Government Reform

Holder Nixes Rule Telling Agencies to Lie About FOIA Records

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In response to public criticism, the Justice Department has withdrawn a proposed rule that would have instructed federal agencies to falsely deny the existence of certain documents requested under the Freedom of Information Act (FOIA). The rule, which I discussed in my column yesterday, applied to records covered by Section 552(c), a 1986 amendment that 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. The Justice Department interepreted that to mean that agencies should "respond to the request as if the excluded records did not exist." Last week Charles Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, threatened to block the rule, suggesting that lying is unnecessary when agencies can instead issue a reply that neither confirms nor denies the existence of the requested records. Today Attorney General Eric Holder wrote back to Grassley, saying:

Having now received a number of comments on the Department's proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible. If the proposed regulations can be improved in these respects, we will work to improve them. We believe that Section 16.6(f)(2) of the proposed regulations [telling agencies to deny the existence of excluded records] fall[s] short by those measures, and we will not include that provision when the Department issues final regulations. 

Notice that Holder claims codifying a policy of dishonesty was part of the Obama administration's efforts to be open and transparent. He says the Justice Department was simply trying to formally state a policy that goes back to the Reagan administration, when Attorney General Ed Meese said in a memo that people seeking records covered by Section 552(c) "can properly be advised…that 'there exist no records responsive to your FOIA request.'" Holder also denies that saying records don't exist when they do amounts to lying:

The logic is simple: When a citizen makes a request pursuant to the FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA; where the only records that exist are not subject to the FOIA, the statement that "there exist no records responsive to your FOIA request" is wholly accurate.

Holder's logic does not seem so simple (or logical) to me. He is suggesting that the Meese-endorsed response is the same as saying "there are no disclosable records responsive to your FOIA request," which it isn't: The latter formula neither confirms nor denies the records' existence, while most people would understand the Meese response to mean that the records described in the request do not exist. In any case, the proposed rule explicitly endorsed responding "as if the excluded records did not exist." Holder does not address the merits of the alternative proposed by the ACLU, which 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."

Even with the most controversial rule nixed, the Sunlight Foundation says the Justice Department's proposed FOIA regulations would be "a huge step back for transparency," counting a dozen other ways in which they impede efforts to obtain information.  

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  2. The Obama Administration was simply trying to make things easier on those poor souls whose FIOA requests were not going to be satisfied. He was offering to provide closure in lieu of documents.

    But, hey, if you people want the uncertainty of “maybe we have something you want, maybe we don’t” then fine.

    1. “We are not going to lie.”… trust us, we are the government. We wont lie to you.

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  4. to exclude certain records from the FOIA and do so in the most transparent manner possible.

    to swim across the English Channel in the driest manner possible.

  5. It’s weird, I would think that an act of Congress sort of supercedes a rule devised by an agency. In fact, I’d even go so far as to say that a rule that deliberately goes against an act of Congress should result in, at a minimum, impeachment and expulsion of the rule-maker and anyone discovered to have followed the rule.

    1. This was a conspiracy to ignore and circumvent a law. As far as i am concerned, Holder is a criminal.

    2. In today’s legal-political environment, arbitrary rule-makers, obstructionists and liars are rewarded and whistle-blowers punished.

      Small comfort Holder “nixing the rule.” Test balloon to become reality later?

      1. Test balloon? This is clearly Holder cleverly sticking by his new policy of FOIA malfeasance, he’s got his fingers crossed behind his back (a well-established legal loophole). It’s all part of his plan.

  6. In response to public criticism, the Justice Department has withdrawn a proposed rule that would have instructed federal agencies to falsely deny the existence of certain documents requested under the Freedom of Information Act (FOIA).

    The rule was withdrawn under Obama’s split-infinitive executive order. It is being rewritten to instruct federal agencies to deny falsely the existence of certain documents requested under the Freedom of Information Act.

    I feel better now.

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  8. This is a good occasion to honor the memory of Sen. James Buckley, one of the few true conservatives to serve in the modern US Senate. It was he who introduced the FOIA, the only real weapon we have against a smothering bureaucracy.
    (Which is why so many nationalists masquerading as conservatives have vilified him.)

    1. Holder deserves to be able to do whatever he needs to do… including lie.
      It’s for the cause, after all.

  9. maybe his saying he is nixing the rule is the ACTUAL lie to facilitate the rule that allows the agencies to lie. iow, it’s giving them back some sort of plausible deniability. they deny existence of FOIA records pursuant to the rule, and then if questioned say “holder says we can’t lie about it so we must be telling the truth”

    hmmm…

  10. This is meta-brilliance. Holder is saying the rule about untruthfully claiming certain documents do not exist, does not exist.

    We have always been at war with Eastasia.

  11. Even the ACLU’s proposed wording is specious and dishonest.

    Agencies should be affirmatively required to say, “The records you have requested are shielded by Section 552(c), and we are therefore choosing not to release them to you.”

    And every such assertion should be subject to litigation where the burden of proof would be on the agency to demonstrate why the records in question are so shielded.

    1. I don’t know exactly how FOIA requests work, but what if my request were something like “I want the document showing that Obama plans to send money to a group in order to overthrow the Iranian government”?

      Isn’t there a situation (not that one, but use your imagination) where legitimate national security could be an issue simply by acknowledging the document exists?

      My instincts tell me the benefits (of disclosure) outweigh the costs, but I’m trying to think like the 99% of people who don’t get riled up by secretive government.

    2. I think the ACLU is trying for the best they think they can achieve under the current, er, political climate.

      I agree with you that they should have a duty to affirmatively disclose, though.

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