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FOIA Facts: What Now?

By Scott A. Hodes, Published on March 24, 2009

Editor's note: Please see the National Security Archive 2009 Rosemary Award for Worst FOIA Performance Goes to FBI, which references the author, as well as his FOIA blog.

Now that both the President and Attorney General have weighed in with a FOIA Memorandum what will happen now in the exciting world of FOIA processing (I for one think this universe deserves a reality show of its own, but I may be in the minority). I will attempt to detail the http://www.llrx.com/columns/foia43.htm">procedural steps that will now take place in agencies and the effect the memos will have on the nine FOIA exemptions.

The first thing that will happen is Department of Justice training on the guidelines on March 26, 2009. At this training, the Department of Justice will tell agencies to release document that could be released if there is no foreseeable harm in releasing them even if they could arguably be withheld. Agency FOIA personnel will then go back to their cubicles and try to explain this to program employees of the various agencies, who will have of two reactions. If they were in the government from 1993-2001, they will say, “so it’s like the Clinton administration.” If they just got to the government after October 2001, they will say “the sky is falling, you are going to release this, my program and I will be doomed.” One would expect that the newcomers fall in line, otherwise they will push for agencies to withhold information at the administrative level. If a denial is appealed or litigated, the information should eventually be released under the new guidelines.

More importantly, how will the new policy effect the FOIA exemptions? I’ll try to summarize them here: