BROOKE GLADSTONE:

Another secrecy story. In the late seventies the CIA was trying to duck a Freedom of Information Act request about its ties to the Glomar Explorer, a submarine retrieval ship owned by eccentric millionaire Howard Hughes. Out of this case came what is now called the Glomar response, in which the government can simply refuse to confirm or deny the existence of any records in response to a FOIA request.

In 1986, the use of the Glomar response was explicitly limited to cases in which revealing the existence of documents would compromise national security, reveal the identity of an informant or tip off the requester that the government is investigating him. But, as ProPublica reported this week, now the government wants to change the FOIA rules so it can say there are no documents pertaining to a request, called a “no records” response, even when there are documents. In other words, the government wants a rule permitting it to lie. The ACLU, along with other groups, has petitioned the government to reconsider this rule change but according to the ACLU's policy counsel Mike German, the government's been lying about documents pretty much since the rule governing the Glomar response was tightened 25 years ago.

MICHAEL GERMAN:

Despite the fact that the Department of Justice lost this argument in Congress, they apparently began using this false no records response. So what it helps the government do is prevent any kind of judicial oversight, because people would be less likely to go to court to try to get records –

BROOKE GLADSTONE:

Right.

MICHAEL GERMAN:

- that the government says don’t exist.

BROOKE GLADSTONE:

And so, now the Justice Department is, by proposing this rule, trying to bring law enforcement in compliance [LAUGHS] with, with a rule that reflects what they're doing anyway.

MICHAEL GERMAN:

Basically they want to ex post facto [LAUGHS] create a rule that allows them to do what they've already been doing in violation of the rule. [LAUGHS]

BROOKE GLADSTONE:

And what are the stakes here for regular people?

MICHAEL GERMAN:

The purpose of the Freedom of Information Act request is to give the public access to government information, so that public accountability can take place. And one of the key elements of the statute incorporates judicial review in government decisions about exemptions. People have a right to know what exemption is being applied so that they can challenge that in court and a judge can make an independent decision.

BROOKE GLADSTONE:

Now, we have a little problem here, obviously, since we’re speaking to you [LAUGHS] who opposes this rule, as opposed to somebody in the government who would defend it. But do you have access to their arguments?

MICHAEL GERMAN:

Basically what they were arguing was that there was need to protect ongoing investigations from people who were misusing FOIA, these criminals who are trying to uncover criminal investigations or find informants or, you know, perhaps a hostile nation trying to find out if there is a classified program in existence. If you got an ambiguous answer, like a, a Glomar response and you felt that the documents might actually exist, you'd go into court and try to assert your - your rights to access those records. But if you got a “no records” response, you would tend to believe that the government was telling the truth and, therefore, not challenge them in court.

BROOKE GLADSTONE:

Does this rule require legislative action?

MICHAEL GERMAN:

This is a regulation, so it's the Executive Branch with public comment, which is why we’ve been allowed to comment on it. That would go into effect just through administration action; it doesn't need Congress.

BROOKE GLADSTONE:

Right now if people are told there are no records, they're probably going to believe it. But if they know that there is a rule that [LAUGHS] allows the government to lie about it, wouldn't it increase the chances that the requester takes the government to court.

MICHAEL GERMAN:

Certainly what we called institutional requesters, like the American Civil Liberties Union, like news media organizations would certainly, you know, assume that any “no records” request doesn't necessarily mean no records and would be more likely to bring the case to litigation, which would increase the unnecessary litigation around this.

BROOKE GLADSTONE:

So the way this is likely to go is this rule gets put into the FOIA book and then somebody like you challenges it in court.

MICHAEL GERMAN:

Part of the way the regulatory process works is that they open it for public comment. We’re hopeful that the administration will read our comments, will recognize that it's simply improper for the government to lie to Freedom of Information Act requesters, and particularly because it's not necessary. In other words, they can craft a response that does not confirm whether documents exist, so their goal is met. And that is simply that when they get a request that they think is one of these malicious requests trying to uncover a criminal investigation that’s ongoing about that person or uncover an informant, that they simply say that, that we have interpreted your request as a request for these records, which would be excludable under FOIA, if they exist. Therefore, we're not going to process your claim.It's better than a Glomar response because it actually gives definitive information, but it doesn't say whether the records, it just says we’re not gonna look for them.

BROOKE GLADSTONE:

So what do you think the chances are that your proposed revision carries the day?

MICHAEL GERMAN:

I think it's pretty good. It's not just the American Civil Liberties Union, it’s Citizens for Responsibility and Ethics in Washington and Openthegovermment.Org that joined us. I hope that the Department of Justice recognizes that it's inappropriate to have a government regulation that affirmatively allows the government to lie to people, particularly that they would be interpreting what is intended to be an open government statute to mislead Americans.

[OVERTALK]

BROOKE GLADSTONE:

Mm-hmm [AFFIRMATIVE], it is a little ironic.

MICHAEL GERMAN:

Particularly because it's simply not necessary. We don't have to change the regulation. We can follow the intent of Congress. And it's a win-win for everyone. So, so we’re really hopeful that it will win the day.

BROOKE GLADSTONE:

Mike, thank you very much.

MICHAEL GERMAN:

Thank you very much.

BROOKE GLADSTONE:

Mike German is policy counsel on national security, immigration and privacy for the American Civil Liberties Union.