Interesting new rule "The Obama Rule"

[Teatownclown]

Executive Order .... get used to it. He is POTUS! and it is election year. If these things were not passed by executive order, those who are in a precarious financial situation out of no fault of their own and are in a bad financial situation would just file bankruptcy.


Those who are in need are not the enemy.

[Ed W]

I skimmed the proposed new rule, and all I could find was this:

Section 16.6

(c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that: the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.

If I missed the section that would permit a 'component' to deliberately mislead a requestor, could one of you point it out?

[Gaspar]

I skimmed the proposed new rule, and all I could find was this:

Section 16.6

(c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that: the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.

If I missed the section that would permit a 'component' to deliberately mislead a requestor, could one of you point it out?

Sec.  16.6  Responses to requests.

    (a) Acknowledgments of requests. Upon receipt of a request that
will take longer than ten days to process, a component shall send the
requester an acknowledgment letter that assigns the request an
individualized tracking number.
    (b) Grants of requests. Once a component makes a determination to
grant a request in full or in part, it shall notify the requester in
writing. The component also shall inform the requester of any fees
charged under Sec.  16.10 of this subpart and shall disclose the
requested records to the requester promptly upon payment of any
applicable fees.
    (c) Adverse determinations of requests. A component making an
adverse determination denying a request in any respect shall notify the
requester of that determination in writing. Adverse determinations, or
denials of requests, include decisions that: the requested record is
exempt, in whole or in part; the request does not reasonably describe
the records sought; the information requested is not a record subject
to the FOIA; the requested record does not exist, cannot be located, or
has been destroyed; or the requested record is not readily reproducible
in the form or format sought by the requester. Adverse determinations
also include denials involving fees or fee waiver matters or denials of
requests for expedited processing.
    (d) Content of denial letter. The denial letter shall be signed by
the head of the component, or designee, and shall include:
    (1) The name and title or position of the person responsible for
the denial;
    (2) A brief statement of the reasons for the denial, including any
FOIA exemption applied by the component in denying the request; and
    (3) An estimate of the volume of any records or information
withheld, for example, by providing the number of pages or some other
reasonable form of estimation. This estimation is not required, if the
volume is otherwise indicated by deletions marked on records that are
disclosed in part, or if providing an estimate would harm an interest
protected by an applicable exemption.
    (4) A statement that the denial may be appealed under Sec.  16.8(a)
of this subpart, and a description of the requirements set forth
therein.
    (e) Markings on released documents. Markings on released documents
must be clearly visible to the requester.
    (f) Use of record exclusions.
    (1) In the event that a component identifies records that may be
subject to exclusion from the requirements of the FOIA pursuant to 5
U.S.C. 552(c), the head of the FOIA office of that component must
confer with the Office of Information Policy (OIP) to obtain approval
to apply the exclusion.
    (2) When a component applies an exclusion to exclude records from
the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the component
utilizing the exclusion will respond to the request as if the excluded
records did not exist. This response should not differ in wording from
any other response given by the component.


The ACLU, along with Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org said the move would "dramatically undermine government integrity by allowing a law designed to provide public access to government to be twisted.

[nathanm]

The ACLU, along with Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org said the move would "dramatically undermine government integrity by allowing a law designed to provide public access to government to be twisted.

That is indeed the drama queen interpretation of this modified rule. The rest of us just see a minor change that doesn't actually change anything in practice. I don't like that we're moving in that direction at all, though.

[Ed W]

An attorney I know once said that new laws - or in this case, new regulations - invite unintended consequences.  They may be a can of worms.  Take the RICO statutes, for instance, which were originally intended to fight gangsters and are now being used against corporations.

The next question has to be "what is 5 U.S.C. 552(c)" and how does it apply to exclusions?  I'd look it up, but SWMBO and Her Understudy want to go out to dinner.

Argue amongst yourselfs.   

 

[Gaspar]

An attorney I know once said that new laws - or in this case, new regulations - invite unintended consequences.  They may be a can of worms.  Take the RICO statutes, for instance, which were originally intended to fight gangsters and are now being used against corporations.

