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.

Better late than never: grand jury material of historical value

Grand jury information is one of the most sought-after types of information that the public cannot see generally under the federal FOIA. Think spies, organized crime, and sports stars accused of cheating through performance-enhancing drugs. So it is welcome to see the Justice Department recently announce a move to open the door on grand juries to the public just a little more.

American laws and courts have long recognized that grand jury information merits secrecy, but several recent cases developing a “historical significance” exception have led the Department of Justice to propose codifying the terms under which courts may release such material. Traditionally, grand jury information has been protected – indefinitely – by Rule 6(e) of the Federal Rules of Criminal Procedure, which provides five specific exceptions. Rule 6(e) is of interest to us because it is one of the most widely- and frequently-used statutory exemptions to the Freedom of Information Act (FOIA), called a “b(3)” after the subsection of FOIA permitting such additional exemptions.

In an October 19 letter, Attorney General Eric Holder recognized that litigants had won the release of grand jury information regarding several cases of historical significance: the Alger Hiss case (released in 1999), the trial of Julius and Ethel Rosenberg (2008), a 1964 jury-tampering prosecution of Jimmy Hoffa (Sr.) (2009), and testimony from ex-President Richard M. Nixon in a 1975 case involving Watergate (2011).

Here’s the problem: As Holder noted, none of these releases fell under any of the existing exemptions to secrecy under Rule 6(e). So, whether the courts will release grand jury information has become entirely unpredictable, based solely on the terms of the statute. To provide more clarity, Holder proposes to permit disclosure after thirty years – under certain conditions – and require disclosure after seventy-five years. (As Steve Aftergood noted, the thirty-year time period proposed dovetails neatly with the disclosures already ordered by courts.)

While the substance of this issue might not be a central concern of ours at SGI, it does involve several issues of interest to us:

  • We are pleased to see courts and DOJ in preliminary agreement that an open-ended rule conferring secrecy can be weighed against the public interest in government-held information of historical significance.
  • We are glad that the OPEN Government Act of 2007 amended FOIA to require agencies to provide more detailed information about their usage of each b(3) exemption statute, which enables us to gauge the importance of provisions such as Rule 6(e).
  • We are also glad to see more public attention to, and consideration of, records of historical significance – and efforts to obtain information that can help us understand more about our nation and our history.

By the way, if anyone has run into a Rule 6(e)-based FOIA denial that seems unwarranted, drop us a line.

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