The Department of Justice (DOJ) today withdrew a proposed regulation that would allow government agencies to respond to Freedom of Information Act requests with false statements that the documents sought do not exist, when, in fact, they do. Providing such false denials has apparently been a practice at DOJ for decades, which was most recently revealed in a FOIA lawsuit brought by the American Civil Liberties Union of Southern California (ACLU/SC) on behalf of a number of Southern California Muslim individuals and organizations.

The groups originally filed a FOIA to request information on whether the FBI had been spying on them in 2006. The DOJ responded by repeatedly stating that no documents existed that were responsive to their request. ACLU/SC filed suit on their behalf. United States District Judge Cormac Carney then reviewed the documents, at which time he discovered that the government had repeatedly lied in its responses. The government claimed that national security concerns justified denying the documents’ existence, but Judge Carney disagreed vehemently in a ruling last April, adding that no national security interest ever justifies making false statements to a court.

The ACLU Washington Legislative Office and members of Congress across the ideological spectrum including Senators Charles Grassley (R-IA), Patrick Leahy (D-VT) and Mark Udall (D-CO), and Representative Lamar Smith (R-IL) in particular, along with, Citizens for Responsibility and Ethics in Washington and other open government groups, helped pressure DOJ to withdraw this regulation.

Although the DOJ has now withdrawn the proposed regulation, it has declined to state that it will stop providing deceptive responses in such cases. The open government community will work with Congress and the administration to create effective guidelines and oversight that ensures government agencies will provide sufficient information to understand how FOIA requests are handled, so that citizens can effectively use the courts to protect their right to government information while still protecting the government’s need for secrecy in a very narrow circumstances.

“We’re pleased that the Department of Justice intends to refrain from writing this type of deceptive practice into its regulations,” said Ahilan Arulanantham, deputy legal director at ACLU/SC. “But we’re concerned at what we’re not hearing: that DOJ won’t at some point again try to conceal the truth from citizens and from the courts entrusted with protecting their civil rights. As the Obama Administration should know, our government can only function well when it is transparent.”

The case is Islamic Shura Council v. FBI, 8:07-cv-01088 (C.D. Cal. 2008).