By Justin Silverman

Give the Obama Administration credit for trying. The President promised the country transparency and open government, so rather than just let FOIA requesters assume they are being lied to, the Department of Justice recently proposed coming clean and making such lies official policy. Freedom of information advocates could rejoice knowing that their government is transparent about not being transparent.

In actuality, the intent behind the now-abandoned proposal was much more manipulative, if no less ironic.

Here’s how it’s supposed to work: The Freedom of Information Act allows access to records of all departments, agencies, and offices of the Executive Branch of the federal government, including the Executive Office of the President, unless those records fall under one of several exemptions. When asked to produce certain documents pertaining to law enforcement or national security, the federal government can withhold those documents under one of the exemptions, or it could issue a “Glomar” response “neither conforming nor denying the existence” of those records.

But as the ACLU’s Michael German explained, the government felt there was a need:

. . .to protect ongoing investigations from people who were misusing FOIA, these criminals who are trying to uncover criminal investigations or find informants or, perhaps a hostile nation trying to find out if there is a classified program in existence. If you got an ambiguous answer, like a Glomar response, and you felt that the documents might actually exist, you’d go into court and try to assert your rights to access those records. But if you got a ‘no records’ response, you would tend to believe that the government was telling the truth and, therefore, not challenge them in court.

So that’s what the Department of Justice proposed, a regulation that would allow it to lie under the FOIA statute — which, German said, the government has been doing anyway. This proposal would only make it official. “Basically they want to ex post facto create a rule that allows them to do what they’ve already been doing in violation of the rule” – that is, lie – German said on NPR’s On the Media.

This is a ballsy move by an administration that claims to have committed itself “to creating an unprecedented level of openness in government,” especially because, as German explained, it could have worked within the current scope of FOIA to address its security concerns. The responding agency, for example, could simply say that such a request would be excludable under FOIA, if the documents existed. Therefore, there will not be a search for those records – cutting off the FOIA request before it even reaches the point of confirming or denying the records’ existence. “It’s better than a Glomar response because it actually gives definitive information, but it doesn’t say whether the records [exist],” German said. “It just says we’re not gonna look for them.”

Such alternatives aside, the whole concept of using an open government statute to lie to the public seems hypocritical and outside the spirit of FOIA. The ACLUCREW, and OpenTheGovernment.org stepped in and collectively said that the new rule 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.” U.S. Senators Charles Grassley (R) of Iowa and Patrick Leahy (D) of Vermont also fought the proposal and apparently provided enough political pressure for the Department of Justice to relent.

In a letter to Sen. Grassley last week, the Department of Justice explained that it will no longer include the controversial change in its final regulations. It clarified that its current “no record” response is used when the requested documents are excluded from FOIA, not exempted. The phrase “there exist no records responsive to your FOIA request,” according to the letter, is accurate. Such documents are simply outside the scope of FOIA and therefore not responsive.

At best, this is misleading, which the Department of Justice now acknowledges. “While the approach has never involved ‘lying,’ as some suggested, the department believes that past practice could be made more transparent,” Assistant Attorney General Ronald Weich wrote in the letter. So how then did it believe this new rule would accomplish that goal? Here is the text of the proposed § 16.6(f)(3):

When a component applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist. This response should not differ in wording from any other response given by the component. (emphasis added)

Now that’s more than misleading, it’s false.

While some blogs applaud the department’s decision to drop the proposed policy, I’m still wondering how the department thought such a policy would jibe with a statute like FOIA in the first place. Said Grassley in a statement: “The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation.” Even if the Department of Justice decided, in Grassley’s words, that misleading the public would be wrong, it did so after considerable criticism and political pressure. Let’s not overlook that it initially thought misleading the public would be an acceptable remedy to its security concerns. It’s frightening to think that the department’s first instinct is to mislead.

Though, it should hardly be surprising. The president’s quickly-made pledge of transparency is inspiring but his administration repeatedly fails to keep that promise. Jon Swaine of The Telegraph listed several of Obama’s shortcomings in this regard. According to Swaine:

  • The Obama administration pursues whistle-blowers far more aggressively than the previous administration, using the Espionage Act to prosecute five alleged leakers. Only four other such cases had ever been brought by all other U.S. presidents.
  • The president continued his predecessor’s policy of keeping secret the legal reasoning behind highly controversial decisions, such as last month’s killing in Yemen of Anwar al-Awlaki, the senior al-Qaeda cleric, who was an American citizen.
  • Obama also promised to release logs of visitors to the White House. Yet only 1 percent of meetings have been listed and officials reportedly hold meetings in nearby coffee shops to deliberately avoid being subject to official logs.

This recent FOIA controversy will only add to the trend. Said Patrice McDermott, director of OpenTheGovernment.org: “The administration has an official commitment to transparency, but it has been very disappointing. There is widespread distress among openness and civil liberties campaigners.” Even with the controversial FOIA proposal now dead, that distress remains.

Justin graduated from Suffolk University Law School in 2011 and served as founding president of Suffolk Media Law. He is currently a contributor to the Citizen Media Law Project, where this post first appeared. You can contact him through his website, JustinSilverman.com, and follow him on Twitter at @MediaLawMatters.

(Image of American Redaction modified and used courtesy of Flickr user Truthout.org under a Creative Commons BY NC SA 2.0 license.)

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