The Tulsa Forum by TulsaNow

The Obama administration has proposed a new 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. Under current FOIA practice, the government may withhold information and issue what’s known as a Glomar denial that says it can neither confirm nor deny the existence of records.

The new proposal, brought up by the DOJ, would direct government agencies to “respond to the request as if the excluded records did not exist.”

Link to the rule:http://www.gpo.gov/fdsys/pkg/FR-2011-03-21/html/2011-6473.htm

One small step for President Obama, one giant leap (and sigh of relief) for Eric Holder.  :D

Again I ask, are these people too stupid to understand that there are citizens who pay attention to this stuff, or do they just assume that everyone tunes in to ET and the Daily Show and goes to bed?

Considering the number of people I know that based their vote for Obama based on watching the Daily Show, I'd say there are quite a few.

So instead of "We cannot confirm they exist or don't exist." It's "They don't exist."

Either way you don't get the info.

It's crap whether you go by the old way under one administration or the new way under the current admin.

Glomar denial was based on the fact that it was illegal for a government official to lie to the public/reporter when asked about classified information.

This new rule makes it perfectly legal for the government to lie.

You may not care much about this "baby-step," but it is indeed a very big deal.  The precedent it sets will make it legal for any government agency or individual to lie to the public without consequence, as long as "they" deem it is in the best interest in national security, and it expands the government's freedom to lie to simple federal law enforcement information requests.

Currently, our federal officials are bound to tell the truth, or at least not tell a lie.  When asked, a government official can answer "NO" when no information exists. When an official says "I can neither confirm or deny that" it sends the message that they cannot answer your question because the information would threaten national security.  This is a respectful way of saying "the information exists, but is not public information as of yet."

Government officials are bound by these laws to restrict their power.  Giving them blanket authority to deny information is very dangerous!

This is not a liberal v.s. conservative argument.  This is a Libertarian+liberal v.s. conservative argument.  We should be on the same side for this one Town. 

Liberal groups including the ACLU are gearing up to do battle with this ruling.

There's just nothing more to add when you make up answers for everyone else.

Feel free to argue with others that agree these rules are wrong.

I'm done with you.

http://www.propublica.org/article/government-could-hide-existence-of-records-under-foia-rule-proposal

Good coverage there. 

It seems, based on the article above, that there's already a bit of case law that would invalidate the Obama admin's new rule, and even if not, they've reopened the comment period on the proposed change, so that "open government groups" can register objections. 

So, while it looks like a poorly constructed rule, it also looks as if the Administration is allowing the validity of it to be worked through appropriate channels.   

Did you arrive on this thread simply to disagree with me?

That's not actually true. I wish it were. Besides, I'm much more concerned about them being allowed to lie when it's our freedom at stake than in any other situation.

I'm not sure it could survive constitutionally anyway.

Just reading things the way you want to read them apparently.

Who disagreed?  I was pointing out that the situation's change was small.

You seem to think that since you're claiming all this is coming from Obama that you'll be attacked.

It seemed to me that either way is a lie.

Consider the source...

Freaking A.

Talk about cutting to the chase.

When someone tells you that they can neither confirm or deny the existence, they are lying. They know one way or the other. It is policy that precludes them from telling you which one.

Either way they are lying to you.

I read that article after the original post. This part stood out to me:

[Emphasis added].
Whatever happened to this:

[youtube]http://www.youtube.com/watch?v=CU0m6Rxm9vU[/youtube]

I guess my primary confusion is why would anyone on the left defend this rule?

The only thing I can conclude is that no matter what President Obama suggests, his groupies will lovingly march in that direction.

Has someone defended the rule, or have they just disagreed with your framing of the issue?

Who's marching?  I don't see anyone defending this at all.  As a matter of fact, the ACLU (one of Obama's supposed liberal labor allies) is fighting it in court. 

Or what nathan said.

How else could the issue be framed other than an attempt to limit access to government-possessed information? I do think as a practical and legal matter whatever the intended goal this rule might have had is doomed.

You didn't.  I was speaking of others.

Point out anyone defending this.

I probably would like to read some harsher scorn and condemnation over something that I think is so deserving. I have read that sort of response over Bush or republican decisions, and the lack of such here smells of a double standard.

Okay

I think the reason you're not seeing it is that this isn't really a material change in policy. It's merely a change in wording, and one that means even less in practice, given that agencies have been known in the past to say they have no records even as we come to find later that they did.

