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FOIA Update: Justice Sets New FOIA Policy

FOIA Update
Vol. II, No. 3

Justice Sets New FOIA Policy

Attorney General William French Smith has announced new guidelines on implementation of the Freedom of Information Act (FOIA) aimed at allowing agencies to develop their own policies for the release of exempt materials.

(The full text of Attorney General Smith's memorandum to agencies appears today on page 3 of FOIA Update.)

The new policy is to defend agencies in FOIA suits unless the agency's denial lacks "substantial legal basis," or unless "defense presents an unwarranted risk of adverse impact on other agencies' ability to withhold records."

The Smith memorandum, dated May 4, 1981, rescinds a May 5, 1977, letter in which Attorney General Bell stated that the government would defend Freedom of Information suits only when disclosure is "demonstrably harmful," even if the documents technically fell within the exemptions in the Act.

Emphasizing that the foremost goal in administering FOIA is disclosure of government material, the Attorney General advised agencies to be alert to both the costs of FOIA litigation and to the fact that nondisclosure may serve to cover up fraud, waste and other wrongdoing.

"The Department of Justice supports the goal of the original Act to inform the public regarding the operation of its government without frustrating the performance of vital government functions," the Attorney General said. "The principal purpose of the new guidelines is to permit government agencies to fashion their own release policies."

Thomas P. DeCair, director of public affairs for the Justice Department, said one of the goals of the Bell policy had been to reduce the backlog of Freedom of Information cases pending in the courts. In four years, the backlog has gone from 600 to 1,100 cases. The Department, DeCair said, was "virtually certain" that one reason for the high number of suits was Bell's policy.

The Attorney General has urged agencies to continue to consult with the Office of Legal Policy and the Freedom of Information Committee at the Department before issuing a final denial which appears to present significant legal or policy issues. Agencies may telephone the FOIA counselor at 633-2674 with questions.

The Department is also undertaking a comprehensive review of the Act designed to determine necessary legislative changes. Attorney General Smith said that the legislative proposal will reflect the experience of several administrations with implementation of FOIA. The original Freedom of Information Act was passed in 1966 and was substantially amended by Congress in 1974--in the wake of large scale hearings on government information policies and in the post-Watergate atmosphere.

Attorney General Smith said that years of experience have made it clear that many persons are using the Act in ways that Congress has not foreseen. In addition, government-wide experience since the 1974 amendments indicates that certain portions of the act are not working or are working adversely to agencies' missions.

In commenting on the Freedom of Information Act before the Second Circuit Judicial Conference on May 9, Edward C. Schmults, Deputy Attorney General, characterized FOIA as an example of a federal statute gone awry. He said, "The Freedom of Information Act is a perfect example of federal statutes that serve their original aims only in part and now serve other less desirable purposes."

Mr. Schmults cited one basic FOIA problem and three resultant ones requiring correction. "First, it is being used in unintended ways. Second, the unintended uses interfere unduly with important governmental activities. Third, the financial burden is dramatically greater than anticipated. And fourth, the government is too slow in responding to those requests that are within the purposes of the Act."

The Deputy stated that the Attorney General intends to develop a package of amendments designed to further the original purposes of FOIA to provide information needed for an informed electorate and an effective government.

While noting that he could not give details as to the legislative package which the Attorney General will propose, Schmults commented that the Department of Justice intends to act quickly to address the problem.

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Updated August 13, 2014