- The Washington Times - Wednesday, January 27, 2010

ANALYSIS/OPINION:

The Justice Department is withholding documents demanded by this newspaper under terms of the Freedom of Information Act (FOIA). In so doing, the department is asserting privileges that do not exist or do not apply. Ironic as it may sound, Justice seems to be breaking the law.

The Washington Times’ FOIA request asked for documents pertaining to the department’s controversial decision to dismiss a civil complaint accusing the New Black Panther Party of intimidating Philadelphia voters on Election Day 2008. In response, the department said it would withhold 69 documents totaling 135 pages, including interdepartmental e-mails, drafts of court filings and briefing materials. The department claimed that “deliberative process” and “attorney work-product” privileges exempted the material from disclosure.

As former Justice Department official Michael A. Carvin explained to us two weeks ago, those exemption claims are bogus. “Normally, there is no general attorney-client privilege,” he said, “unless you are dealing with the president, so [the claim] would have to come under work-product or deliberative process. But work-product is very narrow, and deliberative process is moot. … Deliberative process privilege typically doesn’t extend after a matter is closed.”

The decision to drop the charges was made in May. The case is not open. The “deliberative process” privilege is therefore not applicable.

The official government Web site on FOIA makes clear: “FOIA carries a presumption of disclosure; the burden is on the government - not the public - to substantiate why information may not be released. Upon written request, agencies of the United States government are required to disclose those records, unless they can be lawfully withheld from disclosure under one of nine specific exemptions in the FOIA.”

In the text of the law itself, none of those nine exemptions involves “deliberative process” or “attorney work-product” claims. Even the exemption pertaining to “law enforcement purposes” applies “only to the extent” that the information would do things such as “interfere with enforcement proceedings” or “disclose the identity of a confidential source.” Again, none of the information requested comes close to meeting the terms of that exemption.

This is not a narrow dispute. The FOIA denial involves a direct repudiation of important principles of open government and media freedom. The questions about how the Black Panther decision was made involve the exact same concerns that animated months and months of controversy during the George W. Bush administration when critics claimed that Karl Rove or others in the Bush White House had interfered for political reasons in pending Justice Department investigations.

The Obama Justice Department is acting as if it is above the law. If that is its belief, it is mistaken.

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