Department of Justice retreats on controversial FOIA rule

Faced with increasing push-back from the public, the media, government watchdogs and a bipartisan list of lawmakers, the Department of Justice Thursday agreed to drop a proposed regulation that would have allowed government agencies to lie to members of the public seeking records through the Freedom of Information Act.

“I believe it is extremely important that we do not attempt to protect our citizens by lying to them,” Colorado U.S. Senator Mark Udall said in a letter to Holder mailed Wednesday. Udall is a member of the Senate Select Committee on Intelligence and has been a champion in the post-9/11 era of the need to balance national security against concerns for civil liberties and privacy protection.

Upon learning the department of justice was rethinking its “misguided approach” on the FOIA regulation, Udall said in a release that “serious questions remain about whether the government is replying honestly to FOIA requests” and he repeated his request that Holder implement an alternative regulation.

“I’m pleased that the attorney general has listened to our concerns, but until the government changes its own practices in a meaningful way, there will be heightened skepticism about its commitment to openness and transparency. There are legitimate reasons to deny requests for information, but it must be done in a way that preserves the public’s – and the court’s – ability to hold the government accountable.”

Under controversial proposed Section 16.6(f)(2) of the revised Freedom of Information Act regulations the department of justice put forward in the spring, government officials could simply tell citizens that the records they’re looking for don’t exist, when in fact the records do exist. A “no record” response, wrote Udall in his letter to Holder, would unjustly head off further inquiry, but only temporarily. All parties would now know that the “no records” response could well be a lie and legal action on the part of skeptical investigators of all stripes would balloon.

Also key is that checks and balance provided by the judicial branch have been undercut by the government’s reluctant approach to freedom of information.

In the post-9/11 era, government agencies have become increasingly brash in denying records to all sorts of requestors and in flatly lying to requestors and to judges tasked with reviewing the reasons for request denials.

In a case heard this past spring titled Islamic Shura Council of Southern California, et al. v. FBI, the FBI lied to the plaintiffs about the existence of documents and then lied to the district court judge as well. When the fact came out that the documents did exist, it was clear that judicial review of national security document hoarding had been seriously eroded.

Udall, working off of a proposal authored by government watchdog groups suggested an alternative approach where, instead of denying records exist, government agencies could simply inform requestors that the documents they seek, if they exist, “are not subject to the disclosure requirements established by the Freedom of Information Act.”

Ronald Weich, Assistant Attorney General for the Justice Department Office of Legislative Affairs, wrote in a letter to the Senate Judiciary Committee on Thursday that the department was scotching Section 16.6(f)(2) in its final version of the regulations.

The department is aiming to exclude sensitive information from FOIA requests “in the most transparent manner possible,” Weich wrote. “If the proposed regulations can be improved in these respects, we will work to improve them.”

Read Udall’s letter to Holder and an ACLU brief on the proposed regulations here.