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The tightly held government report recently released by the Department of Justice does not reveal classified intelligence sources and methods. It does not contain grand jury secrets or the confidential advice of line attorneys. Nor does it name material witnesses detained by law enforcement in the aftermath of the Sept. 11 terrorist attacks. What the 186-page report does provide is an impartial assessment of diversity in the Justice Department’s attorney work force and a series of recommendations for improving the department’s diversity record. Yet for more than a year, despite substantial public interest, the study’s findings were kept secret. The version released by the Justice Department two weeks ago in response to Freedom of Information Act requests from Legal Times and other organizations was heavily redacted and omitted large portions of text, including all key findings and recommendations. Last week, as lawyers and civil rights advocates reviewed the study, many complained that it had not been released sooner and in full. “I find it a little puzzling,” says Wiley Rein & Fielding partner John Yang, president-elect of the National Asian Pacific American Bar Association. “The handling of the report unfortunately results in a feeling of suspicion on the part of minority lawyers.” DOJ spokesman Jorge Martinez calls the department’s handling of the diversity study “standard operating procedure.” “The information redacted is pre-decisional deliberative information — the type of information the Justice Department will use to determine how to best proceed and develop a policy practice,” Martinez wrote in an e-mail to Legal Times, which obtained an unredacted copy of the report. “It is important to point out that these redactions were made pursuant to the law.” In addition to media organizations, minority bar associations and the DOJ’s own internal employee groups had sought the study, but were rebuffed. Ironically, the full report makes more than a dozen references to the Justice Department’s need for greater transparency in its human resources procedures. The report notes that lack of transparency contributes to a perception of bias and encourages department leaders to collect and circulate diversity figures “beginning immediately.” Former Deputy Attorney General Larry Thompson, who commissioned the study, says that the administration was “not trying to hide anything” by not releasing the report. “There should be some confidentiality within a government body,” says Thompson, now a scholar with the Brookings Institution. “When you have people in government really seeking to understand what’s going on in their organization and seeking critical analysis of a situation, you certainly don’t want to have a chilling effect on that analysis.” Though the Justice Department was reticent to release the report, its existence has never been kept a secret. In January 2002, the Justice Department put out a press release announcing that it had hired KPMG Consulting and Taylor Cox Associates to conduct an analysis of DOJ human resources practices with respect to diversity. The study was completed in June 2002, and in February 2003, Thompson and Attorney General John Ashcroft held a major event in the Great Hall of the Justice Department to announce a series of initiatives based on the report’s findings. Redactions to the diversity report were made under a Freedom of Information Act exemption protecting internal deliberative documents. FOIA officers can opt to shield records under the exemption, but are not required to. Indeed, the policy in place under former Attorney General Janet Reno encouraged a “presumption of disclosure” and instructed government officials to withhold records requested under FOIA only when the release of information would cause foreseeable harm. In contrast, Ashcroft has urged government officials to take a more cautious approach. The Ashcroft policy promises the DOJ’s support in cases where there is “sound legal basis” for withholding material sought under FOIA. “We’ve certainly seen the Justice Department get creative in its application of FOIA exemptions,” says David Sobel, general counsel of the Electronic Privacy Information Center. “To me, it seems questionable to apply the pre-decisional, deliberative process rationale to recommendations coming from a government contractor.”

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