FOIA Facts: What Now?

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 //”>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:

  • Exemption 1: There isn’t much effect. The new administration will need to review and come up with a new classification Executive Order. That will determine how much previously classifiable information will be released through the FOIA.
  • Low 2 withholdings are probably not going to occur under the new policy. High 2, if they actually would cause harm to agency operations/programs will probably stay the same.
  • Probably no effect from the memos, but I do note there is a new movement to limit new exemption 3 statutes.
  • Exemption 4: Again not much effect; however, agencies like the Federal Reserve should use the memorandums to stop pushing the line that those firms getting bailout money are protected by the exemption as much as they have recently.
  • Exemption 5: This is the big one for the memorandums. Even if something is arguably withholdable by this exemption, there is no reason to withhold it if it doesn’t harm ongoing agency operations. And the last administration slapped any type of decision (even to paint a room red from blue) a deliberative process. I believe that exemption 5 withholdings will now be much more selective.
  • Exemption 6/7C: Some would say there is no effect. I’d disagree. A clearer public interest v. privacy weighing may now occur. Further, information about deceased individuals, such as soldiers killed in action, may now be more readily released.
  • (other than 7C): I doubt that there will be much effect from the memorandums.
  • Exemption 8: This deals with bank records. I’ve long advocated a revision to the exemption, less favorable to banks and more favorable to the public (who now is forced to bail out the banks). If the memorandums have no effect, Congress should step in and rewrite the exemption.
  • Exemption 9: Well information. I’m not sure many people are even requesting this type of information, so I don’t know what the effect will be.

      The final effect of the memorandums is that FOIA operations have now been given a much higher priority than they had in previous administrations. Hopefully, this will allow FOIA shops to get access and make decisions on a quicker basis; thereby reducing agency backlogs. The next test on this is whether FOIA operations get funded at a higher level in the next few years.

Posted in: FOIA Facts, Freedom of Information, Legal Research