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Clippings: Fed action would leave citizens in the dark

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Posted on November 3, 2011 |
By Andrew Stein



After months of grueling debate matched by great compromise, the writing of the U.S. Constitution came to a close in September 1787. As a framework for just governance, it was based as much on established principle as it was on experimentation, relying heavily on the virtue and will of the American people. The proposed system bestowed enough power in the people for them to stake a claim to their future, if they chose to.

As Alexander Hamilton put it one month later in the first of the pro-ratification Federalist Papers, “The people of this country (were given the responsibility) to decide the important question, whether societies of men (and women) are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”

Hamilton believed the Constitution gave the American people an unprecedented level of control over their government and therefore their future. He hoped deeply that the U.S. would become a country where government was guided by informed public decision making, or the “reflection and choice” of the people. If, however, the experiment failed and the American people allowed their government to rule by force, Hamilton wrote that the result would “be considered as the general misfortune of mankind.”

This “important question”— whether people should be guided by force and happenstance or instead by knowledge and informed public process — is still being decided today.

President Obama’s Department of Justice (DOJ) opened a new chapter in this saga when it recently proposed changes to the Freedom of Information Act (FOIA), the law that lets common people demand access to documents created in government offices. Rather than facilitating the release of information like the act’s name suggests, the proposed changes would allow federal agencies to lie about the existence of certain law-enforcement and national security documents.

Tucked deep in the folds of this DOJ proposal (available at www.gpo.gov/fdsys/pkg/FR-2011-03-21/html/2011-6473.htm) is a line that would order federal agencies denying a request for documents to “respond to the request as if the excluded records did not exist.”

Published in the Federal Registrar, the proposed change was open for public comments from September to mid-October. In an Oct. 19 letter to the DOJ, the American Civil Liberties Union (ACLU) added its two cents.

“Authorizing government agencies to lie to FOIA requesters by affirmatively denying the existence of agency records when they actually exist undermines the purpose of FOIA, obstructs judicial review of agency FOIA decisions, and destroys integrity in government,” wrote the ACLU.

As FOIA stands now, requesters of information who are stonewalled can take their case to court. There the judicial process can determine whether the release of requested documents would place the welfare of the country or a person in jeopardy, not government staff and agencies who might have conflicts of interest. If the proposed changes to FOIA are adopted, there won’t be an opportunity for judicial challenge because the existence of denied records would cease to exist — at least as far as the public is concerned.

The current process is, however, sometimes steeped in ambiguity. A federal agency can currently issue what’s known as a “Glomar denial.” This response, which requires court evaluation and is meant to protect the country, allows a given federal agency to neither confirm nor deny the existence of certain requested records.

“The Glomar denial arose in the mid-1970s when a Los Angeles Times reporter requested information about the CIA’s Glomar Explorer, built to recover a sunken Soviet submarine,” wrote Jennifer LaFleur at Propublica.

Although the Glomar denial can veil a denied request for information, the government is currently not allowed to outright lie, and they’re held accountable if they do.

“In a recent case brought by the ACLU of Southern California, the FBI denied the existence of documents. But the court later discovered that the documents did exist,” wrote LaFleur. “In an amended order, U.S. District Judge Cormac Carney wrote that the ‘Government cannot, under any circumstance, affirmatively mislead the Court.’”

Where a sometimes-opaque window into federal dealings now hangs, the DOJ’s recent proposal, if adopted, would replace it with a two-way mirror. A space that once allowed for citizen participation would be buried by misinformation.

By denying the existence of records, the American people would be denied a level of accountability from their government that many founding fathers had in mind when they crafted the Constitution. By omitting crucial documents from paramount arguments of the day, history would be skewed even further. The ever-evolving nature of the U.S. representative democracy would then be inhibited by a lack of information, which would smother America’s ability to reflect on its government and choose a more prosperous path forward.

“The consciousness of good intentions disdains ambiguity,” wrote Hamilton in the first of the Federalist Papers.

One can surmise that even more than ambiguity, Hamilton’s consciousness of good intentions disdains falsehood.

Reporter Andrew Stein can be reached at andrews@addisonindependent.com. You don’t need to file a FOIA request to read his articles at addisonindependent.com.

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