Copyright Law

Attorney General Holder Puts Freedom Back In FOIA

By Arthur Bright

Making good on President Obama's early prioritizing of the Freedom of Information Act ("FOIA"), Attorney General Eric Holder officially instructed government agencies to favor release of documents to the public.  CBS News reports that Mr. Holder's memo announcing the new FOIA policy reverses the policies of President Bush's former attorney general, John Ashcroft, who had ordered a presumption in favor of withholding documents.

In a memo to heads of executive departments and agencies, Holder instructed government workers to apply "a presumption of disclosure" when handling FOIA requests.

?The American people have the right to information about their government?s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency,? Holder said in a statement announcing the new guidelines.

In his memo, Holder said that agencies must release information unless doing so is specifically prohibited by law.

For those suffering under the Ashcroftian secrecy of the last eight years, the key portion of the memo (which is available on the DOJ's website) is this:

Pursuant to the President's directive that I issue new FOIA guidelines, I hereby rescind the Attorney General's FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records "unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

Under the new administration, Holder writes, "an agency should not withhold information simply because it may do so legally. . . .  An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption."  Further, "whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make a partial disclosure."  Not censoring on technicalities?  Not allowing a single bit of confidential information result to prevent a document's release?  Sunshine indeed!

Naturally, the announcement, which was timed to coincide with Sunshine Week 2009, brought much rejoicing from groups seeking more government transparency. The Reporters Committee for Freedom of the Press called it "a refreshing charge from the disastrous standard set by ... Ashcroft," while the Center for Democracy and Technology says the new policy is "a tremendous move." The National Security Archive announced they were "delighted," and that it appeared "as if there is a new show in town and for the first time in eight years everyone is welcome to come see it."  

The Electronic Frontiers Foundation, which is a party in several pending FOIA lawsuits, was somewhat more cautious in its response, though.

With the issuance of today's guidelines, both the President and the Attorney General have articulated an extremely pro-transparency policy for the federal government. The fact that these pronouncements come so early in the life of the new administration is a particularly promising development. But, as they say, the proof is in the pudding and it remains to be seen if these proclamations from on high produce real results down in the bureaucratic trenches. We will soon learn in our pending lawsuits whether the new administration is truly prepared to reverse the pro-secrecy practices of the Bush administration.

Indeed, if Holder's memo proves nothing more than words on a sheet of paper, and the government continues to withhold documents as it did under Bush, there's not much to celebrate here.  Efforts to stymie government transparency are unacceptable in a free democracy. 

But it's undeniable that the Holder guidelines are a good start to making a complete break with the last eight years.  The government can't start releasing documents until the AG tells them they should, right?   Well, he has.  Now it's time to start releasing.

(Arthur Bright is a second-year law student at the Boston University School of Law and a former CMLP Legal Intern. Before attending law school, Arthur was the online news editor at the Christian Science Monitor.)

Full post as published by Citizen Media Law Project on March 23, 2009 (boomark / email).