The Justice Department wants to give government agencies permission to lie to FOIA filers, Jennifer LaFleur of ProPublica reports:
A proposed rule to the Freedom of Information Act would allow federal agencies to tell people requesting certain law-enforcement or national security documents that records don’t exist — even when they do.
Under current FOIA practice, the government may withhold information and issue what’s known as a Glomar denial that says it can neither confirm nor deny the existence of records.
The new proposal—part of a lengthy rule revision by the Department of Justice — would direct government agencies to “respond to the request as if the excluded records did not exist.”
The last resort in a FOIA dispute is to sue for access to records. If applicants are told that the records do not exist, they may be less likely to press their case in court. Open government groups say that if the rules must be changed, they’d prefer something along the lines of “You have requested “…records which, if they exist, would not be subject to the disclosure requirements of FOIA…”
In case of a lawsuit, the government is not allowed to lie to the court about whether the records exist, LaFleur notes.
The worst-case scenario for investigative journalism and democracy is that the government will lie when the records exist.
But it seems to me that, far from discouraging FOIA filers from suing, the DOJ’s proposed change would provide an incentive to sue. If filers know upfront they can’t trust the government when it says that records don’t exist, they’ll be more likely to take their cases to court to get an honest answer.
Sometimes the records really don’t exist. In those cases, having to go to court to find out the truth is a waste of time and resources. The government, the courts, journalists, and the public will all be better off if we can continue to take an honest “no” for an answer.
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