Defensive Standards Hinder FOIA Openness

"When the Obama administration came to office in January 2009, it promised openness and transparency in government. On his first full day in office, President Barack Obama issued a memorandum concerning his administration’s beliefs on the Freedom of Information Act (FOIA), ordering federal officials to err on the side of openness. The President wrote that FOIA should be “administered with a clear presumption: In the face of doubt, openness prevails.” Pursuant to this memorandum, Obama’s new attorney general, Eric Holder, on March 19, 2009 issued a directive to emphasize the importance of the FOIA law’s purpose and “to ensure that it is realized in practice.”

This report considers whether or not a key component of that March 2009 directive which set forth new “defensive standards” for FOIA litigation has been obeyed. Henceforth, the AG’s memorandum stated, the Department of Justice would “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.”

After careful review of the record and interviews with numerous attorneys involved with FOIA litigation, TRAC found little evidence that these new standards are actually being followed. In fact, some individuals interviewed by TRAC expressed the opinion that Justice Department attorneys had become even more aggressive in defending anything that federal agencies chose to withhold." - The FOIA Project, Mar. 1, 2012.