It’s not often that the liberal American Civil Liberties Union and conservative Judicial Watch agree on anything, but the Obama administration’s lack of transparency has brought the two together.
The Justice Department has proposed a regulatory change that would weaken the Freedom of Information Act. Under the new rules, the government could falsely respond to those who file FOIA requests that a document does not exist if it pertains to an ongoing criminal investigation, or concerns a terrorist organization or a counter-intelligence operation involving a foreign nation.
There are two problems with the proposal to allow federal officials to affirmatively assert that a requested document doesn’t exist when it does. First, by not citing a specific exemption allowed under the FOIA as grounds for denying a request, the proposal would cut off a requestor from appealing to the courts. By thus creating an area of federal activity that is completely exempt from judicial review, the proposal undercuts due process and other constitutional protections. Second, by creating a justification for government lying to FOIA requestors in one area, a legal precedent is created that sooner or later will be asserted by the government in other areas as well.
Under FOIA’s current national security exemption, bureaucrats can already deny access to documents without acknowledging their existence. This was noted by the ACLU (joined by Citizens for Responsibility and Ethics in Washington and OpentheGovernment.com) in a comment on the proposal. In instances where there is a legitimate grounds for not confirming a document’s existence, “the agency should simply respond that ‘we interpret all or part of your request as a request for records which, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we therefore will not process that portion of your request.’ This response requires no change to the current FOIA regulation.” Such a response would preserve a requestor’s right to appeal to a federal court.
Chris Farrell, director of investigations and research for Judicial Watch, may have the answer for why the Obama administration wants the new liar’s rule. Judicial Watch has been fighting the White House over a FOIA request for copies of its visitor logs. The White House insists, absurdly, that the documents are not theirs but belong to the Secret Service.
“Every day,” Farrell notes, “the Obama administration misrepresents and conceals the true, complete record of who is going in and out of the White House — all the while proclaiming themselves champions of transparency. It’s truly Orwellian.”
The proposed new rule could add a patina of legality to the refusal to acknowledge the existence of the visitors logs as White House documents. Despite its flaws, FOIA is one of the few checks on excessive executive branch power. It should not be weakened by this proposed “license to lie.”