DOJ Withdraws Controversial Change to FOIA Regs

We join Senator Leahy in commending the Department of Justice on withdawing the controversial section (16.6 (f)(2)) from their proposed revisions to the Department’s FOIA regulations.  As we noted, the  provision would have amended the FOIA regulations to allow the DOJ, when it determined that requested documents it holds fit within exclusions under 5 U.S.C. section 552(c), to respond to a FOIA request by falsely stating that no records exist.

The 1986 Attorney General Meese memo to which DOJ refers in its letter to Senators Grassley and Leahy says "Where an exclusion is employed, the agency is legally empowered to "treat" the excluded records as not subject to the FOIA at all. Accordingly, a requester can properly be advised in such a situation that "there exist no records responsive to your FOIA request." This is not what the now-withdrawn provision said.

We are pleased to note that DOJ will require that records be kept of any uses of an exclusion — and its approval — and that the number of times an agency invokes exclusions be publicly reported in the Chief FOIA Officer Report for that agency.

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