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New FOIA Guidance: Government Must Open Files

Posted By Mary Jacoby On March 21, 2022 @ 10:35 am In News | Comments Disabled

The Freedom of Information Act has come in from the cold.

Attorney General Eric Holder on Thursday issued new FOIA guidance [1]to government agencies directing full compliance with requests for government documents. The guidance rescinds then-Attorney General John Ashcroft’s Oct. 12, 2001 memo [2]essentially directing agencies to nit-pick FOIA requests to death by using legal technicalities to deny as many as possible.

The new FOIA guidance implements a policy articulated by President Obama on his second day in office: “The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, oppenness prevails.” What that means in practice: ”An agency should not withhold information simply because it may do so legally… [or] demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption,” Holder’s memo says. The Holder memo returns to the standards set by President Clinton’s attorney general, Janet Reno, in 1993.

The memo continues:

FOIA professionals should be mindful of their obligation to work “in a spirit of cooperation” with FOIA requesters, as President Obama has directed. Unnecessary bureaucratic hurdles have no place in the “new era of open Government” that the President has proclaimed.

Agencies should work “pro-actively” to post information on-line before it’s requested, the memo says, and generally make better use of technology to speed up the notoriously long delays (ie: strategic foot-dragging) that have long plagued FOIA disclosure.


Holder also directed the DOJ to review pending FOIA litigation in light of the “substantial likelihood that application of the [new] guidance would result in a material disclosure of additional information.” Henceforth, the DOJ will defend government agencies only if it concludes their FOIA denials were truly (not just technically) prohibited by law. DOJ will also defend statuory exemptions protecting disclosures that would harm national security, law enforcement interests and personal privacy.


Open-government activists generally applauded. But David Sobel at the Electronic Frontier Foundation struck a cautionary note in this blog post [3]:

[I]t 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.

The public interest group filed a lawsuit in 2006 seeking information from the Federal Bureau of Investigation about its Investigative Data Warehouse, a database used in counter-terrorism probes. On Jan. 23 — two days after Obama’s FOIA statement — the DOJ moved for summary judgment, asserting it had fully complied with EFF’s documents request. EFF asked the U.S. District Court for the District of Columbia to stay the proceedings [4]. The FBI and DOJ should reconsider whether their previous disclosures during the Bush administration were adequate, given the new Obama policy of openness, EFF argued.


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