Sounds like they're already doing this. This would just make it official.
Also interesting is that the change is just a "rule change," not a proposed law. That means that if the rule change takes effect, information could be restricted further without the legislative branch having anything to do with it. It's just the executive alone, completely deciding what to release and what not to -- and now being able to lie about it to boot.
I find it amazing that such a proposed rule change could even be suggested. The inmates are truly running the asylum.
Just to recap, if a federal official asks you a question, it's a felony to lie to them. But if you ask them a question, they want the ability to lie to you as a matter of course.
It's not just lying to the public - in one case, they lied to a judge handling a FOIA request case (to be clear, the article does not suggest that this would be legal under the new rule):
> In a recent case brought by the ACLU (...) the FBI denied the existence of documents. But the court later discovered that the documents did exist. (...) [the] Judge (...) wrote that the “Government cannot, under any circumstance, affirmatively mislead the Court.”
It's pretty clear that a select few documents should not be released. It's much less clear that they should not even be released to the judge.
And, what appears to be the context ProPublica (a source I generally like; I'm a civil libertarian) and more especially the submitter has stripped out:
(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.
And so now you're wondering what 5 USC 552(c) is:
(1) Whenever a request is made which involves access to records
described in subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible violation
of criminal law; and
(B) there is reason to believe that
(i) the subject of the investigation or proceeding is not aware
of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance continues,
treat the records as not subject to the requirements of this section.
(2) Whenever informant records maintained by a criminal law enforcement
agency under an informant's name or personal identifier are requested
by a third party according to the informant's name or personal identifier,
the agency may treat the records as not subject to the requirements of
this section unless the informant's status as an informant has been
officially confirmed.
(3) Whenever a request is made which involves access to records maintained
by the Federal Bureau of Investigation pertaining to foreign intelligence
or counterintelligence, or international terrorism, and the existence of
the records is classified information as provided in subsection (b)(1),
the Bureau may, as long as the existence of the records remains classified
information, treat the records as not subject to the requirements of
this section.
By my reading, the three cases are:
(1) Ongoing criminal investigations that could be disrupted by disclosure
(2) Criminal records pertaining to confidential informants
Thanks for the context and the extra detail. It was so interesting I thought I'd poke around a bit more on my own.
As for (3), please note that this involves intelligence, counterintelligence, or international terrorism.
So now we're back to FISA, the PATRIOT act, NSA doing SIGINT on domestic/foreign internet traffic, etc. [insert long discussion here about the necessity of having intelligence and counterintelligence and the conflict with an also-necessary open society]
More to the point, there's no way to determine that the process would be followed correctly. (This is the same problem the FBI is having with warrantless wiretaps: the law's wording and the actual practice is much different, and there are no independent outsiders monitoring what's going on)
"...The New York Times is suing the U.S. government for refusing to divulge how its law enforcement interprets the Patriot Act...."
Note that this isn't the detail of any particular record. This is simply explaining what the law is. If you can't go there, good luck trying to chase down the actual application of the law in any specific circumstance.
I'm not getting into the overuse of "national security" to cover all sorts of things, or how you can target the FBI with the statute and end up pulling in all of DHS with the application. These are old discussions and probably best left for another day. Just wanted to point out that you could drive a Mack truck through the holes in that statute. It sounds very limited in theory. In practice, based on past experience, it doesn't look that way at all to me.
I don't think we should have secret laws under any circumstances.
I do think it's legitimate for the federal government to set up countermeasures to attempts to fish for the identities of confidential informants.
I think there is some information relevant to counterintelligence and counterterrorism that should be classified and some that shouldn't, and I think more stuff is classified that shouldn't be than the other way around.
I think that it's wholly reasonable for the federal government not to have to confirm the existence of heavily classified documents.
I think there are many classified documents whose contents are not appropriate for disclosure, but whose existence is.
The only thing I would add is that for every system of control there should be a counterbalancing system of inspection and audit. Congress surely isn't up to the job, there is no IG that I'm aware of that works at the National Security cross-agency level, and even if there was the results couldn't be made public anyway.
