A longtime internal policy that allowed Justice Department officials to deny the existence of sensitive information could become the law of the land -- in effect a license to lie -- if a newly proposed rule becomes federal regulation in the coming weeks.
The proposed rule directs federal law enforcement agencies, after personnel have determined that documents are too delicate to be released, to respond to Freedom of Information Act requests "as if the excluded records did not exist."
Jay Sekulow, Chief Counsel of the American Center for Law and Justice, says the move appears to be in direct conflict with the administration's promise to be more open.
"Despite all the talk of transparency, I can't think of what's less transparent than saying a document does not exist, when in fact, it does," Sekulow told Fox News.
Justice Department officials say the practice has been in effect for decades, dating back to a 1987 memo from then-Attorney General Edwin Meese.
In that memo, and subsequent similar internal documents, Justice Department staffers were advised that they could reply to certain FOIA requests as if the documents had never been created. That policy never became part of the law -- or even codified as a federal regulation -- and it was recently challenged in court.
Earlier this year, in a case involving the Islamic Council of Southern California brought against the FBI after the plaintiffs learned about the existence of documents denied by the FBI, a federal judge in California expressed great concern about the agency using the internal policy not only in response to the FOIA but to mislead the court.
"The government, cannot, under any circumstance, affirmatively mislead the court. … The court simply cannot perform its constitutional function if the government does not tell the truth," the judge wrote in a stinging rebuke.
A final version of the proposal could be issued by the end of 2011. If approved, the new rule would officially become a federal regulation with the force of law.
But the Justice Department got so much pushback in response to the proposal that it took the unusual step of re-opening the public comment period after it had already been closed. That second comment period closed last week.
When the new comment period began, the American Civil Liberties Union became one of the most vocal critics of the proposal. Mike German, Policy Counsel with the ACLU, authored a lengthy letter in opposition.
"It's shocking that you would twist what is supposed to be a statute -- that's supposed to give people access to what the government is doing -- in a way that would allow the government to actually mislead the American public," German told Fox News.
Melanie Ann Pustay, director of the Justice Department's Office of Information Policy, said the entire consideration process for the proposal "has been open and transparent."
She also notes that sensitive information requires special consideration.
"To ensure that the integrity of the exclusion is maintained, agencies must ensure that their responses do not reveal the existence of excluded records," Pustay said.
Sekulow says he is not buying that argument, and argued that FOIA requesters who get a response telling them that officials can neither confirm or deny the existence of documents now can at least go to court to sue for more information.
If they're told that no documents exist, there is no basis for a legal challenge at all, Sekulow said.
"The real concern is here is it changes the entire dynamic of what the law was intended to do, and really gives the Department of Justice the upper hand in area where they shouldn't have it."
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