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Why Agencies Should Not be Allowed to Lie About FOIA Requests

October 25, 2011

Melanie Pustay, Director of the Department of Justice Office of Information Policy. Responsible for enforcing FOIA throughout the US government. From the US DOJ website.

From its inception the purpose of the Freedom of Information Act (FOIA) was to “establish a general philosophy of full agency disclosure unless information is exempted under clearly delineated statutory language and to provide a court procedure by which citizens and the press may obtain information wrongfully withheld.”

However, FOIA’s guiding principle is currently being challenged by a rule proposed by the Justice Department that would amend FOIA to allow some federal agencies to falsely state that no records exist whenever they determine that requested documents fit within certain guidelines. This would authorize agencies to willfully deceive FOIA requesters on a case-by-case basis.

Such a rule not only negates FOIA’s principles, it hinders the process of judicial review, calls the Obama Administration’s transparency efforts into question and is, quite simply, unnecessary.

In an effort to prevent such a rule from becoming law, (which includes the National Security Archive), the American Civil Liberties Union (ACLU), and Citizens for Responsibility and Ethics in Washington (CREW) sent a joint letter to the Justice Department expressing concerns regarding the proposed amendment.

The arguments presented to the Justice Department are as follows:

At Present

FOIA currently allows for the government to avoid confirming the existence of documents requested under FOIA when that confirmation would damage ongoing investigations or reveal sensitive information. In these instances the government is lawfully entitled to keep these documents secret under FOIA, making the addition of a rule designed to achieve the same goals redundant.

The current provisions which allow for government secrecy are found in 5 U.S.C. section 552(c) and were enacted in 1986. They authorize the government to “treat records as not subject to the requirements of” FOIA in three circumstances:

1)     Where the request concerns an ongoing criminal investigation against the requester when there is reason to believe the requester is not aware of its pendency and premature disclosure would impair the investigation.

2)     Where a FOIA request seeks records regarding a specific informant and the individual’s status as an informant has not been previously disclosed by the government.

3)     Where the FOIA request seeks records “pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information.

Court decisions surrounding the 1986 FOIA amendments that formed the section 552(c) exclusions show that Congress and the courts never intended to allow intelligence agencies to lie to requesters or the courts about the existence of records. This is because the courts anticipated that judicial review would always be available for any requester who believed that the government had illegally withheld records pursuant to FOIA. Moreover, the D.C. Circuit Court of Appeals required that the agencies provide a public affidavit explaining in as much detail as possible the basis for its claim that it could not confirm or deny the existence of the records, not lie that they do not exist.

Legal Questions

While the courts mandate that federal agencies must adhere to certain practices, this does not mean that the agencies do not have a history of lying to the courts themselves. This was recently highlighted in a case brought about by the ACLU of Southern California against the FBI. In Islamic Shura Council of Southern California, et al. v. FBI, a District Court Judge rebuked the FBI over willfully misleading the court regarding the existence of documents through a response that would be legalized under the proposed amendment. Specifically, after the FBI lied to the plaintiffs and were sued and taken to court, it was discovered that the FBI had also neglected to disclose the existence of documents responsive to the plaintiffs’ request to the court.  The court responded by saying 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 Court simply cannot perform its constitutional function if the Government does not tell the truth.”

Further Complications

Not only does the proposed rule pose a slew of legal complications, it is diametrically opposed to FOIA’s guiding principle – a system dedicated to government transparency that simultaneously allows agencies to actively mislead requesters is hypocritical at best.

Aside from the deceptive nature of the amendment, it also has several practical problems. For example, it would dramatically undermine FOIA’s judicial review process. This is because fewer requesters, especially those less familiar with filing FOIA requests, would litigate FOIA denials where their requests were denied on the grounds that no documents exist, because they would be misled into thinking that there was nothing for the government to disclose.

Inversely, people who regularly file FOIA  requests would – once it becomes well-known that agency “no records” responses to FOIA requests do not necessarily mean that there are no records –  be compelled to litigate to determine whether the government’s response is truthful, placing a greater burden on requester, agency, and court resources.

Viable Alternative

Rather than amend FOIA, federal agencies could, when responding to FOIA requests likely to affect ongoing investigations or national security, use the following language: “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.” This kind of wording would preclude the ideological, legal and logistical problems likely to develop as a result of such an amendment.  If the system is not broken, the Department of Justice should not attept to create a “fix” for it.  Especially one that involves lying to Freedom of Information Act requesters.

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