New FOIA Memo, Hot Off the Press

On March 19, the Obama administration issued a new set of guidelines [1] to federal agencies on implementation of the Freedom of Information Act (FOIA), replacing Bush-era rules that many thought promoted a culture of secrecy in government. Written by Attorney General Eric Holder, the Department of Justice (DOJ) memorandum outlines a spirit of transparency that reflects President Obama’s Jan. 21 assertion [2], "In the face of doubt, openness prevails."

The new memo reflects but builds upon an October 1993 memorandum [3] from Clinton administration Attorney General Janet Reno. Among other things, Holder's memo promises to defend agency decisions to withhold information only if the agency demonstrates a reasonably foreseeable risk of harm to an interest protected by FOIA exemptions or statutory law. Further, the memo focuses on timeliness, declaring that "long delays should not be viewed as an inevitable and insurmountable consequence of high demand."

FOIA guidance is traditionally issued by the attorney general at the beginning of a new administration. For example, guidance was provided in May 1977 by Attorney General Griffin B. Bell, in May 1981 by Attorney General William French Smith, and in October 1993 by Reno. The most recent prior FOIA guidance [4] was issued by former Attorney General John Ashcroft in October 2001.

Ashcroft's memo instructed agencies that in the face of doubt, secrecy was to prevail. Ashcroft guaranteed that the DOJ would defend agency decisions to withhold information so long as they were made on a sound legal basis. Most agencies perceived the language of the Ashcroft memo to support and encourage the application of FOIA exemptions to withhold information.

The Reno memo that Ashcroft replaced called for "presumption of disclosure." The objective Reno wanted to achieve was "a maximum responsible disclosure of government information – while preserving essential confidentiality." Reno also warned the agencies that the DOJ would only defend the withholding of information where "the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption." In other words, the Reno policy was to disclose information if there was no foreseeable harm, even if there might be an argument to be made that it could legally withhold disclosure under one of the FOIA exemptions. Reno's DOJ further encouraged agencies to make “discretionary disclosures” in order to relieve agency burden in processing FOIA requests.

The Ashcroft memo flipped the Reno standards. Ashcroft noted that compliance with FOIA is only one "value" of importance to DOJ. Other values include "safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy." Ashcroft described the importance of allowing the federal government to operate outside of public scrutiny and emphasized the importance of FOIA exemptions to withhold such information.

The Ashcroft memo replaced the Reno "foreseeable harm" approach to withholding information with a "sound legal basis" standard for disclosure. The Ashcroft memo was a major blow to transparency. The increased secrecy caused FOIA requests to back up and be processed less efficiently, cost taxpayers millions in review expenses, and hid government waste and other abuses of the public trust.

How are the Obama administration FOIA guidelines different?

The Holder document is a return to the Reno memo in significant ways. Holder has brought back the foreseeable harm clause and also encourages discretionary disclosure. However, Holder is clearly also attempting to do something new to change the culture of secrecy that plagues the federal bureaucracy.

In the Holder memo, the language on enforcement is striking. In response to poor performance reviews on FOIA compliance, Holder mandates that agencies "must address the key roles played by a broad spectrum of agency personnel" in order to reduce "competing agency priorities and insufficient technological support." Moreover, he orders that the chief FOIA officers of each agency recommend adjustments to agency practices, personnel, and funding as necessary. Thus, it appears the administration has recognized that the responsibility for public dissemination of information goes beyond the FOIA offices of each agency and that the chief FOIA officers have the responsibility to respond to inadequate resources. Holder also declares that "unnecessary bureaucratic hurdles have no place in the 'new era of open government' that the President has proclaimed."

The Holder memo also expands on the earlier discretionary disclosure language. Holder encourages agencies to not just make discretionary disclosures, but to do in so in anticipation of the public interest. This language aims to prevent agencies from being able to allege compliance with the guidance but to do so by releasing irrelevant material. He also encourages the use of technology and publication on the Internet in making this type of disclosure.

The level of transparency secured or diminished by a FOIA memo is cyclical in nature. The instructions of any given memo vary by administration. The Ashcroft memo was not without precedent and reflected the earlier 1981 memo written by Smith. Some advocates believe that legislation is needed to further define and make consistent how agencies are to implement FOIA. However, this could backfire by codifying an interpretation of FOIA that agrees more with the Ashcroft presumption of secrecy than with Holder's presumption of transparency.