DOJ changes to FOIA undermine transparency, critics say

The Justice Department recently issued a proposal to “update and streamline” its rules for responding to Freedom of Information Act requests, but open government advocates are crying foul.

“If adopted, the rules will be a huge step back for transparency,” John Wonderlich, policy director for the Sunlight Foundation, wrote in an Oct. 28 blog entry. “They are worse than you think.”

The provision that has received the most publicity is one that would allow DOJ officials to deny the existence of a certain type of record, even if the record exists. Justice officials have described it in several media reports as a policy that has been in use since 1987 to protect the integrity of certain undercover investigative activities.

But advocates said the provision would, in effect, permit federal officials to lie to the public.

“It’s hard to believe that the Justice Department thinks it’s appropriate to make false statements to the American people to avoid releasing sensitive documents,” Sen. Chuck Grassley, R-Iowa, said in an Oct. 28 statement. “How about being truthful and simply saying that if the documents exist they would be sensitive and couldn’t be provided?”

But that is not the only provision that open government supporters have found disturbing. Wonderlich said the proposed rule also would make it easier for the DOJ to deny requests that aren't addressed precisely to the correct department; dismiss requests if DOJ deems the wording too vague; make it more difficult for requests to be deemed urgent and insulate department heads from having to stand by denials, among other provisions.

The Electronic Privacy Information Center also expressed its objections to the proposal, which it called “profoundly disappointing. “These changes would undermine the federal open government act, are contrary to law, and exceed the authority of the agency,” the group wrote in its comments submitted to DOJ.

The Justice Department extended public comments to the proposal. The new deadline expired on Oct. 18.

“The only good news here is that DOJ reopened their comments after transparency advocates raised their voices. Let's hope they scrap this entire rule and start over,” Wonderlich wrote in his blog.