They tried and failed,
but you know they’ll do it anyway

Dallas Morning News

The Justice Department, the nation’s top law enforcement arm, had proposed formally allowing federal agencies to tell people requesting law enforcement or national security documents that those records didn’t exist, even if they did.

This had the unintended effect of bringing together right and left — libertarians, congressional Republicans and open-government groups — in protest. Thankfully, the Justice Department backed down late last week and said it would rethink the whole thing.

As it stands, if a federal agency decides that a requested document would fall outside the scope of the Freedom of Information Act, it can turn down the request and neither confirm nor deny the existence of such documentation. The so-called Glomar denial dates to a 1970s case when a newspaper reporter sought information about a CIA project to recover a sunken Soviet submarine.

The new proposal would have directed agencies to “respond to the request as if the excluded records did not exist.”

If that change seemed small, it wasn’t.

Congress amended FOIA in 1986 to address specific exemptions in which confirming the existence of records would compromise an ongoing criminal investigation or confidential informant or reveal classified information. What Congress did not do was allow federal agencies to make overtly false claims.

Ordinary citizens seeking government information would be far less likely to demand justification for withheld records that, as far as they knew, did not exist. Federal agencies would have to justify far fewer decisions to withhold such information.

This isn’t new, of course. Researchers have found memos from the Reagan Justice Department that advised such informal deception. But codifying it now seemed especially ironic under President Barack Obama, who promised “an unprecedented level of openness in government.”