Holder shifts rules on Freedom of Information Act requests

Attorney General Eric Holder on Thursday sent a memo to the heads of all executive branch departments and agencies telling them to apply a presumption of openness when fielding Freedom of Information Act requests.

The proclamation, which government transparency watchdogs anticipated would come this week, rescinds controversial guidelines issued in 2001 by former Attorney General John Ashcroft that told agencies to withhold documents by using exemptions if an argument could be made to do so.

Holder's memo was timed for release during Sunshine Week. It builds on principles announced by President Obama on his first full day in office when he issued a presidential directive on FOIA that urged agencies to "usher in a new era of open government."

At that time, Obama told Holder to issue new FOIA guidelines. "By restoring the presumption of disclosure ... we are making a critical change that will restore the public's ability to access information in a timely manner," Holder said.

Sunlight Foundation policy director John Wonderlich said Holder has demonstrated Obama's commitment to openness and reaffirmed his vision for "a digitally empowered citizenry."

Senate Judiciary Chairman Patrick Leahy, who reintroduced a bill Tuesday with Sen. John Cornyn, R-Texas, that would require Congress to clearly state its intention when including FOIA exemptions in proposed legislation, called the guidance "a fresh and welcomed start to the new era of government responsibility." His FOIA bill stalled last Congress but passed the Senate in the 109th Congress.

The memo directs agencies not to withhold records simply because they can and encourages them to release documents in part whenever they cannot be released in full. Holder also established a new standard by which the Justice Department will only defend a FOIA denial if an agency can prove disclosure would harm an interest protected by a statutory exemption or if disclosure is unlawful.

Additionally, Holder's memo emphasizes agencies must have in place effective systems for responding to FOIA requests including the designation of a chief FOIA officer who will be required to report annually to the Justice Department. The new regime directs FOIA professionals to work cooperatively with those who request documents and to anticipate interest in potentially popular records before requests are made.