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Department of Justice retreats on controversial FOIA rule

Mahuringavel-courtroom-door_2634.jpg
Mahuringavel-courtroom-door_2634.jpg

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.

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“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.

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, 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.

Udall, working off of a proposal authored by government watchdog groups suggested an alternative approach where 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.

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