UNREDACTED: The National Security Archive Blog

On October 28 the Ranking Member of the Senate Judiciary Committee, Sen. Charles Grassley (R. Iowa), penned a letter to Attorney General Eric Holder opposing the Justice Department’s proposal to lie to requesters about the existence of documents in a new Freedom of Information Act (FOIA) regulation.

The Senator’s letter demanded that Holder defend the Justice Department’s proposal to create section 16.6 (f)(2) – that would “change existing FOIA regulations to allow agencies responding to a FOIA request to state that no records exist” when agencies determine that the requested documents fit certain existing exclusions — in writing no later than November 7.

The letter cited a prior letter to the Justice Department written by OpentheGovernment.org (which includes the National Security Archive), the American Civil Liberties Union (ACLU), and Citizens for Responsibility and Ethics in Washington (CREW) and reiterated many of our initial concerns. Namely that the DOJ’s proposed FOIA regulation:

1)     Is antithetical to FOIA’s purpose and mission of providing public access to and information and records.

2)     Would interfere with judicial review because fewer requesters, especially those less familiar with filing FOIA requests, would litigate denials on the grounds that no documents exist because they would be misled into thinking that there was nothing for the government to disclose.

3)     Could result in an increase in FOIA litigation once people who regularly file FOIA  requests learn that agency “no records” responses to FOIA requests inexplicably does not necessarily mean that there are no records.

In his letter Sen. Grassley reminded Holder that both the Attorney General himself and President Obama had recently declared that issues of transparency were to be bedrocks of the Obama Administration, and that both had issued memorandums that encouraged federal agencies to adopt a “presumption of disclosure.”

Sen. Grassley reminded Attorney General Holder that his March 2009 memorandum on FOIA specifically rescinded former Attorney General Ashcroft’s 2001 promise to defend agency FOIA withholdings unless they lacked a sound legal basis, instead promising that the Justice Department would only defend withholdings if the law prohibited it or if the release could result in any likely harm to any of the government interests protected by current FOIA exemptions, such as national security or privacy concerns.

The Senator further reproached the Justice Department claiming that current maneuverings contradict statements that Holder made to the Judiciary Committee during his nomination hearings, during which Holder stated that he supported transparency of the Executive Branch. The Senator also expressed deep concern over an April, 2010 oversight hearing regarding the significant increase in the use of FOIA exemptions between FY2008 and FY2009 by federal agencies, at which time Holder confusingly said that, while troubling, they in fact indicated “greater transparency.”

He directs the Attorney General to respond to his 15 most pressing questions – in writing – by no later than November 7. These questions include:

1)     Has the DOJ instructed, or otherwise approved, an agency providing a knowingly false statement about the existence of documents in responding to a FOIA request or to a FOIA requester? If so, how often has this been done? Describe the circumstances surrounding each use of a knowingly false statement DOJ has approved as an appropriate response to a FOIA request.

2)     Given that many existing specific FOIA exemptions, such as the national security exemption in (b)(1) and the law enforcement exemption in (b)(7), along with the longstanding use of the “Glomar response,” to protect national security and ongoing investigations, why does the DOJ maintain proposed section 16.6(f)(2) is needed?

3)     What is your response to the concern expressed by institutional requesters that section 16.6(f)(2) will severely damage government integrity by allowing a law intended to facilitate access to information to be distorted to allow law enforcement agencies to “lie” to our citizens?

4)     What is your response to the argument by institutional requesters that section 16.6(f)(2) is not needed because answers to FOIA requests for documents that fall within §552(c) exclusions can easily be framed in a manner that is truthful, while still not acknowledging whether any such documents exist?

Sen. Grassley closes his letter by firmly declaring that if the Justice Department intends to proceed with the proposed new section in its current form, he will take “all necessary action, including introducing legislation, to block section 16.6(f)(2) from ever taking effect.”

FOIA and transparency advocates are no doubt curious to see what justifications the Attorney General and the Justice Department will offer the Senator, if any, for the worries that Grassley shares with, well, just about everyone else.