“I believe it is extremely important that we do not attempt to protect our citizens by lying to them,” Colorado U.S. Senator Mark Udall said in a letter to Holder mailed Wednesday. Udall is a member of the Senate Select Committee on Intelligence and has been a champion in the post-9/11 era of the need to balance national security against concerns for civil liberties and privacy protection.

Under controversial proposed Section 16.6(f)(2) of the revised Freedom of Information Act regulations the department of justice put forward in the spring, government officials could simply tell citizens that the records they’re looking for don’t exist, when in fact the records do exist. A “no record” response, wrote Udall, would unjustly head off further inquiry, but only temporarily. All parties would now know that the “no records” response could well be a lie and legal action on the part of skeptical investigators of all stripes would balloon.

Udall, working off of a proposal authored by government watchdog groups suggested an alternative approach where government agencies could simply inform requestors that the documents they seek, if they exist, “are not subject to the disclosure requirements established by the Freedom of Information Act.”

Ronald Weich, Assistant Attorney General for the Justice Department Office of Legislative Affairs, wrote in a letter to the Senate Judiciary Committee on Thursday that the department was scotching Section 16.6(f)(2) in its final version of the regulations.

The department is aiming to exclude sensitive information from FOIA requests “in the most transparent manner possible,” Weich wrote. “If the proposed regulations can be improved in these respects, we will work to improve them.”

Read Udall’s letter to Holder and an ACLU brief on the proposed regulations here.

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“I certainly support the need to prevent certain sensitive, personal, classified, or law enforcement information from being disclosed under FOIA,” Udall wrote in his letter. “But I also believe it is extremely important that we do not attempt to protect our citizens by lying to them.”

Under the new regulation, government officials could simply tell citizens that the records they’re looking for don’t exist, when in fact the records do exist. A “no record” response, writes Udall, is very likely to head off any further inquiry. Yet all parties would know that the “no records” response could well be a lie. The regulation would erode trust and rightly lead to legal action on the part of skeptical investigators of all stripes.

Udall suggests an alternative approach drafted by government watchdog and civil liberties groups– the ACLU, Citizens for Responsibility and Ethics in Washington (CREW) and Open The Government– where government agencies could instead simply inform requestors that the documents they seek, if they exist, “are not subject to the disclosure requirements established by the Freedom of Information Act.”

Such an approach would be effective as well as “truthful and informative,” writes Udall.

Concerns expressed among the public, media and watchdog organizations prompted the justice department to keep the comments period on the proposed regulation open longer than planned. That period closed last week. Udall’s letter is a personal response aimed to throw additional weight behind calls to rethink the new regulation.

The history behind the debate is one of tug of war between the right to information and the need to protect government sources and secret investigations. It’s also a history of the battle to ensure that checks and balances between branches of government can operate effectively.

Criminal organizations, for example, have worked the FOIA system for years. They submit information requests and, based on the varied responses of the government agencies, try to uncover the identity of informants. A “No records exist” kind of response regarding, say, a “Johnny Fingers” would mean Fingers was no snitch. A “Will not confirm or deny” kind of response regarding, say, a “Leftie Knuckles” would suggest Knuckles couldn’t be trusted.

Yet, in the post-9/11 era, government agencies have become increasingly brash in denying information to all sorts of requestors– including those with no intention of whacking informants– and in flatly lying to requestors and to judges tasked with reviewing paper trails meant to detail the reason for request denials.

In a case heard this past spring titled Islamic Shura Council of Southern California, et al. v. FBI, the FBI lied to the plaintiffs about the existence of documents and then lied to the district court judge as well. When the fact came out that the documents did exist, it was clear that judicial review of national security document hoarding had been seriously eroded.

As the judge in the case put it, the information the FBI delivered to the court was “blatantly false.” It was a fundamental breech in accountability laws, he said.

“The Government’s… submission raised a very disturbing issue,” the district judge wrote in the Islamic Shura case. “The Government asserts that it had to mislead the Court regarding the Government‟s response to Plaintiff’s FOIA request to avoid compromising national security. The Government’s argument is untenable. The Government cannot, under any circumstance, affirmatively mislead the Court. The United States Constitution entrusts the Judiciary with the power to determine compliance with the law. It is impossible for the court to determine compliance with the law and to protect the public from Government misconduct if the Government misleads the Court. The Court simply cannot perform its constitutional function if the Government does not tell the truth.”

