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Justice Department drops proposed FOIA rule to deny existence of documents

By Terry Frieden, CNN Justice Producer
updated 4:26 PM EDT, Thu November 3, 2011
STORY HIGHLIGHTS
  • Former Attorney General Meese first issued guidance in 1987 on denying sensitive records exist
  • That came in response to Freedom of Information requests for doucments
  • The government said it was not really "lying" to declare "there exist no records responsive"
  • But the Justice Department says it is dropping a plan to allow such denials

WASHINGTON (CNN) -- The Justice Department Thursday announced it is dropping its controversial plan to allow officials to deny the existence of certain sensitive documents when confronted with thorny Freedom of Information Act (FOIA) requests.

The provision in proposed FOIA regulations had stirred criticism from both ends of the political spectrum, from the American Civil Liberties Union and from other open-government groups.

The decision was announced in a Justice Department letter to Sen. Charles Grassley, R-Iowa, who had led the fight against the rule change.

"We will not include that provision when the Department issues final regulations," the Justice Department said.

In a letter to Attorney General Eric Holder last Friday, Grassley vowed to "take all necessary steps" to block the rule that would have allowed the government to "deceive" people about the existence of information.

In its response, the Justice Department said the agency had in practice handled certain sensitive records as excludable since 1987, when then-Attorney General Ed Meese first issued guidance saying the best way to deal with these sensitive records was to deny they existed. Meese had specifically referred to narrow categories which dealt with national-security information and requests for information relating to an ongoing criminal investigation in which the target is unaware of a probe.

The government said it was not really "lying" to declare that "there exist no records responsive to your FOIA request." The government maintains that specific was "wholly accurate" because in these sensitive cases the only records that exist are not subject to the FOIA act

Grassley, however, said a response that there are "no records" when such records, in fact, exist could undermine the public trust in government.

Senate Judiciary Committee Chairman Sen. Patrick Leahy, D-Vermont, was quick to applaud the decision to drop the proposed change.

"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," Leahy said.

The ACLU also applauded the Justice Department decision. "Government accountability can only be assured through transparency," said Laura Murphy, director of the ACLU Washington legislative office

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