Attorney General Sets New FOIA Policy; Its Impact Remains to be Seen
Electronic Frontier Foundation
David L. Sobel
March 19, 2009
Attorney General Eric Holder today issued new guidelines (PDF) on federal agency implementation of the Freedom of Information Act (FOIA). The guidelines were issued pursuant to a directive issued by President Obama on January 21, his first full day in office. Like the Obama directive itself, the Holder guidelines express strong support for government transparency and establish a presumption in favor of disclosure of information requested under FOIA.
Perhaps most notably, the new guidelines rescind the so-called Ashcroft memo, issued by the former Attorney General in October 2001. That directive — widely criticized within the open government community — encouraged agencies to resist disclosure of requested information and to release documents “only after full and deliberate consideration” of the potential harms that might result. The Ashcroft memo also assured agencies that the Justice Department would defend in court any decisions to withhold information “unless they lack a sound legal basis.”
The new Holder guidelines echo the more pro-disclosure policy of former Attorney General Janet Reno and, like the Reno directive, encourage agencies to make “discretionary” disclosures of information that is not clearly required to be withheld as a matter of law. The new guidelines provide:
First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.
Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.
On the issue of defending agencies whose withholding decisions have been challenged in court, Attorney General Holder also returns to the Reno standard and directs that DOJ “will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.” This policy will apply to cases currently pending in the federal courts:
With regard to litigation pending on the date of the issuance of this memorandum, this guidance should be taken into account and applied if practicable when, in the judgment of the Department of Justice lawyers handling the matter and the relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.
The impact of the Holder guidelines on pending FOIA lawsuits is of particular interest to EFF. As we’ve previously noted, we have filed motions in several of our FOIA cases asking the courts to delay further proceedings until the new guidelines are issued and the defendant agencies can consider the impact of the new pro-disclosure policies of the Obama administration.
With the issuance of today’s guidelines, both the President and the Attorney General have articulated an extremely pro-transparency policy for the federal government. The fact that these pronouncements come so early in the life of the new administration is a particularly promising development. But, as they say, the proof is in the pudding and it remains to be seen if these proclamations from on high produce real results down in the bureaucratic trenches. We will soon learn in our pending lawsuits whether the new administration is truly prepared to reverse the pro-secrecy practices of the Bush administration.