If 16.6 is accepted the way it stands, the kind of legal breech on display in Islamic Shura would be written into standard procedures.

Below view Udall’s letter to Attorney General Holder and a fairly comprehensive brief on the matter filed to the Department of Justice by the ACLU.

Letter to Attorney General Holder on the Freedom of Information Act

FOIAACLUbrief

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Key parts of the proposal:

- deny requests that aren’t addressed to precisely the correct department (16.3 (a))
- summarily dismiss requests if they deem the wording too vague (16.3 (c))
- automatically apply exclusions to FOIA whenever it can (16.4 (a))
- be able to hide what part of the agency is responsible for filling requests (16.4 (e))
- reset their deadlines for responses any time they refer requests among departments (16.5 (a))
- make it more difficult for requests to be deemed urgent (16.5 (e))
- insulate department heads from having to stand by denials (16.6 (d))
- lie, and claim records do not exist, when they do (16.6 (f))
- remove the ability for the courts to oversee how DOJ applies some exclusions (16.6 (f))
- make it easier for businesses to declare that information is a trade secret (16.7)
- be able to destroy records that might be responsive to FOIA requests (16.9)
- ignore your request for information to be given in a specified format (16.9(a)(3))
- disqualify most schools from getting FOIA fees waived (16.9(a)(4))
- exclude new media from getting fees waived (16.10(a)(6))
- make it easier to deny fee waivers (16.10(k)(2)(iii))

Other news outlets have mostly focused on one aspect of the proposal, codifying the ability for a government agency to lie, or “respond to the request as if the excluded records did not exist.”

Several grisly photos (warning: graphic pictures of dead bodies) of the aftermath of the early-morning raid have already surfaced. The Reuters news agency obtained them from a member of Pakistan’s security forces who entered bin Laden’s compound after a team of Navy SEALs shot and killed bin Laden. None of the photographs, however, show bin Laden, and President Obama has said his administration will not release any such pictures out of concern that they would incite additional violence or be used for anti-American propaganda.

The AP, however, maintains that such a judgment call runs counter to its ability to determine whether the photographs are newsworthy. Michael Oreskes, senior managing editor of the AP, told The Atlantic’s John Hudson, “In the week since the raid there’s been a whole series of story-lines about what happened in this raid. At this point, anything that might shed more light on what occurred is potentially quite newsworthy. So we would like this imagery to fully understand what happened during this event.”

In the text of its FOIA request, the AP wrote hopefully to the administration, reminding it of the promises that had been during the Obama campaign:

“The Obama White House ‘pledged to be the most transparent government in U.S. history,” wrote the AP,  “and to comply much more closely with the Freedom of Information Act than the Bush administration did.’”

The AP joins Politico, Fox News, Judicial Watch and Citizens United (the controversial right-wing nonprofit group at the center of a notorious and contested Supreme Court decision) in filing FOIA requests for the pictures. So far, Politico is the only organization to report that it’s received an acknowledgment of its request, which has been forwarded to U.S. Army Intelligence.

If in fact that means that the Army has possession of the photos, it might make the FOIA requests a bit harder for the government to fight. Were the photos classified as presidential records, they couldn’t be released until at least after Obama leaves office, but if, as appears to be the case, the Army has them, it’s slightly more difficult to block their release to news agencies like the AP, Politico and Fox News.

Still, even though the Army is subject to immediate FOIA requests, petitions to see the pictures from the media and the public could be shot down for any number of reasons. In a post on the blog for George Washington University’s National Security Archive, the organization’s Nate Jones laid out several ways that the government could make the photos exempt from FOIA requests, thus blocking their release.

Writing last week, before the crop of FOIA requests was known, Jones explained that the government could use any of several exemption statutes pertaining to national security to block the photos’ release, or it could even cite privacy laws protecting the bin Laden family, an action for which there is actually precedent (PDF).

