Justice Department Wants To Be Able To Lie In Response To Freedom Of Information Requests

from the how-the-doj-views-freedom dept

The era of government anti-transparency continues. Reports have come out about a proposal from the Justice Department to allow federal agencies to flat-out lie in response to Freedom of Information Act (FOIA) requests. No, we’re not joking. Under current law, documents that don’t need to be revealed — for national security reasons, for example — lead to a response saying that the government “can neither confirm nor deny the existence of records.” That, at least, leads to the possibility of an appeal and potential court case to make sure the government is legally allowed to withhold such documents.

However, the new DOJ proposal would let federal agencies go even further, and flat-out deny the existence of documents it doesn’t believe are subject to release — even if they exist. And while it’s true that people could still appeal, most people are much less likely to do so if they believe that the documents don’t exist, rather than being told that they may be there, but the government just doesn’t want to reveal them.

This seems like a stunning move by the government that goes beyond even its general opacity on FOIA requests. To seek permission to flat out lie to the public just seems ethically and legally dubious.

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Comments on “Justice Department Wants To Be Able To Lie In Response To Freedom Of Information Requests”

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abc gum says:

Re: Re: You expect TRUTH from governments?

“The top 1% donates a higher percentage of their income to charity than the other 99%”

You look very impressive riding upon your high horse.
In the absence of a citation let’s assume this statistic is correct. Where do these donations go? Given the high probability that at least some of these donations are going to fund political campaigns and PACs, your horse begins to look a bit smaller. Also, wth do you expect?

Ninja (profile) says:

Re: Re: Re:

That. The ones that wouldn’t be corrupted are probably disgusted of the institutions and won’t go near them. And when they try they end up dead, murdered.

I do think you can ‘corrupt’ any1 if using the right methods (who wouldn’t cave in if some1 threatened their family?) but that’s discussion for another day.

bjupton (profile) says:

Re: Re: Re:

In fact, the more of a PITA it is to get into a position of power, the more likely you are to get highly corrupt and/or otherwise nasty people in power.

Why would a person want to become President? It is a huge pain. In order for the cost/benefit to work out, all of that needs to be counterbalanced by the benefits. Therefore, people with deep seated psychological problems and the extremely corrupt are more likely to want to gain power.

MrWilson says:

Ministry of Justice: “You have the freedom to request information and we are obligated to provide you with information, just don’t expect that the information we provide is truthful.”

This reminds me a smartass comment kids would make when I was young – “I can answer any question in the world.” When asked a question, they’d proudly point out that they didn’t say that they could answer any question correctly. That’s the maturity level we’re dealing with in regards to the DOJ here.

DCX2 says:

Re: Mistyped Headline?

I thought the same thing, too. Then I realized that the CIA destroyed the videos of waterboarding in violation of a court order, and the Judge whose court order they violated said they merely committed “transgressions” and would suffer no sanctions at all.

I wonder if I could destroy evidence in contempt of court and get the Judge to say “oh, it’s only a transgression…”

A Guy (profile) says:

Wow… just wow.

I keep wanting to find a Republican replacement because of exactly this kind of crap.

They might be just as corrupt, but when it doubt throw the bums out.

However, Huntsman is the only one who has the intelligence and the sane policy stances to be palatable and he has no chance due to his sane policy stances.

Ron Paul is okay too, I think he may be the closest thing to uncorruptible we have. If only some of his views weren’t so bat shit crazy he may be president right now.

I really don’t want to be forced to vote for Obama, but the Republican front runners are so much worse it’s hard to know what to do.

Ninja (profile) says:

Re: Re:

The current American electoral system is flawed, failed and morally bankrupt (can I say that?). There’s a need of reform before the Americans can get out of the prison that was installed around them. But guess who has the power to change that system? The Government.

My friend… You are screwed. And so are most of us, hence the #ows movement.

