The Two-Way
11:47 am
Fri November 4, 2011

Justice Dept Drops Non-Disclosure Proposal For FOIA Requests

The United States Justice Department announced, yesterday, that it was dropping a proposed controversial rule that would allow it to deny the existence of sensitive documents requested under the Freedom of Information Act.

Sen. Chuck Grassley, a Republican from Iowa, sent a letter to the Justice Department about the rule and in a press release said the department had told him it was dropping plans to implement it. Grassley said:

Grassley said that while the proposed regulation is being stopped, there remain questions about how agencies handle these requests. He said that there's a balance that needs to be struck between ensuring national security or other sensitive requests and the public's right to know.

"The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation. The American people are increasingly cynical with the federal government, and increasing transparency can be an important tool to build more trust," Grassley said. "In other words, the public's business ought to be public."

The controversy stems from an effort by the Justice Department to codify a longstanding policy known as a "Glomar denial," which allows the government to "neither confirm nor deny" the existence of records. That rule was used sparingly. The AP reports:

There were three types of requests where Meese's order allowed such a response because they involved sensitive law enforcement operations.

First, the government could tell FOIA requesters that it had no records if merely confirming their existence would tip off people they were under criminal investigation. The other two situations — known legally as "exclusions" — were when federal law enforcement agencies needed to issue a denial to protect the identities of informants and when the FBI was asked for records about foreign intelligence or counterintelligence or international terrorism.

Under the proposed rule, the requester would lawfully have been told that no records responsive to a FOIA request exist.

Codifying the policy was opposed by the American Civil Liberties Union and other open government advocates.

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