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Feds back down from legalizing government lies

Freedom of information act rescued by powerful Republican

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The US Department of Justice has dropped a controversial proposed ruling that would have allowed them to say that records don't exist when, in fact, they do – a response that in the vernacular might simply be called lying.

"The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation," wrote Senator Chuck Grassley, a Republican from Iowa, in a response to the DoJ's decision.

Grassley had a dog in this fight. On October 28, he sent a letter to Attorney General Eric Holder in response to proposed DoJ guidelines that would permit that department to respond to citizens' Freedom of Information Act (FOIA) requests by claiming that the materials being requested simply did not exist.

The 1966 FOIA has been an effective tool for journalists and others to pierce the veil of government secrecy by providing access to information that formed the basis for a host of revelations such as FBI surveillance of activists, the lack of post-war planning in the run-up to the Iraq war, and government deception in the notorious 1964 Gulf of Tonkin incident that helped launch the Vietnam War.

The specific proposal to which Grassley – and many others – objected to was published in the Federal Register in March. It read: "When a [FOIA office] applies an exclusion to exclude records from the requirements of the FOIA ... the [office] utilizing the exclusion will respond to the request as if the excluded records did not exist."

This regulation would have been a strengthening of what has become known as a "Glomar response", named after a ruling that allowed the government to withhold information about the Soviet sub–hunting Glomar Explorer to a Los Angeles Times reporter in 1968.

The Glomar response essentially grants the government the right to not merely deny a FOIA request, but to issue a "neither confirm nor deny" response – a right that has been repeatedly challenged in court, but never rescinded.

The DoJ's proposed new regulation would have upgraded that type of response to an outright lie: "Those records don't exist."

But now, thanks to Grassley and others, that ain't gonna happen. On Thursday, the Department of Justice's assistant attorney general Ronald Weich sent a letter (PDF) to Grassley that said, in part, "[W]e will not include that provision when the Department issues final regulations."

Weich also bristled at Grassley's statement that the proposed regulation would "severely damage government integrity by allowing a law intended to facilitate access to information to be distorted to allow law enforcement agencies to 'lie' to our citizens."

"While the approach has never involved 'lying' as some have suggested," Weich wrote in his letter to the man who had done the suggesting, "the Department believes that past practice could be made more transparent."

And so a powerful Republican Senator and ranking member of the Senate Judiciary Committee becomes a free-speech hero. ®

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