As part of that test, after Obama signed a presidential memorandum on his first full day in office charging Justice with developing new FOIA guidance with a “presumption of disclosure,” Sobel asked Justice to join EFF in requesting judicial stays until thirty days after the new guidance arrived.
“With one exception, across the board, the Justice Department said no,” says Sobel, only agreeing to wait in a case EFF is waging against the United States Trade Representative, seeking records related to an unreleased anti-counterfeiting treaty.
Sobel’s not certain that Holder’s less-than-comprehensive commitment to litigation review matters much. He was litigating FOIA cases at the time of Reno’s handover and its nominally full review, and says he “never got a phone call from anyone saying in light of this guidance we’re changing anything.”
Guidance memos are important because they outline the standards that Justice, which serves as the government’s defense lawyer in all FOIA lawsuits, will apply when weighing whether or not to defend another agency’s decision to deny a record. While Justice, in practice, defends nearly all agency refusals, the idea is that agencies will make their decisions in compliance with the guidelines.
But, as Holder’s memo and its predecessors take pains to note, they are not intended to establish enforceable law. Any lawyer seeking to hold the government to Holder’s language or force a review would face an uphill, perhaps impossible, battle.
“The Justice Department would argue, just as they successfully have in the past, that you, the court, have no right to judge us on an internal policy document,” says CREW’s Weismann.
But as a matter of political perception, Sobel doesn’t think that government lawyers seeking to avoid a review “can get away with being silent” about any attempt to take advantage of the memo’s nooks and crannies. If they try, “any semi-conscious attorney should look into having a declaration filed in their case about why a review isn’t practicable,” says Sobel, as a means of publicly contrasting openness friendly rhetoric with courtroom reality.
“It is so easy in this area to say the right thing. The Obama administration has said all the right things at the highest levels—first the president and now the attorney general,” says Sobel. “Now we’re in the mode of accountability for policy. We’re finding out: Is it going to mean what it sounds like, or is it just something to make everybody happy on Sunshine Week?”
[CORRECTION: This article initially misstated when Holder’s memo was released, and has been corrected.]