The Department of Justice is proposing a rule change to the Freedom of Information Act that would allow agencies to tell people requesting certain national security or law-enforcement related documents- that those records don’t exist. Even if they do.
The practice is actually already in existence. Known as a Glomar denial, it allows government agencies to withhold information and issue a denial that says it can neither confirm nor deny the existence of the requested records. The Glomar denial allows the government to maintain a privilege around certain records while not circumventing, even incidentally, the requester’s ability to later sue for confirmation that the records don’t exist or to force disclosure.
The change proposed by the Department of Justice would direct agencies to respond to a FOIA request as if the excluded documents did not exist. This change, while seemingly subtle, essentially changes the entire posture of the government’s response from one of protection to one of misdirection.
Advocacy groups like the American Civil Liberties Union and Citizens for Responsibility and Ethics in Washington would prefer to see the response changed to something like: You have requested “….records which, if they exist, would not be subject to the disclosure requirements of FOIA….”
This language is better, they argue because if the proposed rule passes, people requesting information might, when faced with this new response, assume that information does not exist and fore go suing to obtain the records.
DOJ’s proposed FOIA rule was first published in March, but the Department re-opened comment submissions in September. That comment period ended October 19th and so far DOJ issued any further statements.
Open government groups have good reason to be concerned. There are plenty of examples of government officials at both the state and federal level denying the existence of documents only to have them resurface after-the-fact. This proposed rule change would effectively codify that deception and leave citizens with no appropriate avenue for demanding transparency in government action. The Obama administration promised greater transparency in government. This is not it.
Photo from steakpinball via flickr.