
Proposed law allows federal government to lie about public records' existence - danso
http://www.propublica.org/article/government-could-hide-existence-of-records-under-foia-rule-proposal
======
DanielBMarkham
Sounds like they're already doing this. This would just make it official.

Also interesting is that the change is just a "rule change," not a proposed
law. That means that if the rule change takes effect, information could be
restricted further without the legislative branch having anything to do with
it. It's just the executive alone, completely deciding what to release and
what not to -- and now being able to lie about it to boot.

I find it amazing that such a proposed rule change could even be suggested.
The inmates are truly running the asylum.

Just to recap, if a federal official asks _you_ a question, it's a felony to
lie to them. But if you ask _them_ a question, they want the ability to lie to
you as a matter of course.

Amazing.

~~~
JoachimSchipper
It's not just lying to the public - in one case, they lied to a judge handling
a FOIA request case (to be clear, the article does not suggest that this would
be legal under the new rule):

> In a recent case brought by the ACLU (...) the FBI denied the existence of
> documents. But the court later discovered that the documents did exist.
> (...) [the] Judge (...) wrote that the “Government cannot, under any
> circumstance, affirmatively mislead the Court.”

It's pretty clear that a select few documents should not be released. It's
much less clear that they should not even be released to the judge.

------
tptacek
And, what appears to be the context ProPublica (a source I generally like; I'm
a civil libertarian) and more especially the submitter has stripped out:

    
    
        (2) When a component applies an exclusion to exclude records from 
        the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the 
        component utilizing the exclusion will respond to the request as if 
        the excluded records did not exist. This response should not differ 
        in wording from any other response given by the component.
    

And so now you're wondering what 5 USC 552(c) is:

    
    
        (1) Whenever a request is made which involves access to records 
        described in subsection (b)(7)(A) and - 
          (A) the investigation or proceeding involves a possible violation 
          of criminal law; and
          (B) there is reason to believe that 
            (i) the subject of the investigation or proceeding is not aware 
            of its pendency, and
            (ii) disclosure of the existence of the records could reasonably 
            be expected to interfere with enforcement proceedings,
        the agency may, during only such time as that circumstance continues, 
        treat the records as not subject to the requirements of this section.
    
        (2) Whenever informant records maintained by a criminal law enforcement 
        agency under an informant's name or personal identifier are requested 
        by a third party according to the informant's name or personal identifier, 
        the agency may treat the records as not subject to the requirements of 
        this section unless the informant's status as an informant has been 
        officially confirmed.
    
        (3) Whenever a request is made which involves access to records maintained 
        by the Federal Bureau of Investigation pertaining to foreign intelligence 
        or counterintelligence, or international terrorism, and the existence of 
        the records is classified information as provided in subsection (b)(1), 
        the Bureau may, as long as the existence of the records remains classified 
        information, treat the records as not subject to the requirements of 
        this section.
    

By my reading, the three cases are:

(1) Ongoing criminal investigations that could be disrupted by disclosure

(2) Criminal records pertaining to confidential informants

(3) Formally classified counterintelligence documents.

~~~
DanielBMarkham
Thanks for the context and the extra detail. It was so interesting I thought
I'd poke around a bit more on my own.

As for (3), please note that this involves intelligence, counterintelligence,
_or international terrorism_.

So now we're back to FISA, the PATRIOT act, NSA doing SIGINT on
domestic/foreign internet traffic, etc. [insert long discussion here about the
necessity of having intelligence and counterintelligence and the conflict with
an also-necessary open society]

More to the point, there's no way to determine that the process would be
followed correctly. (This is the same problem the FBI is having with
warrantless wiretaps: the law's wording and the actual practice is much
different, and there are no independent outsiders monitoring what's going on)

This is a good link to chase down. It directly relates to both FOIA and
national security. In this case, you can't even ask about _the general
interpretation of a law by the government_.
[http://www.zdnet.com/blog/btl/newspaper-sues-government-
to-r...](http://www.zdnet.com/blog/btl/newspaper-sues-government-to-reveal-
secret-patriot-act-interpretation/60407)

"...The New York Times is suing the U.S. government for refusing to divulge
how its law enforcement interprets the Patriot Act...."

Note that this isn't the detail of any particular record. This is simply
explaining what the law is. If you can't go there, good luck trying to chase
down the actual application of the law in any specific circumstance.

