Helen Whalen Cohen

There are some new and exciting developments from the most transparent administration ever. Word surfaced today that the Department of Justice is pressing for new regulations that would allow the government to falsely claim that documents requested under FOIA don't exist. Oh, and there would be no judicial review.

It's not often that the liberal American Civil Liberties Union and conservative Judicial Watch agree on anything, but the Obama administration's lack of transparency has brought the two together. Obama's Justice Department has proposed a regulatory change that would weaken the Freedom of Information Act. Under the new rules, the government could falsely respond to those who file FOIA requests that a document does not exist if it pertains to an ongoing criminal investigation, concerns a terrorist organization, or a counterintelligence operation involving a foreign nation.

There are two problems with the Obama proposal to allow federal officials to affirmatively assert that a requested document doesn't exist when it does. First, by not citing a specific exemption allowed under the FOIA as grounds for denying a request, the proposal would cut off a requestor from appealing to the courts. By thus creating an area of federal activity that is completely exempt from judicial review, the proposal undercuts due process and other constitutional protections. Second, by creating a justification for government lying to FOIA requestors in one area, a legal precedent is created that sooner or later will be asserted by the government in other areas as well.

Just when I thought the current DOJ couldn't find any new ways to weaken FOIA, along comes another one. They've already appealed a judge's ruling that would require the White House to release all of its visitors logs, denied information regarding Solyndra to the extent that the House is threatening to serve supoenas, and appointed their own people to deal with FOIA requests. And who could forget this?
 
Maybe it's time to make transparency an issue in 2012.

Helen Whalen Cohen

Helen Whalen Cohen is Associate Editor and Community Manager at Townhall.com.