A proposed rule change to the Freedom of Information Act would give federal agencies a special exemption when it comes to certain types of information requests. The change would allow agencies to tell citizens requesting certain law-enforcement or national security documents that records don’t exist – even when they do.
Under current rules of the FOIA, the government may withhold information and say that it can "neither confirm nor deny" the existence of such records. The new changes would give them a license to lie. The new proposal is part of a lengthy rule revision by the Department of Justice. Open-government groups object.
"We don’t believe the statute allows the government to lie to FOIA requesters,” Mike German, senior policy counsel for the American Civil Liberties Union told ProPublica. Obviously the group opposes the provision.
The ACLU, Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org said that this change would “dramatically undermine government integrity by allowing a law designed to provide public access to government to be twisted."
Advocacy groups propose different language: something along the lines of "you have requested …records which, if they exist, would not be subject to the disclosure requirements of FOIA…"
Advocacy groups also say that the proposed rule change could undermine judicial proceedings.
In a recent case brought by the ACLU of Southern California, the FBI denied the existence of documents, but the court later found that documents did exist. The judge on the case, U.S. District Judge Cormac Carney wrote in his decision that the “Government cannot, under any circumstance, affirmatively mislead the Court.”
The DOJ draft FOIA rule was published in March, but it re-opened comment submissions in September at the request of advocacy groups. The new comment period ended on October 19. The DOJ had no comment on the story written by ProPublica.
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