No FOIA requests for suspected criminals?

Source

Feds hit over bid to deny some information

by Pete Yost - Oct. 28, 2011 12:00 AM

Associated Press

WASHINGTON - The Justice Department is being criticized by open-government groups for proposing a regulation that would in rare instances allow federal law-enforcement agencies to tell people seeking information under the Freedom of Information Act that the government has no records on a subject, when it actually does.

Avoiding revealing to people that they are under criminal investigation is one of three highly sensitive law-enforcement situations where the government - for the past 2 1/2 decades - has been permitted to respond to FOIA requests by falsely denying that it has records.

The other two situations occur when federal law-enforcement agencies are protecting the identities of informants and when the FBI is asked for records on foreign intelligence or counterintelligence or international terrorism.

The issue is coming up now because the Justice Department is proposing revised regulations that would codify a longstanding policy detailed in a 1987 memo by then-Attorney General Edwin Meese.

The American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington, and openthegovernment.org say the proposed rule "will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people."

Melanie Ann Pustay, director of the Justice Department's Office of Information Policy, says the provision "has been implemented the same way for the 25 years it has been in existence." She said the department took the "extraordinary step" of reopening the public comment period on the proposed revision of FOIA regulations and that the department has been open and transparent about the procedure for invoking exclusions protecting "especially sensitive law-enforcement matters."

The problem is a simple one, according to Meese's 16,428-word memo and the Justice Department's proposed regulation.

Any person who suspects that a federal investigation might have been launched against him could try to use the FOIA to confirm that suspicion. Notifying the requester that the law-enforcement agency is refusing to turn over records would confirm the existence of an ongoing investigation.

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OpenTheGov and CREW Join ACLU Comments: Allowing Agencies to Lie about Records Undermines FOIA

OpenTheGovernment.org joined the American Civil Liberties Union (ACLU) and Citizens for Responsibility and Ethics in Washington (CREW) in submitting comments opposing a proposed rule that would allow agencies to lie about the existence of certain records in response to Freedom of Information Act (FOIA) requests.

The proposed rule would revise section 16.6 of the Department of Justice's (DOJ) FOIA regulations to allow agencies relying on an exemption under 5 USC section 552(c), which applies to certain law enforcement records and information on other sensitive national security investigations, to respond as if the documents did not exist. According to DOJ, the provision is intended to permit the government to avoid confirming the existence of responsive documents under FOIA requests when the mere confirmation that such records exist would damage ongoing investigations or reveal sensitive information the government is lawfully entitled to keep secret under FOIA.

As the comments point out, the proposed rule will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people. The provision would also impede the judicial review that Congress intended to ensure government agencies are properly interpreting FOIA exemptions.

Moreover, the proposed rule is unnecessary. The government can already craft a response to FOIA requests for the records in question that does not confirm whether excludable records exist without lying to the public.

We urge DOJ amend the rule so it does not authorize agencies to lie to requesters, or withdraw that section of the proposed rule.

U.S. push to make lying a policy raises concern

The ACLU's solution isn't that great - "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 ... and we therefore will not process that portion of your request"

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Plan to allow agencies to lie about papers' existence decried

U.S. push to make lying a policy raises concern

by Erin Kelly - Oct. 29, 2011 12:00 AM

Republic Washington Bureau

WASHINGTON - Open-government groups are fighting a proposed Justice Department rule to allow federal law-enforcement agencies to lie about the existence of government documents being sought by the public.

The proposed regulation applies to certain documents that members of the public may request under the Freedom of Information Act. Some sensitive records, including information about FBI informants, are already excluded from the requirements of the act because revealing them could tip off criminals or threaten public safety.

However, instead of just denying a request under those situations, Justice Department officials would be instructed under the rule to "respond to the request as if the excluded records did not exist," even when they do.

"The government should never lie to the American people," said Mike German, a former FBI agent who is now the senior policy counsel for the American Civil Liberties Union. "To actually have it codified in a regulation that the government is allowed to lie is just untenable."

A spokeswoman for the Justice Department said the proposed rule does not represent a change in the agency's policy. She said a 1987 memo by then U.S. Attorney General Edwin Meese already instructs officials to deny the existence of certain sensitive records even when those records exist.

"The provision has been implemented for the past 25 years," Justice Department spokeswoman Gina Talamona said.

She said the policy has been in place for certain records that are excluded from the Freedom of Information Act, known as FOIA. Those exclusions include records about a law-enforcement investigation in which the target may be unaware he or she is being investigated, records about informants whose identities have not been made public, and specific national-security information maintained by the FBI.

"(The policy) is to ensure that our responses to a FOIA requester don't reveal the existence of excluded records," she said.

For example, she said, if someone asks for informant records about a specific person and is told those records exist but cannot be released, it could endanger the informant by confirming that he is providing information to federal agents.

But the ACLU and other open-government groups say there are easy ways to protect sensitive information without deceiving the public. In a letter to the Justice Department, the ACLU, along with Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org, offered a suggestion for how government officials can respond without lying.

"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 ... and we therefore will not process that portion of your request,' " the groups wrote.

Anne Weismann, chief counsel at Citizens for Responsibility and Ethics in Washington, said, "We all recognize that there are legitimate reasons at a particular point of time that an agency may not want to disclose that it has certain documents. But there are ways to handle it short of lying."

Open-government groups said it's disturbing that the Justice Department has already been operating with a policy of deception.

