Justice Department drops controversial FOIA rule

C.J. Ciaramella Contributor
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The Department of Justice has canceled a controversial planned revision to Freedom Of Information Act (FOIA) rules that opponents said would have allowed federal agencies to lie about the existence of records.

In a letter to Republican Sen. Chuck Grassley on Thursday, the DOJ wrote that the proposed rule “falls short” of its commitment to transparency, and it “will not include that provision when the Department issues final regulations.”

As part of larger revision of FOIA practices, the proposed rule would have allowed federal agencies to deny the existence of records when applying an exclusion, even if the records did exist.

Under current FOIA rules, federal law enforcement agencies can exclude records from disclosure when they are part of an ongoing criminal investigation or would compromise national security. Exclusions are different from the more common FOIA exemptions, which the new rule would not have applied to.

The DOJ has relied on a 1987 memo from then-Attorney General Edwin Meese that gave federal law enforcement agencies standing authority to deny the existence of records, but this would be the first time it was formally codified.

The proposal came under fire from transparency and open government watchdogs such as Judicial Watch, the American Civil Liberties Union and Citizens for Responsibility and Ethics in Washington. The groups argued it amounted to affirmative lying and would not give those requesting records the option to sue.

The proposal came under fire from members of Congress from both sides of the aisle, including Sen. Grassley, Democrat Sen. Patrick Leahy, Democrat Sen. Mark Udall and Republican Rep. Lamar Smith. (RELATED: NRA president: Eric Holder must resign now)

“The new proposed regulation stands in stark contrast to both the president’s and your prior statements about FOIA, transparency, and open government,” Grassley wrote in a letter to Attorney General Eric Holder. “In fact, this policy directly contradicts your many statements, to me and other members of the Judiciary Committee, as part of your nomination hearing, that you support transparency of the executive branch.”

In response to the initial worries, the DOJ reopened the comment period for the rules revisions. And although it denies that the rule involved lying, it ultimately dropped the rule proposal.

“While the approach has never involved ‘lying,’ as some have suggested, the Department believes that past practice could be made more transparent,” the DOJ wrote in its letter to Sen. Grassley. “Accordingly, as part of an effort to update its FOIA regulations and other aspects of its Open Government initiative, the Department took a number of steps designed to bring its handling of exclusions in line with Attorney General Holder’s commitment to open government.”

The DOJ said it is tightening the oversight and applications of exclusions to ensure transparency. For example, it will require the head of any DOJ FOIA office to approve the use of an exclusion, as well as report the number of times exclusions have been invoked.

Government transparency advocates applauded the decision.

“Government accountability can only be assured through transparency,” said Laura W. Murphy, director of the ACLU’s Washington Legislative Office. “Putting an end to lies about the mere existence of documents is one step toward restoring Americans’ trust in their government. We will work with the Justice Department to develop a truthful and informative response to all FOIA requesters, even where the government is authorized to withhold documents from release.”

Sen. Grassley also approved of the decision, while noting that increased transparency was still needed.

“The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation,” Grassley said in a statement. “The American people are increasingly cynical with the federal government, and increasing transparency can be an important tool to build more trust. In other words, the public’s business ought to be public.”

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