New DOJ Proposal Could Allow Agencies to Deny Documents' Existence

[Paslode]

Imagine if AG Holder could just say the documents didn't exists in Fast & Furious, Solyndra and all the other schemes and scams running wild in the Obama Administration....


Oct 25, 2011
Did DOJ Watch Too Much Fight Club? New Proposal Could Allow Agencies to Deny Documents' Existence


You do not talk about glomar documents
By DANA LIEBELSON

The first rule of Fight Club is that you do not talk about Fight Club--but what if that rule also applied to certain government records? The Department of Justice (DOJ) has made a proposal that would win Tyler Durden's approval: empower agencies to mislead FOIA requesters about the existence of certain sensitive documents.

The proposal relates to sensitive requests for national security and law enforcement documents, such as in cases where the request would disclose the name of an individual still under criminal investigation. Currently, agencies are permitted to issue a “Glomar denial” to these requests, in which an agency tells a FOIA requester that it can neither confirm nor deny the existence of the records.

But according to a proposed rule revision submitted by the DOJ in March 2011, when a government agency decides to “exclude records from the requirements of FOIA…the [agency] will respond to the request as if the excluded records did not exist” (emphasis added).

Several good government groups have spoken out against the proposed rule revision. POGO said in a public comment that the revision would permit agencies to "present a false and misleading FOIA response regarding certain law enforcement records."

Meanwhile, our friends at the ACLU, CREW, and OpenTheGovernment.org wrote that “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…and destroys integrity in government.”

According to the letter, the propsoed revision is also problematic because it could thwart the judicial review process for obtaining the documents. “Few reasonable requesters would litigate FOIA denials where their requests were denied on the grounds that no documents exist, because as far as they would know there would be nothing for a court to compel the government to disclose,” the groups wrote.

The ACLU/CREW/OpenTheGovernment.org letter provides a commonsense alternative to the DOJ’s proposal. Instead of denying that the records exist, the groups suggest, why not simply acknowledge the request, but say the documents are not subject to disclosure requirements?

Specifically, the agency could respond that “we interpret all or part of your request as a request for records which, if they exist, [are] not subject to the disclosure requirements of FOIA.”

ProPublica reported that the DOJ reopened comment submissions on the proposal in September at the request of open government groups. This period ended October 19.

The official submission period may be closed, but it’s not too late to write the DOJ and protect FOIA using the seventh rule of Fight Club: “fights will go on as long as they have to.”

Dana Liebelson is POGO's Beth Daley Impact Fellow.

http://pogoblog.typepad.com/pogo/2011/10/did-doj-watch-too-much-fight-club-new-proposal-could-allow-agencies-to-deny-documents-existence.html

POGO's letter to the Office of Information Policy:

http://www.pogo.org/pogo-files/letters/government-secrecy/gs-foia-20111019.html

And the Document causing all the ruckus:

http://www.gpo.gov/fdsys/pkg/FR-2011-03-21/html/2011-6473.htm

(1) In the event that a component identifies records that may be
subject to exclusion from the requirements of the FOIA pursuant to 5
U.S.C. 552(c), the head of the FOIA office of that component must
confer with the Office of Information Policy (OIP) to obtain approval
to apply the exclusion.
(2) When a component applies an exclusion to exclude records from
the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component
utilizing the exclusion will respond to the request as if the excluded
records did not exist. This response should not differ in wording from
any other response given by the component.

[BOfH]

Ah, he alluded to this here(at 0:30-0:42 or so): http://www.youtube.com/watch?v=72g7qmeP1dE. Right, no existence = no secrecy = transparent to Manipulator in Chief and his crony's.

[Box]

its known as transparency...
...if it is there and you cant see it, then it must be transparent.

Besides, most documents are just a distraction from the great work being done.




Nothing to see here... Move along

[1stindoor]

I predict it won't be long before we have our next mega poser claiming that his records can neither be confirmed or denied by a FOIA request.

Wofgang is probably laughing his a$$ off right now!

[greenberetTFS]

I predict it won't be long before we have our next mega poser claiming that his records can neither be confirmed or denied by a FOIA request.

Wofgang is probably laughing his a$$ off right now!

Your probably right,looks like getting poser records are over............:eek:

Big Teddy :munchin

[mark46th]

It would have been easy to say a document doesn't exist a few years ago. But with the advent of copiers and someone involved in something questionable with enough S/A to understand the value of possesion of CYA documents, it may be hard to pull off...

[Team Sergeant]

We need to put some of the DoJ folks on trial.....


Justice Department Proposes Letting Government Deny Existence of Sensitive Documents
By Shannon Bream

Published October 26, 2011
FoxNews.com

A longtime internal policy that allowed Justice Department officials to deny the existence of sensitive information could become the law of the land -- in effect a license to lie -- if a newly proposed rule becomes federal regulation in the coming weeks.

The proposed rule directs federal law enforcement agencies, after personnel have determined that documents are too delicate to be released, to respond to Freedom of Information Act requests "as if the excluded records did not exist."

