DOJ Guidance Addresses the Obama Administration’s Openness Policy With Respect to the Freedom of Information Act

By Ricardo Carvajal & John R. Fleder –

On April 17, 2009, DOJ’s Office of Information Policy (“OIP”) issued guidance to federal agencies on President Obama’s FOIA Memorandum of January 21st and Attorney General (“AG”) Holder’s subsequent FOIA March 19th guidelines.  The President’s FOIA memorandum directed all agencies to administer the FOIA with a “clear presumption” in favor of disclosure.  In his subsequent guidelines, the AG encouraged agencies to make discretionary disclosures and avoid withholding information simply because it is legally possible.  In addition, the AG emphasized that agencies must consider whether partial disclosures can be made in the case of records that cannot be fully disclosed.  The AG’s guidelines also noted that DOJ will defend an agency’s 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.

The AG’s guidelines explicitly rescinded AG Ashcroft’s FOIA memorandum of October 2001, which provided that DOJ would defend denials “unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.”

OIP’s guidance describes the combined impact of the President’s Memorandum and the Attorney General’s guidelines as a “sea change in the way transparency is viewed across the government.”  The guidance sets out five points that are considered key to realizing the President’s directive to “usher in a new era of open government”:

(1) agency personnel “must alter their mind set” to “view all FOIA decisions through the prism of openness”;
(2) records should be reviewed “with a view toward determining what can be disclosed, rather than what can be withheld”;
(3) “information should not automatically be withheld just because an exemption technically or legally might apply”;
(4) where full disclosure is not possible, agencies should take reasonable steps to release both information that is nonexempt and information that, even though exempt, can be discretionarily released;
(5) records cannot be withheld to avoid embarrassing public officials, prevent the revelation of errors and failures, or “because of speculative or abstract fears.”

The OIP’s guidance makes clear that it will still be appropriate to withhold certain information to prevent harm to national security, personal privacy, and law enforcement interests, and that certain types of information are required to be withheld by other legal authorities (e.g., trade secrets and confidential commercial information under the Trade Secrets Act).

According to the OIP guidance, “[t]here is no doubt that records protected by Exemption 5  hold the greatest promise for increased discretionary release.”  Exemption 5 provides for the discretionary withholding of “inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency.”  It encompasses the deliberative process privilege, the attorney work-product privilege, and the attorney-client privilege.  Records covered by the deliberative process privilege (where government officials frequently discuss and debate what course of action they should take with regard to important government decisions) are the type of records that could be most affected by the guidance in terms of a new policy of openness and disclosure.

It is too soon to know what effect the OIP guidance will have on FDA’s information disclosure policies and practices.  However, the timing of the issuance of the President’s FOIA Memorandum, together with the prompt publication of the AG’s guidelines and OIP’s guidance, suggest that the issue of increased transparency is one of considerable importance to the new Administration.