“If you’re innocent, you’re not a suspect,” Ed Meese once explained. So if you’re a suspect, you’re not innocent?
Damn straight, according to Eric Holder’s Department of Justice, in a recent letter “explaining” the department’s clearly reluctant decision to not to issue regulations that would allow federal government agencies to deny Freedom of Information Act requests on the grounds that the records requested don’t exist when in fact they do exist. As the DOJ tells it, saying that records don’t exist when they do exist is not “lying.” Uncle Ed, Ronald Regan’s attorney general and favorite errand boy, came up with the solution to awkward FOIA requests way back in 1987. When someone asks for something you don’t want to give them, just say “there exist no records responsive to your FOIA request.” The idea is that “no records responsive to your FOIA request” means not “no records,” but rather “no records that we feel like giving you.”
It’s necessary, DOJ explains, in cases when someone “seeks information relating to an ongoing criminal investigation, of which the target is unaware, and when even acknowledging the existence of responsive documents would tip off the criminal to the ongoing investigation.” Got that? If the government is investigating you, you’re already a criminal. Because why would the government investigate an innocent person? Eric Holder, you’re looking more and more like Ed Meese every day. What is it about being Attorney General that seems to turn a man into a career criminal?
Via Josh Gerstein in Politico, who unsportingly calls the DOJ letter “defensive in tone” and also refers, without providing much information, to a federal district court judge’s angry criticism of the FBI for providing “blatantly false” statements in response to a FOIA request filed by the ACLU on behalf of the Islamic Shura Council of Southern California. You can read Judge Cormac Carney’s impatient take on the FBI’s Meesespeak here. (In a classic split the difference—or perhaps “split the baby”—ruling, the judge said the FBI was wrong to lie about not having the documents but right in refusing to provide copies to the Council.)
UpdatedOver at Reason, Jacob Sullum, who’s been following this issue, gives more detail. The Sunlight Foundation explains why the Justice Department’s new proposals “will be a huge step back for transparency.”
