Obama’s DOJ Seeks to Weaken the FOIA


Obama’s Department of Justice has proposed a new set of rules for how the agency fills Freedom of Information Act Requests. If adopted, the rules will be a huge step back for transparency. They’re worse than you think. The DOJ apparently wants to:

  • deny requests that aren’t addressed to precisely the correct department (16.3 (a))
  • summarily dismiss requests if they deem the wording too vague (16.3 (c))
  • automatically apply exclusions to FOIA whenever it can (16.4 (a))
  • be able to hide what part of the agency is responsible for filling requests (16.4 (e))
  • reset their deadlines for responses any time they refer requests among departments (16.5 (a))
  • make it more difficult for requests to be deemed urgent (16.5 (e))
  • insulate department heads from having to stand by denials (16.6 (d))¬†(see update)
  • lie, and claim records do not exist, when they do (16.6 (f))
  • remove the ability for the courts to oversee how DOJ applies some exclusions (16.6 (f))
  • make it easier for businesses to declare that information is a trade secret (16.7)
  • be able to destroy records that might be responsive to FOIA requests (16.9)
  • ignore your request for information to be given in a specified format (16.9(a)(3))
  • disqualify most schools from getting FOIA fees waived (16.9(a)(4))
  • exclude new media from getting fees waived (16.10(a)(6))
  • make it easier to deny fee waivers (16.10(k)(2)(iii))

I’m glad that EPIC’s comments (that Sunlight signed on to) lay out the stakes so clearly, (especially since the format of the proposed rule makes it difficult to understand the changes DOJ is proposing). Most of the news coverage has focused on the DOJ’s desire to lie about the existence of records, but as you can see, DOJ’s efforts to undermine FOIA go well beyond dishonest requests.

Reading the proposed rule, it’s hard to have any reaction other than the DOJ officials responsible for this proposed rule resent the FOIA, and are doing everything within their power to weaken it. This is utterly contradictory to the President’s and Attorney General’s public transparency rhetoric.

Presidential rhetoric doesn’t get FOIA requests filled, though. ¬†Since the DOJ reports directly to the President, we can only interpret this proposal as reflective of the administration’s feelings towards FOIA. And if this proposal reflects their feelings, then they can best be summarized as hostile.

The only good news here is that DOJ reopened their comments after transparency advocates raised their voices. Let’s hope they scrap this entire rule and start over.


Update, 11/3/2011: The two struck out passages above were either flawed or reflected an overstatement of the rules’ potential impact.