I'm not getting into the overuse of "national security" to cover all sorts of
things, or how you can target the FBI with the statute and end up pulling in
all of DHS with the application. These are old discussions and probably best
left for another day. Just wanted to point out that you could drive a Mack
truck through the holes in that statute. It sounds very limited in theory. In
practice, based on past experience, it doesn't look that way at all to me.

~~~
tptacek
To simplify this conversation:

I don't think we should have secret laws under any circumstances.

I do think it's legitimate for the federal government to set up
countermeasures to attempts to fish for the identities of confidential
informants.

I think there is some information relevant to counterintelligence and
counterterrorism that should be classified and some that shouldn't, and I
think more stuff is classified that shouldn't be than the other way around.

I think that it's wholly reasonable for the federal government not to have to
confirm the existence of heavily classified documents.

I think there are many classified documents whose contents are not appropriate
for disclosure, but whose existence is.

~~~
DanielBMarkham
We don't disagree at all.

The only thing I would add is that for every system of control there should be
a counterbalancing system of inspection and audit. Congress surely isn't up to
the job, there is no IG that I'm aware of that works at the National Security
cross-agency level, and even if there was the results couldn't be made public
anyway.

For all of those needs that we agree on, you can't leave the government an
open-ended blank check. It just doesn't work. FOIA is supposed to be part of
the control process, but if we can't even learn what the policies are for
documents that we then are asking about, FOIA is not working.

Constitutionally, there are supposed to be hard limits to the amount of
control the government has. If, for instance, J. Edgar Hoover was keeping
files on Elvis Presley, sooner or later we'd get access to them and institute
laws constraining the application of domestic counterintelligence operations.
Laws and rule changes that prevent this "sooner or later" process from
happening are bad. Really bad. At the very least there should be a firm time
limit on whether or not to admit documents exist -- perhaps 10 or 20 years.
That's not optimal, but it would at least allow for the system to self-inspect
and adapt and evolve ever so slowly. (I still remain _very_ concerned that the
theory we are talking about and the actual application are two completely
different things, but I guess the point of this rule change is that we'll
never know.)

------
ck2
They can already hide information despite the freedom-of-information act.

The way they do it is to charge an absolute fortune for the records.

Happens all the time:

[http://pogoblog.typepad.com/pogo/2011/10/gsa-
wants-113k-to-t...](http://pogoblog.typepad.com/pogo/2011/10/gsa-
wants-113k-to-tell-you-what-it-think-of-ipads.html)

~~~
danso
Yeah...but at least in that case, you can argue with the agency and publicize
the outrageous request. I've done that in one instance where a city agency
argued that it would take 40 hours and thousands of dollars to run a query to
generate a simple payroll listing. After we threatened to write about how
their payroll system was in such a sorry state that it takes thousands of
taxpayer dollars to run queries against it, they handed over the data for a
couple hundred dollars.

This avenue of inquiry does not exist if an agency is allowed to just say:
"Sorry, that doesn't exist."

~~~
ck2
Here's the thing though - all the data should already be available as a free
database, just like all NASA photos are public domain.

Then let people mine it on their own dime for waste.

The problem is they'd react to this by finding ways to make more and more
stuff "classified" to claim it cannot be released.

~~~
jacobgraham
NYC would appear to be a shining example of this: <http://www.nyc.gov/data>

------
0x12
The scary thing to me really is that I no longer find stuff like this
astonishing.

~~~
tptacek
What are the rules about this in the Netherlands? Are they better than our
current FOIA rules?

~~~
0x12
[http://en.wikipedia.org/wiki/Freedom_of_information_legislat...](http://en.wikipedia.org/wiki/Freedom_of_information_legislation#Europe)

~~~
tptacek

        Section 10
        
        1. Disclosure of information pursuant to this Act 
        shall not take place insofar as:
    
            a. this might endanger the unity of the Crown; 
       
            b. this might damage the security of the State; 
    
            c. the data concerned relate to companies and 
            manufacturing processes and were furnished to 
            the government in confidence by natural or legal 
            persons.
    
        2. Nor shall disclosure of information take place
        insofar as its importance does not outweigh one of the 
        following: 
    
            a. relations between the Netherlands and other 
            states or international organisations; 
    
            b. the economic and financial interests of the 
            State, other bodies constituted under public law 
            or the administrative authorities referred to in
            section 1a, subsection 1 (c and d) and 
            subsection 2;
    
            c. the investigation of criminal offences and 
            the prosecution of offenders; 
    
            d. inspection, control and oversight by 
            administrative authorities; 
    
            e. respect for personal privacy; 
    
            f. the importance to the addressee of being the 
            first to note the information; 
    
            g. the prevention of disproportionate advantage
            or disadvantage to the natural or legal persons
            concerned or to third parties.

~~~
ajross
So basically just as large an opening as in US law. The specific notion of
"deny the documents exist" isn't covered here, though I'd guess that would be
the spirit of the law as you quote it.

