The Order of the Day: Openness
posted by Danielle Citron
Attorney General Eric Holder made good on President Obama’s promise of government transparency in his March 19, 2009 FOIA memorandum. At the outset, the Holder memo reiterates the President’s instruction in his January 21, 2009 FOIA Memorandum that FOIA must be administered with a “clear presumption” in favor of openness. As the Holder memo explains, this presumption has two crucial implications. First, an agency should not withhold records simply because a FOIA exemption applies. Instead, agencies should err on the side of making discretionary disclosures of information. Second, if an agency determines it cannot make full disclosure of a record, it must consider whether it can provide partial disclosure, segregating and releasing nonexempt information. The memo goes on to explain that although FOIA’s disclosure mandate has important exemptions (such as the protection of national security, personal privacy, law enforcement interests, and trade secrets), the government should not hide information “merely because public officials might be embarassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”
So how does this change the policies of Bush 43′s Administration? Under the 2001 Ashcroft memorandum, agencies could exercise their discretionary power to disclose information protected under FOIA “only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure.” The Justice Department would defend an agency’s decision to withhold records unless it “lack[ed] a sound legal basis” for non-disclosure or “present[ed] an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.” The Holder memo explicitly rejects this approach, explaining that DOJ will defend a denial of a FOIA request only if an agency “reasonably foresees that disclosure would harm an interest protected by a statutory exemption” or if the disclosure is prohibited by law. This essentially returns our FOIA approach to the Clinton/Reno “foreseeable harm standard.” The difference between the administrations of Bush and Obama: the former favored closure whereas the latter favors openness.
FOIA guru Dan Metcalfe, who directed DOJ’s Office of Information Policy for over 25 years and now heads up American University Law School’s Collaboration on Government Secrecy Center, considers President Obama’s commitment to transparency “transformational.” He explains that no former President has ever paid this kind of attention to FOIA and open government more generally in his inaugural address and initial mandates. He would have, however, liked to see the Administration adopt a “readily foreseeable harm” standard over the current “reasonable foreseeability” standard, as it would indicate to FOIA officers that rather than “spend[ing] all day thinking” about foreseeable harm, they should permit disclosure if something harmful does not readily come to mind. But, the more important question, for Metcalfe, is seeing how aggressively the Executive Branch implements its FOIA mandates.
To that end, it will be helpful to monitor agencies’ processing of FOIA requests. Past practices are instructive here. Michael Doyle’s Suits & Sentences blog recently compared various agencies’ response to FOIA requests in 2007 and 1998. For instance, the Commerce Department in 2007 fully granted 39% of the FOIA requests it received whereas it did so 58% of the time in 1998. Across a variety of agencies, grants fell during 2007 vis-a-vis 1998. Time will tell how the Obama Administration stacks up to these statistics and lives up to its promises of transparency.