In March, Justice proposed a rule that included provisions designed to protect confidentiality that would permit agency officials to deny the existence of certain documents being requested under FOIA when in fact relevant documents exist.
But following a barrage of criticism from members of Congress' Judiciary committees and FOIA activist organizations, the department in a Nov. 3 letter said it would reconsider the changes. The proposed changes are built around 1987 guidance produced by the Reagan administration to implement congressionally mandated exclusions that allow denials of FOIA requests if they risk tipping off criminals that they are under investigation.
This year, Justice proposed continuing use of the exclusions but with new transparency requirements: obtaining permission from the Office of Information Policy, tracking and reporting the exemptions and reminding the requester of the general policy on exemptions.
But after reopening the rule for comments "as a result of this administration's commitment to openness," Assistant Attorney General Ronald Weich wrote to Grassley that Justice is reviewing new comments and "taking a fresh look internally to see if there are other options available."
On Capitol Hill, the abandonment of the new rules had been sought by a bipartisan group that included Grassley, Senate Judiciary Chairman Patrick Leahy, D-Vt.; Sen. Mark Udall, D-Colo.; and House Judiciary Committee Chairman Lamar Smith, R-Texas. "The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation," Grassley said on Friday in a statement. "The American people are increasingly cynical with the federal government and increasing transparency can be an important tool to build more trust."
Leahy said, "It is essential to carefully balance the public's right to know and government's need to keep some information secret. The Justice Department's decision to withdraw this proposal acknowledges and honors that careful balance."
Udall also welcomed the move but called for further refinement of the FOIA exemption policy. "Until the government changes its own practices in a meaningful way, there will be heightened skepticism about its commitment to openness and transparence," he said. "That will spawn lawsuits and, more importantly, continue to undermine the public's trust in government."
FOIA activist groups said the proposal violated the Obama administration's own 2009 policy encouraging transparency. In an Oct. 17 letter submitted jointly as comment, the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington, and Openthegovernment.org had asserted that the proposal will "impede the judicial review that ensures government agencies are properly interpreting exemptions in the FOIA statute, and it will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people."
After the cancellation, Laura Murphy, director of the ACLU Washington Legislative Office, said, "Government accountability can only be assured through transparency. Putting an end to lies about the mere existence of documents is one step toward restoring Americans' trust in their government. "
The groups also called for further refinement of the policy in the direction of openness. Angela Canterbury, director of public policy for the Project on Government Oversight, said, "While it's promising that the DoJ finally agreed to throw out this absurd proposed rule, it is disturbing to learn that they have had a practice of lying to requesters for nearly 25 years. Until that policy changes, there is more for DoJ to do to restore the integrity of FOIA and the administration."