Justice Department Drops Its Request To Be Allowed To Lie In Response To FOIA Requests

from the now-it'll-just-lie-without-permission? dept

Mon, Nov 7th 2011 3:26am — Mike Masnick

After taking a pretty widespread public mocking for its proposal to lie to people when receiving requests for documents it didn't want to give out, the Justice Department says it is dropping that plan. As you may recall, the Justice Department wanted to be able to say that documents didn't exist, even if they did. In the past, the DOJ has been able to say that it "cannot confirm or deny" the existence, which might force people to file suit to find out about certain documents. However, the DOJ wanted to deny their existence entirely, even when they did, in fact, exist. For rather obvious reasons, this troubled people.

Of course, the DOJ's capitulation is done rather petulantly. While it admits that, having heard the comments to its proposal, its suggested language "falls short" of the necessary transparency, it still defends the basic idea behind lying to the public, while denying that it's lying. It first notes that the practice of responding with "there exist no records responsive to your FOIA request" even if there were such records, has been in place since 1987, under the guidance of then Attorney General Ed Meese. And then they try to explain how that's not 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....

It then insists that this practice is never "lying," but that the DOJ will try to come up with ways to be more transparent. Somehow, I'm not sure I believe that will really happen.

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Filed Under: foia, government, justice department, lying

25 Comments

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FM Hilton, 7 Nov 2011 @ 3:42am

So this means:
That they'll just have to lie in the usual ways?
Oh, no-back to the drawing board!

The FOIA requests are getting harder and harder to get accepted as it is-so this will not change anything substantially.

Just that they'll have to come up with new ways to deny requests.
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Butcherer79 (profile), 7 Nov 2011 @ 4:16am

Paying for free?
Does this mean that to obtain documents under the freedom of information act, you have to pay to take theDOJ to court to prove the documents exist before being able to get them for free?
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That Anonymous Coward (profile), 7 Nov 2011 @ 4:42am

The scariest thing about this that should have the entire leadership of the DOJ on the carpet is the simple fact that the Department of Justice wants the right to violate the law.

The people who are supposed to represent Justice wanted the right to pervert Justice.

At what point are people going to demand better?
This should transcend the whole abortion, gay marriage, gun rights, immigration, etc hot button issues.
One would hope that the idea of "They would never do it to me because I am a good person" would finally ring hollow.
Because they can't get it made legal, if anyone expects they will not look for some tiny loophole to allow them to do this anyways they need to wake up. When your Department of Justice looks for ways to deny justice to people, it is time to get a serious review of them. Justice should not be about what has popular support, what is politically safe, or anything other than upholding the law.
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The Devil's Coachman (profile), 7 Nov 2011 @ 5:20am

The name Department of Justice makes a mockery of the word Justice
I knew a guy who went to law school, and in one of his classes, another student brought up the issue of justice, at which point he was shouted down by the professor with something on the order of, "You want justice? Find another school! This school is not about justice! This school is about The Law.". The subject of justice never came up again.

As we all know, the law is the means by which the wealthy get to keep stepping on the non-wealthy with impunity, because as far as they're concerned, you're not even human, but a "resource". They make the laws. We don't. As George Carlin put it best, "They all belong to a Big Club, and you're not in it.". The law is never about justice. It is about power and control, and is their means of retaining both.

There will never be anything resembling justice in this country as long as the current elite are allowed to continue their predation of the working class, the middle class, the poor, and it matters not to them which class you fall into, because to them, you are all cattle, disposable, expendable, replaceable, and of no other value or significance.
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pjcamp (profile), 7 Nov 2011 @ 5:49am

well I remember Ed Meese
and he was a stone cold idiot.

He was the first to promote the Strategic Defense Initiative (aka Star Wars), produced a report linking pornography to crime, was deeply involved in the Iran-Contra scandal, believed the Miranda ruling should be overturned, and resigned in disgrace because of his involvement in the Wedtech scandal.

