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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 âreasonably foreseesâ 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.
Holderâs memo replaced John Ashcroftâs much-reviled October 2001 guidance allowingâsome would say encouragingâFOIA officers to deny requests as long as a âsound legal basisâ for doing so could be found in the Actâs 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.
âWe were delighted,â wrote The New York Times in a Sunday editorial, before approvingly noting that âthe policy applied to pending lawsuits against the Bush administration for refusing to disclose information.â
Except that it doesnât.
Unlike Renoâs 1993 memo, which explicitly required a review of âall pending FOIA casesâ to ensure that Justiceâs outstanding positions were in compliance with the new standard, the pending litigation review section of Holderâs memo contains no less than six hedges that could allow the government to decide to skip reviewingâand possibly reversingâits 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 Departmentâs Office of Information and Privacy from 1981 to 2007, is the memoâs instruction that review only be undertaken if âpracticable.â
âWhether intended or not, thatâs about as hedged as can be,â says Metcalfe, who was the prime drafter of the Reno and Ashcroft FOIA memos. Just what âpracticableâ means is an open question.
âWhen would it not be considered practicable?â asks Anne Weismann, who from 1995 to 2002 oversaw all FOIA litigation as a senior Justice lawyer. âI canât imagine the state of litigation should matter.â
Whatever lawyers applying the standards decide that âpracticableâ may mean, a well-placed âandâ confirms that the memo places the decision not only with the Justice Departmentâs litigators, but also in the hands of the very agencies that made the initial decision to deny the request.
âNot a good idea,â says Metcalfe, especially because the memo speaks of the two parties exercising joint âjudgment,â leaving the opportunity for a defendant agency lawyer to say something like this to their Justice counterpart: ââYour own Attorney General took pains to say itâs to be done only when practicable. Well if there ever were a case in which itâs not practicable, in my judgment, this is it.ââ
âIt could very easily be just one phone call, and that would be that,â says Metcalfe, who now runs American Universityâs Collaboration on Government Secrecy at the Washington College of Law.
Metcalfeâs 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 âmaterialâ, and the phrase âsubstantial likelihood,â meaning that Justice could theoretically determine that itâs more likely than not that a review would result in a release of informationâbut 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 CJRâs 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 Obamaâs standard could conceivably result in a different government claim than the one held over from the Bush era, but so far, thereâs 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.
âI believe itâs only in the context of pending litigation that you see whether a policy change has an effect. You have no control otherwise,â says Sobel. âPending lawsuits are a litmus test.â
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 âpresumption of disclosure,â Sobel asked Justice to join EFF in requesting judicial stays until thirty days after the new guidance arrived.
âWith one exception, across the board, the Justice Department said no,â 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.
Sobelâs not certain that Holderâs less-than-comprehensive commitment to litigation review matters much. He was litigating FOIA cases at the time of Renoâs handover and its nominally full review, and says he ânever got a phone call from anyone saying in light of this guidance weâre changing anything.â
Guidance memos are important because they outline the standards that Justice, which serves as the governmentâs defense lawyer in all FOIA lawsuits, will apply when weighing whether or not to defend another agencyâs 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 Holderâs memo and its predecessors take pains to note, they are not intended to establish enforceable law. Any lawyer seeking to hold the government to Holderâs language or force a review would face an uphill, perhaps impossible, battle.
âThe 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,â says CREWâs Weismann.
But as a matter of political perception, Sobel doesnât think that government lawyers seeking to avoid a review âcan get away with being silentâ about any attempt to take advantage of the memoâs nooks and crannies. If they try, âany semi-conscious attorney should look into having a declaration filed in their case about why a review isnât practicable,â says Sobel, as a means of publicly contrasting openness friendly rhetoric with courtroom reality.
âIt is so easy in this area to say the right thing. The Obama administration has said all the right things at the highest levelsâfirst the president and now the attorney general,â says Sobel. âNow weâre in the mode of accountability for policy. Weâre finding out: Is it going to mean what it sounds like, or is it just something to make everybody happy on Sunshine Week?â
[CORRECTION: This article initially misstated when Holder’s memo was released, and has been corrected.]
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