ACLU Seeks Pentagon Files
The ACLU is asking more than a yes/no question. It also wants to know "the means by which information by or about any of the Requesters or their activities was or will be collected, including but not limited to instances in which DoD personnel gathered information via informants (or) by infiltrating any of the requesters in an undercover capacity" as well as "the names and titles of the government official(s) responsible for selecting the individuals, organizations or groups about which the DoD will collect information."
The question, of course, is not just whether the DoD has these records but whether it will release them or seek to retain them under one of the many exemptions from the freedom of information law, such as declaring them "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy" or "related solely to the internal personnel rules and practices of an agency." There's also a carve-out for "inter-agency or intra-agency memorandums" and certain "records or information compiled for law enforcement purposes." (There's also an exemption concerning the location of wells, but that probably won't apply here.)
However, even if the Pentagon denies the FOIL requests under one of these exemptions, it will at least have to name the objection, and that's at least a form of exposure. Plus, as New York Civil Liberties Union associate legal director Christopher Dunn told the Voice recently, a FOIL request "creates a legal avenue through which one might be able to force disclosure about certain types of surveillance."