Freedom of Information Act Now Open for Business!
“All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in [the Freedom of Information Act] FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.”
President Obama’s January 21st memorandum initiated a radical departure from the Bush administration’s presumption against disclosure. On March 19th, Attorney General Eric Holder issued his response to the President’s call to action by releasing new agency guidelines regarding treatment of FOIA requests.
For eight years, under Bush, the presumption was contrary to the underlying philosophy of “sunshine” enactments. Known as the “Ashcroft doctrine,” named after Attorney General John Ashcroft who enforced a policy that
**** Read more by clicking “Read More” below, right **** **** Start reading more here ****
permitted agencies to deny FOIA requests if there was “any legal justifications for secrecy that he [Ashcroft] determined to be sound.”
Holder’s memo reasserts the openness that prevailed during the Carter and Clinton administrations:
First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. 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.
Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure.
At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.”
His memorandum goes on to instruct agencies to act “proactively” by having effective FOIA procedures in place and by responding to requests quickly. Holder asserts, “agencies should readily and systematically post information online in advance of any public request.”
Openness is the key, and the President, on his first day in office, signaled a broader and more telling use of the openness policy his administration appears to be forthrightly implementing:
Going forward, anytime the American people want to know something that I or a former President wants to withhold, we will have to consult with the Attorney General and the White House Counsel, whose business it is to ensure compliance with the rule of law. Information will not be withheld just because I say so. It will be withheld because a separate authority believes my request is well grounded in the Constitution.
The phrase, “or a former President wants to withhold” takes on great meaning and potential for causing a certain former President a long period of Excedrin headaches, as well as the Karl Rove’s he still tries to protect under what can only be called a “perpetual executive privilege.”
****************************************
Before you leave, please
