When the Justice Department issued new FOIA guidelines in March, they were largely heralded as proof of the president’s commitment to government transparency. But FOIA experts expressed some concerns about the guidelines’ language regarding pending cases — and apparently, their concerns were well-founded, according to this report by Newsweek’s Michael Isikoff.
While the guidelines instructed agencies to operate on the “presumption” of disclosure — in contrast to the Bush-era policy of holding out unless no “sound legal basis” could be found for doing so — they gave Justice Department lawyers wiggle room in pending 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.” Er, yeah.
While the guidelines were generally tailored after Reno-era policy, Dan Metcalfe, the former longtime chief of FOIA policy at Justice, told Isikoff that “lawyerly hedges” make the Holder memo “astonishingly weaker” than Reno’s.
For instance:
As a senator, Barack Obama denounced the Bush administration for holding “secret energy meetings” with oil executives at the White House. But last week public-interest groups were dismayed when his own administration rejected a Freedom of Information Act request for Secret Service logs showing the identities of coal executives who had visited the White House to discuss Obama’s “clean coal” policies.
The request is covered by the “pending” clause because it ties in with the subject of a Bush-era lawsuit for visitor-log records. Justice lawyers drafted the new guidelines in consultation with the White House Counsel Gregory Craig. The department defended the pending-litigation language.
The separate standard for “pending” lawsuits was inserted because of the “burden” it would impose on officials to go “backward” and reprocess hundreds of old cases, says Melanie Ann Pustay, who now heads the FOIA office.
