Note: Direct reaction to Fast &Furious gun walking probe and el
vicentillo / DEA relationship, to facilitate cover ups?
Justice Department Proposes Letting Government Deny Existence of
By Shannon Bream
Published October 26, 2011
A longtime internal policy that allowed Justice Department officials
to deny the existence of sensitive information could become the law
of the land -- in effect a license to lie -- if a newly proposed rule
becomes federal regulation in the coming weeks.
The proposed rule directs federal law enforcement agencies, after
personnel have determined that documents are too delicate to be
released, to respond to Freedom of Information Act requests "as if
the excluded records did not exist."
Jay Sekulow, Chief Counsel of the American Center for Law and
Justice, says the move appears to be in direct conflict with the
administration's promise to be more open.
"Despite all the talk of transparency, I can't think of what's less
transparent than saying a document does not exist, when in fact, it
does," Sekulow told Fox News.
Justice Department officials say the practice has been in effect for
decades, dating back to a 1987 memo from then-Attorney General Edwin
In that memo, and subsequent similar internal documents, Justice
Department staffers were advised that they could reply to certain
FOIA requests as if the documents had never been created. That policy
never became part of the law -- or even codified as a federal
regulation -- and it was recently challenged in court.
A final version of the proposal could be issued by the end of 2011.
If approved, the new rule would officially become a federal
regulation with the force of law.
But the Justice Department got so much pushback in response to the
proposal that it took the unusual step of re-opening the public
comment period after it had already been closed. That second comment
period closed last week.
When the new comment period began, the American Civil Liberties Union
became one of the most vocal critics of the proposal. Mike German,
Policy Counsel with the ACLU, authored a lengthy letter in opposition.
"It's shocking that you would twist what is supposed to be a statute
-- that's supposed to give people access to what the government is
doing -- in a way that would allow the government to actually mislead
the American public," German told Fox News.
Melanie Ann Pustay, director of the Justice Department's Office of
Information Policy, said the entire consideration process for the
proposal "has been open and transparent."
She also notes that sensitive information requires special
"To ensure that the integrity of the exclusion is maintained,
agencies must ensure that their responses do not reveal the existence
of excluded records," Pustay said.
Sekulow says he is not buying that argument, and argued that FOIA
requesters who get a response telling them that officials can neither
confirm or deny the existence of documents now can at least go to
court to sue for more information.
If they're told that no documents exist, there is no basis for a
legal challenge at all, Sekulow said.
"The real concern is here is it changes the entire dynamic of what
the law was intended to do, and really gives the Department of
Justice the upper hand in area where they shouldn't have it."
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