If all else fails, Jones says, President Obama can lean on Congress to quickly pass a law granting a statutory exemption to the photos — meaning there would be a case-specific injunction against release. That may seem at first blush like a last-ditch effort, but there are in fact 240 such exemptions currently on the books, including one against the release of any more pictures of detainee abuse at Abu Ghraib than have already been made public.

Of course, any organization faced with a FOIA exemption can appeal the decision, but it’s a drawn-out process unlikely in such a high-profile case to bear any fruit. Barring any major surprises (or leaks), the photographs of bin Laden’s death seem unlikely to ever see the light of day.

On the environmental blog DeSmogBlog, contributor Farron Cousins has a roundup of some of the recent revelations regarding BP’s post-spill behavior. As Cousins states, UK newspaper The Guardian on Friday published a report on emails that Greenpeace obtained via a Freedom of Information Act (FOIA) request.

The Guardian has several of the emails in full on its website. Among the messages from BP officials that have come under fire are the following talking points from BP Environment and Regulatory Compliance Manager Karen Ragoonan-Jalim:

One request coming from New Orleans was for BP to ensure that there are BP-badged SMEs in each of the thirteen (13) Technical Working Groups (TWGs) that have been assembled by NRDA [Natural Resource Damage Assessment]. This would then allow BP to have a voice within the NRDA programs and allow for better collaborations on NRDA scope of work and sampling programs.

[...]

Discussion around GRI and whether or not BP can influence this Long Term Research Program ($US$500million) to undertake the studies we believe will be useful in terms of understanding the fate and effects of the spill on the environment, e.g. can we steer the research in support of Restoration Ecology? Liz provided the context around GRI [Gulf Research Initiative], i.e. that it was set up as an independent research program, to be managed by a Board of Trustees, independent of BP. It may be possible for us to suggest the direction of the studies but without guarantee that they will be done.

“Liz” is Liz Rogers, BP’s Director for Environment and Social Responsibility. “SME” presumably refers to the generic term “Subject Matter Expert.” Though BP hoped to insert their own industry experts into the NRDA panels and contemporary federal reports (PDF) indicate an openness to BP involvement, it’s unclear how successful BP was in directing the findings of damage assessment groups.

An email from Russell Putt — an Environmental Professional with BP — sent two days after Ragoonan-Jalim’s, reiterated BP’s position and desire to influence the $500 million research program:

Can we “direct” GRI funding to a specific study (as we now see the governor’s offices trying to do)? What influence do we have over the vessels/equipment driving the studies vs the questions?

Meanwhile, Agence France-Presse now reports dozens of people involved in post-spill cleanup efforts have since suffered from a raft of health problems, according to patients and doctors in southern Louisiana.

Official numbers are hazy, largely because the illnesses reported remain a mystery to medicine. What is known, according to anecdotal evidence cited by AFP, is that cleanup workers have complained of headaches, nausea, vomiting, memory loss and a variety of ear, nose and throat issues. One small-town doctor says he has seen 60 patients with symptoms serious enough that they’ve sought medical care.

The state of Louisiana has reported 415 instances of medical problems among the 52,000 cleanup workers, but the AFP report claims actual numbers could be far higher, given flaws in how the government collects information related to the spill. The AFP cites, for example, the fact that carcinogens like benzene leave the bloodstream four months after exposure, even as their effects continue to wreak havoc on the body; the National Institute of Environmental Health Sciences didn’t begin its survey of cleanup workers until six months after the spill.

The word from BP, reports the AFP, has been to deny any health problems beyond the norm. Worker Jamie Simon says BP told her not to worry about any damage the cleanup could be doing to her body:

“I was exposed to those chemicals, which I questioned, and they told me it was just as safe as Dawn dishwashing liquid and there was nothing for me to worry about,” she said of the BP bosses at the job site.

Talking Points Memo reported Tuesday that the Mackinac Center, a conservative think tank located in Midland, on March 25 submitted FOIA requests to Michigan State University, Wayne State University and the University of Michigan. One request was released to TPM and seeks all emails that include such words and phrases as “Scott Walker”; “Wisconsin”; “Madison”; “Maddow”; and “any other emails dealing with the collective bargaining situation in Wisconsin.” The request covers all communications from Jan. 1 to March 25.

