A Policy of Lying

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

When he took office, Barack Obama promised "an unprecedented level of openness in Government." As 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 regulation instructing federal agencies to falsely deny the existence of records sought under FOIA. But at least the Obama administration, which withdrew the regulation in November following a flood of criticism, is open about its desire to mislead us.

Enacted in 1966, FOIA "encourages accountability through transparency," as Obama put it in 2009. 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 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 Justice Department's proposed rule, an agency with records believed to be covered by Section 552(c) "will respond to the request as if the excluded records did not exist."

As the American Civil Liberties Union (ACLU) noted, that practice would "dramatically undermine government integrity" and impede judicial review of agencies' decisions to withhold records. 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 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 suggested a FOIA response that avoids disclosing shielded information 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, asked why that option is unsatisfactory and threatened to block the Obama administration's mendacious alternative.

Although Holder dropped the proposed rule a week later, it may not matter in practice. Last spring U.S. District Judge Cormac Carney rebuked the government for falsely denying the existence of records sought under FOIA. "It is impossible for the Court to determine compliance with the law and to protect the public from Government misconduct," Carney wrote, "if the Government misleads the Court." The Justice Department said its new rule merely would have codified a practice dating to the Reagan administration, which means they've been lying to us all along. 

Senior Editor Jacob Sullum is a nationally syndicated columnist.

© Copyright 2011 Creators Syndicate Inc.