VOL. 17 ISSUE NO. 43   | OCTOBER 26 – NOVEMBER 1, 2011


DoJ proposes agencies lie under new FOIA regulations

WASHINGTON – The Department of Justice reopened the public comment period on its proposed Freedom of Information Act (FOIA) Regulations published in the Federal Register on March 21, 2011, something it rarely does.

The revisions brought forth a letter dated Oct. 19, 2011 with joint comments from the ACLU, Citizens for Responsibility and Ethics in Washington (CREW), and OpenTheGovernment.org in opposition to a provision of the proposed rule, which would amend the DoJ’s FOIA Regulations by adding section 16.6(f)(2).

Section 16.6 addresses “Responses to requests” with paragraph (f)(2) stating: “When a component (federal agency) applies an exclusion to exclude records from the requirements of the FOIA pursuant to 5 U.S.C. 522(c), the component utilizing the exclusion will respond to the request as if the excluded records did not exist.”

In other words, the revised regulations would authorize government agencies to lie and say a record did not exist, rather than list the reasons for exclusion.

The ACLU’s joint comments state, “Authorizing government agencies to lie to FOIA requesters by affirmatively denying the existence of agency records when they actually exist undermines the purpose of FOIA, obstructs judicial review of agency FOIA decisions, and destroys integrity in government.”

The group urged the DoJ to amend the proposed section so it does not authorize a government agency to actively mislead a requester in response to their FOIA request or, in the alternative, “abandon its effort to adopt it by permanently withdrawing that portion of the proposed rule.”

Current regulations require agencies to notify FOIA requesters of a denial of the request and the reasons for the denial, while providing notice that the denial may be appealed.

It does not authorize the issuance of a misleading response stating no records exist when, in fact, they do exist but can be lawfully excluded from a response.

According to the joint ACLU letter, “[R]ecent litigation has made clear that, despite the regulations, the FBI is currently providing FOIA requesters with false statements denying that records exist. The proposed rule would authorize responding agencies to wholly mislead FOIA requesters by falsely denying that records exist.”

The group reiterated its opposition to the provision of the proposed rule, stating it is “inconsistent with FOIA’s purpose of compelling government accountability through public access to information, it will impede the judicial review that ensures government agencies are properly interpreting exemptions in 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.”

The organizations also state the rule is unnecessary, since the government can provide FOIA responses to requests for records falling within section 552(c) exclusions, which are truthful and informative, without confirming whether excludable records exist.

For example, the group suggested when responding to a request for records deemed excludable under section 522 (c), the agency should simply respond: “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 522 (c), and we therefore will not process that portion of your request.”

Such a response, they said, would not require any change to current FOIA regulations.
In their 11-page letter, the organizations stated, “If the DoJ adopts section 16.6(f)(2) of the proposed rule, it will be authorizing the FBI and other agencies to act in direct contravention of Congress’ intent when it passed the 1986 FOIA amendments on which this rule is based,” allowing agencies “to lie to the public about the existence of records – an idea that was proposed and rejected as unworkable during the debates that preceded the passage of the amendments.”

They said it will also undermine requesters’ ability to know when they are entitled to seek judicial review of an adverse determination, while allowing the government to “circumvent that level of accountability almost entirely.”

The group said it was “untenable to adopt a rule that so unambiguously flouts the intent of Congress and threatens to undermine the integrity of our government.”

Quoting from Islamic Shura Council v. FBI, a case brought by the ACLU, which said the court rightly closed its analysis of the government’s actions in misleading the court by stating, “Deception perverts justice. Truth always promotes it.”

The group concluded, “If adopted, section 16(f)(2) of the proposed rule would surely undermine the goals of FOIA and lead to a perversion of justice.”