Department Of Justice Rule Change Would Deny Documents Exist, Even When They Do

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.

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Duane B.
.2 years ago

Thank you for sharing.

Sandra Labrecque
Sandra Labrecque2 years ago

This article was written over a year ago. Does anyone know if this change ever did become implemented? Jessica Pieklo: Any chance you could do a short follow-up piece, or even a paragraph to update the story?

Terry V.
Terry V.2 years ago

noted :(

Christine Diianni

People, call, write, fax the DOJ. This is so far over the top. We must stop O bama in 2012 or he will most likely get to appoint some other far-left liberal to the Supreme Court. Then say goodbye to the great freedoms that we enjoy. Gun, gone, freedomof speech, almost gone to say nothing about the federal government shutting down ALL communications on 11/09/2011 at 2PM to "test" the Emergency Alert System. We all know that test don't we, it's last a few seconds. This "test" will last 3 1/2 minutes and tv, radio, broadband will turn control over to the federal government ala what Mubarak did in Egypt just a few months ago. God help us if Obama is re-elected. Anybody but Obama and the D's, 2012.

Susan S.
Susan S.4 years ago

This is crazy. Government agencies should have to be truthful. There are three possibilities:
- The documents exist and we will provide them to you by x date.
- The documents exist but are not covered by the FOIA Act because....Therefore, we cannot provide them to you.
- The documents do not exist.

Duke D.
Duke D.4 years ago

Hitler did nothing criminal (or that is how it appeared to be) they simply bribed or coherst (Lead or silver your choice.) They changed the laws opening the door after door to their complete take over ultimately. Seems they (the Ultra Elitist) have moved this line so far along and have gotten so bold as to not need to cloak their betrayal of truth and decency or America as a concept of honor and purpose for the public good... Now they blatantly display their infidelity of these virtues shamelessly before all. There I said it, I'm done now.Thank you

Ira L.
Ira & Ellie L.4 years ago

ARE THEY KIDDING? Are we living in Nazi Germany? Write to the Justice Department and tell them if they do this we can no longer talk about "American Exceptionalism!" Greater transparency would be a basis for exceptionalism. Eric Holder, PLEASE do the right thing!!!

Portland Neola

This is not good!!!

If one has a family member MIA during a war, one will not get the proper information to proceed in the right direction in learning about or finding their family member.

If one grew up in a community exposed to toxic waste, again, one will not get the proper information to proceed in the right direction for obtaining compensation for medical costs.

If one had a relative killed by certain law enforcement personnel, again, one will not receive the proper information for pursuing justice.

And, this is only a few examples of a very long list of possible injustices!!!

This allows injustice to run even more rampantly through our local, state, and federal government systems.

THE CITIZENS OF UNITED STATES will never find or achieve closure during their—or even during their children’s— lifetimes!!! People will never be able to pursue and achieve justice!!!

JACarlton Author
jill c.4 years ago

make it ALL Transparent! Let the people make choices based on FACTS rather than spin.

Tom Sullivan
Tom C Sullivan4 years ago

Don't you just love Big Brother, this has been going for years.