Justice Dept. Ditches Its Proposal To Lie About Existence of FOIA Records

November 16, 2011

Under a 1987 Justice Dept. memo issued by then-Attorney General Edwin Meese, Federal officials could lie to Freedom-of-Information-Act requesters under certain circumstances, saying responsive documents did not exist, when in fact they did.

In this year's Federal Register, the Justice Department proposed making that policy official and asked for public comment. After getting an earful, the Justice Department on November 3, 2011, told Sen. Charles Grassley (R-IA) that it was pulling the proposal.

Under the proposal, agencies could lie about the existence of records only in rare circumstances: when it would reveal an ongoing criminal investigation to a subject unaware they were being investigated, when it would reveal confidential informants, and when it would reveal specific national security information maintained by the FBI.

The regulatory proposal was part of a large package of revised FOIA regulations, which will go forward without it. The Justice Department did not rescind the 1987 Meese memo, but identified ways in which agencies could be unresponsive and uninformative without actually lying.