The government can already craft an FOIA response that does not confirm records exist

[ProSense]

Here is the letter (PDF) the ACLU, CREW and OpenTheGovernment sent to DOJ:

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The ACLU, CREW and OpenTheGovernment.org Oppose the Proposed Rule to Amend the DoJ FOIA Regulation by Creating a New Section 16.6(f)(2)

5 U.S.C. section 552(c), enacted as an amendment to FOIA in 1986, authorizes the government to “treat records as not subject to the requirements of” FOIA in three limited circumstances: first, where the request concerns an ongoing criminal investigation against the requester when there is reason to believe the requester is not aware of its pendency and premature disclosure would impair the investigation; second, where a FOIA request seeks records regarding a specific informant and the individual‟s status as an informant has not been previously disclosed by the government; and third, where the FOIA request seeks “Federal Bureau of Investigation pertaining to foreign intelligence or counterintelligence, or international terrorism, and the existence of the records is classified information.”3 The provision was adopted to thwart attempts by criminals, terrorists, and hostile foreign nations to exploit FOIA to expose investigations against them, identify informants, or reveal classified information. The provision is intended to permit the government to avoid confirming the existence of responsive documents under FOIA requests when the mere confirmation that such records exist would damage ongoing investigations or reveal sensitive information the government is lawfully entitled to keep secret under FOIA. The current regulation, section 16.6(c), requires agencies to notify FOIA requesters of a denial of the request and the reasons for the denial, and to provide notice that the denial may be appealed. It does not authorize issuance of a misleading response stating that no records exist when, if fact, such records do exist but can lawfully be excluded from a response. However, recent litigation has made clear that, despite the regulation, the FBI is currently providing FOIA requesters with false statements denying that records exist.4 The proposed rule would authorize responding agencies to wholly mislead FOIA requesters by falsely denying that records exist.

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A Suggested Response Which is Both Truthful and Informative and Requires No Amendment to the Current Regulation

The ACLU, CREW and OpenTheGovernment.org suggest another response to FOIA requests for records excludable under section 552(c) that is both truthful and informative, yet does not confirm the existence of exempted documents or require changes to the existing DoJ FOIA regulation. Where DoJ determines that the requester is trying to obtain information excluded from FOIA under section 552(c), the agency could simply respond that “we interpret all or part of your request as a request for records which, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we therefore will not process that portion of your request.” Any request for information excludable under 552(c) could receive this response, regardless of whether the documents sought actually exist. The advantage of this response is that it is a clear expression of the government‟s reasoning for not processing the request, and therefore would allow the requester to challenge the government‟s interpretation of the request, yet it provides the requester with no confirmation of the existence of any documents.

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The organizations don't like the language, but they are not arguing that the records should be divulged. They consider "if they exists," which does not divulge the existence, to be truthful.

OpenTheGovernment

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"Moreover, the proposed rule is unnecessary. The government can already craft a response to FOIA requests for the records in question that does not confirm whether excludable records exist without lying to the public."

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[H2O Man]

1. True.

We had this type of nonresponse many years ago, in the Rubin Carter defense.

Recommended.

[ProSense]

2. No other comments? n/t