If this administration wants to rely on his judgment to support their policies, that's just sad.
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Butcherer79 (profile), 7 Nov 2011 @ 5:52am

Re: The name Department of Justice makes a mockery of the word Justice
At least that's cheered me up, an uplifting post if ever I've read one, makes you proud to be human. Is there a sarcasm font on here?

I did mark it 'insightful', though, just so you know.
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Maroon, 7 Nov 2011 @ 6:06am

re: Meese
I wonder if someone could think up a new name for deliberate lying by the DOJ that included 'Meese'. That way we could tag Ed's name to the act. If it was an economic issue, I'd call it Meesonomics.
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Anonymous Coward, 7 Nov 2011 @ 7:01am

Re: The name Department of Justice makes a mockery of the word Justice
I'm obliged to link to Rick Falkvinge's "Lawfully Good vs Lawfully Evil", in case anyone needs some real-world examples of the difference between "law" and "justice".
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PrometheeFeu (profile), 7 Nov 2011 @ 7:31am

In other news liars promise to stop lying. We can believe them because they are no longer liars and therefore what they say is true.
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PrometheeFeu (profile), 7 Nov 2011 @ 7:33am

Re: re: Meese
Meeshonesty!
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NullOp, 7 Nov 2011 @ 7:36am

Crushed
I hope this story finally crushes the thought that our government is an honest government in those that still "believe in" this nations government! Our "officials", appointed, elected and employed, are only people. Contrary to what they and their press monkeys will tell you, they are in no way gifted any more than you are to govern. Government is teeming with the power hungry, self promoting, low lifes that the rest of the world is dealing with. What makes anyone think they can trust our government....ever?
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Butcherer79 (profile), 7 Nov 2011 @ 7:59am

Re: Crushed
Even before the 'press monkeys', governments (not just yours) have been deceitful, normally under the guise of 'protecting us' (the public) (Jack Nicholson yelling "You can't handle the truth!" in A Few Good Men springs to mind).
Now, it is my opinion, that they use this "protecting the public" excuse to get away with what is unacceptable truths, like the arms trade that goes on and only gets released years later when somebody 'in the know' has had enough and calls the wikileaks hotline.
We should not be naive enough to believe that any future government will be any more or less honest with it's public, or, indeed, naive enough to think that they can fiscally survive without these unacceptable truths.
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The Incoherent One (profile), 7 Nov 2011 @ 8:35am

Re: The name Department of Justice makes a mockery of the word Justice
This argument lends itself well to the content industries, and our arguments against them.
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The Incoherent One (profile), 7 Nov 2011 @ 8:37am

How Naive Are We?
As though any of us are truly shocked that our government would lie to its people? Its not like they haven't done it before.
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Anonymous Coward, 7 Nov 2011 @ 8:45am

Re: So this means:
That they would even suggest such a thing is a real sign that the US Govt has grown too big.

They will implement the "lying" policy "unofficially" where they can. Transparency is the BIGGEST threat to all governments that conspire to take over.
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Anonymous Coward, 7 Nov 2011 @ 8:50am

Re: How Naive Are We?
"We didn't lie, we only omitted certain truths."
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John Fenderson (profile), 7 Nov 2011 @ 9:07am

Re: Re: So this means:
That they would even suggest such a thing is a real sign that the US Govt has grown too big.

I think you may be confusing "big" with "corrupt". The two are independent of each other.
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Ron Rezendes (profile), 7 Nov 2011 @ 9:23am

Re: re: Meese
Meesedirection of the truth
Meesejustice
Meese carriage of justice
Meese-erable excuse
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Bergman (profile), 7 Nov 2011 @ 9:24am

How would the (in)Justice Department respond if someone replied, using that logic, to a national security letter or subpoena, and lied about what documents are available?

Government officials have more power, more responsibility than any private citizen. So WHY are they consistently held to a lower standard of compliance with the law? And why do people continually tolerate it?
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Anonymous Coward, 7 Nov 2011 @ 9:38am

Re: Crushed
Where is Occupy DOJ??

