Attorney General Holder rescinds strict FOIA guidelines
From Sunshine Review
20 March 2009
Open and transparent government was on the forefront this week, as Attorney General Eric Holder announced new guidelines for federal departments and agencies handling Freedom of Information Act requests. The new guidelines push for "a presumption of disclosure," a dramatic reversal from the Bush administration's strict hold on information.[1]
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Holder Memo
On March 19, Holder sent a memo to the heads of executive departments and agencies, announcing the new policy. In a statement, Holder declared, "By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public's ability to access information in a timely manner. 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."[2]
The new guidelines effectively implement the Presidential Memorandum on the Freedom of Information Act, which President Barack Obama signed on his first day in office. Obama has pledged that his administration will be the most transparency and open in history, and many see these new standards as a positive move in that direction.
Ashcroft Era
The instructions put forth in Holder's memo stand in stark contrast to Bush Administration procedures, which focused on secrecy and have been described as "when in doubt, leave it out."[3]
In an October 12, 2001 memo, then Attorney General John Ashcroft wrote, "Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information."[2]
Ashcroft told agencies they should assume that information should not be released and that the Justice Department would defend any sound legal reasoning to withhold information.[1] By comparison, Holder's memo states, "an agency should not withhold information simply because it may do so legally."[3] Under his Justice Department, Holder would only defend FOIA denials when an agency "reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions." Even then he says they should attempt partial disclosure whenever possible.
Pending cases
Holder instructions could see immediate effects, as many FOIA cases have been pending until the implementation of the new rules.
These include several cases been filed by the Electronic Frontier Foundation. They have been seeking 1,390 pages related to the Anti-Counterfeiting Trade Agreement, along with documents related to last year's telecom surveillance immunity legislation, FBI databases, and White House policies dealing with electronic communication records.[3]
The American Civil Liberties Union has also been engaged in a number of high profile FOIA cases. They have been working for the release of photos documenting detainee abuse in Iraq and Afghanistan, along with opinions from the Office of Legal Council which built the foundation for controversial Bush administration programs.[3]
