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FOIA Facts: DOJ AG Issues New Guidelines Establishing a System for Improving Transparency

By Scott A. Hodes, Published on April 21, 2009

The Department of Justice has now issued specific FOIA guidance following the FOIA Memoranda of President Obama and Attorney General Holder. The guidance is much more specific than the guidance issued following the FOIA Memorandum of both former Attorney General Reno in 1993 and former Attorney General Ashcroft in 2001.

Rather than repeat the guidance here, I’ll highlight the areas that are of the most interest to the FOIA community. Initially, the statement that “[a]gency personnel must alter their mind sent” in dealing with the FOIA strikes me as an admission that for too long FOIA requesters have been viewed as enemies of government rather than a conduit to a successful system of democratic government. The guidance stresses, multiple times, that information sought in FOIA requests should be looked at for releaseability to shed a light on the how government operates rather than withheld information in search of an exemption.

Next, the guidance gives specific exemptions (2, 5, 7, 8 and 9) where discretionary releases are encouraged. The guidance specifically gives the death knell to exemption low-2 and says agencies to look to release other information that could be withheld under the other exemptions. One exemption listed, exemption 8 (bank records), is in the spotlight more and more due to the current financial crisis. Presently there are a number of lawsuits and requests at agencies that regularly invoke this exemption (The Federal Reserve, Department of the Treasury and the Securities and Exchange Commission ). It will be interesting to see if these agencies follow the Department of Justice guidelines or stubbornly stonewall the public from finding out information about financial institutions taxpayers have bailed out on numerous recent occasions.

The Department of Justice also tells agencies to take a hard look at releasing exemption 5 material, especially that covered by the deliberative process privilege. Factors to look at in making releases of this information include, but are not limited to age and the sensitivity of the material at issue.

Next, the guidance tells agencies that even though some exemptions (1, 3, 4, 6 and 7(C)) may not be appropriate for discretionary disclosure, the agencies should take a hard look at the material sought to be protected actually fits within the cited exemption. For instance, many agencies cite these exemptions even where all the material is not protected by the exemption, hoping that no one will ever look at their withholding decision. As an example, in the last couple of years, I’ve had two lawsuits where agencies cited exemption 3 to withhold information only to ultimately be told by the Court that the information is not fully withholdable to the exemption (I told the agencies that as well, but was rebuffed in my argument). Now, these agencies are supposed to actually think about these points before they force requesters to file lawsuits.

Finally, even where information is withholdable, agencies are told to segregate, segregate and segregate. While the guidance doesn’t go as far as a Judge once said to me and the opposing party in chambers (“you must segregate and I don’t care if you end up giving them gobblygook”), agencies are encouraged to segregate as much as humanly possible.

All in all the guidance is a good starting point. But as I believe Ross Perot once said “the proof is in the pudding.” Time will tell just how much more transparent the government can become.