Opening Doors at the Department of Justice

On April 8 OpenTheGovernment.org and a number of our partners sat down with Tony West, the Associate Attorney General (the number three person at the Department of Justice DOJ),  to discuss areas where we believe DOJ could take significant steps to make the department more open and accountable. 

All of the issues raised during the meeting are outlined in a thank you letter we sent to Mr. West on April 14. Our partner groups participating in the meeting included the American Association of Law Libraries, the Center for Effective Government, Citizens for Responsibility and Ethics in Washington (CREW), the Electronic Information Privacy Center (EPIC), the National Security Archive, the Project On Government Oversight (POGO), Public Citizen, and the Sunlight Foundation. Basic requests supported by some or all of the groups are:

  • Release data in a structured and machine-readable format.  Structured and machine-readable data can more easily be used and re-used in ways that are meaningful to the public
  • Improve the Foreign Agents Registration Act (FARA) database. The information in the FARA database is currently stored and made available in ways that make it hard for the public to use.  This information is critical to helping the public understand efforts by foreign governments and organizations to influence U.S. policy.
  • Disclose findings of misconduct by DOJ attorneys from the Office of Professional Responsibility (OPR). While we understand that there may be reasons to not disclose all allegations of misconduct, the public has a right to know if OPR has determined that a DOJ lawyer did not practice the law in a manner consistent with the laws, rules, and guidelines that govern his or her professional conduct.
  • Set up a process to review and release sensitive opinions by the Office of Legal Counsel (OLC). We strongly believe that the public and Congress need access to OLC memos that interpret or explain what the executive branch believes the law gives them the power to do, especially in the national security context. We believe public disclosure is essential to ensure there is proper understanding of the executive branch’s “working law” on life and death matters, but understand that the Department of Justice’s position is that they do not have the authority, in specific cases, to declassify the information. At a minimum, however, the Department of Justice should set up a process to review OLC memos on classified or sensitive topics for disclosure to Congress, particularly those—such as the targeted killing memos—which members of Congress have indicated are essential for them to properly oversee classified programs.
  • Implement the Attorney General’s Freedom of Information Act (FOIA) guidelines in processing and litigation. As we discussed, there is a strong sentiment in the open government community that agencies are over-applying FOIA Exemption B5 and that DOJ needs to do more to ensure that the Attorney General’s FOIA guidelines are followed by DOJ attorneys in litigation. We will follow-up with you regarding issues that our community has litigated on, and won, only to hear DOJ attorneys make similar arguments in other FOIA cases. We encourage DOJ to perform a litigation review similar to the one executed by Attorney General Reno. We also encourage you to set up a FOIA litigation liaison so that FOIA litigators can raise systemic issues.
  • Ensure DOJ’s FOIA regulations are consistent with the public interest. As we discussed, the open government community had a number of issues with the FOIA regulations DOJ issued in 2011. While we understand these regulations have been modified and are currently under review by the office of Management and Budget (OMB), DOJ has not shared the content of the revised regulations with outside stakeholders. This practice runs counter to OIP’s involvement in an effort to develop common FOIA regulations for the executive branch, which includes extensive collaboration with FOIA requesters and other stakeholders. We encourage you to put in place FOIA regulations that reflect the public’s views, and are consistent with a common regulation.

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