The Knight Open Government Survey has been measuring government responsiveness to FOIA requests since 2002. Its March 2011 survey confirmed that not only was the DOJ was one of the worst offenders in all of government when it came to the timely processing of FOIA requests, but their rating actually got worse from 2010 to 2011. As the scandals piled up, Fast and Furious to the dismissal of the CAIR terror cases, the DOJ went to greater and greater lengths to hide their criminal behavior from public view.
After an entire year of stonewalling FOIA requests into numerous Obama administration scandals, in late 2011 the DOJ moved to put the final nail into the open government coffin when they sought a rule change that would allow the government to respond to certain FOIA requests “as if the excluded documents did not exist”. The proposed regulation was officially meant to be targeted towards law enforcement issues, but considering how often the Obama administration has abused the deliberative process exception to prevent the handover of documentation, giving the Obama administration another FOIA loop hole to take advantage of wasn’t exactly what Americans had in mind when they voted for a “new era” in open government.
Steve Dennis at America’s Watchtower called the new rule a “virtual paper shredder” and IBD Editorials pointed out the Nixon White House “could have used the rule during Watergate to say, ‘Tape? What tape? It doesn’t exist.’” Even the left leaning American Civil Liberties Union said the regulation “will dramatically undermine government integrity by allowing a law designed to provide public access to government information to be twisted to permit federal law enforcement agencies to actively lie to the American people.”
In a letter to the DOJ Republican Sen. Chuck Grassley said the proposed regulation would “interfere with the judicial review that guarantees that agencies are correctly interpreting and applying exemptions under FOIA.” Democrat Sen. Patrick Lehey warned the new rule could unbalance the “public’s right to know and government’s need to keep some information secret.”
The bipartisan outcry in Congress was too much for the DOJ. Rather than trying to defend the unpopular regulation during an election year, which Republicans would no doubt use to endlessly mock the “most transparent administration ever”, the DOJ abandoned the rule change for good in November 2011.