On his first full day in office, President Obama issued a Presidential Memorandum on the FOIA. The Memo stated that:
“All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.
The presumption of disclosure also means that agencies should take affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government. Disclosure should be timely.
The President then ordered the Department of Justice to issue guidance within 90 days.
So some immediate change happened, but it occurred in a bureaucracy. Agencies working on FOIA requests did not, on January 23, 2009 throw away their redacting tape and begin to stuff documents in envelopes to send off to requesters. Changing the ship of government unfortunately requires a number of steps and constant vigilance to make sure change remains constant and backsliding doesn’t occur.
The initial step in changing FOIA practices occurred on Friday, January 24, 2009. The Department of Justice sent an e-mail to all FOIA Officers that said among other things, “[t]he President’s memorandum was effective immediately and supersedes former Attorney General Ashcroft’s Memorandum on the FOIA dated October 12, 2001. As a result, agency personnel should immediately begin to apply the presumption of disclosure to all decisions involving the FOIA, as the President has called for.” This email signified that the FOIA practices of the Bush administration, documented by the Ashcroft Memorandum of October 2001, were officially dead. However, no actual policy guidance has been spelled out to replace it, i.e., how this policy should be implemented. [Editor’s note: the current language on the DOJ FOIA webpage is as follows – “The Department of Justice has a decentralized system for handling FOIA requests. All FOIA requests should be addressed directly to the component that maintains the records you are seeking. A description of the functions of the Department’s components can be found at http://www.usdoj.gov/oip/attachmentbmay99.htm].
While operating in this vacuum, agencies are free to implement their own transparent policies. There is nothing stopping an agency from releasing documents that would otherwise be withheld under an otherwise valid FOIA exemption (unless, of course, it is prohibited by law).
Eventually, within three months of January 21, the Department of Justice will issue new FOIA guidance. It will likely be in the form of a memorandum from Attorney General Eric Holder. It will likely be similar to the one issued in 1993 by then Attorney General Janet Reno. The FOIA requester community is also hoping that it will expand upon that memo and guide agencies to be even more open with responses to FOIA requests.
Once the memo is issued, the next stage of transparency begins. Agencies must be held to account to follow the new policy. The Department of Justice should provide training to FOIA processers and those responsible for litigating FOIA claims in how openness can be implemented. Those who litigate FOIA on behalf of agencies must take care that agencies are actually following the policy and not wasting valuable litigation resources on otherwise disclosable documents. The FOIA community must continue to press agencies on being more open and Congress must actually practice their oversight role.
Finally, one other thing that was addressed in the Presidential Memorandum must be confronted — “Disclosure must be timely.” That is done by improving FOIA agency operations. The only thing worse for requesters than having requests completely denied is waiting three or more years from the date of the request to have the request denied. Agencies such as the Centers for Medicare and Medicaid Services and the FBI who make requesters wait long periods of time until they receive answers on their requests need to be addressed by the administration and Congress. Money to run the offices and accountability of senior agency staff would go a long way to fix these problems and cannot be done solely by the administration as Congress has the power of the purse. Hopefully, as I’ve repeated on a number of occasions, adequate funding of FOIA operations will be another event on the FOIA horizon.