New DoJ rule a license to lie?
posted at 2:05 pm on October 27, 2011 by Ed Morrissey
Barack Obama campaigned for office on the promise to bring more transparency to government. He pledged to strengthen the Freedom of Information Act; the White House web site published Obama’s memo on FOIA compliance, which commanded the executive branch to follow this principle:
The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.
Those are indeed laudable words. However, as we know, actions speak louder than words, and an effort to create a new rule for the Department of Justice shows what the Obama administration actually thinks of openness and transparency:
A longtime internal policy that allowed Justice Department officials to deny the existence of sensitive information could become the law of the land — in effect a license to lie — if a newly proposed rule becomes federal regulation in the coming weeks.
The proposed rule directs federal law enforcement agencies, after personnel have determined that documents are too delicate to be released, to respond to Freedom of Information Act requests “as if the excluded records did not exist.” …
Justice Department officials say the practice has been in effect for decades, dating back to a 1987 memo from then-Attorney General Edwin Meese.
In that memo, and subsequent similar internal documents, Justice Department staffers were advised that they could reply to certain FOIA requests as if the documents had never been created. That policy never became part of the law — or even codified as a federal regulation — and it was recently challenged in court.
Yes, this practice has existed for almost 25 years, but it was offensive then and is offensive now. Besides, which presidential candidate promised to end business as usual by bringing “change” to Washington — change explicitly tied to transparency?
The ACLU remembers which candidate that was. The DoJ reopened comments on the rule proposal, and the ACLU ripped the Obama administration in a submission:
When the new comment period began, the American Civil Liberties Union became one of the most vocal critics of the proposal. Mike German, Policy Counsel with the ACLU, authored a lengthy letter in opposition.
“It’s shocking that you would twist what is supposed to be a statute — that’s supposed to give people access to what the government is doing — in a way that would allow the government to actually mislead the American public,” German told Fox News.
Shocking? Yes. Surprising? Not really. After watching this administration railroad an independent Inspector General just months after taking office for flagging a sweetheart deal with one of Obama’s political allies, refuse to answer questions about the dismissal of a voter-intimidation case in Philadelphia that they had already won, and finally circle the wagons over Operation Fast and Furious, it’s no surprise that this crowd believes they need a license to lie. This administration has been all about nondisclosure in the “effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”
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