Ryan J. Reilly November 3, 2011, 3:50 PM

Updated: Nov. 3, 4:05PM

The Justice Department is withdrawing a proposed rule to the Freedom of Information Act which would have allowed federal agencies to say that certain law-enforcement and national security documents didn’t exist, even when they do.

“If the proposed regulations can be improved [in terms of transparency], we will work to improve them,” the Justice Department explained in a letter to Sen. Chuck Grassley (R-IA). “We believe that Section 16.6(f)(2) of the proposed regulations fall short by those measures, and we will not include that provision when the Department issues final regulations.”

The regulation in question would have instructed agencies to “respond to the request as if the excluded records did not exist.” Agencies will still continue using the phrase “there exist no records responsive to your FOIA request” when records in question are exempt from FOIA, as spelled out in a 1987 memo issued by Attorney General Ed Meese.

“When a citizen makes a request pursuant to the FOIA, either implicit or explicit in the request is that it seeks records that are subject to the FOIA; where the only records that exist are not subject to the FOIA, the statement that ‘there exist no records responsive to your FOIA request’ is wholly accurate,” the letter said.

“These practices laid out in Attorney General Meese’s memo have governed Department practice for more than 20 years,” the letter continued. “While the approach has never involved ‘lying,’ as some have suggested, the Department believes that past practice could be made more transparent. Accordingly, as part of an effort to update its FOIA regulations and other aspects of its Open Government initiative, the Department took a number of steps designed to bring its handling of exclusions in line with Attorney General Holder’s commitment to open government.”

First, DOJ says it is ensuring the exclusions are invoked only when absolutely necessary, second, make agencies publicly report the number of times they invoke the exclusions, and third, to promote “greater public awareness” of the exclusions and disclosure of how they may be used.

“The Justice Department decided that misleading the American people would be wrong, and made the right decision to pull the proposed regulation,” Grassley said in a statement on Thursday. “The American people are increasingly cynical with the federal government, and increasing transparency can be an important tool to build more trust. In other words, the public’s business ought to be public.”

The letter is embedded below:

DOJ Response to Grassley Letter

Chuck Grassley, FOIA, Justice Department