The Mackinac Center employees contacted by TPM were opaque about the intent of their transparency request, prompting questions about their motivations from progressive groups.

“Wealthy corporations, right-wing radicals and their foot soldiers such as the Mackinac Center will stop at nothing to squeeze people who work hard for a living and silence those who fight on behalf of all families in Michigan,” said Progress Michigan Executive Director David Holtz. “People across Michigan are getting hammered by a tough economy, budget cuts, job losses and foreclosures. Now, they are at risk of having their voice taken away by a secretive, conservative front-group with deep pockets and no tolerance for those who dare disagree with them.”

Other progressive groups weighed on the situations as well.

“The people of Michigan deserve a voice, especially at a time when politicians, and special interest groups like the Mackinac Center are doing everything in their power to distract Michigan residents from paying attention to what really matters,” said Linda Teeter, executive director of Michigan Citizen Action. “This FOIA request is changing the subject from the fact that K-12 funding is under attack, unemployment benefits have been cut, and prisons and state police posts are being closed.”

Some argue that the Center is seeking to intimidate those who speak for union workers with the request.

“After the complete failure of its economic policies over the past decade, the Mackinac Center now seeks to cast a shadow of fear and intimidation over Michigan so that no one will dare question any state’s action denying persons their basic right to join with other folks to improve their working conditions,” said John Philo, legal director of Sugar Law Center for Economic and Social Justice. “Along with a majority of Michiganders, we will be working to ensure that our Constitutional right to freedom of association and our human right to form and join labor unions prevail over the Center’s discredited agenda and repugnant tactics.”

But even one of the professors whose emails are targeted by the request told TPM that the Center may be looking for evidence of illegal use of public resources:

Roland Zullo, a professor at the University of Michigan’s Institute for Research on Labor, Employment, and the Economy and subject to the request, suggested the Mackinac Center is trying to catch labor studies professors in illegal political advocacy on state time.

“It sounds like they’re trying to catch us advocating for the recall or the election of a politician,” Zullo said. “Because we’re not supposed to do that, we’re not supposed to use our University of Michigan resources for something like that.”

Allowing citizens and watchdog groups to file requests looking for evidence of illegal actions by government employees is one of the principal reasons that the Freedom of Information Act was passed.

Ken Bunting, executive director of the National Freedom of Information Coalition, says the situation, which is similar to a case in Wisconsin, highlights an ongoing tension between transparency advocates and those who worry about privacy issues and academic freedom concerns. And whatever the motivation of the Center, he says, the law makes such requests perfectly legal.

“This wont be the first time that some one concerned about privacy or academic freedom are on the other side of transparency,” says Bunting. “My feeling on this whether or not the requester is motivated by nefarious purposes or not, the professors should release the documents under those narrow exemptions.”

Coincidentally, perhaps even ironically, government transparency advocates celebrate Sunshine Week in honor of FOIA laws around March 16 — James Madison’s birthday — every year.

Under federal law, any person can request information on the operation of the federal government. The law is called the Freedom of Information Act, or FOIA. The feds say the various departments process 600,000 FOIA requests a year, but Issa wants to make sure that the responses to those requests are done in a timely manner. Under his request, departments will have to turn over any communications with requesters whose requests have taken more than 45 days to process.

Here’s how a spokesperson for Issa classified the request:

“Our interest is not in the private citizens who make the requests,” said Kurt Bardella, a spokesman for Mr. Issa. “We are looking at government responses to these Freedom of Information requests and the only way to measure that is to tally all that information.”

But others worry about the broad request and the potential political impacts:

It “just seems sort of creepy that one person in the government could track who is looking into what and what kinds of questions they are asking,” said David Cuillier, a University of Arizona journalism professor and chairman of the Freedom of Information Committee at the Society of Professional Journalists. “It is an easy way to target people who he might think are up to no good.”

Issa’s spokesperson and Committee staff say there should be no concerns about the identities of persons being used improperly. They promise not to allow that to happen. But don’t plan on getting anything but a promise from the Committee on that issue. Congress is not covered by FOIA, so you will have to trust Issa et al, that they will be transparent on the use of the names.

