Journalism in the Public Interest

Government Could Hide Existence of Records under FOIA Rule Proposal

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.


(Flickr: exeteranna)

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.

Under current FOIA practice, the government may withhold information and issue what’s known as a Glomar denial that says it can neither confirm nor deny the existence of records.

The new proposal – part of a lengthy rule revision by the Department of Justice – would direct government agencies to “respond to the request as if the excluded records did not exist."

Open-government groups object.

"We don’t believe the statute allows the government to lie to FOIA requesters,” said Mike German, senior policy counsel for the American Civil Liberties Union, which opposes the provision.

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

The Glomar denial arose in the mid-1970s when a Los Angeles Times reporter requested information about the CIA’s Glomar Explorer, built to recover a sunken Soviet submarine and the CIA’s attempt to suppress stories about it.

But the advocacy groups propose another response: You have requested “…records which, if they exist, would not be subject to the disclosure requirements of FOIA...”

They prefer such language because a last resort is to sue to obtain the records, something people requesting information might not do if they assumed that no records existed.

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.

The DOJ did not immediately respond to a request for comment. We will update as soon as it does.

Patricia Biancaniello

Oct. 24, 2011, 9:58 a.m.

This is another step in the undermining of democracy in our country. We are rapidly becoming the nations we condemned.  The past few years have brought us closer to the standards set by the Soviet Union than any standards envisioned by founders of this nation.

I’m sure it’s a huge coincidence that this happens at the same time the FBI is rolling out it’s new “next generation” database that’s designed to “track people’s movements.”  And just as the “Arab Spring” is winding down.  And just as people are starting to push for openness on the economy.  And…


If the system isn’t open to inspection, there’s no accountability.

The White House, meanwhile, is ahead of this possibility, by calling for higher security in a “fast-tracked” Executive Order:

Why?  Well, draw your own conclusions, but it’s referred to as “The WikiLeaks Order.”

Interesting, though, that when any of us demands privacy, we’re informed that only the guilty have anything to hide…

FOIA has long been abused by government bureaucrats who are unwilling to abide by its provisions.  A person submitting a request should have absolutely no expectation of anything but a rote response within the mandated response period; any responsive documents can take 2 or more years to arrive. 

Responses may state that certain categories of requested documents cannot be found or the they are included, only to be respectively included or not included.  And no one polices FOIA.

The entire FOIA statute needs to be reworked as the current critter simply does not work.

It should be called the Freedom of No-Information Act.

The Department of Justice, the organization responsible for enforcing the FOIA, is the biggest violator of the Act.

While researching the 1982 Tylenol murders, I sent FOIA requests to local, state, and federal law enforcement FOIA officers who clearly had no intention of honoring my requests.

The FOIA requires documents of historical significance to be declassified after 25 years. But my FOIA requests, coming 28 years after the the Tylenol murders, were denied. The reasons given for these denials consisted of bureaucratic rhetoric intended to meet the legal technicalities required to deny the requests. The denials did not stem from any common sense analysis of the effect that the release of the requested documents would have on solving the crimes.

Barbara Flores

Oct. 24, 2011, 2:11 p.m.

Amazing that the media constantly attributes Obama’s low approval ratings to the economy when in fact he and his dept of justice have disappointed and disregarded so many rights we thought we had.
Add up a few disappointed voters about this issue, a few disappointed Hispanics, a few LG.. people who saw promises to them go unfulfilled, drone attacks, murdering our enemies when he condemns torture, hiring Wall Street wizards who didn’t see or care about what was imminent to advise him and on and on.  His record is dismal on so many fronts and now this from an administration that trumpeted transparency.  It’s crazy - the man is a megalomaniac and still frustrated Democrats will come to his defense.

So all the information about and evidence of Administrative crimes can be buried, not just classified.  And if there’s no acknowledgment it ever existed, like the torture tapes and all those pictures of crimes that were never prosecuted that Obama is sitting on, you can re-write history any way you want.  In many ways - he’s been a much more disturbingly bad man than Bush.  I know it’s too much to ask for - a good man or a basically good man or even a *not evil* man, but can’t we at least get a *evil, but not disturbingly evil* option? 


Sgt. Barefoot

Oct. 24, 2011, 3:55 p.m.

Ask no questions and you get no lies.  Seek the truth by knowing it can often be stranger than fiction.  Dealing with the Government could be described as like “kissing a cobra” when pied piper finishes his song its time to run for the hills!

I am so scared.  I might be gone before the worst of this kicks in—but maybe not; it is happening so fast.  But my children and their children will be living in the nightmare world of “l984” unless we can get our country back.

Many of us voted for Obama because of the unbelievable alternative, but also because we believed his soaring rhetoric.  And we may be stuck with another four years, because the alternative is so much worse this time.  The nominees consist of certifiable nut cases, political whores, and Jesus freaks.  Rank and file Republicans are fleeing the far-Right caucuses within the Congress because they are justifiably afraid of losing their seats if they remain identified with these Mad Dogs.

