It was a bad idea from the start. The Department of Justice wanted to implement a rule that would make it okay to lie about the existence of documents when responding to a request from the public involving the Freedom of Information Act (FOIA).

That’s right. In an incredible breach of transparency, the DOJ thought it was appropriate to respond when receiving requests for sensitive documents to actually lie – to say that a document did not exist – even if it did.

I’ve been speaking out about this dangerous rule for weeks now. In interviews with FOX’s Megyn Kelly, I pointed out that this tactic actually gives the DOJ a pass to avoid litigation. Here’s how. Of course, there are certain sensitive documents that cannot be revealed – involving national security and other issues. But the DOJ was proposing to lie about the mere existence of a document. This shuts down any legal avenue to pursue a FOIA request. If the government says a document does not exist, how can you go to court to make an argument to determine whether the document should be made public?

There are other ways to handle this situation. The DOJ could simply say it is not commenting one way or the other on the existence of the documents that are exempt from the FOIA request – permitting legal challenges to occur. The government should not be in the business of lying.

The proposed rule also raised this important question: how can you authorize the DOJ to take action that is knowingly false? By taking a document that does exist and acting like it does not is not only incorrect as a matter of policy, it’s wrong as a matter of law.

You can watch my interview with Megyn Kelly here.!

The good news is that the DOJ has come to its senses. After pressure from members of Congress and the media attention given to this flawed rule, the DOJ is dropping this rule.

Assistant U.S. Attorney General Ron Weich issued a statement saying the Justice Department is seeking to protect law enforcement and national security interests – and to do so “in the most transparent manner possible.” Weich wrote: “We believe that … the proposed (regulation) falls short by those measures, and we will not include that provision when the department issues final regulations.”

Not only was there growing criticism from Congress and the public, but at least one court expressed concern about this troubling rule.

In a case where it became apparent that documents denied by the FBI actually existed, a federal judge in California expressed concern over Justice Department policy. “The government, cannot, under any circumstance, affirmatively mislead the court. … The court simply cannot perform its constitutional function if the government does not tell the truth,” the judge ruled.

The DOJ’s decision to drop the faulty rule is an important victory for the American people and protects the transparency of government that FOIA was designed to address nearly 50 years ago.

Jay Sekulow

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