Justice issues new FOIA guidelines

Attorney General Eric Holder gave agencies new guidelines today for responding to Freedom of Information Act requests. He also said the Justice Department would defend agencies’ decisions to deny FOIA requests only in limited cases, thus rescinding the department’s policy under former President George W. Bush to generally defend decisions to withhold records.

In a memo to department and agency heads, Holder said, “The Department of Justice will defend a denial of a FOIA request only if…the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions or…disclosure is prohibited by law.”

The memo rescinds a memo on the same subject issued in October 2001 by then-Attorney General John Ashcroft that stated, “When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions 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.”

In today’s memo, Holder said agencies must respond to requests promptly and actively work to publish agency information online. He also said agencies should not withhold information just because they may do so legally, and when full disclosures can’t be made, agencies should consider partial disclosure.

“Unnecessary bureaucratic hurdles have no place in the ‘new era of open government’ that the president has proclaimed,” he wrote.

George Washington University’s National Security Archive praised Holder's action. The open-government group files many FOIA requests and has pending litigation relating to some of them.

“We are delighted,” said Meredith Fuchs, the organization’s general counsel, in a statement. “The new attorney general guidelines read as if there is a new show in town, and for the first time in eight years, everyone is welcome to come see it.”

About the Author

Ben Bain is a reporter for Federal Computer Week.

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