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New FOIA policy; old FOIA practice?

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Remember Attorney General Eric Holder’s memo last year stating that agencies should administer the Freedom of Information Act with a presumption in favor of disclosure?

One private research organization is wondering whether some of Holder’s subordinates got the message, based on their attempt to thwart full release of a report detailing Nazi-hunting efforts in the United States.

“Here you’ve got the Justice Department flouting the direct guidance of the attorney general,” Tom Blanton, director of the National Security Archive, based at The George Washington University, said Wednesday in a phone interview. “Holder should be outraged.”

The report is a history of the Office of Special Investigations, the Justice Department unit created in 1979 to find and deport one-time Nazi persecutors living in the United States. But it doesn’t shy away from less inspiring chapters in that story, such as the fact that some alleged persecutors were “knowingly granted entry” into the country by U.S. officials.

When the archive requested the 607-page report under FOIA last fall, the Justice Department initially refused, saying the report was a draft and that disclosure “could harm the integrity of the agency decision-making process,” according to a response posted on the archive’s web site.

Justice officials backed off that stance after the organization sued, but this year released a version that had more than 1,000 redactions based on exemptions for protection of personal privacy and “pre-decisional” memoranda, Blanton said.

Via e-mail, Justice Department spokeswoman Laura Sweeney said the department is committed to transparency and that attorneys with FOIA expertise make redaction decisions based on considerations under the law.

But the scope of the department’s editing became clear Saturday when The New York Times linked to a leaked copy of the unredacted report on its web site.

In one instance, department officials cited privacy grounds in whiting out most of a footnote that referenced newspaper and wire service articles from 30 years ago. In another, they deleted part of a federal appellate court ruling that raised ethics accusations against Justice Department officials for their handling of another case, according to the Times.

In a statement, the archive’s attorney, David Sobel, accused the department of “withholding information without legal justification.” This week, leaders of the Simon Wiesenthal Center a Jewish human rights organization, urged President Obama to order official release of the full report, saying “victims of the Holocaust are owed no less.”

The flap is the latest to raise questions about how much effect the Obama administration’s proclaimed tilt in favor of more FOIA disclosure is actually having in practice.  “The awareness of administration FOIA policies has yet to translate into a major shift in the FOIA culture across the federal government,” Citizens for Responsibility and Ethics in Washington, a watchdog group, concluded in a recent review.

For example, the Commerce Department’s inspector general this month reported that Patent and Trademark Office employees for years have been shredding certain data “to minimize requests for such information” under FOIA and by the Patent Office Professional Association. That practice appears to violate the Federal Records Act, the IG said, and will be investigated further.

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Midnight rulemaking watch

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We reported earlier this month on the expected wave of “midnight regulation” at the end of the Bush administration. Agencies were supposed to issue all final regulations by Nov. 1, according to OMB, except in “extraordinary circumstances.”

But experts predicted dozens of new rules would miss the deadline and slip out the door before Jan. 20 (as happens during every transition).

Sure enough, there are more than a dozen new rules in today’s Federal Register, including at least two proposed rules (which agencies were supposed to stop creating by July 1). A few examples:

  • A final rule from the EPA sets limits on a pesticide called ipconazole used by agricultural companies;
  • The Federal Motor Carrier Safety Administration finalized a rule on the number of hours truck and bus drivers can work;
  • A final Commerce Department rule allows fishermen to use “trawl gear” to catch halibut in Alaska; environmental groups say this is an extremely damaging method of fishing.

None of these rules appear driven by “extraordinary circumstances,” do they?

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