For all of those needs that we agree on, you can't leave the government an open-ended blank check. It just doesn't work. FOIA is supposed to be part of the control process, but if we can't even learn what the policies are for documents that we then are asking about, FOIA is not working.
Constitutionally, there are supposed to be hard limits to the amount of control the government has. If, for instance, J. Edgar Hoover was keeping files on Elvis Presley, sooner or later we'd get access to them and institute laws constraining the application of domestic counterintelligence operations. Laws and rule changes that prevent this "sooner or later" process from happening are bad. Really bad. At the very least there should be a firm time limit on whether or not to admit documents exist -- perhaps 10 or 20 years. That's not optimal, but it would at least allow for the system to self-inspect and adapt and evolve ever so slowly. (I still remain _very_ concerned that the theory we are talking about and the actual application are two completely different things, but I guess the point of this rule change is that we'll never know.)
* I do agree that the title should not be "public" records, as these records are by definition not public unless the FOIA succeeds.
The first paragraph of the article states that context:
>>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.
The debate, of course, is whether or not these scenarios are legitimate reasons to block records requests. It's whether this particular rule change is either needed or allowed by FOIA. The main question remains: In cases where such concerns are legitimate, why is it not sufficient for the government to say: "We cannot confirm or deny the existence of such records"? Why does the government need legal cover to mislead records requesters?
As a civil libertarian, you probably know enough examples of where the government has overextended and abused what it has been granted in good faith.
That's such a slippery point that there's no point in discussing it. Our elected government has done many terrible things over the last 200 years. I don't accept that as a rationale for denying it any privilege it might ever ask for, on the grounds that that privilege might be abused. You might believe that though. That doesn't make you bad; it just makes it pointless for you & I to talk politics.
I am confused. Why is only FBI information out-of-scope? You guys have the CIA, NSA, DHS, smaller agencies, and local police forces that are likely to be involved if there is, say, a plot to blow up the statue of liberty, no? (Corrections are welcome; in particular, I'd imagine that the NSA spooks laugh in your face if you request their records.)
(Also, "terrorism" tends to be uncomfortably broadly defined. Witness the PATRIOT act.)
Yeah...but at least in that case, you can argue with the agency and publicize the outrageous request. I've done that in one instance where a city agency argued that it would take 40 hours and thousands of dollars to run a query to generate a simple payroll listing. After we threatened to write about how their payroll system was in such a sorry state that it takes thousands of taxpayer dollars to run queries against it, they handed over the data for a couple hundred dollars.
This avenue of inquiry does not exist if an agency is allowed to just say: "Sorry, that doesn't exist."
How would a city agency take advantage of this particular rules change? It specifically does not give FOIA respondents the blanket privilege of denying the existence of documents.
Section 10
1. Disclosure of information pursuant to this Act
shall not take place insofar as:
a. this might endanger the unity of the Crown;
b. this might damage the security of the State;
c. the data concerned relate to companies and
manufacturing processes and were furnished to
the government in confidence by natural or legal
persons.
2. Nor shall disclosure of information take place
insofar as its importance does not outweigh one of the
following:
a. relations between the Netherlands and other
states or international organisations;
b. the economic and financial interests of the
State, other bodies constituted under public law
or the administrative authorities referred to in
section 1a, subsection 1 (c and d) and
subsection 2;
c. the investigation of criminal offences and
the prosecution of offenders;
d. inspection, control and oversight by
administrative authorities;
e. respect for personal privacy;
f. the importance to the addressee of being the
first to note the information;
g. the prevention of disproportionate advantage
or disadvantage to the natural or legal persons
concerned or to third parties.
So basically just as large an opening as in US law. The specific notion of "deny the documents exist" isn't covered here, though I'd guess that would be the spirit of the law as you quote it.
Also interesting is that the change is just a "rule change," not a proposed law. That means that if the rule change takes effect, information could be restricted further without the legislative branch having anything to do with it. It's just the executive alone, completely deciding what to release and what not to -- and now being able to lie about it to boot.
I find it amazing that such a proposed rule change could even be suggested. The inmates are truly running the asylum.
Just to recap, if a federal official asks you a question, it's a felony to lie to them. But if you ask them a question, they want the ability to lie to you as a matter of course.
Amazing.