall (1971) and Richard Leakey (1978), among others, have con- cluded that it was the key element in establishing our uniquely Homo development at least as early as 2 million years ago. This emphasis, carried forward since the early ’70s by Linton, Zihlman, Tanner, and Isaac, has become ascendant. One of the telling arguments in favor of the cooperation thesis, as against that of generalized violence and male domination, involves a diminishing, during early evolution, of the difference in size and strength between males and females. Sexual dimorphism, as it is called, was originally very pronounced, including such features as prominent canines or “fighting teeth” in males and much smaller canines for the female. The disappearance of large male canines strongly suggests that the female of the species exercised a selection for sociable, sharing males. Most apes today have significantly longer and larger canines, male to female, in the absence of this female choice capacity (Zihlman 1981, Tanner 1981).

                  ~John Zerzan
                  Future Primitive
                  http://www.primitivism.com/future-primitive.htm

                  1. Got shackbrah?

                  2. Hey, mind if I sit on the tribal council and heckle whatever is said?

          3. Rectal …..get down from there….some of those books haven’t been discredited yet?

        2. I want to rape your daughter.

      3. Dear City-Statism is based on lies,

        Fuck off and die.

        Best,
        Gimlet

        1. …die.
          Best…

          Got the Obama Big Government disease?

          City-Statist slickers just can’t help themselves.

          1. Got shackbrah?

    2. Kill the white man?

  2. I, for one, have been admitting my shame for voting for this ass for years now. A shame I will carry to my last days.

  3. Maybe “an unprecedented level of openness in Government” meant openly secretive, that is, so obviously closed that people would see what was going on and realize there was information being suppressed. Hence, greater distrust of the government. Wasn’t someone recently saying Obama was actually a libertarian sleeper agent?

    1. If by libertarian sleeper agent they mean Nazi in Communist clothing, then they are right.

      1. Nazi in Communist clothing

        Eh, doesn’t sound right. I’m thinking a true libertarian sleeper agent would be disguised as a Communist in Nazi Clothing. Because the uniforms are snappier.

    2. He is doing his best to destroy the fiat currency ponzi scheme – so he’s got that going for him.

  4. “will respond to the request as if the excluded records did not exist.”

    See? We’re totally transparent. We’re not hiding anything because there’s nothing to hide. Total transparency. See?

    1. “if the file does not exist, then you must desist!”

  5. Lairs lie.

    1. Lairs lie?
      What about hideouts?
      Dungeons?
      Nests?
      Burrows?
      Habitats?
      Refuges?
      Sanctuaries?

      1. Caves?
        Dens?
        Hideaways?
        Retreats?

        1. Only a chicken retreats.

          1. ever hear of a couples retreat or a spiritual retreat…ha

          2. Oh no I think I hurt Sucky’s feewings.
            I hope Sucky don’t hold grudge long time.

        2. Redoubts?

  6. Where is Naga Sadow when we need him for these important issues?

  7. Morning links prediction: 9:07AM

    1. I predict Riggs will post at 9:08 just to screw with you.

      1. You may have something there.

        1. I say 9:06

            1. Now we’re all being punished for your insolence. No morning links until 10 AM!

              1. I am the reason we cannot have nice things 🙁

            2. *shakes fist*

              1. shakes dick of few remaining drops of urine…

      2. That would imply that Riggs gives a shit what Sucky thinks.

  8. http://www.citizensforethics.o…..-M.twitter

    Why worry about FOIA when you can just use your personal e-mail account for official business for the express purpose of avoiding investigation.

  9. So the federal government is egregiously breaking the law, and nobody gives a shit. Fantastic. Isn’t it about time we all move to Antarctica?

  10. “Why does the most open and transparent administration in history prefer to lie about government records?”
    Because they’re lying scumbag assholes.

  11. There’s nothing that I detest more than the stench of lies.

  12. I didn’t lie. I just took the liberty of bullshitting you.

    1. You traded the Caddy for a microphone?

  13. This could backfire. Now, when the government says “those records don’t exist”, it officially means “those records may or may not exist”. The government can no longer credibly assert the nonexistence of a record.

  14. OMFG, people! STOP FEEDING IT ALREADY! Christ on a cracker.

  15. Sounds like the Justice Dept. has a plan to withhold documents on an ongoing investigation. Can anyone say “Fast and Furious”,”Solindra”,or any other green energy boondogle?

  16. According to Chinese news source, Russians are saying the Gadhaffi killing was all a ruse.

  17. Maybe they meant an unprecedentedly low level of openness.

  18. Eric Holder would love that law. It would get him off the hook with the fast and furious investigation. Obama would like it too. After he is voted out he could stop paying his lawyers to keep the records of his past a secret.

  19. Barack Obama had basically no political experience when he became US President and Obama has done exactly what the new world disorder wants, eliminate transparency, shut up whistle blowers, torture, secrete prisons, drone bombings to make people hate us, black ops to Mexico to force illegal aliens here and supply guns and force to send drugs to USA, generally, make war on the USA. Cain’s lack of experience in dealing with new world disorder combined with is NWdisO core values, make Cain their asset. If anyone complains he/she is a racist. Would we expect anything except the elimination of FOIA with Petraeus head of CIA and Martial Law the de facto USA form of government?

  20. WHO GIVES A RAT’S ASS ABOUT POT?
    OUR COUNTRY HAS ALMOST HIT THE BOTTOM OF THE BARREL.
    WHERE ARE YOUR PRIORITIES???????????
    TRY CAPITOLISM, CREATE JOBS!
    SHOVE THAT DOWN OBAMA’S THROAT!

    1. Better yet, let’s try “capitalism”.

Please to post comments

Comments are closed.