Justice Department Drops Rule That Would Let It Deny Existence of Sensitive Documents

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Published November 03, 2011

| FoxNews.com

The Justice Department says it is dropping a proposed rule that would have allowed officials to deny the existence of certain sensitive information, which critics said amounted to giving the government a license to "lie."

The decision comes a week after Sen. Chuck Grassley, R-Iowa, the top Republican on the Senate Judiciary Committee, sent a letter to Attorney General Eric Holder saying the proposed rule "stands in stark contrast to both the president;s and your prior statements" about transparency and open government.

In responding Thursday in a letter, Assistant Attorney General Ron Weich said the Justice Department is seeking to protect law enforcement and national security interests -- and to do so "in the most transparent manner possible."

"We believe that ... the proposed (regulation) falls short by those measures, and we will not include that provision when the department issues final regulations," Weich wrote.

Senate Judiciary Committee Chairman Patrick Leahy commended the decision.

"For five decades, the Freedom of Information Act has given life to the American value that in an open society, it is essential to carefully balance the public's right to know and government's need to keep some information secret," said Leahy, D-Vt. "The Justice Department's decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government."

In a statement Thursday, Grassley also said the Justice Department "made the right decision."

"The Justice Department decided that misleading the American people would be wrong," Grassley said. "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."

But Grassley said questions remain over how agencies handle requests under the Freedom of Information Act -- or FOIA -- which includes a number of "exclusions" for documents. And the Justice Department acknowledged internal guidance over such "exclusions" is still in effect -- for now.

"If a requester seeks information relating to an ongoing criminal investigation, of which the target is unaware, and when even acknowledging the existence of responsive documents would tip off the criminal to the ongoing investigation, those records are not subject to the FOIA," Weich wrote in explaining some of the "exclusions."

For more than 20 years the Justice Department's handling of such requests has been based on guidance issued by Attorney General Ed Meese in 1987. The 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 lawsuit brought by the Islamic Council of Southern California after learning documents denied by the FBI actually existed, a federal judge in California expressed concern over Justice Department policy.

"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 ruled.

In his letter Thursday, Weich said the department's approach "has never involved 'lying.'"

"When a citizen makes a request pursuant to the FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA," he wrote. "Where the only records that exist are not subject to the FOIA, the statement that 'there exist no records responsive to your FOIA request' is wholly accurate."

Still, Weich said the Justice Department is now taking a "fresh look internally" at Meese's guidance "to see if there are other options available" that protect "the integrity of the sensitive law enforcement records at stake while preserving our continued commitment to being as transparent about that process as possible."

The Justice Department posted the proposed regulation online for public comment, and the "comment period closed" earlier this year "with no public comment on the provisions in question," according to Weich.

But the Justice Department got so much pushback more recently that it took the unusual step of re-opening the public comment period. That second comment period closed last month, and the Justice Department is "actively considering" the latest comments and "reexamining" its "approaches to applying exclusions," Weich said.

Fox News' Shannon Bream contributed to this report.

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http://www.foxnews.com/politics/2011/11/03/justice-department-drops-rule-that-would-let-it-deny-existence-sensitive/