By scrapping the controversial part of the regulation, the Justice Department is easing what had become a growing headache for the Obama administration. President Obama has said several times that transparency and openness are key priorities for his administration, and the proposed regulation was a cudgel for Republicans to swing at the White House’s promises.
The rule would have allowed Justice officials to tell FOIA requesters that government records they asked for do not exist when, in fact, they do. The section would have applied to records concerning criminal investigations and informants.
A Justice official said the department wanted more time to review the new FOIA regulation before it is finalized.
“In our judgment, we withdrew this part of the proposed regulation to give us more time to review all the comments while letting other parts of the regulation go forward,” Melanie Ann Pustay, director of the Office of Information Policy at Justice, told The Hill.
Sensitive documents dealing with national security and law enforcement matters are already exempt from FOIA. When those documents are requested, government officials typically say they can neither confirm nor deny the records’ existence.
This is known as the “Glomar response,” named after the Glomar Explorer — a salvage vessel the CIA built in the 1970s to recover a sunken Soviet submarine. Using FOIA, the Los Angeles Times requested the records regarding the submarine operation, which led to a “neither confirm nor deny” response from the intelligence agency.
Lawmakers were beginning to pepper Justice with questions about the controversial rule.
In a letter sent Thursday to Sen. Chuck Grassley (R-Iowa), ranking member on the Senate Judiciary Committee, Ronald Weich, an assistant attorney general at Justice, wrote that the department believes the proposed rule’s FOIA section did not hold up to the department’s standards for transparency.
“We believe that Section 16.6(f)(2) of the proposed regulations falls short by those measures, and we will not include that provision when the department issues final regulations,” Weich wrote in his letter to Grassley.
Justice was responding to an Oct. 28 letter from Grassley to Attorney General Eric Holder. The Iowa senator said the proposed FOIA regulation ran counter to the president’s transparency goals.
Grassley gave Justice 15 questions to answer about the regulation by Nov. 7. He said if Justice decided to move forward, he would author legislation to block the rule “from ever taking effect.”
In a statement Thursday, Grassley said he was pleased to hear that Justice was pulling back the rule.
“The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation,” Grassley said.
Holder was likely to face tough questions about the proposed regulation on Nov. 8, when he was scheduled to appear before the Senate Judiciary Committee.
Other Republicans were beginning to scrutinize the proposed rule.
Rep. Lamar Smith (R-Texas), chairman of the House Judiciary Committee, asked Holder what justification Justice had for proposing the regulation in a letter sent Wednesday.
“The rule appears to contradict both transparency principles fundamental to a functioning democracy and the president’s commitment to make ‘his administration the most open and transparent in history.’ The department should explain why it believes answering truthfully along the lines of ‘we can neither confirm nor deny records exist’ has proven to be inadequate to protect sensitive information,” Smith wrote in his letter.
Pustay said the part of the regulation that is being withdrawn was based on Congress amending FOIA in 1986 to exclude certain national security and criminal law enforcement records from the public records law. Those amendments were further clarified in a 1987 memo from then-Attorney General Edwin Meese.
If the records requested were excluded from FOIA in the first place, it would be acceptable to tell the requester that records responsive to FOIA do not exist.
“In an effort to be transparent, we thought it would be helpful to provide another place in the public record saying what are the exclusions to FOIA,” Pustay said. “It is permissible and accurate to say the records are not responsive to FOIA.”
Open-government advocates heavily criticized the withdrawn part of the proposed regulation.
“It was clear that this was not the intent of Congress, for them to lie about the existence of the records,” said Patrice McDermott, director of Openthegovernment.org.
First proposed in March of this year, the Justice Department reopened the comment period for the proposed rule, closing it again this October, after meeting with McDermott and other transparency advocates over the summer to discuss their concerns.
Justice won praise for backing down on the measure.
“The Justice Department’s decision to withdraw this proposal acknowledges and honors that careful balance, and will help ensure that the American people have confidence in the process for seeking information from their government,” said Sen. Patrick Leahy (D-Vt.), chairman of the Senate Judiciary Committee, in a statement. “I am confident that this process will take into account congressional intent and the interest of the American people in a transparent, accountable and open government.”
“We are very pleased that they are withdrawing that portion of the rule,” McDermott said. “We hope that they will do some reporting on how often that exclusion is used in the future.”
Pustay said Justice wants to be as transparent as possible while protecting national security.
“Our goal is to be as open and transparent as possible about the existence of exclusions and the process for invoking them while at the same time protecting the sensitive law enforcement and national security matters covered by the exclusions,” Pustay said.
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