Attorney General Eric Holder Jr. strongly encouraged federal agencies to voluntarily disclose information requested by the public under the Freedom of Information Act, in a new set of guidelines issued Thursday.
In a memorandum outlining the guidelines, Holder wrote that the Justice Department will defend denial of records only if an agency “reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions,” such as national security and law enforcement interests, or if disclosure is prohibited by law.
The new standard signals a shift away from the Bush administration’s practice of deploying FOIA exemptions whenever possible, but it's unclear what impact the memo will have on pending FOIA cases. Holder said the new guidelines should be 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."
Daniel Metcalfe, former director of the department’s Office of Information and Privacy, said the language provided ample leeway for government lawyers.
“It is at least a slight disappointment that the litigation review process is bounded by several requisites, primarily that it will be undertaken only ‘if practicable,’” said Metcalfe, now a professor at American University Washington College of Law.
Attorney General Janet Reno, by comparison, ordered a review of all pending FOIA cases, without qualification, said Metcalfe, who drafted FOIA memos in both the Clinton and Bush administrations. The review resulted in additional disclosure in a substantial number of cases, he said. (Click here for a copy of the Reno memo.)
President Barack Obama called for the presumption of disclosure in an executive order signed on his first day in office. Holder’s memo added contours to Obama’s order, while prodding agencies to dispense with “unnecessary bureaucratic hurdles” that stanch the flow of information.
“I strongly encourage agencies to make discretionary disclosures of information,” Holder wrote. “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.”
Holder also reminded agencies to take pains to segregate information that falls outside the law's exemptions if they determine that they cannot fully comply with a request.
One subsection of Holder's memo is entitled "FOIA Is Everyone's Responsibility." In it, Holder wrote that "we must all do our part to ensure open government" and called on chief FOIA officers to ensure their agencies were complying with the law and to make adjustments to expedite the process. Holder also suggested that agencies systematically post information online in anticipation of FOIA requests. About 150,000 requests are pending throughout the government.
"Long delays should not be viewed as an inevitable and insurmountable consequence of high demand," Holder wrote.
FOIA lawyers and congressional leaders said the new guidelines were a dramatic improvement upon the FOIA policy of the Bush administration, which required DOJ to defend agencies' decisions to withhold records “unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”
Senate Judiciary Chairman Patrick Leahy (D-Vt.) said that the new "policy will better protect the public’s right to know and make our federal government more open and transparent. I applaud the Attorney General’s demonstrated commitment to openness and to restoring the public’s trust in the government.”
“The new attorney general’s guidelines read as if there’s a new show in town, and for the first time in eight years, everyone is welcome to come see it,” said Meredith Fuchs, general counsel for The National Security Archive, which frequently engaged the Bush administration in FOIA disputes.
The organization has three FOIA suits pending, one of which seeks the legal opinion underpinning the Bush administration's warrantless wiretapping program. Fuchs said she's hopeful that the new guidelines will strengthen the case for disclosure. The Justice Department had argued that the opinion was subject to national security, intelligence sources and methods, and deliberative process exemptions. The case is pending before Judge Henry Kennedy Jr. of U.S. District Court for the District of Columbia.
“And now it’s all in the implementation,” Fuchs said.