Jay (profile) says:

Re: Re: Re: Re:

That’s a problem with the US first past the post system. If we ever used an alternative vote system, people would have a choice in the matter. Until that time, it’s a choice of Perry/Romney vs Obama.

NONE of them are what anyone want. But they’ll get the most votes because a third party will split the vote.

I’m worried about the next 4 years.

pixelpusher220 (profile) says:

Re: Re:

“Ron Paul is okay too, I think he may be the closest thing to uncorruptible we have. If only some of his views weren’t so bat shit crazy he may be president right now.”

Emphasis on ‘bat shit crazy’. He sounds good until you actually start asking questions about the details. Much like Libertarianism itself.

A Guy (profile) says:

Re: Re: Re:

I actually do like Ron Paul. I have a strong libertarian streak in me, but he takes it too far in many regards. His platform needs to be tempered with more incremental, practical steps toward his policy goals. As it is, he kind of dumps a plan/platform that could keep a major political party busy for 100 years and hopes the voters understand why it is important.

No one is quite sure what he would do in office because his platform is too different and most (sane) people won’t vote for policies when they don’t really feel like understand the implications.

I use ‘feel like’ because a lot of people will vote for oversimplified, dumb plans with broad and horrible implications because it sounds simple even if they don’t really understand it. (see 999 plan)

DMNTD says:

Re: Re: Re: Re:

I see what you are saying, but I have to say this idea of slow reform is dead, it’s been dead for at least 20 years now. I for one am glad of the strong, upfront, and crucial platform he has taken, it’s needed severely at this time.

I am confused by how he’s too different? He has been firm on every account being a politician, what he voted against etc once he will do it again. Unlike most who have actually had a chance to make real change. I am ready for heavy feet in the house, so I am voting for Ron P. If voter’s don’t understand then count me as something else, because I do.

Anonymous Coward says:

Misleading the court

From a link embedded within the linked article, an excerpt form Judge Carney’s April 2011 amended order:

The Government?s in camera submission revealed that the Government initially misled the Court in two material respects. First, the Government?s representations regarding its use of ?outside the scope? were inaccurate.?.?.?. Second, the Government?s representations regarding the number of responsive documents were false.?.?.?.

Realizing the Government misled the Court, the Court immediately scheduled and held an in camera hearing on May 14, 2009 with counsel for the Government. The Court indicated that it did not believe that the Government had any authority to mislead the Court. The Government argued otherwise and requested an opportunity to brief the issue for the Court. The Government filed its supplemental brief on June 19, 2009, and the Court held an additional in camera hearing on June 23, 2009. After carefully considering the evidence and arguments of the Government, the Court is convinced that what the Government did here was wrong.

Joe Publius (profile) says:

If we could act like the DOJ:

Prosecutor: Where were you on the night of January 12th?
Witness: I’m sorry, but I don’t believe I was alive to witness any thing on that night.

Customer: Can a have a burger and fries?
Register: I regret to inform you that we do not serve burgers and fries here.
Customer: But it’s on the menu.
Register: I regret to inform you that we do not serve burgers and fries here.
repeat until the customer leaves

Lady: Do you have protection?
Guy: No such thing!

Aaron *Head* Moss says:

Re: Re:

Customer: Can a have a burger and fries?
Register: I regret to inform you that we do not serve burgers and fries here.
Customer: But it’s on the menu.
Register: I regret to inform you that we do not serve burgers and fries here.
repeat until the customer leaves

I’ve been to a pizza place in Watsonville, CA like that. Wow.

out_of_the_blue says:

Mike's LACK of indignation pretty much illustrates the /actual/ problem:

“To seek permission to flat out lie to the public just seems ethically and legally dubious.”

COME ON. That’s /all/ you can do for outrage? SEEMS? Your public servants just said they’re going to LIE to you. I’ve said worse at finding part of a cookie missing.

Speaking truth to power requires clarity, Mike.

