The First 100 Days: A Positive Beginning on the Freedom of Information Act

by Bill Funk

April 28, 2009

There are few areas where the difference between the Republican and Democratic parties is more stark than that of the Freedom of Information Act. The FOIA, of course, requires agencies to provide copies of their records to any person upon request unless the record fits within one of nine specific exemptions. Among the most important of these are the exemption for classified information, inter-agency or intra-agency communications containing advice or recommendations, information compiled for law enforcement purposes, and private commercial information. Nevertheless, the Supreme Court has made it clear that the FOIA is a disclosure statute; nothing in the FOIA requires an agency to withhold records even if they fall within an exemption, although it is possible that some other statute might.

In 1977, the Attorney General under President Jimmy Carter issued a memorandum to heads of departments and agencies announcing that henceforth the Justice Department would not defend FOIA denials by agencies, even if the records were within a FOIA exemption, unless the agency made an additional finding that release of the records would be contrary to the public interest. This was done both in the spirit of openness and to reduce the litigation backlog at Justice. As a result, agencies were more likely to release information. In 1981, the Attorney General under President Ronald Reagan rescinded this memorandum, indicating that Justice would defend agencies whenever a FOIA exemption applied. Then, in 1994, Attorney General Reno, under President Bill Clinton, rescinded the Reagan-era policy, and issued a new memorandum equivalent to the one under President Carter. In the post-9/11 era, the federal government became significantly more secretive and more protective of governmental information. (For more on this history, see Sidney A. Shapiro & Rena I. Steinzor, The People’s Agent: Executive Branch Secrecy and accountability in an Age of Terrorism, 69 Law & Cont. Prob. 3 (2005); and Bradley Pack, FOIA Frustration: Access to Government Records Under the Bush Administration, 46 Ariz. L. Rev. 815 (2004)). Thus, it is not surprising that in 2001, after 9/11, Attorney General Ashcroft under President George W. Bush rescinded the Reno memorandum and issued a new memorandum stating that it would defend all FOI denials “unless they lack a sound legal basis.”

Now it is a new administration, and one of President Obama's first acts was to send a memorandum to the heads of all executive agencies directing that they “should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government. The presumption of disclosure should be applied to all decisions involving FOIA.” This was one of the things CPR Member Scholars had urged the President to do after he was elected. In March, in accordance with the President’s direction, Attorney General Holder issued the new Department of Justice guidelines for when it will defend FOI denials by agencies. Rescinding the Bush Administration's memo, the guidelines state that “the Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”

The President’s decision to release legal memoranda authorizing torture was the latest example of the new administration’s commitment to disclosure, and shows that it is real and supported from the very top. Now, dedicated civil servants can take comfort in the knowledge that the spirit of openness reflected in the FOIA will be supported by their political bosses and enforced by the Department of Justice, and we as citizens can look forward to a new day in government transparency.

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William Funk is the Lewis & Clark Distinguished Professor of Law at Lewis & Clark Law School in Portland, Oregon.

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