FOIA in a Holder World: Cloudy with a Chance of Rain
A little over a year ago, Attorney General Eric Holder issued a memorandum requiring agencies to administer FOIA with a “clear presumption of openness.” This changed the playing field considerably, at least on paper. Under the prior Administration’s policy, agencies could disclose information only after “full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated.” By contrast, the current Administration told agencies to err on the side of disclosure even where an exemption applied and to consider partial disclosure if it could not make full disclosure of a record. The Holder memo explained that the DOJ would defend a denial of a FOIA request only if an agency “reasonably foresees that disclosure would harm an interest protected by a statutory exemption.” (The Ashcroft memo declared its commitment to defending FOIA denials unless they lacked a sound legal basis). At the time, FOIA guru Dan Metcalfe, impressed with President Obama’s “transformative” commitment to transparency, noted that the real issue was how agencies put the memo into practice.
Now, just over a year later, we have some evidence regarding the Holder memo’s efficacy. The National Security Archive at GWU recently released an audit of federal agencies’ administration of FOIA since this Administration issued its transparency directive. As the audit entitled “Sunshine and Shadows: The Clear Obama Message For Freedom of Information Meets Mixed Results” noted, while some progress has been made in increasing transparency, more pressure and leadership is needed to that end. For instance, “[a]ncient requests — as old as 18 years — still persist in the FOIA system” and only four of the 90 agencies show increases in releases and decreases in denials.
The audit’s most significant findings involved agencies’ actual response to the Holder memo, either by explicitly changing their internal policies or training employees. The good news: 38 out of 90 agencies did something. Thirteen agencies have implemented concrete changes in practice as a result of the memo; 14 have made changes in staff training; and 11 agencies circulated and discussed the memo. The bad news: 52 agencies either told the auditors that they have no records that demonstrate how they implemented the Holder memo (35) or provided no response at all (17).
Without training and discussion of the Holder memo’s impact, agency employees will likely continue past practices. This may indeed be the case as there isn’t a clear upward trend in disclosure as compared to the past. While four agencies showed an increased rate of disclosure and a decreased rate of withholdings, five agencies released less and withheld more than they did a year ago and 18 of the 28 agencies that handle more than 90 percent of FOIA requests governmentwide had a mix of increased or decreased releases or withholdings. Of course, this could be just a matter of having enough time to get the backlog cleaned up and then turning in earnest to training staff. Senators Leahy and Cornyn have introduced legislation to bring this process along, at least in terms of agency responsiveness to FOIA requests. Their proposed Faster FOIA Act would establish an advisory panel to examine agency backlogs in processing requests. On a broader level, many aspects of this Administration aren’t as different from the previous one as one might suspect and so it is interesting to think about this issue in terms of the President’s broader transparency agenda. But as to this specific issue, it will be interesting to see if the Holder memo is as transformative in practice as it is in theory.