On October 28 the Ranking Member of the Senate Judiciary Committee, Sen. Charles Grassley (R. Iowa), penned a letter to Attorney General Eric Holder opposing the Justice Department’s proposal to lie to requesters about the existence of documents in a new Freedom of Information Act (FOIA) regulation.
The Senator’s letter demanded that Holder defend the Justice Department’s proposal to create section 16.6 (f)(2) – that would “change existing FOIA regulations to allow agencies responding to a FOIA request to state that no records exist” when agencies determine that the requested documents fit certain existing exclusions — in writing no later than November 7.
The letter cited a prior letter to the Justice Department written by OpentheGovernment.org (which includes the National Security Archive), the American Civil Liberties Union (ACLU), and Citizens for Responsibility and Ethics in Washington (CREW) and reiterated many of our initial concerns. Namely that the DOJ’s proposed FOIA regulation:
1) Is antithetical to FOIA’s purpose and mission of providing public access to and information and records.
2) Would interfere with judicial review because fewer requesters, especially those less familiar with filing FOIA requests, would litigate denials on the grounds that no documents exist because they would be misled into thinking that there was nothing for the government to disclose.
3) Could result in an increase in FOIA litigation once people who regularly file FOIA requests learn that agency “no records” responses to FOIA requests inexplicably does not necessarily mean that there are no records. (more…)