"They shouldn't be proud of the fact that they've been lying to the press and the public since 1987," said Ken Paulson, president and CEO of the nonpartisan First Amendment Center, which educates the public about free-expression rights.

Creating a federal regulation would make the situation even worse by giving a bad policy the force of law, said Paulson, an attorney and former editor of USA Today.

"The insidious thing about this is that you never know when you've been lied to by the government, so how do you challenge them?" he said. "If they say a document doesn't exist, then what's your recourse? You're not going to file suit for a document that you've been told doesn't exist."

The current policy also distorts the intent of Congress when it passed amendments to the Freedom of Information Act in 1986, Weismann said.

"There was discussion about this in Congress at the time, and they did not authorize the agency to lie, regardless of what Ed Meese wrote in his memo," she said.

German and Paulson said they think the Obama administration deserves some credit for at least letting people know about the policy and allowing public comment.

The Justice Department, which came out with its proposed rule in March, reopened the public-comment period this fall at the request of open-government groups who wanted to weigh in once they realized what was happening. Reopening the comment period, which was supposed to end in April, was "an extraordinary step," Justice's Talamona said.

The public-comment period closed Oct. 19. The Justice Department is expected to come out with a final rule by the end of the year. If the controversial provision is not removed, it will be challenged in court, German said.

"We are grateful that they did reopen the comment period after we understood what they were doing," German said. "I would hope that they would be open-minded and see our recommendation as a solution. If not, I think it will completely destroy the integrity of the Department of Justice."

Source

Maricopa County is seeking to make data more robust

by Michelle Ye Hee Lee - Oct. 29, 2011 12:00 AM

The Arizona Republic

Maricopa County is working with the local medical community to solve a sensitive record-keeping problem that, if eliminated, could also relieve stress on families coping with grief.

The county's Office of Vital Registration is trying to raise awareness among medical professionals that more specific cause-of-death information on patients is needed to process their death certificates.

The documents are not only formal death records. Certified copies generally are required for families to take care of a range of matters after loved ones die, from funerals to estates.

If the cause of death listed by a physician is vague or incomplete, county staff must take time to contact them for additional information. That can slow the issuance of a death certificate, which ultimately affects family members of the deceased who already experience grief and anxiety, experts say.

Precision in noting the cause of death is a matter of national health policy. The national Centers for Disease Control and Prevention collect cause-of-death data that is used for statistical and medical research, to fund certain programs, and to create public-health programs. Each state is contracted with the CDC's National Center for Health Statistics to provide robust data.

The Maricopa County Department of Public Health must submit data to the CDC that meets national standards. If death certificates initially don't meet those standards, the county must collect the information before the certificate is processed.

Physicians commonly list cardiac arrest or respiratory failure as the cause of a person's death - meaning, their heart stopped beating or they stopped breathing. But there likely were several other conditions or diseases that led to the person's demise that physicians did not specify as a leading cause of death, medical experts say.

On a standard cause-of-death form, physicians fill out the immediate cause of death on the first line. They can then list diseases or injuries that may have led to the patient's death - for example, stroke, chronic lung disease or prostate cancer. They also can list conditions that may have contributed to the patient's death, such as alcohol or drug use, smoking or recent pregnancy.

"Those leading causes of death, if you will, are what will be afforded more time, resources and effort (to specify)," said Michele Castaneda-Martinez, program manager of the Office of Vital Registration at the county's Department of Public Health. "If we can understand the leading causes of death, we can try to combat them . . . This is why ultimately we are charged with obtaining this data."

Raising awareness

The county recently increased its outreach to the Valley's medical community and added internal training for staff at the Office of Vital Registration. If the county receives incomplete information, staff members point physicians to online resource tools they can use in the future to guide them in listing cause-of-death information.

County staff also gives presentations at clinics to educate physicians on the information they need.

Currently, the Office of Vital Registration is working on informational cards to distribute to physicians, who can keep the card in their jacket pocket and refer to it when they need to certify a patient's death.

In Arizona, those qualified to certify deaths are medical, osteopathic and naturopathic doctors, physician assistants and nurse practitioners.

There are varying levels of awareness among physicians about cause-of-death documentation requirements, said Michael Grossman, associate dean of graduate medical education at the University of Arizona College of Medicine in Phoenix and vice president of academic affairs at the Maricopa Integrated Health System.

There may not be as much emphasis on training medical residents to certify patient deaths because not every practicing physician may need that skill, Grossman said.

"It's an age-old problem," Gross man said. "Some of it has to do with the fact that most of us haven't been formally trained in a statistical approach to what we should put down."

Impact on families

Having inadequate cause-of-death information could lead to weeks or months of delay for families, said Ilene McCauley, a Scottsdale-based attorney specializing in estate and business planning.

"Everything is absolutely on hold because nobody can do anything until the death certificate is issued," McCauley said.

A death certificate is the ultimate proof of death in Arizona, McCauley said. Families need separately issued death certificates to settle a variety of post-death issues pertaining to deceased loved ones, including collecting life insurance, opening probate estates, collecting pension benefits and accessing bank and trust accounts.

Sandra Howlett, a Valley bereavement specialist, calls those post-death errands "the business of death" that is exhausting to family members who are shaken by grief.

Howlett said having more detailed cause-of-death information also could help families through their grieving process. Even though it is difficult to see the cause of their loved ones' death written out, families want answers, she said.

"Getting this accurate the first time - it not only saves time for everybody, including the physician, but it also saves more anxiety for the family that wants more information," Howlett said.