Stuart says:

The real problem

The real problem is not the election system.
There are 2 problems.
1) Corporate Personhood.
This is seriously skewing elections.
2) The people voting.
47% of people in the US will pay 0 federal income taxes.
These people vote for free new stuff because it costs
them nothing. It is easy to promise free shit and get

John Fenderson (profile) says:

Re: Re: The real problem

Yeah, that “half of people don’t pay taxes” thing irks me too. Even with regard to federal income taxes specifically, it isn’t really true. If you work, you’re paying income taxes. Your employer pays a portion in addition to you. Even of you get 100% of your witholding back, the employer’s portion is still paid.

Joe Publius (profile) says:

Re: The real problem

Corporate Personhood.

Since the whole “Occupy …” movement started, I’ve been hearing this as the new bugbear facing our society. I think we should be careful when we tote out “Corporate Personhood” because I think there is room for nuance. The idea isn’t that bad really, especially when it comes to financial matters, treating a corporation as a person makes sense when it comes to the books.

I will say that corps donating money doesn’t bother me nearly as much as the privacy they’re allowed. Corporate personhood definitely doesn’t apply when it comes to them giving money to politicians.

Cloksin (profile) says:

Ok, lets think about this for a second. FOIA was put in place so that the American public can have access to government documents. With the DOJ asking for permission to LIE when it receives FOIA requests, it might as well be saying “Hey, lets just get rid of this stupid FOIA thing”. If they are granted permission to lie about it, we MIGHT AS WELL get rid of it and stop fooling ourselves already.

Anonymous Coward says:

Okay, feels like I need to weigh in here. FOIA’s my job, and I’ve come to know the law pretty much inside and out. I make mistakes, but I’m fairly confident in my knowledge of this extremely narrow aspect of law.

For what it’s worth, this isn’t news, and it isn’t DOJ overreach. The ACLU case was FOIA Incompetence, which is distressingly common, but that’s another issue.

What they’re trying to invoke is right there in the law, and has been there since 2006. Or 2007, depending on who you ask, I guess. 5 U.S.C. ?552 (c)(1), (c)(2), (c)(3). Not sure why it isn’t talked about, considering it’s public law and all.

Anyway, those are what are called the “FOIA Exclusions,” and they are specific cases, generally dealing wiht very sensitive issues, in which a no records response is acceptable because records that would be responsive to the request are not subject to the FOIA. This was added specifically for situations in which “GLOMAR” was not sufficient.

DOJ publishes a handbook of FOIA guidance which explicitly states that, when it comes under judicial review, it should be ex parte, based upon an in camera filing submitted directly to the judge. Because the whole point of the FOIA exclusions is to conceal knowledge of the existence of records (in an extremely narrow and sensitive fashion, mind you), all judicial reviews of “no records” responses which would potentially invoke an exclusion should have this ex parte review and in camera filing. Sadly, this appears to not have been the case in the ACLU litigation.

DOJ wants to modify their instruction to account for the change in the law. It’s not adding somehting new so much as providing guidance for a change in the law more recent than their most recent revision of their instructions. DOJ’s playing catch-up to the congresscritters, they’re not making up new rules wholecloth.

From the article, the advocacy groups propose another response: You have requested ??records which, if they exist, would not be subject to the disclosure requirements of FOIA…?’

They’re arguing for clearer language, but nothing substantially different from the standard “no records” response. The standard response is that “no records responsive to your request exist,” or somehting to that effect. The point of the exclusions is that they carve out a narrow band of particular cases in which they are not subject to the FOIA. “Records responsive to your [FOIA] request” implies “records subject to the FOIA.” As the exclusions are publicly posted, a reasonable individual would be expected to account for the fact that excluded records may exist before proceeding to litigation.

TL;DR Version:

The law’s been there for years, DOJ is updating their guidance to account for it. FBI tried applying exclusions without taking into account procedural concerns. If you don’t like the idea of exclusions (after knowing what exactly they apply to), blame the 110th Congress (and perhaps GWB).

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