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Department of Justice reportedly drops FOIA proposal

In this Jan. 21, 2009, file photo President Barack Obama signs one of five executive orders his first day on the job.
In this Jan. 21, 2009, file photo President Barack Obama signs one of five executive orders his first day on the job.
Associated Press

A Department of Justice proposal criticized as giving the government the license to lie is reportedly being dropped after drawing fire from a variety of sources.

The DOJs draft FOIA rule was first published in March, and was recently reopened for comments. The proposed change would allow government agencies to respond to [a FOIA] request as if the excluded records did not exist.

Sen. Charles Grassley, R-Iowa, who promised to fight the change, said the Justice Department made the right decision to pull the proposed regulation.

The American people are increasingly cynical with the federal government, and increasing transparency can be an important tool to build more trust, Grassley said. In other words, the publics business ought to be public.

"Having now received a number of comments on the Department's proposed regulations in this area, the Department is now actively considering those comments and is reexamining whether there are other approaches to applying exclusions that protect the vital law enforcement and security concerns," Ronald Weich, DOJ legislative liaison, wrote to Grassley. "We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures and we will not include that provision when the Department issues final regulations."

The DOJ was seeking to codify a policy detailed in a 1987 memo by then-Attorney General Edwin Meese, who wrote that the special protection provisions expressly authorize federal law enforcement agencies, for certain especially sensitive records under certain specified circumstances to treat the records as not subject to the requirements of [the FOIA].'

The 2005 Citizens Guide On Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records states, An agency is not required to confirm the existence of three specific categories of records. If these records are requested, the agency may respond that there are no disclosable records responsive to the request. However, these exclusions do not broaden the authority of any agency to withhold documents from the public. The exclusions are only applicable to information that is otherwise exempt from disclosure.

The State Journal-Register of Springfield, Ill., wrote that under current law, instead of saying a document does not exist, the government can say it can neither confirm nor deny the existence of a requested document.

"The distinction may not sound like much, but it makes a huge difference," the editorial states. "An individual or group denied a FOIA request can take the case to court and sue if they believe they have been wrongfully denied or to find out whether requested records really do exist. If told definitively that the record they are seeking does not exist, however, they are far less likely to pursue a lawsuit."

The Department of Justice has proposed federal regulations that would authorize the United States government to lie to the American people. This sounds bad, but in truth its a big step forward, Geoffrey Stone wrote at the Huffington Post. The Obama administration, reflecting an admirable commitment to transparency, wants everyone to know it will lie.

Even so, Stone concluded, It would be best for the Department of Justice to go back to the drawing boards.

Far from agreeing that the change is an example of President Barack Obamas promised transparency, other critics of the proposal slammed it as a way for the government to lie to the American people.

The ACLU, CREW and OpenTheGovernment.org oppose this provision of the proposed rule because it is inconsistent with FOIAs purpose of compelling government accountability through public access to information, an ACLU, CREW and OpenTheGovernment.org memo states. It 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.

You work for and should answer to citizens, The Associated Press Media Editors wrote in a letter to Attorney General Eric Holder. The FOIA was conceived as a way for average citizens ��� as well as media ��� to gain information from and about their government. When you propose a change that would allow any government agency to deny the existence of official documents, you are intentionally misleading those citizens.

Reading the proposed rule, its hard to have any reaction other than the DOJ officials responsible for this proposed rule resent the FOIA, and are doing everything within their power to weaken it, John Wonderlich of the Sunlight Foundation wrote. Since the DOJ reports directly to the president, we can only interpret this proposal as reflective of the administration's feelings towards FOIA. And if this proposal reflects their feelings, then they can best be summarized as hostile.

"Despite its flaws, FOIA is one of the few checks on excessive executive branch power. It should not be weakened by Obama's proposed 'license to lie,'" a Washington Examiner editorial states.

FOIA doesnt provide a blanket right to public access to government documents, a Los Angeles Times editorial stated. Its reasonable to have exceptions for certain classified national security or foreign policy documents if their release would damage American interests. The government should be free to withhold those documents, subject to review by the courts, but it would be unacceptable ��� and deeply undemocratic ��� to pretend they dont exist. The Judicial Department should discard the rule and start over. And Obama should reread his pronouncements about transparent government.