As Joe Bob Briggs used to say, “Victory over Communism!”
The Justice Department proposed new rules allowing federal agencies to erroneously tell citizens documents requested under the Freedom of Information Act do not exist. Yesterday, after massive public backlash, the DoJ withdrew the proposal. The regulations primarily applied to individuals who made FOIA requests who were unaware they were the targets of an investigation, or who requested items that would compromise national security. Despite being a longstanding practice, the Obama administration became the first to attempt to codify the denial into law.
The FBI crossed a line when it mislead a federal court about the existence of documents requested during an FOIA inquiry. The FBI attested under oath that the excluded documents were “out of scope” and “not responsive” to the FOIA request. Yet when ordered to produce all relevant documents for an in camera review — a private review “in chambers” and not open to the public — the FBI revealed the documents were in fact relevant. The feds defended themselves by arguing it had the right to be “legally nonresponsive” if it believed producing materials would “compromise national security.”
In a scathing response, the court ruled, “The Government cannot, under any circumstance, affirmatively mislead the Court.” Civil libertarians and champions of openness agreed other means were available to deny the information without misleading any American citizen.
After drawing significant public fire, Eric Holder’s Justice Department is withdrawing the measure. Assistant Attorney General Ronald Weich wrote in a letter to Sen. Chuck Grassley on Thursday the new “steps were aimed at shining a further light” on the government (by lying) and touted “this Administration’s commitment to openness.” Even Politico‘s Josh Gerstein describes the letter as “defensive in tone.” Weich insisted this had been policy since the Reagan administration, citing a December 1987 memo written by then-Attorney General Ed Meese that instructs agencies to state “there exist no records responsive to your FOIA request.” Meese contended that such excluded documents are not subject to an FOIA request, and thus the statement is true.
However, it is too early to assume the proposal is gone forever. Weich promised the DoJ is “taking a fresh look internally 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.” That is, the administration may be looking for an even less transparent, backdoor approach to implementing this agenda.
Now if only the administration would drop its blatant, pervasive politicization of the federal bureaucracy and stop denying conservatives’ FOIA requests.
For the moment, though, this should remind conservatives it is possible to defeat the administration’s most egregious actions through exposure and activism. Republicans may be wise not to restrict their opposition only to Obama’s most offensive proposals.