The next question has to be "what is 5 U.S.C. 552(c)" and how does it apply to exclusions?  I'd look it up, but SWMBO and Her Understudy want to go out to dinner.

Argue amongst yourselfs.   

 

The Freedom of Information Act

[JCnOwasso]

Yes it is the FOIA, however it is a specific section of the act.  So here it is for your reading pleasure...

(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible
violation of criminal law; and
(B) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements of
this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier
are requested by a third party according to the informant's name or
personal identifier, the agency may treat the records as not
subject to the requirements of this section unless the informant's
status as an informant has been officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or international
terrorism, and the existence of the records is classified
information as provided in subsection (b)(1), the Bureau may, as
long as the existence of the records remains classified
information, treat the records as not subject to the requirements
of this section.

And since it references it at the very begining, here is (b)(7)(A)

(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings,


OMG it is sooooo vbad.  Call Glenn Beck to save our Nation....

[Hoss]

Yes it is the FOIA, however it is a specific section of the act.  So here it is for your reading pleasure...

(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible
violation of criminal law; and
(B) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements of
this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier
are requested by a third party according to the informant's name or
personal identifier, the agency may treat the records as not
subject to the requirements of this section unless the informant's
status as an informant has been officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or international
terrorism, and the existence of the records is classified
information as provided in subsection (b)(1), the Bureau may, as
long as the existence of the records remains classified
information, treat the records as not subject to the requirements
of this section.

And since it references it at the very begining, here is (b)(7)(A)

(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings,


OMG it is sooooo vbad.  Call Glenn Beck to save our Nation....

You have; he resides right here...oh, wait, that's just TNF's version of Beck...

[Gaspar]

Yes it is the FOIA, however it is a specific section of the act.  So here it is for your reading pleasure...

(c)(1) Whenever a request is made which involves access to
records described in subsection (b)(7)(A) and -
(A) the investigation or proceeding involves a possible
violation of criminal law; and
(B) there is reason to believe that (i) the subject of the
investigation or proceeding is not aware of its pendency, and
(ii) disclosure of the existence of the records could reasonably
be expected to interfere with enforcement proceedings,
the agency may, during only such time as that circumstance
continues, treat the records as not subject to the requirements of
this section.
(2) Whenever informant records maintained by a criminal law
enforcement agency under an informant's name or personal identifier
are requested by a third party according to the informant's name or
personal identifier, the agency may treat the records as not
subject to the requirements of this section unless the informant's
status as an informant has been officially confirmed.
(3) Whenever a request is made which involves access to records
maintained by the Federal Bureau of Investigation pertaining to
foreign intelligence or counterintelligence, or international
terrorism, and the existence of the records is classified
information as provided in subsection (b)(1), the Bureau may, as
long as the existence of the records remains classified
information, treat the records as not subject to the requirements
of this section.

And since it references it at the very begining, here is (b)(7)(A)

(7) records or information compiled for law enforcement
purposes, but only to the extent that the production of such law
enforcement records or information (A) could reasonably be
expected to interfere with enforcement proceedings,


OMG it is sooooo vbad.  Call Glenn Beck to save our Nation....

So, you are good with this clause?

I doubt it would be much of a Beck issue.  It's more of an ACLU issue.

[JCnOwasso]

I am neither okay or not okay with this clause as it doesn't necessarily pertain to me or what I do... and if it sticks to the definition of the rule, I really don't see a problem with keeping investigation records out from under the FOIA cloak.  I do see where this could cause issues, but everything that is done by this or any administration will be led out by the few negative fibers that could be abused.  You could draw a line from this to the Cheney VP stuff, but Cheney just straight up claimed executive privilege and that he didn't have to share anything with anyone.  Except that whole thing about Valarie Plame. it is amazing how nothing escaped the office but her identity... which is, without a doubt, covered by this exclusion.

