DOJ Guidance Offers Hook for Your FOIA Requests

November 5, 2008

Journalists' Freedom of Information Act requests will have more clout if they demand specific justification for each redaction. A new Justice Department guidance document makes clear this is mandatory for most agencies. Make sure your FOIA letters let agencies know you are aware of this right.

The FOIA amendments enacted Dec. 31, 2007, made it a legal requirement for agencies to indicate for each redaction (a) the exemption used to justify it, and (b) the amount of material redacted. The provision is in Section 12 of Public Law 110-175 (S 2488; 121 STAT. 2531).

The Justice Department's Office of Information and Privacy issued a guidance document to federal agencies October 23, 2008, describing in more detail how they are to fulfill this requirement. Together, the law and the guidance codified, standardized, and required practices that had been in use at some, but not all, federal agencies previously.

To ensure that agencies do not arbitrarily or capriciously delete information from documents they supply in response to FOIA requests, journalists are advised to include in their request letters language such as the following:

"As you know, if you delete or redact any information from responsive records, you are legally obliged under P.L. 110-175 (Page 121 Stat. 2531) to indicate for each specific deletion the amount of and the exemption under which the deletion is made."