- The Washington Times - Sunday, October 30, 2011

The nation’s top law enforcement office wants to dramatically roll back the public’s access to information about its operations.

A proposed rule takes a multitude of steps to allow the Justice Department to avoid disclosing information in response to Freedom of Information Act (FOIA) requests, including allowing the department to falsely say that records do not exist. Pushback from a broad group of watchdogs has been so fierce that the department has re-opened the window for public feedback before enacting the rule.

The move to increased bias toward denial of requests, which are often key to newspapers’ accountability stories, including those about failures by department officials and about critical safety issues, comes despite a directive from President Obama to department heads stating that “all agencies should adopt a presumption in favor of disclosure to usher in a new era of open government.”

The proposed rule would instruct officials to automatically apply exclusions to FOIA whenever it can, said John Wonderlich, policy counsel for the Sunlight Foundation. It would automatically reject requests it deemed vaguely worded and require that they be directed to specific offices, while also hiding what part of the agency is responsible for filling requests.

“These changes would undermine the federal open-government act, are contrary to law and exceed the authority of the agency,” wrote the nonprofit Electronic Privacy Information Center and Mr. Wonderlich in a letter to Justice, noting that the changes “retreat from current practice.”

By lying about the existence of records rather than refusing to provide them under a specific exemption, requesters would be prevented from challenging the application of the exemption in court, as is the current recourse.

The changes would make it more difficult to obtain fee waivers typically provided to the media and would deny schools, part-time reporters and new media such as some online journalists the privilege. Fees charged for requests, when not waived, are often prohibitive.

The changes also would no longer allow the public to specify that digital records should be provided in that format, allowing the department to frustrate requests by printing out thousands of pages of a database rather than sending an electronic file, creating extra cost and preventing analysis.

“Since the DOJ reports directly to the president, we can only interpret this proposal as reflective of the administration’s feelings towards FOIA,” Mr. Wonderlich wrote. “And if this proposal reflects their feelings, then they can best be described as hostile.”

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