LAT: New DoJ rule on FOIA lies “outrageous”
posted at 1:25 pm on October 31, 2011 by Ed Morrissey
Last week, I wrote about the Obama administration’s new transparency initiative, which would allow the Department of Justice to lie about the existence of documents to hide them from Freedom of Information Act requests, rather than having to explain why the DoJ won’t release them. For a man who ran on the idea of transparency as a key component of “Hope and Change,” the proposed rule — which would have the force of law — flagrantly destroys any hope of government transparency at all. The Los Angeles Times gives Barack Obama a double-barreled blast in its lead editorial today, and suggests that Obama go back and reread his own speeches:
At present, if the government doesn’t want to admit the existence of a document it believes to be exempt from FOIA, it may advise the person making the request that it can neither confirm nor deny the document’s existence. Under the proposed regulation, an agency that withholds a document “will respond to the request as if the excluded records did not exist.”
This policy is outrageous. It provides a license for the government to lie to its own people and makes a mockery of FOIA. It also would mislead citizens who might file an appeal if they knew there was a possibility that the document they sought was in the possession of a government agency. Such an appeal would allow a court to determine whether the requested document was covered by an exemption in FOIA. …
FOIA doesn’t provide a blanket right to public access to government documents. It’s reasonable to have exceptions for certain classified national security or foreign policy documents if their release would damage American interests. The government should be free to withhold those documents, subject to review by the courts, but it would be unacceptable — and deeply undemocratic — to pretend they don’t exist. The Justice Department should discard the rule and start over. And Obama should reread his pronouncements about transparent government.
It’s not “pretend.” Let’s call it what it is — lying. Congress passed FOIA to make government more open and transparent, buoyed by a nation that had tired of government operating outside of its bounds. That was as true in Republican administrations as in Democratic administrations, and in Congresses controlled by both parties.
This rule goes beyond being “deeply undemocratic.” It enshrines dishonesty into law, and gives carte blanche to bureaucrats to decide exactly what level of transparency citizens deserve from their own government. The rule would make each bureaucrat into his own feudal lord, answerable in real terms to no one but himself. Instead of our government serving its citizens, the unaccountable would run roughshod over the governed. Even worse, the inability to uncover malfeasance when it occurs would pressure succeeding administrations into investigating its predecessors, which would lead to a never-ending cycle of prosecutions, some of which might be legitimate and others perhaps more political payback. It’s a recipe for utter disaster.
The DoJ should pull this proposed rule off the ledger immediately, and the people responsible for it should be shown the door.