What’s even worse, is that some Democrats have actually voted for such quintessentially far-Right Republican bills as the recent one that forbids hospitals to perform an abortion on a woman admitted to the emergency ward—effectively condemning her to death.  This is really hard to understand.  I assume they think THEIR woman would not be allowed to die?  So they are an elite, better than the rest of us?

The Founders must be spinning in their graves.  What can stop the destruction of the magnificent structure they left to us?  Yes, I am scared.

A FOIA was made to the FBI for some records.  It took the FBI over four (4) years to respond to the FOIA request.  Amazingly, we got the records (over 2,000 pages) two weeks AFTER the requester’s death.  AND, looking at the dates the FBI made the copies, those records could have been returned within two months!

The records, except for two pages, were redacted in their entirety!  All that was received were pages with “To”, “From”, “Subject”, etc., and a whole bunch of initials from different people.

Jeff Brodhead

Oct. 24, 2011, 5:25 p.m.

Hey Commie idiots at the “ACLU”, “government integrity”  Is an oxymoron!

While I agree this is a bad thing - so is the “ACLU”!

Dear America, aren’t you tired of your MIS-REPRESENTATIVES IN DC?

Time to flush ‘em all, including the “judicial branch”.

and now julian assanges postings are unfunded so we will know less.

Walter D. Shutter, Jr.

Oct. 24, 2011, 6:31 p.m.

So much for the “transparent” Admistration of the 44th POTUS.  Meet the new Boss, same as the old Boss.
The more things change, the more they remain the same…Etc.

Seriously, though, I read a lot of comments on various political and news sites like ProPublica(and worse) and it appears to me that the one thing that is common to almost all of the comments is that the commentators would like the government to DO SOMETHING to make things “better”, and if that means a bigger, more powerful government, then so be it.  They fail to see the obvious:  The government large enough and powerful enough to help you is large enough and powerful enough to hurt you. And government, if left to its own devices, will always grow larger and more powerful…and more arrogant with its new power.
We the governed, sometimes AKA the electorate, are expected to elect representatives to control this leviathan.  Those folks aspiring to be representatives are called candidates for public office.  They solicit our votes thusly: ” Elect me and together we will do SOMETHING to make things better” But it never works out.
If you are outraged about the abuse of government power, consider this:  A smaller, less powerful government would necessarily have less power to abuse and would consequently abuse the people less.  My proof? I have had both large and small dogs over my lifetime and I have observed that large dogs tend to discharge turds which are larger than those discharged by small dogs.  Am I comparing dogs to governments? Sadly, only with respect to their excrement.  Dogs are loyal to their masters all the time, while governments are rarely loyal to their citizens, and then only when it suits them. 

So then, are there there any candidates for public office out there who are in favor of smaller, less powerful government?  I can think of only one for sure.


Kafka is baaaaack! and he comes wih big brother…

Some of you should really read the FOIA statute; there is already a provision in the FOIA which allows this, it’s called an Exclusion and there are three of them. Exclusions C1, C2 and C3.

Peter Aleff

Oct. 25, 2011, 7 a.m.

For an example of blatant lying by the FOIA office at the National Institutes of Health, see for a letter in which their Director of News Services tries to tell me that the “informed consent forms” for a recent medical child suffocation experiment cannot be found and “are not required to be provided to the NIH as part of the grant application or management process” although the Federal Regulations forbid funding any experiment unless the regulations for informed consent have been complied with. In the case at hand, no parent of the children so suffocated could have consented to their intentional asphyxiation which was not in the interest of these children.

For the callous cruelty of this illegal experiment worthy of Nazi doctors that killed 23 premature babies and that the NIH is trying to cover up, see

FOIALAINCA: Freedom Of Information As Long As It’s Not Condemning Act.

I only buy that argument to a point, Walter, because the government (such as it is) is pretty much the only thing preventing the banks from confiscating the land, the energy companies from deciding who is allowed to survive the winter, and the media companies from rewriting history.  The megacorporations not only have no reason to protect us, but are obligated by design to exploit us.

The problem is that government (especially our government, founded specifically on such principles) needs to serve the people and fear the consequences of ignoring their duties.  The people in government need to realize that (or be forced into a position where) their employment depends on our prosperity.

Ron Paul is a useful man to have around, because I think he understands a lot of the problems.  But I don’t think he’s the man to go to for solutions.  His proposed solutions recall the events leading to Coxey’s March, the exodus from Europe to the Americas, and the rise of the worst dictatorships around the world.

