Notice & Comment

Unpacking the New FOIA Memo, by Adira Levine

This Sunshine Week brought much awaited Freedom of Information Act (FOIA) guidance from the Biden administration. On March 15, Attorney General (AG) Merrick Garland issued a FOIA memorandum directed to the heads of executive departments and agencies. The four-page memo announces Department of Justice (DOJ) guidelines established for the administration of FOIA. Its issuance was anticipated in light of historical precedent and sought after by transparency groups. In the memo, AG Garland focuses on four areas: the presumption of openness, proactive disclosures, removing access barriers and reducing request backlogs, and ensuring fairness and effectiveness in the FOIA process.

The Garland FOIA memorandum follows in the footsteps of FOIA memoranda issued by attorneys general in previous presidential administrations. Historically, FOIA memoranda describe the conditions under which the Justice Department will defend an agency’s decision to withhold information pursuant to one of FOIA’s nine exemptions. For decades, the guidance in FOIA memoranda has highlighted differences in approaches between administrations. During the Clinton administration, the FOIA memorandum issued by Attorney General Janet Reno indicated that the DOJ would defend agency withholding decisions based on an exemption “only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.” The FOIA memorandum issued by John Ashcroft, the attorney general under President George W. Bush, adopted an approach that stood at odds with the foreseeable harm standard of the Reno Memorandum. The Ashcroft memorandum announced that the DOJ would defend an agency’s decision to withhold records unless it “lack[ed] a sound legal basis.” This approach shifted again with the FOIA memorandum issued by Attorney General Eric Holder during the Obama Administration. The Holder memorandum promoted a “presumption of openness,” explaining 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.” Each subsequent memorandum superseded FOIA memoranda issued by previous attorneys general.

In the intervening period before AG Garland’s memorandum, the foreseeable harm standard articulated in the Holder memorandum was given legal effect in the most recent legislative amendments to FOIA: the FOIA Improvement Act of 2016 (FIA). The FIA contains a foreseeable harm standard, codified at 5 U.S.C. § 552(a)(8), as part of bipartisan congressional efforts to bolster disclosure under the Act. The standard requires that an agency refuse to disclose information pursuant to a FOIA exemption only if it “reasonably foresees that disclosure would harm an interest protected by an exemption” or if “disclosure is prohibited by law.”[1]

In light of the FIA, AG Garland devotes the first section of the FOIA memo’s guidelines to espousing the presumption of openness. The memo quotes the FIA’s foreseeable harm standard and proceeds to explain that “in case of doubt” regarding whether an “agency can identify a foreseeable harm or legal bar to disclosure,” then “openness should prevail.” This presumption, it states, will guide DOJ determinations regarding whether to defend agency withholding decisions.

Marking a departure from past practice, AG Garland directs agencies to confirm “that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions” in letters responding to FOIA requesters. This provision takes an additional step toward ensuring that agencies incorporate the foreseeable harm standard into their FOIA decision-making.

It also leaves some potential questions unanswered. One such question pertains to whether and how agencies should differentiate between FOIA exemptions in their application of the foreseeable harm standard. While the language of the foreseeable harm standard itself does not distinguish between most exemptions—with the exception of FOIA Exemption 3, to which the foreseeable harm standard does not apply[2]—some courts have disagreed on the extent to which the standard applies to the remaining exemptions.[3] AG Garland’s guidance refers generally to “exemptions” without further clarification.

The remaining three sections of the memorandum focus on areas of improvement in the FOIA process. By issuing guidelines on proactive disclosures under FOIA, AG Garland signals the Justice Department’s attention to this lesser known component of the Act and highlights steps to provide more specific criteria for reporting metrics about such disclosures. The memo also addresses perennial challenges facing FOIA administration, including processing backlogs, production efficiency, and communication methods between agencies and FOIA requesters. One particularly significant development announced in the memorandum involves a policy change at the DOJ’s Executive Office for Immigration Review, whereby individuals will no longer need to file FOIA requests to procure official copies of their own records from immigration court proceedings.[4] In light of this change, AG Garland encourages all agencies to consider whether they have categories of records that could also be made more readily obtainable outside of the FOIA process. Finally, the memo’s discussion of fairness and effectiveness provides further guidance to Chief FOIA Officers.

While the memorandum leaves open some questions, it espouses a commitment to the presumption of openness in FOIA administration and provides greater clarity on the administration’s efforts to address ongoing FOIA challenges. Its impact will be best measured in its effects across executive departments and agencies.

Adira Levine is a J.D. candidate at Harvard Law School. Her noteFOIA Disclosure and the Supreme Court, is forthcoming in the Harvard Environmental Law Review. It received the ABA AdLaw Section’s 2021 Gellhorn-Sargentich Law Student Essay Award. 

[1] 5 U.S.C. § 552(a)(8)(A)(i).

[2] 5 U.S.C. § 552(a)(8)(B).

[3] See, e.g., N.Y. Times Co. v. U.S. Food and Drug Admin., 529 F. Supp. 3d 260, 288 (S.D.N.Y. 2021) (“The application of FIA’s foreseeable harm requirement to FOIA’s Exemption 4 has caused more controversy than perhaps anticipated . . . .”); Hall & Associates v. U.S. Env’t Prot. Agency, CV 18-1749 (RDM), 2021 WL 1226668, at *13 (D.D.C. Mar. 31, 2021) (“[T]he foreseeable-harm requirement applies with special force to the [Exemption 5] deliberative process privilege.”).

[4] The issue of access to immigration records has previously been discussed within Notice & Comment through a symposium on Margaret Kwoka’s book, Saving the Freedom of Information Act.

Print Friendly, PDF & Email