The Justice Department is proposing new Freedom of Information Act rules allowing the government to inform the public that records do not exist even if they do. The proposal, published in the Federal Registrar for comment, may codify existing practice, as the government has already lied to requesters of public records that relevant documents 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.
Under the latest proposal, however, FOIA requesters might not sue to challenge the designation because the government has told them they did not exist, civil rights groups said. Documents may be withheld if they threaten to expose national security and for other privacy reasons, but ultimately the scope of disclosure is subject to a judge’s ruling if the requester sues.
The American Civil Liberties Union, Citizens for Responsibility in Ethics in Washington and OpentheGovernment.org said the proposal “will impede the judicial review that ensures government agencies are properly interpreting exemptions in the FOIA statute, and it will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people. ”
According to 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. ”
That said, judges aren’t very tough on the government when it does lie in FOIA cases.
Consider that, two weeks ago, 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 in a FOIA case brought by the ACLU.
Punishing the Central Intelligence Agency, U.S. District Judge Alvin Hellerstein of New York ruled, “would serve no beneficial purpose” because CIA officials responsible for producing the tapes might “not have been aware of the videotapes’ existence before they were destroyed.”
In April, a federal judge simply chastised the government for withholding documents in another ACLU public-records case, ruling the government cannot “mislead the court.”
