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Open-government groups protest rule allowing federal officials to lie

Nov. 1, 2011 - 06:00AM   |  
By ERIN KELLY   |   Comments
A Justice Department spokeswoman defended the Freedom of Information Act policy, saying if someone asks for informant records about a specific person and is told those records exist but cannot be released, it could endanger the informant by confirming that he is providing information to federal agents.
A Justice Department spokeswoman defended the Freedom of Information Act policy, saying if someone asks for informant records about a specific person and is told those records exist but cannot be released, it could endanger the informant by confirming that he is providing information to federal agents. (Staff)

Open-government groups are fighting a proposed Justice Department rule to allow federal law enforcement agencies to lie about the existence of government documents being sought by the public.

The proposed regulation applies to certain documents that members of the public may request under the Freedom of Information Act (FOIA). Some sensitive records including information about FBI informants are excluded from the requirements of the act because revealing them could tip off criminals or threaten public safety.

However, instead of denying a request, Justice Department officials would be told to "respond to the request as if the excluded records did not exist," even when they do.

"The government should never lie to the American people," said Mike German, a former FBI agent who is now the senior policy counsel for the American Civil Liberties Union. "To actually have it codified in a regulation that the government is allowed to lie is just untenable."

A spokeswoman for the Justice Department said the proposed rule does not represent a change in the agency's policy. She said a 1987 memo by former U.S. Attorney General Edwin Meese already instructs officials to deny the existence of certain sensitive records even when those records exist.

"The provision has been implemented for the past 25 years," said Justice Department spokeswoman Gina Talamona.

She said the policy has been in place for certain records that are excluded from the FOIA. Those exclusions include records about a law enforcement investigation in which the target may be unaware he or she is being investigated, records about informants whose identities have not been made public, and specific national security information maintained by the FBI.

"[The policy] is to ensure that our responses to a FOIA requester don't reveal the existence of excluded records," she said.

For example, she said, if someone asks for informant records about a specific person and is told those records exist but cannot be released, it could endanger the informant by confirming that he is providing information to federal agents.

But the ACLU and other open government groups say there are easy ways to protect sensitive information without deceiving the public. In a letter to the Justice Department, the ACLU, along with Citizens for Responsibility and Ethics in Washington (CREW), and OpenTheGovernment.org, offered a suggestion for how government officials can respond without lying.

"The agency should simply respond that, ‘We interpret all or part of your request as request for records which, if they exist, would not be subject to the disclosure requirements of FOIA ... and we therefore will not process that portion of your request,'" the groups wrote.

Anne Weismann, chief counsel at CREW, said, "We all recognize that there are legitimate reasons at a particular point of time that an agency may not want to disclose that it has certain documents.

"But there are ways to handle it short of lying," she said.

Open-government groups said it's disturbing that the Justice Department has already been operating with a policy of deception.

"They shouldn't be proud of the fact that they've been lying to the press and the public since 1987," said Ken Paulson, president and CEO of the nonpartisan First Amendment Center, which educates the public about free expression rights.

Creating a federal regulation would make the situation even worse by giving a bad policy the force of law, said Paulson, an attorney and former editor of USA Today.

"The insidious thing about this is that you never know when you've been lied to by the government, so how do you challenge them?" he said. "If they say a document doesn't exist, then what's your recourse? You're not going to file suit for a document that you've been told doesn't exist."

The current policy also distorts the intent of Congress when it passed amendments to the Freedom of Information Act in 1986, Weismann said.

"There was discussion about this in Congress at the time, and they did not authorize the agency to lie, regardless of what Ed Meese wrote in his memo," she said.

German and Paulson said they think the Obama administration deserves some credit for at least letting people know about the policy and allowing public comment.

The Justice Department, which came out with its proposed rule in March, reopened the public comment period this fall at the request of open-government groups who wanted to weigh in once they realized what was happening. Reopening the comment period, which was supposed to end in April, was "an extraordinary step," Talamona said.

The public comment period closed Oct. 19. The Justice Department is expected to come out with a final rule by the end of the year. If the controversial provision is not removed, it will be challenged in court, German said.

"We are grateful that they did reopen the comment period after we understood what they were doing," German said. "I would hope that they would be open-minded and see our recommendation as a solution. If not, I think it will completely destroy the integrity of the Department of Justice."

Erin Kelly reports for the Gannett Washington Bureau.

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