[Gaspar]

I am neither okay or not okay with this clause as it doesn't necessarily pertain to me or what I do... and if it sticks to the definition of the rule, I really don't see a problem with keeping investigation records out from under the FOIA cloak.  I do see where this could cause issues, but everything that is done by this or any administration will be led out by the few negative fibers that could be abused.  You could draw a line from this to the Cheney VP stuff, but Cheney just straight up claimed executive privilege and that he didn't have to share anything with anyone.  Except that whole thing about Valarie Plame. it is amazing how nothing escaped the office but her identity... which is, without a doubt, covered by this exclusion.

So basically the administration is poised to make abuses similar to the examples you offer, much easier.
Hey, if you don't have a problem with it, then good for you.

I just find it entertaining how people will bend over backwards to frame acceptance for policy made by this president that they would otherwise view as criminal by any other administration.

Thank you for your example.

[nathanm]

So basically the administration is poised to make abuses similar to the examples you offer, much easier.

Please explain how you arrived at the conclusion that changing the answer from "can neither confirm nor deny the existence of such records" to "there are no such records" changes the susceptibility of the FOIA process to abuse. I can't find a way to make that logical leap.

[JCnOwasso]

So basically the administration is poised to make abuses similar to the examples you offer, much easier.
Hey, if you don't have a problem with it, then good for you.

I just find it entertaining how people will bend over backwards to frame acceptance for policy made by this president that they would otherwise view as criminal by any other administration.

Thank you for your example.

For some reason I feel that you have misinterpreted me, or something is wrong since you are not disagreeing with me...  heck I might have said something that most others would disagree with.

But let's get real, anything passed by one administration is going to be questioned by the opposing faction.  It is the way of politics.  Even if it is something they would have done if they were in office.  No one can give credit where credit is due.  Killing Osama was a bad idea, Gaddafi was a bad man, but what if the next guy supports terrorist and extremism etc, oh nos, egypt made a decision to oust their leader.  I am pretty sure you had people sitting in Europe, Russia and Asia discussing the merits of a free "Colony" back in the day and what that "means" for the world.

[heironymouspasparagus]

I probably would like to read some harsher scorn and condemnation over something that I think is so deserving. I have read that sort of response over Bush or republican decisions, and the lack of such here smells of a double standard.

You have my scorn for it.  As I have said many times, what America needs is more free speech!  And hand in hand with that is the alleged right to access the information they have about a person - supposedly through FOIA.  Any person in this country should have easy, readily available access to any and all information the government - Federal, State, and Local - has about you!  Any! 


And the reality that it really doesn't make any difference which set of guidelines are used - if you don't have the connections within the system, or a set of lawyers with lawsuits at the ready, you aren't gonna get any information from the Fed under FOIA.  And you can be especially sure that none of your elected representatives (House OR Senate) will lift a finger to help.

[Gaspar]

You have my scorn for it.  As I have said many times, what America needs is more free speech!  And hand in hand with that is the alleged right to access the information they have about a person - supposedly through FOIA.  Any person in this country should have easy, readily available access to any and all information the government - Federal, State, and Local - has about you!  Any! 


And the reality that it really doesn't make any difference which set of guidelines are used - if you don't have the connections within the system, or a set of lawyers with lawsuits at the ready, you aren't gonna get any information from the Fed under FOIA.  And you can be especially sure that none of your elected representatives (House OR Senate) will lift a finger to help.

+1

. . .and take it a step further, the precedent that this amendment to FOIA creates will carry to other areas of government.  Since it was passed in 1966 numerous amendments have been made to chip away at the public's access to information, further insulating the actions of government from the people, but the hurdle that government faces (and advantage to the citizenry) is it's inability to simply deny the existence of information.  Because of this, when agencies respond with a Glomar Denial, they can be challenged to provide legal argument as to why access to such information may pose a risk.  Glomar denial simply represents a legally correct way of saying "Yes the information exists but we cannot disclose its nature, extent, or any summery of its contents."

This new clause could essentially button up the FOIA by removing the need for accountability when denying access to information because requesting parties would have no idea whether that information actually exists.  An administration could essentially deny all requests for information, rendering the FOIA null.

The bigger question that no one has stumbled upon is why would the administration press for this now?