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.)
The Washington-based Citizens for Responsibility and Ethics, where Weismann now serves as senior counsel, has a handful of high profile FOIA litigation cases outstanding. One case seeks Secret Service records that might detail the White House comings-and-goings of Jack Abramoff; another seeks a statement given by Vice President Cheney in the course of the Libby/Plame leak investigation. A fresh review under Obama’s standard could conceivably result in a different government claim than the one held over from the Bush era, but so far, there’s been no movement.
David Sobel, an attorney with the Electronic Frontier Foundation, is also litigating a series of FOIA cases that Obama inherited on January 20, 2009.
“I believe it’s only in the context of pending litigation that you see whether a policy change has an effect. You have no control otherwise,” says Sobel. “Pending lawsuits are a litmus test.”
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.]