But opponents of Secure Communities said they are not done pushing back against the program, which they say lessens overall safety by making immigrants fearful of police.

“We’re not giving up,” Lucero Beebe-Giudice, a spokeswoman for Tenants and Workers United, told TWI. “We continue to believe there’s a way to opt out. They’re trying to take the wind out of our sails, but we think that there’s a way to opt out.”

Tenants and Workers United is part of a larger coalition of immigrant rights groups that are fighting the spread of Secure Communities, which the Obama administration plans to extend nationwide by 2013. ICE officials listed steps for communities to be removed from the program, but later said opting out is impossible because fingerprints are shared directly between the FBI, which receives them for criminal background checks, and the Department of Homeland Security.

Immigrant rights groups are trying to get more information about the program, the technology that would be needed to filter out results sent to DHS and any policy changes that made the program mandatory. The groups submitted a Freedom of Information Act request in February, then filed again in October to receive documents related to the opt-out process.

Beebe-Giudice said Arlington would continue sending fingerprints to the FBI for criminal background checks even though they will be forwarded to ICE, but could change its actions on Secure Communities based on information that comes out of the FOIA request.

“The county is not going to stop doing whatever their regular process is,” she said. “But that doesn’t mean they’re not going to continue to pursue this issue.”

TRAC requested a large set of data as part of its research on who is caught by ICE. Its FOIA request is very detailed, asking for information on detainee-by-detainee data on when and where illegal immigrants were arrested, how many family members they have in the U.S. and the final result of enforcement process. But ICE said in a response letter on Sept. 22 that much of this information was unavailable. (Click here to see a spreadsheet of the data requested.) This includes information ICE has released for detainees before, including their marital status, where they were detained and where they are being held now. Available information would cost TRAC $450,000, the ICE letter said — even though TRAC is part of an educational institution.

This time, though, a representative from ICE said the agency cannot provide information on certain topics, but did not explain why. TRAC argues this is a violation of the agency’s rules, the Obama administration’s stated commitment to transparency and FOIA policies, which require federal agencies to state specific reasons for keeping data from FOIA requesters.

The information requested by TRAC would be helpful to researchers and observers hoping to put numbers to the debate over immigration enforcement. While the Obama administration touts its increased enforcement, particularly of illegal immigrants who commit crimes, little is known about who the detainees are and how they enter the detention system. Without the information, it is difficult to challenge the images of illegal immigrants promoted by either side of the debate: from the right, illegal immigrants as dangerous criminals who must be removed; from the left, hard-working family members caught in an unfair system. There are likely elements of each, but additional information on detainees could clarify the picture.

However, for what one assumes are less than coincidental reasons, several banks who also received publicly disclosed TARP funds joined the Fed in its quixotic quest to keep quiet about who took the Fed’s money too. That group includes ABN Amro Bank, Bank of America Corp., The Bank of New York Mellon Corp., Citigroup Inc., Deutsche Bank, HSBC, JPMorgan Chase, US Bancorp and Wells Fargo. If it seems to the average layperson that these banks have already basically disclosed that they are among the beneficiaries of the Fed’s largess and haven’t suffered any ill effect, that might underscore Bloomberg’s reasoning that the Fed simply doesn’t want to be subject to any oversight rather than that there are major business concerns with the disclosure.

In particular, the appeals court ruled today that the Fed and the banks who mysteriously don’t want the Fed to disclose the banks that accepted their loans during the financial crisis failed to meet the standard set forth by the FOIA for keeping such information secret.

In its opinion today, the appeals court said that the exception applies only if the agency can satisfy a three-part test. The information must be a trade secret or commercial or financial in character; must be obtained from a person; and must be privileged or confidential, according to the opinion.The court said that the information sought by Bloomberg was not “obtained from” the borrowing banks. It rejected an alternative argument the individual Federal Reserve Banks are “persons,” for purposes of the law because they would not suffer the kind of harm required under the “privileged and confidential” requirement of the exemption.

In other words, the Fed argued that the individual Federal Reserve Banks which comprise the Fed are people, not banks, and thus covered by the law. Unlike the Supreme Court in Citizens United v. FEC, the appeals court rejected the idea that the banks are people or that they would be harmed by disclosing to whom they lent money.