When the Bush Administration refused to release any minutes or other documentation about Cheney's energy task force there was indeed an uproar, but my understanding is that previous administrations had released such information.

That's my reasoning, anyway. Were this a change from "yes, we have such records" to "no, we have no such records". Rather than from "maybe" to "no," I would actually care. As it is, eh, I hope the ACLU manages to get the rule stricken, but I've got more important things to worry about.

Sorry that we're not as enraged as you are about this is weak-sauce Executive branch overreach . . . but, you know, it's pretty weak sauce, especially compared with some of the professional power grabs that Cheney + Co. perpetrated. 




 

We're supposed to defend those.

Yeah, and someone up above this post talks about 'double standard'...harhar

Being "enraged" and showing condemnation are two entirely different things. You appear to be "enraged" over what Cheney did, but you label as "weak sauce" an attempt by executive fiat to limit access to government information by an administration that campaigned on the exact opposite. With "fast and furious", Solyndra, LightSquared, and whatever else is looming going on, the timing of this "weak sauce" is to say the least curious.

That's not what actually happened. We weren't getting access to the information either way. The only difference is the way in which they say no.

We can disagree on what the result is, I'm more concerned about the motive. Again, none of this really matters as it's doomed imho.

Doesn't the rule specifically apply to classified (or other legally non-discloseable) information, not just stuff the government would prefer to keep quiet for political reasons?

Executive Order .... get used to it. He is POTUS! and it is election year. If these things were not passed by executive order, those who are in a precarious financial situation out of no fault of their own and are in a bad financial situation would just file bankruptcy.


Those who are in need are not the enemy.

I skimmed the proposed new rule, and all I could find was this:

Section 16.6

(c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that: the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.

If I missed the section that would permit a 'component' to deliberately mislead a requestor, could one of you point it out?

Sec.  16.6  Responses to requests.

    (a) Acknowledgments of requests. Upon receipt of a request that
will take longer than ten days to process, a component shall send the
requester an acknowledgment letter that assigns the request an
individualized tracking number.
    (b) Grants of requests. Once a component makes a determination to
grant a request in full or in part, it shall notify the requester in
writing. The component also shall inform the requester of any fees
charged under Sec.  16.10 of this subpart and shall disclose the
requested records to the requester promptly upon payment of any
applicable fees.
    (c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that: the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
    (d) Content of denial letter. The denial letter shall be signed by
the head of the component, or designee, and shall include:
    (1) The name and title or position of the person responsible for
the denial;
    (2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the component in denying the request; and
    (3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of estimation. This estimation is not required, if the
volume is otherwise indicated by deletions marked on records that are
disclosed in part, or if providing an estimate would harm an interest
protected by an applicable exemption.
    (4) A statement that the denial may be appealed under Sec.  16.8(a)
of this subpart, and a description of the requirements set forth
therein.
    (e) Markings on released documents. Markings on released documents
must be clearly visible to the requester.
    (f) Use of record exclusions.
    (1) In the event that a component identifies records that may be
subject to exclusion from the requirements of the FOIA pursuant to 5
U.S.C. 552(c), the head of the FOIA office of that component must
confer with the Office of Information Policy (OIP) to obtain approval
to apply the exclusion.
    (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.


The ACLU, along with Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org said the move would "dramatically undermine government integrity by allowing a law designed to provide public access to government to be twisted.

That is indeed the drama queen interpretation of this modified rule. The rest of us just see a minor change that doesn't actually change anything in practice. I don't like that we're moving in that direction at all, though.

An attorney I know once said that new laws - or in this case, new regulations - invite unintended consequences.  They may be a can of worms.  Take the RICO statutes, for instance, which were originally intended to fight gangsters and are now being used against corporations.

The next question has to be "what is 5 U.S.C. 552(c)" and how does it apply to exclusions?  I'd look it up, but SWMBO and Her Understudy want to go out to dinner.

Argue amongst yourselfs.   

 

The Freedom of Information Act

Yes it is the FOIA, however it is a specific section of the act.  So here it is for your reading pleasure...

(c)(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.

And since it references it at the very begining, here is (b)(7)(A)

(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings,


OMG it is sooooo vbad.  Call Glenn Beck to save our Nation....

You have; he resides right here...oh, wait, that's just TNF's version of Beck...

So, you are good with this clause?

I doubt it would be much of a Beck issue.  It's more of an ACLU issue.

