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Justice criticized over proposed FOIA regulation

By Pete Yost
Associated Press / October 27, 2011

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WASHINGTON—The Justice Department is being criticized by open government groups for proposing a regulation that would in rare instances allow federal law enforcement agencies to tell people seeking information under the Freedom of Information Act that the government has no records on a subject, when it actually does.

Avoiding tipping off people that they are under criminal investigation is one of three highly sensitive law enforcement situations where the government -- for the past 2 1/2 decades -- has been permitted to respond to FOIA requests by falsely denying that it has records.

The other two situations -- the legal term for them is "exclusions" -- occur when federal law enforcement agencies are protecting the identities of informants and when the FBI is asked for records on foreign intelligence or counterintelligence or international terrorism.

The issue is coming up now because the Justice Department is proposing revised regulations that would codify a longstanding policy detailed in a 1987 memo by then-Attorney General Edwin Meese.

The American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington and OpentheGovernment.org say the proposed rule "will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people."

Melanie Ann Pustay, director of the Justice Department's Office of Information Policy, says the provision "has been implemented the same way for the 25 years it has been in existence." She said the department took the "extraordinary step" of reopening the public comment period on the proposed revision of FOIA regulations and that the department has been open and transparent about the procedure for invoking exclusions protecting "especially sensitive law enforcement matters."

The problem is a simple one, according to Meese's 16,428-word memo and the Justice Department's proposed regulation.

Any person who suspects that a federal investigation might have been launched against him could try to use the FOIA to confirm that suspicion. Notifying the requester that the law enforcement agency is refusing to turn over records would confirm the existence of an ongoing investigation.

Meese's 1987 memo perhaps puts it best: a person filing a FOIA request seeking information about informants "will receive a disarming `no records' response."

A 1986 amendment by Congress to the FOIA cleared the legal path for the attorney general's memo. The proposed regulation is one piece in an overhaul of government rules on FOIA.