This FOIA Request Will Self-Destruct in 10 Seconds

National Security Archive has an update on DOJ’s efforts to limit FOIA in the guise of transparency (or, potentially, simply admit what they’ve been doing for some time). It describes some of the other crummy things DOJ is trying to do (including describing online news as not-news).

One of those is to introduce a loophole allowing DOJ to destroy records.

The Department of Justice’s  regulations also include a provision to allow the destruction of records. While the law currently states that “Records will not be disposed of while they are the subject of a pending request, appeal, or lawsuit under the FOIA,” the Department of Justice wants to change the wording of this regulation to “Records that are identified as responsive to a request will not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.” This narrows the scope of an agency’s obligation to preserve records and grants it the authority to destroy records that are the subject of a pending request but not “identified as responsive to a request,” which only the agency would be responsible for determining. This proposal runs counter to the intent of the FOIA and would allow agencies to place records that may have been improperly withheld beyond judicial review. [emphasis original]

Hmm. Back when we consulted Ed Meese on how to handle FOIAs of stuff like ongoing investigations, informants, and that old grab bag of classified intelligence, here’s how he said DOJ would respond:

Where an exclusion is employed, the agency is legally empowered to “treat” the excluded records as not subject to the FOIA at all. Accordingly, a requester can properly be advised in such a situation that “there exist no records responsive to your FOIA request.” Such phrasing — as opposed to any more detailed statement that, for example, any records specified in a particular request “could not be located” — most rationally and fairly implements an exclusion’s effect.

In other words, material that falls under these exclusions are “not subject to the FOIA at all.”

Now put these two together: If something falls under an exclusion, it is deemed not-responsive to a request. And DOJ now says it is allowed to destroy records so long as they are not responsive to a request. Ergo, DOJ is now saying that if you request information about an investigation into yourself (or an informant or a broad range of classified intelligence information), they can first lie and say they don’t have those records, and the quickly destroy them, in case a judge deems them responsive after all.

7 replies
  1. scribe says:

    Two points:

    1. While this will allow DoJ to shred its records on whatever it is they don’t want to answer, it won’t guarantee that the copies of those records they shared under whatever guise of information sharing they might employ will be destroyed. So, once they destroy the records, they just go back to their contractors or coordinating government agencies, and get another copy.

    Presto Change-o! They get all those records back to use. Or just have access to the information anyway.

    2. This is reminiscent of a story I remember from years ago. As I recall it, some former nuclear scientist was trying to prove he’d been contaminated while working at Oak Ridge. Having worked there, he knew where the files were and what they were named. He sent in his FOIA and was told some bullcrap about no such records (I forget the exact terminology but it doesn’t matter). So, he’d rephrase the request and get the same response. Finally after several iterations of this, someone inside sympathetic to his situation told him on the QT to stop asking because every time he asked he was providing a roadmap to destroy the files – which was being done rather than respond – because he knew them better than the agency did.

  2. rugger9 says:

    This is why FOIA is so necessary. Good policy can stand the light of day, and all we have to do is look at Darth’s proclamation about “working in the shadows, if you will” to have the evidence proving the point.

    To swipe a GOP line: if you have nothing to hide, why the secrecy, Obama?

  3. MadDog says:

    If I ever go to court, I wish I could have lawyers working for me like the DOJ. Make a judge believe up is down, in is out and wrong is right. Wait…

