No one accuses the Obama administration of excessive transparency, but the administration still wants to spare itself the heavy burden of defending its denials of FOIA requests:
Under the new rules, the government could falsely respond to those who file FOIA requests that a document does not exist if it pertains to an ongoing criminal investigation, concerns a terrorist organization, or a counterintelligence operation involving a foreign nation.
There are two problems with the Obama proposal to allow federal officials to affirmatively assert that a requested document doesn’t exist when it does. First, by not citing a specific exemption allowed under the FOIA as grounds for denying a request, the proposal would cut off a requestor from appealing to the courts. By thus creating an area of federal activity that is completely exempt from judicial review, the proposal undercuts due process and other constitutional protections. . .
Under FOIA’s current national security exemption, bureaucrats can already deny access to documents without acknowledging their existence. . . In instances where there is a legitimate grounds for not confirming a document’s existence, “the agency should simply respond that ‘we interpret all or part of your request as a request for records which, if they exist, would not be subject to the disclosure requirements of FOIA pursuant to section 552(c), and we therefore will not process that portion of your request.’ This response requires no change to the current FOIA regulation.” Such a response would preserve a requestor’s right to appeal to a federal court.
Getting rid of those pesky appeals is the point.
Additionally, the administration wants to be able to stall FOIA requests indefinitely by resetting the clock every time they refer a request between departments; they want to remove the duty of department heads to stand by their FOIA denials; they want to create lots of new flimsy excuses to deny FOIA requests; and they want to make it much harder to qualify for fee waivers.
So let’s please not have any more nonsense about the left’s dedication to transparency.
UPDATE: Having received a lot of well-deserved bad press over this, the administration is giving up for now.