Attorney General Sets Openness as Standard for Fed Info

March 25, 2009

Attorney General Eric Holder issued guidelines March 19, 2009, ordering all federal agencies to err on the side of openness when exercising discretion under the Freedom of Information Act.

Carrying out a January 21 order by President Barack Obama, Holder reversed the so-called "Ashcroft Memo," which had encouraged agencies during the George Bush presidency to err on the side of secrecy. Holder returned federal disclosure policy roughly to what it was under guidelines set by President Clinton's Attorney General, Janet Reno.

The Holder memo said:

"As President Obama instructed in his January 21 FOIA Memorandum, "The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails." This presumption has two important implications."

"First, an agency should not withhold information simply because it may do so legally. I strongly encourage agencies to make discretionary disclosures of information. An agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption."

"Second, whenever an agency determines that it cannot make full disclosure of a requested record, it must consider whether it can make partial disclosure. Agencies should always be mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt information. Even if some parts of a record must be withheld, other parts either may not be covered by a statutory exemption, or may be covered only in a technical sense unrelated to the actual impact of disclosure."

"At the same time, the disclosure obligation under the FOIA is not absolute. The Act provides exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests. But as the President stated in his memorandum, "The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears.""