(http://a3.sphotos.ak.fbcdn.net/hphotos-ak-ash4/316811_236267749761678_219045798150540_606073_780534077_n.jpg)

I am neither okay or not okay with this clause as it doesn't necessarily pertain to me or what I do... and if it sticks to the definition of the rule, I really don't see a problem with keeping investigation records out from under the FOIA cloak.  I do see where this could cause issues, but everything that is done by this or any administration will be led out by the few negative fibers that could be abused.  You could draw a line from this to the Cheney VP stuff, but Cheney just straight up claimed executive privilege and that he didn't have to share anything with anyone.  Except that whole thing about Valarie Plame. it is amazing how nothing escaped the office but her identity... which is, without a doubt, covered by this exclusion.

So basically the administration is poised to make abuses similar to the examples you offer, much easier.
Hey, if you don't have a problem with it, then good for you.

I just find it entertaining how people will bend over backwards to frame acceptance for policy made by this president that they would otherwise view as criminal by any other administration.

Thank you for your example.

Please explain how you arrived at the conclusion that changing the answer from "can neither confirm nor deny the existence of such records" to "there are no such records" changes the susceptibility of the FOIA process to abuse. I can't find a way to make that logical leap.

For some reason I feel that you have misinterpreted me, or something is wrong since you are not disagreeing with me...  heck I might have said something that most others would disagree with.

But let's get real, anything passed by one administration is going to be questioned by the opposing faction.  It is the way of politics.  Even if it is something they would have done if they were in office.  No one can give credit where credit is due.  Killing Osama was a bad idea, Gaddafi was a bad man, but what if the next guy supports terrorist and extremism etc, oh nos, egypt made a decision to oust their leader.  I am pretty sure you had people sitting in Europe, Russia and Asia discussing the merits of a free "Colony" back in the day and what that "means" for the world.

You have my scorn for it.  As I have said many times, what America needs is more free speech!  And hand in hand with that is the alleged right to access the information they have about a person - supposedly through FOIA.  Any person in this country should have easy, readily available access to any and all information the government - Federal, State, and Local - has about you!  Any! 


And the reality that it really doesn't make any difference which set of guidelines are used - if you don't have the connections within the system, or a set of lawyers with lawsuits at the ready, you aren't gonna get any information from the Fed under FOIA.  And you can be especially sure that none of your elected representatives (House OR Senate) will lift a finger to help.

+1

. . .and take it a step further, the precedent that this amendment to FOIA creates will carry to other areas of government.  Since it was passed in 1966 numerous amendments have been made to chip away at the public's access to information, further insulating the actions of government from the people, but the hurdle that government faces (and advantage to the citizenry) is it's inability to simply deny the existence of information.  Because of this, when agencies respond with a Glomar Denial, they can be challenged to provide legal argument as to why access to such information may pose a risk.  Glomar denial simply represents a legally correct way of saying "Yes the information exists but we cannot disclose its nature, extent, or any summery of its contents."

This new clause could essentially button up the FOIA by removing the need for accountability when denying access to information because requesting parties would have no idea whether that information actually exists.  An administration could essentially deny all requests for information, rendering the FOIA null.

The bigger question that no one has stumbled upon is why would the administration press for this now? 
 

Why not?  Doesn't really matter since you aren't gonna get the info anyway...

I have submitted around 10 to 12 FOIA requests since the early 70's - personal requests about information about me.  And I know for a fact the information exists, because friends in the TPD actually saw parts of it.  Recently, it is about once a decade... all with no information ever provided.  And have contacted Inhofe, Jim Jones, Don Nickles, et al. offices to ask for help with it.  (Not Sullivan or Coburn yet).  Inhofe while in House AND Senate was predictable.  All the previous ones were only a half step better.  Some talk, no action. 

(And no, I have never been arrested for any crime if you don't count two speeding tickets as an arrest for a crime, have no criminal record of any kind, and no interest in experiencing the thrill.  Always paid child support on time, and never beat the wife, the kids, or the dogs.) 

Other news explains why I just can't expend much "give a smile" on this:

Louisiana bans the use of cash in secondhand sales (http://www.techdirt.com/articles/20111019/17424316421/louisiana-makes-it-illegal-to-use-cash-secondhand-sales.shtml)
Visa and Mastercard decide to sell your purchase history to advertisers (http://news.cnet.com/8301-13506_3-20125179-17/visa-mastercard-to-use-buying-history-for-ad-targeting/)

I find these things far more disturbing than a minor change to the way the feds say "no" to FOIA requests.

