Holder Memo Encourages Discretionary Releases, Accountability of FOIA Programs; DOJ Will Only Defend if Harm from Release is Reasonably Foreseeable
Washington, DC, March 19, 2009 - Attorney General Eric Holder today released new guidelines for federal agencies on the Freedom of Information Act (FOIA) that reinforce the presumption of disclosure articulated by President Obama in his day one Memorandum on FOIA, issued January 21, 2009.
Attorney General Holder's memorandum provides practical guidance for implementing the presumption of disclosure, including by encouraging discretionary releases of records and releasing portions of records even when other portions are being withheld. It states that the Department of Justice will only defend withholdings in court when there is a reasonably foreseeable risk of harm to an interest protected by one of the FOIA exemptions or the law requires the information to be withheld. It states that this policy will be applied to pending litigation "if practicable" and "where there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information."
"We are delighted," remarked the Archive's General Counsel, Meredith Fuchs. "The new Attorney General guidelines read as if there is a new show in town and for the first time in eight years everyone is welcome to come see it."
With regard to the Department's role defending government agencies in FOIA cases, Ms. Fuchs commented, "Not only do we think this should have an impact on several pending cases, including our own case seeking Justice Department memoranda authorizing warrantless surveillance of Americans, we also hope that is not the end of the progress. We hope the Department of Justice will counsel its federal agency clients in a manner that reduces litigation and resolves disputes, including through mediation by the Office of Government Information Services that is being established at the National Archives."
In addition to the presumption of disclosure, the memorandum recognizes that the responsibility for FOIA administration runs throughout each agency and instructs that the memorandum be shared with all FOIA personnel. It encourages the use of technology, proactive posting of records of interest to the public without the requirement of a FOIA request, and tracking of FOIA requests.
"We are very pleased to see Attorney General Holder encouraging agencies to use common sense and good management to do their work in a manner that advances government transparency and efficiency, rather than clinging to old practices that used up resources without advancing the democratic principles underlying FOIA," said Ms. Fuchs. "We hope the Attorney General's strong direction will correct the course of the federal government which has, for eight years, followed the path of secrecy."
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