January 25, 2012

Lying about public records

Reason's Jacob Sullum writes how recent Department of Justice memos belie President Obama's commitment to open government:

When he took office, Barack Obama promised “an unprecedented level of openness in Government.” As part of that commitment, he pledged fidelity to the Freedom of Information Act (FOIA), which he called “the most prominent expression of a profound national commitment to ensuring an open Government.”

It is hard to reconcile these lofty memos with the Justice Department’s proposed regulation instructing federal agencies to falsely deny the existence of records sought under FOIA. But at least the Obama administration, which withdrew the regulation in November following a flood of criticism, is open about its desire to mislead us.

At issue is how federal agencies are to respond to FOIA requests when "confirming the existence of records would tip off the target of a criminal investigation, compromise a confidential informant, or reveal classified information."

Past practice was to neither confirm or deny the existence of the records. But the Department of Justice proposed telling agencies to respond as if the records didn't exist at all.

With this rule change, record requesters would be at a disadvantage "since requesters cannot demand a justification for withholding records they do not know exist, [and] agencies would not have to convince a court that the information they believe qualifies for a FOIA exemption actually does."

Even though Attorney General Holder backed off the proposed rule change soon after it became public, it makes you wonder if this practice isn't already going on.