Fixing FOIA update: Justice backs away from “lying”

Today we’re happy to note the Justice Department is withdrawing its proposed rule to sanction responding to certain FOIA requests for law enforcement records as if records did not exist when, in fact, information does exist (but is out of FOIA’s reach).

In a letter dated November 3, 2011, to Senator Charles Grassley and Senator Patrick Leahy, both of whom pushed back against the proposal, assistant attorney general Ronald Weich noted that the practice had “fallen short” and Justice is looking at ways to better address the problem.  The proposal will not be part of the Department’s final rules implementing FOIA.

The government should respond to FOIA requesters in a reasonable and transparent manner.  Someone receiving a response to a FOIA request could reasonably think that “Records responsive to your FOIA request do not exist” means simply that no records exist.

We applaud the Justice Department for taking another look at this flawed practice and looking for other ways to ensure law enforcement records can be protected while making sure the government responds in ways that the public understand and expects.  We also appreciate Senators Charles Grassley, Patrick Leahy and the others who spoke up about this proposal.

Note: This post was updated to place the word “lying” in the title within quotation marks.