New FOIA Guidance Forseen

Today, the Holder Justice department is expected to release new guidance on how the Freedom of Information Law should be implemented. In short, the department wants information officers to comply with all FOIA requests unless doing so would open the door to “foreseeable harm”—the same standard that existed in the Clinton administration. (CJR called for such a shift in our January/February editorial.)

While FOIA guidance from the attorney general isn’t quite law, it’s very powerful. The Justice Department is charged with defending every agency’s FOIA decisions, and the guidance memos lay out the boundaries of what Justice’s lawyers will defend.

At this point, it’s pretty much tradition for incoming administrations to issue new memos governing the use of FOIA. An AP story previewing the announcement does a good job of laying out the see-saw nature of the memos:

In May 1977, President Jimmy Carter’s attorney general, Griffin Bell, issued guidance to err on the side of releasing information and said Justice would only defend withholding records whose release could cause ”demonstrable harm.” In 1981 under President Ronald Reagan, Attorney General William French Smith reversed that; he told them when in doubt — withhold — and Justice would defend any ”substantial legal basis” for withholding records.

Under Clinton, Reno reversed it again; she told agencies their presumption should be for release and she would only defend withholding information to prevent ”foreseeable harm.”

But President George Bush’s first attorney general, John Ashcroft, went back the other way in October 2001. He told agencies that he would defend any sound legal justification for withholding documents.

FOIA advocates and users feared that Ashcroft’s “sound legal justification” gave information officers license to root around in FOIA’s exemptions and deny requests just because they could come up with an argument. Indeed, about two years after the policy was in place, the Government Accountability Office interviewed 183 FOIA officers and found 31% acknowledging they were less likely to release documents under the new standard.

If the GAO undertakes a similar study of Holder’s memo in 2011, they’ll likely find quite different results. And that’s something FOIA users can be very happy about.

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Clint Hendler is the managing editor of Mother Jones, and a former deputy editor of CJR.