Obama Admin Seeks Permission To Lie In Response To Freedom Of Information Requests – Even To The Courts

October 25, 2011

Policy of betrayals of the public interest continues.

Despite substantial opposition by such groups as the ACLU, The National Press Club, Citizens for Responsibility and Ethics in Washington, OpentheGovernment.org., Judicial Watch, et al to this reactionary re-write of the FOIA Law, this controversial effort by the Obama Administration to evade the very transparency it so passionately promised to deliver has been virtually ignored by the mainstream media which is supposed to be the guardian of the people’s right to know. 

By Jerry Policoff

One of Barack Obama’s first promises after becoming President of the United States was a commitment to usher in a new era of unprecedented government transparency .  Instead the Obama administration has exhibited what may be an unprecedented obsession with government secrecy including blocking numerous lawsuits by invoking the doctrine of “State Secrets.”   The administration has even come up with an interpretation of the Patriot Act which many in Congress who have seen it claim is overly broad and bestows more power on the Executive Branch than was intended by Congress when they passed it.  

Unfortunately those in Congress who have seen this document are not permitted to divulge its content, and we, the public, cannot see it because the administration has chosen to classify it as a “State Secret.”   In other words, you might be doing something that the Obama Administration believes violates the Patriot Act, but you won’t know it until they indict you for breaking a law you did not know existed (I might be breaking it just by penning and publishing this article).

Now the Obama/Holder Justice Department is attempting to re-write the Freedom of Information Act (FOIA), empowering or even compelling government agencies to deny the very existence of records they know to exist if they believe they are legitimately exempted from disclosure.  Of course they are most likely the sole arbiter of whether they are indeed exempt from disclosure.  In effect the Obama/Holder Justice Department wants to be free to legally lie about the existence of records in response to FOIA requests.  Apparently they want to avoid the embarrassment and inconvenience of being officially rebuked by the courts for doing exactly that (lying to a Federal judge), as occurred earlier this year when, in a   strongly worded opinion, U.S. District Judge Cormac Carney wrote that the “Government cannot, under any circumstance, affirmatively mislead the Court.”   The solution is simple:   re-write the law so the government, in many circumstances, can affirmatively mislead the court.

Despite substantial opposition by such groups as the ACLU, The National Press Club, Citizens for Responsibility and Ethics in Washington, OpentheGovernment.org., Judicial Watch, et al to this reactionary re-write of the FOIA Law, this controversial effort by the Obama Administration to evade the very transparency it so passionately promised to deliver has been virtually ignored by the mainstream media which is supposed to the guardian of the people’s right to know.

Whether you are a Democrat or a Republican or neither, this move by the Obama administration should trouble you deeply.  Is this change we can believe in???

Below are snippets of reports on this controversy, none of them from a mainstream media source.   That was not my intent.   I just could not find any.   I learned about it just this morning in an e-mail from the National Law Journal:

National Press Club Urges Administration to Reconsider Draft Rule on Freedom of Information

“Under the new Department of Justice proposal, in replying to a request for information under the freedom-of-information law, if the information is allowed to be withheld under certain statutory exceptions, then federal officials “will respond to the request as if the excluded records did not exist”–even if that is not the case.

“No rule or law should allow, let alone require, the government to mislead the press or the public about anything,” said Mark Hamrick , a broadcast journalist with the Associated Press who is the 2011 president of the National Press Club. “If enacted, it appears that this proposed rule would offend the precepts that informed the Freedom of Information Act, and it would tarnish the government’s credibility.

“What’s more, the change seems unnecessary,”  he said. “If agencies are exercising legally allowable exceptions to the law and withholding certain records, they can just continue to do as they do today: neither confirm nor deny the information’s existence.””

Justice Dept. proposes lying, hiding existence of records under new FOIA rule

“The Justice Department has proposed the change as part of a large revision of FOIA rules for federal agencies. Specifically, the rule would direct government agencies who are denying a request under an established FOIA exemption to “respond to the request as if the excluded records did not exist,” rather than citing the relevant exemption.

The proposed rule has alarmed government transparency advocates across the political spectrum, who’ve called it “Orwellian” and say it will “twist” public access to government.

In a public comment regarding the rule change, the ACLU, along with Citizens for Responsibility and Ethics in Washington (CREW) and OpenTheGovernment.org, said the move “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.”

“Conservative government watchdog Judicial Watch has also lambasted the proposed rules change

“Upon taking office, President Obama released a memorandum declaring his administration was “committed to operating with an unprecedented level of openness. Specifically, he pledged to bolster the strength of the FOIA act, calling it “the most prominent expression of a profound national commitment to ensuring an open government.”

Government Could Hide Existence of Records under FOIA Rule Proposal

“The ACLU, along with Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org said the move would “dramatically undermine government integrity by allowing a law designed to provide public access to government to be twisted.

“Open government groups also contend that the proposed rule could undermine judicial proceedings.

In a recent case brought by the ACLU of Southern California, the FBI denied the existence of documents. But the court later discovered that the documents did exist. In an amended order , U.S. District Judge Cormac Carney wrote that the “Government cannot, under any circumstance, affirmatively mislead the Court.”

DOJ’s draft FOIA rule was first published in March , but DOJ re-opened comment submissions in September at the request of open-government groups. The new comment period ended October 19″

* Redacted documents flickr image  By wnjr 

Author’s Bio: I have been an advertising executive most of my career with a long-time interest in progressive politics and journalism. I am now running as the Democratic candidate for the Pennsylvania House of Representatives on PA-41 where one of my objectives will be [to] pass HB 1660 which will bring universal, comprehensive, single-payer healthcare to Pennsylvania and, ultimately, the entire country.