Proposed law allows federal government to lie about public records' existence | Hacker News Reader

Proposed law allows federal government to lie about public records' existence

propublica.org

115 pointsdanso20 comments

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.

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.

Meanwhile, it is illegal to lie to the US Government even in matters not relating to crimes:

http://www.overcomingbias.com/2011/09/we-ban-lies-to-officia...

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.

I am confused. Why is only FBI information out-of-scope? You guys have the CIA, NSA, DHS, smaller agencies, and local police forces that are likely to be involved if there is, say, a plot to blow up the statue of liberty, no? (Corrections are welcome; in particular, I'd imagine that the NSA spooks laugh in your face if you request their records.)

(Also, "terrorism" tends to be uncomfortably broadly defined. Witness the PATRIOT act.)

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...

"...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.

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.

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.)

* I do agree that the title should not be "public" records, as these records are by definition not public unless the FOIA succeeds.

The first paragraph of the article states that context: >>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.

The debate, of course, is whether or not these scenarios are legitimate reasons to block records requests. It's whether this particular rule change is either needed or allowed by FOIA. The main question remains: In cases where such concerns are legitimate, why is it not sufficient for the government to say: "We cannot confirm or deny the existence of such records"? Why does the government need legal cover to mislead records requesters?

As a civil libertarian, you probably know enough examples of where the government has overextended and abused what it has been granted in good faith.

That's such a slippery point that there's no point in discussing it. Our elected government has done many terrible things over the last 200 years. I don't accept that as a rationale for denying it any privilege it might ever ask for, on the grounds that that privilege might be abused. You might believe that though. That doesn't make you bad; it just makes it pointless for you & I to talk politics.

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...

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."

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.

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

How would a city agency take advantage of this particular rules change? It specifically does not give FOIA respondents the blanket privilege of denying the existence of documents.

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

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

http://en.wikipedia.org/wiki/Freedom_of_information_legislat...

    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.

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.

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