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In Letter, Udall Denounces Proposed New FOIA Rule that Would Authorize Deceiving American Public

Suggests a Compromise to Limit FOIA Access to Sensitive Information Without Lying

Posted: Wednesday, November 2, 2011

Today, Mark Udall sent a letter to U.S. Attorney General Eric Holder opposing proposed regulations by the U.S. Department of Justice that would allow the government to lie about the existence of sensitive information requested under the Freedom of Information Act (FOIA).  The proposed amendments to FOIA “threaten to undermine the openness, transparency and government accountability that were the motivating factors behind the Freedom of Information Act,” Udall wrote to Holder. 

Under FOIA, the government may reject requests for information by refusing to confirm or deny the existence of the requested records in three situations: to avoid tipping off people that are under criminal investigation, to protect the identities of informants, and for foreign intelligence or counterintelligence or international terrorism reasons.  While Udall agrees that in certain circumstances national security and law enforcement require the government to withhold information, the Justice Department’s proposed regulation would allow federal departments and agencies to respond to certain FOIA requests “as if the excluded records did not exist,” even when such records do, in fact, exist.  

Udall disagrees with this proposal because he believes this undermines the public trust he was elected to oversee.  Lying about a document’s existence is wrong and a violation of Congress’s intent when it created FOIA, he wrote to Holder.

"The proposed regulation expressly authorizes the government to deceive American citizens under a framework initially designed to promote and foster freer access to information," Udall's letter reads.  "As a member of the Senate Select Committee on Intelligence, I certainly support the need to prevent certain sensitive, personal, classified, or law enforcement information from being disclosed under FOIA....  But, I also believe it is extremely important that we do not attempt to protect our citizens by lying to them."

Instead, Udall advocates an alternate approach - supported by the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington, and - that would allow the government to exclude sensitive parts of a FOIA request and inform the requestor that his or her request cannot be processed. 

"I believe that this type of response would serve to protect sensitive information while preserving the integrity of the FOIA process and that of government officials who are charged with administering the Act," Udall wrote further.

Through his work on the Senate Select Committee on Intelligence, Udall has been a vocal leader in ensuring that the government balances our national security posture against the civil liberties we demand as Americans.  Recently, Udall has worked to shed light on how government interprets laws like the PATRIOT Act to be accountable to the public and spur informed public debate.  Read the full letter HERE.

By: Tara Trujillo, 202-224-4334
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