Jay Sekulow, Chief Counsel of the American Center for Law and Justice, says the move appears to be in direct conflict with the administration's promise to be more open.

"Despite all the talk of transparency, I can't think of what's less transparent than saying a document does not exist, when in fact, it does," Sekulow told Fox News.

Justice Department officials say the practice has been in effect for decades, dating back to a 1987 memo from then-Attorney General Edwin Meese.

In that memo, and subsequent similar internal documents, Justice Department staffers were advised that they could reply to certain FOIA requests as if the documents had never been created. That policy never became part of the law -- or even codified as a federal regulation -- and it was recently challenged in court.

Earlier this year, in a case involving the Islamic Council of Southern California brought against the FBI after the plaintiffs learned about the existence of documents denied by the FBI, a federal judge in California expressed great concern about the agency using the internal policy not only in response to the FOIA but to mislead the court.

"The government, cannot, under any circumstance, affirmatively mislead the court. … The court simply cannot perform its constitutional function if the government does not tell the truth," the judge wrote in a stinging rebuke.

A final version of the proposal could be issued by the end of 2011. If approved, the new rule would officially become a federal regulation with the force of law.

But the Justice Department got so much pushback in response to the proposal that it took the unusual step of re-opening the public comment period after it had already been closed. That second comment period closed last week.

When the new comment period began, the American Civil Liberties Union became one of the most vocal critics of the proposal. Mike German, Policy Counsel with the ACLU, authored a lengthy letter in opposition.

"It's shocking that you would twist what is supposed to be a statute -- that's supposed to give people access to what the government is doing -- in a way that would allow the government to actually mislead the American public," German told Fox News.

Melanie Ann Pustay, director of the Justice Department's Office of Information Policy, said the entire consideration process for the proposal "has been open and transparent."

She also notes that sensitive information requires special consideration.

"To ensure that the integrity of the exclusion is maintained, agencies must ensure that their responses do not reveal the existence of excluded records," Pustay said.

Sekulow says he is not buying that argument, and argued that FOIA requesters who get a response telling them that officials can neither confirm or deny the existence of documents now can at least go to court to sue for more information.

If they're told that no documents exist, there is no basis for a legal challenge at all, Sekulow said.

"The real concern is here is it changes the entire dynamic of what the law was intended to do, and really gives the Department of Justice the upper hand in area where they shouldn't have it."



Read more: http://www.foxnews.com/politics/2011/10/26/justice-department-proposes-letting-government-deny-existence-sensitive/?test=latestnews#ixzz1bupjVH3q


Read more: http://www.foxnews.com/politics/2011/10/26/justice-department-proposes-letting-government-deny-existence-sensitive/?test=latestnews#ixzz1bupeIDBB







http://www.foxnews.com/politics/2011/10/26/justice-department-proposes-letting-government-deny-existence-sensitive/?test=latestnews

[Sigaba]

Ironically, the attached document still exists.

[tonyz]

The link below may be of interest:


ATTORNEY GENERAL'S MEMORANDUM
ON THE 1986 AMENDMENTS TO THE
FREEDOM OF INFORMATION ACT

A MEMORANDUM FOR THE EXECUTIVE DEPARTMENTS AND AGENCIES CONCERNING THE LAW ENFORCEMENT AMENDMENTS TO THE FREEDOM OF INFORMATION ACT, 5 U.S.C. § 552, ENACTED AS THE FREEDOM OF INFORMATION REFORM ACT OF 1986, §§ 1801-1804 OF THE ANTI-DRUG ABUSE ACT OF 1986, 100 STAT. 3207, 3207-48 (OCTOBER 27, 1986).

UNITED STATES DEPARTMENT OF JUSTICE
Edwin Meese III, Attorney General
December 1987


http://www.justice.gov/oip/86agmemo.htm

Excerpt:

The FOIA Reform Act expands the protections available for law enforcement records under Exemption 7 by broadening its language virtually throughout the exemption and its subparts. The first of these modifications can be found in the introductory language of Exemption 7, which establishes the threshold requirement that must be met before consideration can be given to the applicability of one or more of the exemption's six subparts.

Prior to the FOIA Reform Act, Exemption 7's protections were available only to "investigatory records compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7) (1982).(8) The Reform Act modified this threshold requirement in two distinct respects -- by deleting the word "investigatory" and by adding the words "or information" -- so that Exemption 7 now extends potentially to all "records or information compiled for law enforcement purposes." 5 U.S.C. § 552(b)(7), as amended by Pub. L. No. 99-570, § 1802 (1986).

[Box]

Ironically, the attached document still exists.

Its a neat document, but in printed form a pack of Charmin holds more intrinsic value.
Smoke and mirrors only give the "appearance" of transparency; how else do you think magicians make elephants disappear?

"Transparency? ...we never said that"


...besides if it becomes controversial Holder will just push to deny that it ever existed

[Badger52]

And the STASI never heard of you, have no record of your whereabouts (or your arrest, the case against you, your interrogation, or the disposition of your remains...)