Feds Drop Plan to Lie in Public-Record Act Requests


By David Kravets, from Wired, November 3, 2011

Bowing to political pressure, the Justice Department abruptly dropped proposed revisions to Freedom of Information Act rules Thursday that would have authorized the government to inform the public that requested records do not exist even if they do.

The proposal would have granted the government a new option to state that documents relevant to a FOIA request did not exist. According to the Justice Department’s proposal, if the government believes records should be withheld, the government agency to which the request was made “will respond to the request as if the excluded records did not exist.”

Under normal practice, which seems Orwellian enough, the government may assert that it can neither confirm nor deny that relevant records exist if the matter involves national security.

Civil rights groups, and a host of lawmakers from both sides of the spectrum, had blasted the Justice Department’s original proposal.

“For five decades, the Freedom of Information Act has given life to the American value that in an open society, it is essential to carefully balance the public’s right to know and government’s need to keep some information secret,” said Senate Judiciary Chairman Patrick Leahy (D-Vermont.) “The Justice Department’s decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government.”

The American Civil Liberties Union, OpentheGovernment.org and Citizens for Responsibility and Ethics in Washington lobbied against the proposal, which the Justice Department said Thursday “falls short” in balancing openness with national security.

“Putting an end to lies about the mere existence of documents is one step toward restoring Americans’ trust in their government,” said Laura W. Murphy, the ACLU’s Washington, D.C. legislative director.

Still, the government has embraced lying even without FOIA being altered. And judges aren’t very tough on the government when it does lie in FOIA cases.

Last month, for example, a federal judge decided not to hold the CIA in contempt for destroying videotapes of detainee interrogations that included the use of a torture technique known as waterboarding, ruling instead that the spy agency merely committed “transgressions” for its failure to abide by his court order to produce them in a FOIA case brought by the ACLU.

One thought on “Feds Drop Plan to Lie in Public-Record Act Requests

  1. The FOIA law already has way too much weasel room.

    Agencies often say such things as:

    1. We don’t understand your request.
    2. We can’t produce the records you seek.
    3. The records are attorney work product
    4. Might jeopardize public safety, (but we won’t say how)
    5. Records were destroyed by the collapse of the Towers (PANYNJ)
    6. It’ll cost you so many hundreds of dollars for us to search.
    7. Request too broad.
    8. Request too narrow.
    9. It will be a year before we can get back to you.
    10. No records found, you have the right to appeal.

    Let me try to expand on each of these.

    1. We don’t understand your request. Why? Because your vocabulary doesn’t match what we use internally.. I asked for “root directories”. After much haggling they said they called them “inventories”.

    2. We can’t produce the records you seek. Why not? We don’t have the capability and you can’t talk to our IT person to figure out how. They want us to think everything is stored in cardboard boxes, off-site, and searching will be a never ending process. Baloney! they can scan anything paper and save on a small hard drive.

    3. The records are attorney work product. They say that the records were acquired from other agencies for litigation purposes and now that means they are attorney work product.

    4. Might jeopardize public safety, (but we won’t say how). This is the excuse we have been given for why the WTC drawings cannot be released, but they never have to explain exactly how.

    5. Destroyed by the collapse of the Towers (PANYNJ). They want us to believe that a multibillion dollar municipal corporation saves everything in cardboard boxes at the location that got destroyed. There is no possibility that copes were stored elsewhere or on a hard drive.

    6. It’ll cost you so many hundreds of dollars for us to search. They have asked to be paid in advance and there is no guarantee that you will get records after an anticipated lengthy search. If the search takes longer, you may have to pay more. if less time, you might get a partial refund.

    7. Request too broad. Some agencies refuse to accept the phrase, “any and all records.” They expect you to know their intrnal naming schemes. (see #1 above)

    8. Request too narrow. Some agencies give the excuse that your request doesn’t fit their definitions and want you to expand the request so they know what general area to look in.

    9. It will be a year before we can get back to you. Sometimes you never hear from them at all even though the law says they must respond on a definite time frame. No amount of prodding will shake them loose.

    10. No records found, you have the right to appeal. Often this means a formal civil action is required, and fees can be steep, upwards of $300 just to begin. Much legal mumbo jumbo is also required to talk to courts who are already overwhelmed by other workloads.. Then you have to play the court clerk’s games whose greatest weapon is delay and minor errors in paperwork that must be addressed or you lose your opportunity.

    Having said all of this, I continue to try to gather records that others can use to put their own 9/11 puzzles together. We had some significant breakthroughs this year that we are just beginning to study.

    Please visit 911datasets.com for the records or contact me if you want to help pull back the curtain.

    Thank you very much

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