Holder Nixes Rule Telling Agencies to Lie About FOIA Records

In response to public criticism, the Justice Department has withdrawn a proposed rule that would have instructed federal agencies to falsely deny the existence of certain documents requested under the Freedom of Information Act (FOIA). The rule, which I discussed in my column yesterday, applied to records covered by Section 552(c), a 1986 amendment that addresses situations where confirming the existence of records would tip off the target of a criminal investigation, compromise a confidential informant, or reveal classified information. In such cases, agencies "may treat the records as not subject to the requirements of" FOIA. The Justice Department interepreted that to mean that agencies should "respond to the request as if the excluded records did not exist." Last week Charles Grassley (R-Iowa), the ranking Republican on the Senate Judiciary Committee, threatened to block the rule, suggesting that lying is unnecessary when agencies can instead issue a reply that neither confirms nor denies the existence of the requested records. Today Attorney General Eric Holder wrote back to Grassley, saying:

Having now received a number of comments on the Department's proposed regulations in this area, the Department is actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and national security concerns that motivated Congress to exclude certain records from the FOIA and do so in the most transparent manner possible. If the proposed regulations can be improved in these respects, we will work to improve them. We believe that Section 16.6(f)(2) of the proposed regulations [telling agencies to deny the existence of excluded records] fall[s] short by those measures, and we will not include that provision when the Department issues final regulations. 

Notice that Holder claims codifying a policy of dishonesty was part of the Obama administration's efforts to be open and transparent. He says the Justice Department was simply trying to formally state a policy that goes back to the Reagan administration, when Attorney General Ed Meese said in a memo that people seeking records covered by Section 552(c) "can properly be advised…that 'there exist no records responsive to your FOIA request.'" Holder also denies that saying records don't exist when they do amounts to lying:

The logic is simple: When a citizen makes a request pursuant to the FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA; where the only records that exist are not subject to the FOIA, the statement that "there exist no records responsive to your FOIA request" is wholly accurate.

Holder's logic does not seem so simple (or logical) to me. He is suggesting that the Meese-endorsed response is the same as saying "there are no disclosable records responsive to your FOIA request," which it isn't: The latter formula neither confirms nor denies the records' existence, while most people would understand the Meese response to mean that the records described in the request do not exist. In any case, the proposed rule explicitly endorsed responding "as if the excluded records did not exist." Holder does not address the merits of the alternative proposed by the ACLU, which avoids disclosing information shielded by Section 552(c) but is nevertheless accurate and preserves the possibility of judicial review: "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 552(c), and we therefore will not process that portion of your request."

Even with the most controversial rule nixed, the Sunlight Foundation says the Justice Department's proposed FOIA regulations would be "a huge step back for transparency," counting a dozen other ways in which they impede efforts to obtain information.