This is THE biggest threat to the Bill of Rights I have seen in some time. Why would this supposed Liberal Progressive DOJ dare make such a move? Oh yea, they are just as control hungry as any Govt in history�

Change was the slogan and we get: Protect IP / E-Parasite / FOIA destroyed
What�s next? I couldn�t even speculate after what I�ve seen so far.
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Anonymous Coward, 7 Nov 2011 @ 9:53am

Re: Re: Re: So this means:
Corruption in the US Govt has been around forever, this is not Quid Pro Quo.

Big Govt uses force to get what it wants; this isn�t Tieneman Square, but the DOJ is trying to use it�s might to shut down FIOA requests. Protect IP and E-Parasite are other signs the Govt is growing too big.
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johnny canada, 7 Nov 2011 @ 10:39am

What ever happened to "TRUTH JUSTICE and the AMERICAN WAY"

Oh ya that was a Canadian who wrote that
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ScytheNoire, 7 Nov 2011 @ 11:18am

Confused
I'm with others, I'm totally confused what this even means. Won't they just continue lying, but it will be without permission, but doesn't change the fact that they'll be lying? This whole thing makes as much sense as the election system.
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velox (profile), 7 Nov 2011 @ 12:37pm

Re: Confused
At least if lying is not officially accepted policy, the individual doing the lying will have some doubt as to whether the lie may come back to bite them at some future date. Furthermore, acceptance of lying on an official level is a very corrosive idea. If it is accepted in this case, then what about the next case, and so on. It would not be long before governmental corruption would be shielded by a whole new layer of protection - officially sanctioned lies.

So it's a very good thing that this policy is not being continued, even if it doesn't stop liars from lying.
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Anonymous Coward, 7 Nov 2011 @ 1:51pm

Uhm... this isn't carte blanche. DOJ is modifying its policies to take into account more explicitly an aspect of the law that's been in place since 1986. The law specifies three specific instances in which the FOIA doesn't apply to certain records in which the very knowledge of existence of records constitutes harm.

Also, to note, "can neither confirm nor deny," AKA "Glomar" refers to a class of records where the indication of existence of records is a threat to national security (that is, the existence of any documents that might exist is itself classified). The FOIA exclusions was intended to recognize that there are similar cases where the information is dangerous, but not a threat to national security.

There are 3 specific cases in which exclusions apply:

1 - If an individual is under investigation for a possible criminal offense, and there is good reason to beleive that the individual is unaware of the investigation, and the knowledge of the existence of the investigation would potentially compromise the investigation.

This is probably the one that scares you all the most. A secret investigation of criminal activity, so they can bust you once they have an airtight case. And it's one where there can be arguments either way. The rationale is the cops vs robbers argument, when it comes down to it.

2 - If a third party requests records related to an informant by name, those records are not subject to the FOIA.

This uses an organized crime example. Short and sweet, the organization goes down the line on their members, gets no records, no records, no records, glomar.
"Is it Bob?"
"No."
"Is it Susie?"
"No."
"Is it Phillip?"
"No."
"Is it Maurice?"
"I can't tell you that."

3 - FBI records related to intelligence, counterintelligence, international terrorism. If the existence of records is classified, they can glomar, or they can consider the records outside the scope of the FOIA. The FBI gets perks because of the sensitive nature.

Is it just the principle that you're objecting to? Would you be happy if every FOIA response included a reminder that there are certain records that are not subject to the FOIA? The point of the exclusions is to ensure that there's a consistent response, so that the government doesn't tip their hand and give away information that should rightly be hidden to prevent greater harm.

And, finally, don't blame DOJ. They're putting it in their policy to be transparent about it. It's been going on ever since it's been in the law, and that wasn't even through any overreach. It's the congressmen that decided to write the law that way, specifically to allow the FOIA offices to "lie." They may have been influenced by DOJ concerns or such, but it comes down on their heads in the end. Don't shoot the messenger.
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