Last Thursday, Attorney General Eric Holder announced new guidance giving Freedom of Information Act requesters broader access to government records.
The memo effectively reverts to the standard established by Janet Reno in 1993: requested information is to be released unless the agency “reasonably foresees” that doing so would be harmful to an interest protected by one of the nine statutory exemptions written into the law upon its 1966 passage.
Holder’s memo replaced John Ashcroft’s much-reviled October 2001 guidance allowing—some would say encouraging—FOIA officers to deny requests as long as a “sound legal basis” for doing so could be found in the Act’s exemptions. The new rules were greeted like a conquering hero, especially coming at the end of Sunshine Week, an annual media industry effort to raise awareness of government openness issues.
“We were delighted,” wrote The New York Times in a Sunday editorial, before approvingly noting that “the policy applied to pending lawsuits against the Bush administration for refusing to disclose information.”
Except that it doesn’t.
Unlike Reno’s 1993 memo, which explicitly required a review of “all pending FOIA cases” to ensure that Justice’s outstanding positions were in compliance with the new standard, the pending litigation review section of Holder’s memo contains no less than six hedges that could allow the government to decide to skip reviewing—and possibly reversing—its position on a troublesome case altogether:
With regard to litigation pending on the date of the issuance of this memorandum, this guidance should be taken into account and 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.
The biggest and most obvious, according to Dan Metcalfe, who ran the Justice Department’s Office of Information and Privacy from 1981 to 2007, is the memo’s instruction that review only be undertaken if “practicable.”
“Whether intended or not, that’s about as hedged as can be,” says Metcalfe, who was the prime drafter of the Reno and Ashcroft FOIA memos. Just what “practicable” means is an open question.
“When would it not be considered practicable?” asks Anne Weismann, who from 1995 to 2002 oversaw all FOIA litigation as a senior Justice lawyer. “I can’t imagine the state of litigation should matter.”
Whatever lawyers applying the standards decide that “practicable” may mean, a well-placed “and” confirms that the memo places the decision not only with the Justice Department’s litigators, but also in the hands of the very agencies that made the initial decision to deny the request.
“Not a good idea,” says Metcalfe, especially because the memo speaks of the two parties exercising joint “judgment,” leaving the opportunity for a defendant agency lawyer to say something like this to their Justice counterpart: ‘“Your own Attorney General took pains to say it’s to be done only when practicable. Well if there ever were a case in which it’s not practicable, in my judgment, this is it.’”
“It could very easily be just one phone call, and that would be that,” says Metcalfe, who now runs American University’s Collaboration on Government Secrecy at the Washington College of Law.
Metcalfe’s tally of hedges includes language that would seem to exempt from review FOIA litigation over procedural matters such as fee disputes, the addition of the word “material”, and the phrase “substantial likelihood,” meaning that Justice could theoretically determine that it’s more likely than not that a review would result in a release of information—but still decide not to go through with the review anyway.
Experts agree that, at any given moment, Justice is usually involved in litigating a couple of hundred FOIA-related cases. (A Justice spokesperson did not respond to CJR’s request for a hard number, nor to comment more generally.)