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Justice Department pulls back non-disclosure proposal

By PETE YOST
Associated Press

WASHINGTON (AP) – The Justice Department reported Thursday it is dropping its proposal to let federal law enforcement agencies in rare cases tell Freedom of Information Act requesters that the government has no records on a subject, when it actually does.

In a letter to Sen. Charles Grassley, the ranking Republican on the Senate Judiciary Committee, the department said its proposed regulation “falls short” of balancing the need for openness and the need to protect vital law enforcement and national security concerns.

The Justice Department’s decision to withdraw the proposal “acknowledges and honors that careful balance,” said Senate Judiciary Committee chairman Patrick Leahy, D-Vt.

The letter said the department is taking a fresh look to find other options to preserve the integrity of sensitive law enforcement records.

The department has actually been issuing such denials for almost 25 years, since Attorney General Edwin Meese authorized them in a 1987 directive. It said the proposed regulation was an effort to codify Meese’s order in federal regulations and obtain public comment on it.

The proposal drew objections from some members of Congress and from The American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington and OpentheGovernment.org.

The groups said the proposal “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.” These objections prompted dropping the proposal.

There were three types of requests where Meese’s order allowed such a response because they involved sensitive law enforcement operations.

First, the government could tell FOIA requesters that it had no records if merely confirming their existence would tip off people they were under criminal investigation. The other two situations — known legally as “exclusions” — were when federal law enforcement agencies needed to issue a denial to protect the identities of informants and when the FBI was asked for records about foreign intelligence or counterintelligence or international terrorism.

Under the proposed rule, the requester would lawfully have been told that no records responsive to a FOIA request exist.

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