The country needs a banking and money system that’s beholden to the people, not to profit.  We need a job policy that favors jobs on American soil.  We need to drive medical costs down to where only the deathly ill require insurance.  We need companies to stop selling surveillance and suppression technology to oppressive governments, presumably as trial runs to be used against us.  And, much as it pains me to say so, only a government has the resources to make it happen and no profit motivation to avoid it.

Why didn’t you publish my comments?

Barbara Flores

Oct. 25, 2011, 12:27 p.m.

Why do so many of us refer to “the government” as if it is a monolithic creature that sprang up out of nowhere.  It is the individuals who are charged with, and have promised to, reform the government with whom we should be upset.  It is the chiefs who set the tone of any organization.  Something about where the buck stops.  I’m sure it is difficult for those who adored Obama to face up to it, he isn’t what we thought he was.  The posted comments are all fulminnating against the executive branch (not that there isn’t plenty to say about the legislative and judicial).  I hope this deep discontent lasts til election day because if this promise breaker is re-elected, I think it will forever end any faith in elected officials and any belief, however, tenuous, among those running for office that they have to be true to their promises.

Does anyone know why the DOJ sought these changes in a final rule?  When I was a fed the rule was simple:  a request had to be honored within a reasonable amount of time provided the information was available, it was releasable in some form, and the requestor was willing to pay the copying costs, if applicable; or, the request was denied if the records were actually lost or not releasable for national security reasons.  Information that was deemed to be “pre-decisional,” e.g., e-mails or paper exchanges that led to a final determination were not releasable.  Having a rule that allows officials to lie by saying records do not exist when they do is ridiculous and probably illegal.

Obama’s Justice Department is as much interested in “justice” as Bush’s criminal SEC.

Obama’s Justice Department is as much interested in “justice” as Bush’s lame SEC.

No Rick. It should be called F… yOu Information Act instead!

Jayashri Wyatt

Oct. 26, 2011, 4:26 p.m.

This action points to a system-wide failure of democracy that is beyond left or right politics. Freedom of information is crucial to a functioning democracy. This is a further step towards what Chris Hedges has called “inverted totalitarianism” in an empire masquerading as a democracy.

Exactly, J. Wyatt -and We The People absolutely MUST NOT LET THIS HAPPEN. It would be very useful to see exactly who the ROOT CAUSE of this insidious proposal was.
It’s bad enough that our corporatized news and information sources are little more than biased sphincters, constipated by heavy doses of corporate greed. But it is truly the “End Times” for democracy when the restriction of our essential information becomes codified in federal law.

Richard Wallick

Oct. 26, 2011, 5:25 p.m.

It’s not like their not lying already.  This just codifies (if that’s the right word) it.

Transparency, Hope you like that Change.


Oct. 26, 2011, 7:17 p.m.

how much more of this are YOU willing to take?

I suspect that the DOJ has actually been implementing this practice for years.

In November 2008, the Government Accountability Project filed a FOIA request with the DOJ for information that the World Bank had given the Criminal Division about fraud committed by Satyam Computer Services, Ltd. of India. (see In February 2009, we were informed that the DOJ had no responsive records. We knew from our sources that this was inaccurate, so we filed a new request in May 2009. In July 2009 we were told, again, that the DOJ had no responsive records.  Then we sent the DOJ an email from a journalist that proved that the Department did in fact have the records. Suddenly, after two denials, the DOJ confirmed that they did possess the records.

GAP then went to court to contest the withholding of some of these documents. When we received the Vaughn Index we realized that the DOJ still had additional responsive documents that it was not accounting for in the Index. When we raised this issue with the DOJ we were informed that the documents were “not retained,” even though they involved a criminal referral.  Unfortunately, this failure to retain documents involving wrongdoing by a major corporation is not limited to the DOJ; the Rolling Stone has reported that the SEC failed to retain records about Wall Street crimes.

It should not take three FOIA requests, a court case and years of work to obtain the truth from our government. This proposed rule is bogus and is a dangerous assault on the Freedom of Information Act.

Bush/Cheney and the GOP created a stronger executive and a more secretive government, and now that a Democrat is in the White House, why should anyone be surprised that Obama and the Dems are continuing the push for a stronger executive and a more secretive government? Sure, candidate Obama said “blah, blah, blah open government,” but c’mon, if you believe that, I know of a bridge in Alaska that you can buy. And when a Republican gets in the White House again, do you think he (or she?) won’t continue the push for a stronger executive and a more secretive government? Regardless of party, we as Americans need to fight this.

So much for a transparent government.

Michael Hiles

Oct. 30, 2011, 9:02 p.m.

And just look at how many ignorant statists continue to trumpet that more government and more legislation is the sole solution to whatever problem they proclaim.

No thanks. I’m starting to think that Lysander Spooner was right after all.

This shouldn’t surprise anyone who’s paying attention since it’s already officially ok for news reporters to lie to the public (google Court: ok for media to lie, Fox, Akre).

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