  4. Marina Meadows says:

    My God !! and I have been writing to DOJ in hope they help our family, but no wonder they have not even acknowledge our correspondence !! Well I guess we will have to wait for #OWS to succeed or a MIRACLE !!!
    For the last nine years I have been trying to expose corruption, Plz read my blog http://marinameadowsDOTwordpressDOTcom/, find out what is been done to our family, how the medicals records have been used to harm us, medications tampered, isolation, & manipulation of internet, mail & phones, how my 3 sons have been manipulated, the roll of the Police & Gov.Officials allowing this abuse mental, emotional & physical to go on for years, to cover all the wrong doing, No hesitation in destroying our whole family, adding that the father of my sons & his mother, both UK citizens passed away very sudden…??? Here we still suffering, almost collapsing without any one doing anything to help us; now after 3 months able to text a bit I come to understand how tainted & corrupted things are, manipulated by well-connected individuals, corporate executives & politically motivated Gov.Officials who simply buried the truth inside a shadow legal system inaccessible to everyday ordinary American citizens. So I give thanks to God for the strength given to us and for people that help make the truth come to light!!! By the way if any one out there with some humanity can do anything for us, we appreciate very much the help!!! We need a pro-bono Lawyer ASAP, my mother loosing her eye sight, and we all perishing………We exist !!!
    En los ultimos nueve anos he estado tratando de exponer la corruptcion en Miami, Florida, Por favor lean mi blog http://marinameadowsDOTwordpressDOTcom/, encuentren lo que nos han hecho, como es que han utilizado nuestros records medicos para hacernos dano, medicinas alteradas acabadas de comprar en las farmacias, como nos han isolado de amigos y familiares, manipulacion y bloqueo de la internet, el correo y los telefonos, como las vidas de mis tres hijos han sido manipuladas y ellos tambien manipulados, el papel que ha jugado la Policia y los Oficiales del Gobierno permitiendo que nos sigan abusando todos estos anos, abuso mental, emocional y por ende fisico, cubriendo las cosas mal hechas desde el principio, sin importarles la destruccion de nuestra familia, tambien quiero adicionar que el padre de mis hijos y su madre murieron repentinamente, los dos ciudadanos Ingleses. Nosotros nos encontramos sufriendo y casi collapsando sin que nadie nos ayude; ahora despues de tres meses que he podido estar escribiendo un poco en la internet me he podido dar cuenta de cuan corrompidas y manchadas son las cosas, manipuladas por individuos muy bien conectados, ejecutivos corporativos y Oficiales Gubernamentales motivados politicamente los cuales simplemente entierran la verdad dentro de uns sombra de sistema legal inaccesible a los ciudadanos ordinarios de cada dia. Asi que le doy gracias a Dios por la fuerza que nos da y por que existen personas que hoy en dia ya estan exponiendo la verdad tal y cual es!! Y a proposito si alguien por ahi con algo de humanidad, puede hacer algo por nosotros, lo apreciaremos muchisimo!! Necesitamos un abogado pro-bono ASAP, es Urgente pues mi madre esta sin medicinas y perdiendo la vision pues tampoco poder hecharse sus gotas de glaucoma, estamos pereciendo…..pero somos reales, existimos !!!

  5. eve of destruction says:

    Such empty posturing and convoluted, hair-splitting legal arguments surely mask some terror of discovery. Why? What has occurred that a fresh, clear wind of openness should be feared? What is the worst that could happen? I noticed that the leahy link in the footnotes no longer connects. Leahy expressed fears that americans would be appalled if they knew what abuses occurred under the patriot act. Perhaps not just foreign nationals but innocent americans inside the borders of the so-called homeland suffered intrusive surveillance and interference that borders on the torturous? Perhaps damning evidence, even audiovisual evidence exists? Perhaps the Administration that inherited such a trove of terror found itself in possession of such evidence and quailed at the thought of what would happen at this time of national fragility if terrible documents were to see the light of day? Impossible to say without knowing what is in these documents. But if this kind of thing happened it would be a great crime against humanity to erase it. A two-edged ethical sword. A great moral test. Who is wise enough to decide?

  6. Kel McClanahan says:

    It’s not actually as bad as all that. Agencies (including the DOJ) can only destroy records according to preapproved records disposition schedules that have to be run through NARA first. So even if an agency determined that certain records were not subject to FOIA, it still couldn’t legally destroy them until they met the criteria for destruction (usually age-dependent).

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