Justice Department Clarifies FOIA Policy

On April 17, the Office of Information Policy (OIP) at the Department of Justice (DOJ) issued new guidance [1] on agency implementation of the March 19 Freedom of Information Act (FOIA) memo written by Attorney General Eric Holder. Despite the clarifications, public interest groups continue to notice a wide difference between the new policy and agency actions on FOIA.

The memo describes the impact of Holder’s guidelines as "a sea change in the way transparency is viewed across government." The new guidance gives agencies specific frameworks within which to interpret FOIA exemptions [2]. The OIP also placed new emphasis on agency requirements recognizing that transparency and accountability are inherently linked.

Discretionary Disclosure

One of the biggest changes Holder's memo brought to the executive branch interpretation of FOIA was urging greater use of discretionary disclosure. The OIP explains that just because material could be legally withheld under a particular exemption does not mean that agencies should automatically withhold it. The guidance instructs personnel that upon finding a record technically exempt under FOIA, staff must make a separate determination on whether a record is suitable for discretionary disclosure because of possible importance to the public interest.

This approach has significant implications for implementation of several exemptions. For instance, under Exemption 2, which deals with agency personnel rules and practices, there are two categories. The "Low 2" exemption refers to records that contain control markings that agencies contend are of little or no interest to the public and used solely for internal purposes. The OIP virtually removed "Low 2" as a proper exemption under the FOIA, stating that "there would be no reasonably foreseeable harm from release, and discretionary release should be the general rule."

The discretionary release standard will also affect Exemption 5, records considered to be pre-decisional or interagency communication, in a major way. The OIP establishes specific criteria to consider when evaluating the discretionary release potential of records under this exemption: age of the record, sensitivity of its content, nature of the decision at issue, status of the decision, and the personnel involved. In the past, the government often argued that disclosing such records could discourage open and frank discussions on policy. The OIP, however, appears to change the official position and asserts that release would "make available to the public records which reflect the operations and activities of the government."

Some exemptions, however, remain protected from the new push for discretionary disclosure. In particular, with regard to Exemption 1, national security information, the OIP argues, "no discretionary disclosure is appropriate." Thus, all information concerning the foreign relations of the United States can still be withheld as long as it is properly classified, regardless of the public interest in the material.

Foreseeable Harm

The OIP guidance also elaborated on Holder’s call to apply a standard of "foreseeable harm" for withholding decisions. The principle would require agencies to reasonably foresee harm to interests protected under an exemption before withholding information from requestors. This requirement is identical to that established in the October 1993 FOIA memo by Attorney General Janet Reno. This determination, however, is to be made based on the age, content, and character of the record rather than "speculative or abstract fears."

Oversight

The OIP places strong emphasis on Chief FOIA Officers being held accountable for agency progress. They are responsible for recommending adjustments to "agency practices, personnel, and funding." All Chief FOIA Officers are mandated to report annually to the DOJ on the steps that they have taken to improve transparency in their agencies. DOJ also requires that the Chief FOIA Officer at each agency conduct a comprehensive review of FOIA practices for timeliness and to identify other problems, such as backlog issues and resource requirements.

Criticism

The new openness policies of the administration have been met by critics who particularly focus on the slow pace of actual implementation by agencies. The Electronic Frontier Foundation noted [3] recently that the Federal Bureau of Investigation is still using the "Low 2" exemption to withhold records. Additionally, a summary of recent court decisions [4] posted to the OIP website shows that other agencies are also withholding information under the Low 2 exemption and successfully defending themselves in court. The same is true for the use of Exemption 5. Agencies are still applying it widely, and the courts are taking a black-and-white approach ruling along the letter of the law.

Courts, which often favor agencies in FOIA cases rather than aggressively applying the spirit of FOIA, are unlikely to challenge continued broad use of exemptions, even if they differ with the newly stated policies. The U.S. Supreme Court has even turned down its opportunity [5] to review the threshold of Exemption 5. Therefore, strong efforts from the White House, OIP, and each agency’s Chief FOIA Officer will be key in changing the federal culture of secrecy.