FOIA Update: President and the Attorney General Issue New FOIA Policy Memoranda

In the most significant and far-reaching Freedom of Information Act development to occur in many years, President Clinton and Attorney General Janet Reno issued major statements of new FOIA policy on October 4.

Directed to the heads of all federal departments and agencies, with the Attorney General's memorandum issued as an attachment to President Clinton's, the two memoranda together establish a strong new spirit of openness in government and call for a presumption of disclosure in agency decisionmaking under the Freedom of Information Act.

President Clinton's FOIA Memorandum emphasizes that openness in government is essential to government accountability, and it stresses that the Freedom of Information Act plays a "unique role" in achieving that essential government openness: "The Act is a vital part of the participatory system of government. I am committed to enhancing its effectiveness in my Administration."

Accordingly, President Clinton's FOIA Memorandum directs all federal agencies to "take a fresh look at their administration of the Act" in conformity with the new standards and principles that are set forth in Attorney General Reno's FOIA Memorandum. Among other things, it also calls upon agencies to heed "both the letter and spirit of the Act," to handle their FOIA requests "in a customer-friendly manner," and to reduce their existing backlogs of FOIA requests as well. (See page 3 for the full text of the President's memorandum.)

The Attorney General's FOIA Memorandum sets forth new standards of government openness under the Act that apply both in FOIA litigation and at the administrative level. It supersedes the previous such memorandum that had been in effect since May 1981 and which had established a more easily satisfied "substantial legal basis" standard for determining whether the Department of Justice would defend an agency's withholding of information under an exemption in a FOIA lawsuit. That standard is now entirely repealed, replaced by a new harm standard and an accompanying presumption of disclosure.

Attorney General Reno's FOIA Memorandum focuses on the potential harm from disclosure that is guarded against by FOIA exemptions, and it is based upon the principle that the Act's exemptions "are best applied with specific reference to such harm, and only after consideration of the reasonably expected consequences of disclosure in each particular case."

Accordingly, it states that "it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption."

As a corollary to that, Attorney General Reno's FOIA Memorandum strongly encourages all agency FOIA officers to make "discretionary disclosures" of requested information, regardless of the fact that it might fall within an exemption, and to do so "whenever possible under the Act." It points out several advantages of doing so, but most fundamentally bases this policy upon the principle that information "ought not to be withheld from a FOIA requester unless it need be."

In summary, Attorney General Reno's FOIA Memorandum:

• Urges agencies toward greater openness under the Act, with an overall "presumption of disclosure."
• Establishes a new "foreseeable harm" standard governing the application of FOIA exemptions.
• Promotes "discretionary" FOIA disclosures, as a means of achieving the goal of "maximum responsible disclosure" under the Act.

In order to ensure that the new "foreseeable harm" standard is applied in all existing cases, the Attorney General's FOIA Memorandum directs the litigating divisions of the Department of Justice to undertake a "litigation review" of all pending and future FOIA lawsuits in accordance with this standard.

The Attorney General's FOIA Memorandum also points to the fact that the Department of Justice is undertaking a comprehensive review of its regulations implementing the FOIA, as well as a novel review of all of its standard forms and correspondence formats used by its various components in their administration of the Act, and it encourages other federal agencies to do likewise.

Lastly, a significant part of the Attorney General's FOIA Memorandum is devoted to the longstanding problem of FOIA backlogs at many agencies. It acknowledges that resource limitations can constrain agencies from making more timely responses to requests under the Act. It also recognizes that this has become an increasingly difficult and frustrating problem for everyone concerned with the Act's operation -- FOIA requesters, Congress, and FOIA officers alike.

Stressing that this chronic problem should be addressed cooperatively by all concerned, and consistent with the President's call for backlog reduction, the Attorney General's FOIA Memorandum calls upon all federal agencies to focus on reducing existing FOIA backlogs during the coming year. In preparation for governmentwide attention to the subject, including possible legislative initiatives, it asks that agencies forward information pertaining to existing FOIA backlogs to OIP. (See pages 4-5 for the full text of the Attorney General's memorandum and also for the text of a follow-up Attorney General memorandum regarding backlog-reduction efforts within the Department of Justice.)

These statements of new FOIA policy were announced at a press briefing held at the Department of Justice on the afternoon of October 4. The next day, they were distributed to more than 500 representatives of almost all federal agencies gathered at the Office of Information and Privacy's "Annual Update Seminar on the FOIA." Each attendee was provided with the new policy statements under cover of an OIP memorandum aimed at maximum dissemination to FOIA personnel throughout the executive branch. Attendees also received "prepublication" copies of the "Department of Justice Guide to the FOIA," which included a section on "discretionary disclosure" referenced in the Attorney General's FOIA Memorandum.

In recognition of the importance of this new FOIA policy, the keynote speaker at this session was Associate Attorney General Webster L. Hubbell, the Department of Justice's third-ranking official, who now directly oversees the Department's FOIA activities and who called upon all agency FOIA personnel to apply a "strong new spirit of openness" in all of their FOIA decisionmaking. The application of this new FOIA policy to decisions made under individual FOIA exemptions was discussed throughout the session.

As a follow-up session on the new policy, the Office of Information and Privacy convened a gathering of the principal administrative FOIA officers of nearly all federal agencies at a "FOIA Officers Conference" held at the Department of Health and Human Services on November 3. (See related article on page 12.) More than 80 agency FOIA officers attended to discuss the dissemination and implementation of the new policy within each agency throughout the government. A similar session for agency general counsel representatives was conducted by the Department's Civil Division regarding the process of litigation review initiated under the Attorney General's FOIA Memorandum.

At all of these sessions, particular attention has been paid to the application of the new "foreseeable harm" standard and to its applicability at the administrative level as well in litigation. Agency FOIA personnel have been advised to apply this new standard whenever they are considering withholding information under a FOIA exemption. The standard necessarily requires a FOIA officer to consider the applicability of exemptions on a case-by-case basis. As a rule, rather than withholding an item of information as exempt on the basis of its character in general, a FOIA officer now should pause to specifically consider the actual sensitivity of that item of information in particular. In the words of the Attorney General's FOIA Memorandum, information should be withheld "only after consideration of the reasonably expected consequences of disclosure in each particular case."

In many cases, a careful consideration of whether harm reasonably can be foreseen under the circumstances of that particular case will lead to the conclusion that it cannot, notwithstanding the general character of the information involved. Paramount examples of this, as discussed at these FOIA sessions, are the types of information that fall within the scopes of the deliberative process and attorney work-product privileges under Exemption 5. Information that is deliberative in character, for example, is not necessarily so sensitive that its disclosure reasonably can be expected to harm an agency's deliberative process. And even where information is of such sensitivity at the time of the agency's deliberations, that sensitivity can nevertheless fade thereafter -- depending upon the circumstances of the particular case. Similarly, attorney work-product information might be sensitive when created during ongoing litigation, yet be disclosable without any foreseeable harm to the agency's litigation interests at some point after that litigation is concluded.

It thus has been emphasized at these sessions that the individual sensitivity of each item of information and the particular circumstances of each case--including the passage of time--are the primary considerations in the application of the "foreseeable harm" standard.

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This special double issue of FOIA Update includes the following:

President Clinton's FOIA Memorandum

Attorney General Reno's FOIA Memorandum

White House Consultation Memorandum

OIP Guidance on the Act's "Reasonable Segregation" Obligation

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