New Rule: Government Can Lie About Existence of Records to FOIA Requests

[TalkingDog]

http://www.propublica.org/article/government-could-hide-existence-of-records-under-foia-rule-proposal

A proposed rule to the Freedom of Information Act would allow federal agencies to tell people requesting certain law-enforcement or national security documents that records don’t exist – even when they do.

Under current FOIA practice, the government may withhold information and issue what’s known as a Glomar denial that says it can neither confirm nor deny the existence of records.

The new proposal – part of a lengthy rule revision by the Department of Justice – would direct government agencies to “respond to the request as if the excluded records did not exist."

snip

"We don’t believe the statute allows the government to lie to FOIA requesters,” said Mike German, senior policy counsel for the American Civil Liberties Union, which opposes the provision.

/snip

There we go... good government at work.

[RC]

1. How is this Rule different from something the bu$h administration would do?

[ixion]

8. no difference, it's the same

it's their world, we're just trying to survive in it. :argh:

[Better Believe It]

12. This is a new government coverup/secrecy/lie rule that even the Bush government hadn't considered!

[IndyPragmatist]

2. Rescind President Obama's 'Transparency Award' now

Rescind President Obama's 'Transparency Award' now
The Obama administration's record on secrecy and surveillance is a disgrace and should not be sanitised by unearned prizes
http://www.guardian.co.uk/commentisfree/cifamerica/2011/jun/14/rescind-barack-obama-obama-transparency-award

Bradley Manning: signatories regard his abusive treatment in a military brig as a warning to government whistleblowers from the Obama administration. Photograph: AP

On 28 March 2011, President Obama was given a "transparency award" from five "open government" organisations: OMB Watch, the National Security Archive, the Project on Government Oversight, the Reporters Committee for Freedom of the Press and OpenTheGovernment.org. Ironically – and quite likely in response to growing public criticism regarding the Obama administration's lack of transparency – heads of the five organisations gave their award to Obama in a closed, undisclosed meeting at the White House. If the ceremony had been open to the press, it is likely that reporters would have questioned the organisations' proffered justification for the award, in contrast to the current reality:

• President Obama has not decreased, but has dramatically increased governmental secrecy. According to a new report to the president by the Information Security Oversight Office (ISOO) – the federal agency that provides oversight of the government's security classification system – the cost of classification for 2010 has reached over $10.17bn. That's a 15% jump from the previous year, and the first time ever that secrecy costs have surpassed $10bn. Last month, ISOO reported that the number of original classification decisions generated by the Obama administration in 2010 was 224,734 – a 22.6% jump from the previous year (see The Price of Secrecy, Obama Edition).

• There were 544,360 requests for information last year under the Freedom of Information Act to the 35 biggest federal agencies – 41,000 requests more than the year before. Yet the bureaucracy responded to 12,400 fewer requests than the prior year, according to an analysis by the Associated Press.
• Obama has invoked baseless and unconstitutional executive secrecy to quash legal inquiries into secret illegalities more often than any predecessor. The list of this president's invocations of the "state secrets privilege" has already resulted in shutting down lawsuits involving the National Security Agency's illegal wiretapping – Jewel v NSA and Shubert v Obama; extraordinary rendition and assassination – Anwar al-Awlaki; and illegal torture – Binyam Mohamed.

• Ignoring his campaign promise to protect government whistleblowers, Obama's presidency has amassed the worst record in US history for persecuting, prosecuting and jailing government whistleblowers and truth-tellers. President Obama's behaviour has been in stark contrast to his campaign promises, which included live-streaming meetings online and rewarding whistleblowers. Obama's department of justice is twisting the 1917 Espionage Act to press criminal charges in five alleged instances of national security leaks – more such prosecutions than have occurred in all previous administrations combined.

There is more at: http://www.guardian.co.uk/commentisfree/cifamerica/2011/jun/14/rescind-barack-obama-obama-transparency-award

[villager]

4. Rescind any ability to utter the words "hope" or "change" on the campaign trail next time...

n/t

[formercia]

3. The 'Government' had already been doing that for Years.

This would just make it chiseled in stone.

[MADem]

5. That's not a good idea, IMO. I prefer the redacted paperwork.

We all know a Glomar denial means "We have it and we're not gonna give it to you" but a redacted release gives one an idea as to the amount of stuff they've got, if not the content.

To go further than Glomar is just wrong. I am rooting for ACLU on this 'un.

It's not a done deal yet. We'll see what the courts say.

[leftyohiolib]

6. just one more example of changing the way things are done in washington

i did hear him say that didnt i?

[kristopher]

7. The specific text of affected rule here, plus proposed change

Proposed amendment
(f) Use of record exclusions.
(1) In the event that a component identifies records that may be
subject to exclusion from the requirements of the FOIA pursuant to 5
U.S.C. 552(c), the head of the FOIA office of that component must
confer with the Office of Information Policy (OIP) to obtain approval
to apply the exclusion.
(2) 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.



5 U.S.C. 552(c)
...(c)(1) Whenever a request is made which involves access to records described in subsection (b)(7)(A) and--

(A) the investigation or proceeding involves a possible violation of criminal law; and

(B) there is reason to believe that (i) the subject of the investigation or proceeding is not aware of its pendency, and (ii) disclosure of the existence of the records could reasonably be expected to interfere with enforcement proceedings, the agency may, during only such time as that circumstance continues, treat the records as not subject to the requirements of this section.

(2) Whenever informant records maintained by a criminal law enforcement agency under an informant's name or personal identifier are requested by a third party according to the informant's name or personal identifier, the agency may treat the records as not subject to the requirements of this section unless the informant's status as an informant has been officially confirmed.

(3) Whenever a request is made which involves access to records maintained by the Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information as provided in subsection (b)(1), the Bureau may, as long as the existence of the records remains classified information, treat the records as not subject to the requirements of this section.

The two referenced paragraphs in (c))1) above:
Text of (b)(7)(A)
...(7) records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information (A) could reasonably be expected to interfere with enforcement proceedings


Text of (b)(1)
(b) This section does not apply to matters that are--

(1)(A) specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy and (B) are in fact properly classified pursuant to such Executive order;

[truebrit71]

9. Plus ca change...

I wish I could get all worked up about this, but I am fresh out of outrage...

"Change" my ass....

[Nye Bevan]

10. "Government can lie" and "Freedom of Information" are mutually contradictory (nt)

[Ilsa]

11. Oh great. Another big "Fuck You" from our government to its citizens. nt

[Better Believe It]

13. Can you imagine what it would be like if President Obama wasn't a pro-transparency liberal?

Aren't we lucky!

[Faryn Balyncd]

14. Sounds like something John Yoo would gin up.

[DeSwiss]

15. Kick!

:mad: