Fixing FOIA: Justice proposal yet again shows FOIA needs leadership

A current, completely avoidable squabble arose this week over how the Justice Department should word responses that could reveal the existence of an investigation.  This dispute again shows the FOIA needs more attention and forceful leadership to resolve persistent problems and make the FOIA process work better.

Here’s the current quandary:  How should the Justice Department respond to FOIA requests without tipping off suspects who are targets of secret criminal investigations?  Individuals or private entities trying to confirm whether they are subject to an investigation turn to FOIA as a convenient tool.  They file requests for documents hoping the government’s response will reveal whether an investigation has been opened, closed or didn’t exist in the first place.  To avoid tipping its hand, the government’s response has to be identical regardless of whether records exist or not.  The FOIA statute allows the government to “treat [such] records as not subject to the requirements of” FOIA. That means, don’t review the information to redact sensitive material and disclose the rest; simply ignore the information altogether.

The Justice Department has proposed that, in these circumstances, the government should respond “as if the excluded records did not exist.”  But that goes too far, the Electronic Privacy Information Center charges.

Clearly the government should not say records do not exist when, in fact, they may.  Nor should the government’s response tip off targets of investigations.  But there’s an easy solution to this problem, as the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington (CREW) and noted in their joint comments.  The government could give an identical response explaining it would neither confirm nor deny the existence of a record. (This isn’t a new idea, of course.  It’s longstanding practice called a “Glomar” response started when the U.S. didn’t want to confirm or deny it had used a massive vessel called the Glomar Explorer specifically designed to take possession of a sunken Soviet submarine.)

The nonprofit groups’ comments trace the debate on how agencies should respond going back decades. While the government’s interest in protecting confidential investigations is serious, and the public’s interest in proper administration of FOIA, the fact this has not been resolved is remarkable.  The approach suggested by the nonprofit groups should allow the government to withhold while giving a truthful, informative and standard response to the requester.

Add this to the longstanding problems that require better leadership to ensure FOIA is implemented in a timely, useful manner.

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