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Is the Government Lying? A Look at the FOIA and Protections of National Security Documents

Is the Government Lying? A Look at the FOIA and Protections of National Security Documents

The Freedom of Information Act (“FOIA”) was enacted in 1966 for the purpose of increasing transparency by allowing the public to request federal agency documents. The FOIA has nine exemptions, one of which

> specifically addresses national security. Exemption one of the FOIA protects national security information by allowing federal agencies to properly withhold national security information that is properly classified under Executive Order 12,958. The courts have interpreted this exemption over the years and in 1974 this exemption, along with other exemptions, was amended by Congress and now there is de novo review and the court can view the classified documents in camera to check if agencies are properly classifying documents. When exemptions are invoked, the agency will respond to a requester by either stating that a document relating to their request is classified and exempt under the exemption or by “glomarizing” (neither confirming nor denying the existence of a document) when the very existence of a document could reveal secret information.

Despite the existence of exemption one, there was a recent controversy with the Department of Justice over the possible use of responding to requests as if there was no document that met the request even when a document does exist. This was supposed to protect national security documents better than under the other two response types because the possible existence is not even revealed. Additionally, glomarization can sometimes lead to the revealing of information by process of elimination.

While the controversy just came about, this is apparently not a new practice. Going back to the Reagan Administration, Attorney General Ed Meese was the first to issue guidance on the practice of denying the existence of sensitive information, including national security information, in order to better protect it. After much outcry from the public as well as both Republicans and Democrats, the Department of Justice decided to drop the plan that was under consideration that would allow agencies to deny the existence of a document if it could reveal sensitive information. The arguments against this rule were that the public would never know if the document existed or not and thus never be able to challenge the agency in court over the classification of the document and whether it should be released, harming transparency and defeating the purpose of FOIA. Others fought against this rule because it would undermine the public’s trust of the government.

The American public may never know whether this practice is actually used in some government to protect sensitive records and this is evident from the fact that the public was not aware of prior Administrations’ uses of this practice dating back to the late eighties. However, if this practice is not used going forward, it could potentially have an impact on the protection of classified national security records where their previous existence may have been denied. When dealing with national security it is hard to predict how one change may affect the secrecy of the documents and if there is a negative implication, the stakes are really high and hard to later reverse. With all of the sensitive intelligence information that our government agencies collect daily and the possibility of anyone requesting that information, for possibly illegitimate and dangerous purposes, it makes this discussion difficult and one can understand why the government may want to have this ability in their toolbox.

On the other hand, there are many FOIA cases that have been brought to court by a requestor contending that the government improperly withheld information and the information is released to the requestor. This possibility would disappear for certain types of sensitive documents if this policy of denying the existence of existing documents was continued.

Only time will tell what the effects of this policy change will have on the release of national security information through FOIA requests. No one wishes to see sensitive information released to enemies who will improperly use this information, but there is always this possibility and the threat exists now more than ever since the Department of Justice decided to drop this controversial policy.

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