Justice Department Issues New FOIA Guidelines

On March 19, 2009, Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The memo rescinds the guidelines issued on Oct. 12, 2001, by former Attorney General John Ashcroft.

The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to “usher in a new era of open government.” At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability and transparency.

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

The Attorney General also establishes a new standard for the defense of agency decisions to withhold records in response to a FOIA request. Now, the Department will defend a denial only if the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or disclosure is prohibited by law. Under the previous defensibility standard of the rescinded rules, the Department had said it would defend a denial if the agency had a “sound legal basis” for its decision to withhold.

In addition to establishing criteria governing the presumption of disclosure, the Attorney General’s FOIA guidelines emphasize that agencies must be sure to have in place effective systems for responding to requests. In the memo, the Attorney General calls on each agency to be fully accountable for its administration of the FOIA.

The Attorney General’s memo also emphasizes that FOIA is the responsibility of everyone in each agency, and that in order to improve FOIA performance, agencies must address the key roles played by a broad range of personnel who work with each agency’s FOIA professionals. The memo highlights the key role played by agency Chief FOIA Officers who will now be reporting each year to the Department of Justice on their progress in improving FOIA administration.

And, the Attorney General also directs FOIA professionals to work cooperatively with FOIA requesters and to anticipate interest in records before requests are made and to make requested records available promptly.

The Office of Information Policy will conduct training and provide guidance on the new FOIA guidelines to executive branch departments and agencies, as well as to interested groups, in order to maintain a comprehensive approach to greater government transparency.

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