DOJ Secretly Helped Kill FOIA Transparency Bill That Was Based On Its Own Public Policy

from the most-transparent-administration-in-history dept

We’ve long known the Justice Department’s stance on transparency has been hypocritical and disingenuous. But they’ve really outdone themselves this time. Last week, the agency secretly helped kill a bipartisan Freedom of Information Act (FOIA) reform bill that was based word-for-word on its own policy.

First, a little background: In a surprise to some, the very modest FOIA Improvements Act died in Congress last Thursday, despite virtually unanimous support in both houses. The bill was completely uncontroversial. It merely would have upgraded agencies’ ability to accept FOIAs electronically and codified existing policy?mainly President Obama’s now infamous January 20, 2009 memo in which he ordered federal agencies to operate under a “presumption of openness.”

All Speaker John Boehner had to do on the last day before Congress adjourned for the year was bring the bill up for a vote, and it would’ve been whisked through to the President’s desk. A similar bill had already passed the House unanimously earlier in the year.

Yet for some unknown reason at the time, he didn’t. On Tuesday, the Washington Post reported on the inside story behind the last-minute death of the bill, and the blame centers on the Justice Department:

According to House aides, some lawmakers balked at the legislation because several agencies, including the Justice Department, warned that those making information requests would use the “foreseeable harm” requirement as the basis for frequent lawsuits.

The “foreseeable harm” section referred to by the Post would force federal agencies to justify withholding information if they wished to do so. Essentially, they would have to show the information would cause “foreseeable harm” if released. Not exactly a tall order. But what makes the Justice Department’s objection so shocking is that this “foreseeable harm” provision would not deviate at all from the Justice Department’s own policy. In fact, it was based on it.

In a March 19, 2009 memo to all federal agencies, Attorney General Eric Holder himself wrote that the Justice Department would carry out Obama’s aforementioned transparency order by rescinding the Bush DOJ’s more restrictive FOIA rules and designating new ones. From that moment on, Holder declared:

[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.

Now read full text of the provision in the just-killed FOIA reform bill that the Justice Department allegedly objected to:

An agency shall withhold information under this section only if a) the agency reasonably foresees that disclosure would harm an interest protected by an exemption described in subsection or other provision of law; or b) disclosure is prohibited by law

As can be seen, the two passages are virtually identical. How does the Justice Department think this provision will lead to more lawsuits it would have to defend if they’re not supposed to be defending those lawsuits in the first place?

The Justice Department is objecting to making its own supposed policy the law, and confirms what many have long believed: the agency does not want to?or have to?comply with its own FOIA rules.

The DOJ has repeatedly been criticized for failing to enforce, and downright ignoring its own FOIA guidance for years, and their stance on transparency in general has been incredibly hypocritical. For example, Holder has claimed he wanted the torture report to be public as soon as possible, meanwhile fighting in court to prevent the release of any documents on its own torture investigation. Likewise, he’s claimed the Justice Department supports a federal shield law so reporters can protect their sources, while at the same time destroying the already-existing reporter’s privilege in the Fourth Circuit

But this most recent development is just beyond the pale.

We had a feeling that the Justice Department was behind the initial delay in getting the bill passed months ago after receiving a tip from a knowledgeable source. In July we filed a FOIA request for emails between the Justice Department and the offices of the FOIA bill’s co-sponsors John Cornyn and Patrick Leahy that discuss the agency’s position on the bill. We’ve been waiting six months and still have gotten no response.

Now we know why.

Reposted from Freedom of the Press Foundation

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Comments on “DOJ Secretly Helped Kill FOIA Transparency Bill That Was Based On Its Own Public Policy”

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Anonymous Coward says:

I have a hard time respecting a justice department being administered by a bunch of bald faced liars. I always suspected this is true, but it’s still shocking to find out beyond a shadow of a doubt that the DOJ is in fact, dishonest.

It makes me question the DOJ’s moral character. Ah hell, who am I kidding. We have the answers right here. There is no question.

Jose_X (profile) says:

Re: Re:

Would you mind answering some of the questions I posed below?

Or answer these if you can:

— Do you seriously believe the USDOJ did not have a good argument yet they magically convinced Congress to table something they were all supposedly supporting?

— Are you suggesting they were blackmailing the leaders of Congress?

— Are you willing to open up your business to FOIA-style requests by the public? If not, why not?

GEMont (profile) says:

Re: They're following an established tradition

I guess The Department of Ease of Public Exploitation and Official Criminal Activity Protection would be both hard to put on a business card and a little too honest for even the most forward thinking governments…

hehehehe – I just wrote “Forward Thinking Governments”.

I think that must be oxymoron cubed.
Or too many cups of coffee…

Jose_X (profile) says:


To whom it may concern:

I would like every company on the planet to reveal all the details of what they communicate with others. No company even comes close to doing so, however. The US government is about the most open entity on the planet. If being open is good for accountability, why are the rules for openness for businesses (eg, to keep a license in good order) virtually non-existent and ditto for individuals (eg, to preserve citizenship rights), especially individuals in positions of power?

Do you think that maybe organizations find some value in keeping some things secret, but why is there such a difference between the US government and virtually every other organization on earth?

We should aspire for as much openness as possible, but it’s ridiculous to ask of some group things that no other group, including competing governments, come close to providing.

As for the complaint about the USDOJ, since when has the USDOJ been able to convince the entirety of Congress to shelve anything that all or a vast majority of their members were against unless they presented an argument that actually convinced many members themselves to delay a bill or kill it.

Note, I am not trying to justify secrecy, but I do believe in balance and think it is a bit hypocritical to expect one organization to be extremely open about everything while at the same time arguing vehemently for privacy by virtually every other organization/person. Please reconcile that for me. Is there value in secrecy? If you believe so, are you an anarchist trying to undo our government by asking of them much more than is generally asked of any other organization?

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