Should a public agency be authorized to lie to a person seeking access to government records? That’s the plan being advanced by the U.S. Justice Department for situations where even confirming that certain documents existed—while denying access to them—might disclose that certain sensitive law enforcement or intelligence operations were under way. Winston Churchill once remarked that “in wartime, truth is so precious that she should always be attended by a bodyguard of lies.” But we are engaged in apparently unending (what would tell us we’d won?) wars on terrorism, drug rackets and other criminal conspiracies. The already most cryptocratic sectors of our national government now want a license to lie as well as torture and assassinate. Do you trust the government that brought you the Gulf of Tonkin attacks and the Iraqi weapons of mass destruction to lie responsibly?
But wait a bit. Does the fact that express authority to lie about the existence of certain specified records is being sought mean that the DOJ considers that unless excused, lying about the existence of documents requested under the Freedom of Information Act is not lawful? I’d be willing to support the rule to excuse lying about the existence of records totally exempt from disclosure anyway in these limited instances if Congress were willing expressly to criminalize lying to frustrate access to public information otherwise. That kind of lying is not confined to federal records and agencies. Most experienced journalists know of situations where a government whistleblower slipped a reporter documents. but when a formal request for them was made (to protect the informant), the agency denied their existence.