DOJ Office of Legal Counsel Violates Freedom of Information Act

By Robert Romano

February 16th, 2010, Fairfax, VA—A government watchdog group's Freedom of Information Act (FOIA) request to the Justice Department's (DOJ) Office of Legal Counsel (OLC) has gone unheeded in spite of a 20-day statutory requirement.

Americans for Limited Government's (ALG) counsel, Nathan Mehrens, has been attempting to confirm or deny allegations that Dawn Johnsen, Barack Obama's nominee for Assistant Attorney General to the Office of Legal Counsel, has been performing duties pursuant to that office without being confirmed by the Senate, including making hiring decisions.

"It's been almost 3-and-a-half months now," said Mehrens.  "There is a diminishing window of opportunity for this information to even be useful." ALG filed its request on October 26th, 2009, according to the group's request.

According to National Review Online, Johnsen may have been "involving herself in OLC's decisions on hiring junior lawyers.  If those reports are accurate, Johnsen's actions would seem a serious violation of the Senate's understanding of pre-confirmation etiquette—an etiquette that is especially punctilious for nominees who have generated controversy—and would give senators additional reason to oppose her nomination."

Mehrens explained the urgency involved, "The information is critical to senators who are being asked to confirm her or not, and if the Office of Legal Counsel does not respond to our FOIA request before then, or before Easter recess when she could be recess-appointed by Obama, it will be too late."

According to Politico, Barack Obama may exercise his power to make recess appointments on Johnsen in spite of the claims, and Senator Patrick Leahy has encouraged the White House to do so. 

Although Obama has said he will not make any recess appointments this week, it did threaten to "to use my recess appointment authority in the future," indicating that Johnsen could be appointed over the Easter recess.

Mehrens said he has made repeated attempts to contact the Freedom of Information office within the Office of Legal Counsel, and received no response until the morning of Feb. 12th.  "All they could tell me was that they had not even started yet with processing our FOIA request."

ALG Research Director Don Todd said that the Office of Legal Counsel was "stonewalling" ALG's request.

"If they are truly back-logged, they need to get more people in there to fulfill these requests in a timely manner," Todd declared, concluding, "because right now they're in violation of the law."

The Freedom of Information Act requires a response by a FOIA'ed department or agency within 20 business days.

Robert Romano is the Washington News Alert Bureau Chief.