OpenTheGov and CREW Join ACLU Comments: Allowing Agencies to Lie about Records Undermines FOIA

OpenTheGovernment.org joined the American Civil Liberties Union (ACLU) and Citizens for Responsibility and Ethics in Washington (CREW)  in submitting comments opposing a proposed rule that would allow agencies to lie about the existence of certain records in response to Freedom of Information Act (FOIA) requests.

The proposed rule would revise section 16.6 of the Department of Justice's (DOJ) FOIA regulations to allow agencies relying on an exemption under 5 USC section 552(c), which applies to certain law enforcement records and information on other sensitive national security investigations, to respond as if the documents did not exist. According to DOJ, the provision is intended to permit the government to avoid confirming the existence of responsive documents under FOIA requests when the mere confirmation that such records exist would damage ongoing investigations or reveal sensitive information the government is lawfully entitled to keep secret under FOIA.

As the comments point out, the proposed rule 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 provision would also impede the judicial review that Congress intended to ensure government agencies are properly interpreting FOIA exemptions.

Moreover, the proposed rule is unnecessary. The government can already craft a response to FOIA requests for the records in question that does not confirm whether excludable records exist without lying to the public.

We urge DOJ amend the rule so it does not authorize agencies to lie to requesters, or withdraw that section of the proposed rule.