I know you think ThinkProgress does not rate but they sure are balanced.

Bush Had Generated More Regulations At This Point In His Presidency Than Obama


http://thinkprogress.org/economy/2011/10/26/353942/bush-more-regulations-than-obama/

"We certainly don’t remember Republicans crying about the “excessive” Bush regulations."

This is not good for barbarians who may have purchased "toys" on line... :D

From the ultra-conservative LA Times:


[Emphasis added] http://www.latimes.com/news/opinion/opinionla/la-ed-secrets-20111031,0,273702.story

VISA is a mess that is unlikely to be reined in any time soon.

I am curious about your response to the regulations for used and junk dealers...they are theoretically regulated in most places anyway, and this addition seems like a very small difference.  For example, pawn shops in Tulsa are supposed to take a fingerprint each time they buy or pawn something and send it to the city.


Do you feel the requirement to pay with (traceable) check or other negotiable item is that much more onerous? 

Kind of seems to me like it makes it that much harder to fence stuff, sell stolen copper, sell stolen 'scrap' iron of railroad equipment they mention in the bill.

Last I checked, cash is still legal tender under federal law.

Sure it is.  This seems to be one of those infamous "special case" type situation - the state is telling the junk dealers they have a new rule to follow not too unlike the fingerprint thing.  This is a monetary fingerprint.


I not quite sure what my opinion in on this yet.  I suspect that I really don't like the idea very much, since I like to deal in cash for a lot of things I purchase (firearms and ammunition related).  And yet, I have lost "scrap metal" to the kinds of thieves and fences this is targeting, so I have a little bit of a dilemma.

 

It's not just pawnshops, though. It's every used transaction. If I was in Louisiana and wanted to sell an old pair of shoes on Craigslist, I couldn't take cash. If I were in Louisiana and wanted to buy a cheap used car, I couldn't use cash. It's ridiculous.

I guess I read the law differently.  It seemed to me like they specifically said second hand stores and junk yard type places - specific places of business.  Metal recycling places.  I didn't see anything about personal sales outside of the business venue.  There were several exemptions for car related.

?Where did you see the personal sales part??

The law states that anybody who buys or sells secondhand goods more than once in a month is considered a dealer and must follow all the regulations, whether they have a permanent place of business or not. There are a few exceptions. Tires, gold bullion, and items with a numismatic value are exempt.

You could, you'd just be breaking the law.  The unintended consequences of making everyone else into a criminal when you try and reign in the criminal few.  In spite of laws designed to crack down on copper theft in Oklahoma, people just keep on stealing it.

Speaking of stealing stuff to sell for scrap......


http://www.azcentral.com/community/mesa/articles/2011/10/31/20111031mesa-statue-liberty-replica-stolen-scrapped1102.html (http://www.azcentral.com/community/mesa/articles/2011/10/31/20111031mesa-statue-liberty-replica-stolen-scrapped1102.html)

resurrection of a not too old topic.  I think I have figured out why there was a sudden push for this "rule".  With the creation of the "We the People" petition page.  They had to figure that some of the questions would deal with touchy issues and since they want to give yes or no answers, this "rule" allows then to give a straight answer, even if it is a blatant lie.

LOL! It's a necessary first step in protecting corruption.

There must be some pretty big scandals lurking.

The GOP has held the house for more than a year . . . I'm a little surprised they haven't amped up the investigations/fishing excursions.  Where's Darrell Issa when you need him?

You know, it's not legal for documents to be classified "just because." That's not to say it doesn't happen, of course. I'm not quite sure how you make the leap to "must be some kind of scandal," when this doesn't have any effect on non-classified documents/information. SSI is not generally considered classified, by the way, only secret and above.

I honestly don't think it is meant for any big scandle type items, however I do think that they are thinking in terms of "crazy" requests.  one of the first things to gather enough signatures was whether or not the government had information on Alien existance.  Do you really think that, if the Government did have proof, that they would release it?  What about if the Government had any additional information on the JFK assassination...

Those are the type of answers that the Government would want to keep on the DL.

Funny you should bring that up...

http://www.npr.org/blogs/thetwo-way/2011/11/08/142128890/white-house-government-has-no-evidence-of-extraterrestrial-life (http://www.npr.org/blogs/thetwo-way/2011/11/08/142128890/white-house-government-has-no-evidence-of-extraterrestrial-life)