Holder issues new FOIA guidelines

In accordance with President Obama's call for a presumption of openness, Attorney General Eric Holder's memo directs agencies not to withhold records just because they can technically do so. Agencies are encouraged to make discretionary disclosures or partial releases of records that can't be released in full. Another change is that no longer will the department defend a denial of a request simply because the agency had a "sound legal basis" for withholding the documents. It will only defend denials in which disclosure is prohibited by law or would harm an interest protected by a statutory exemption.

Attorney General Eric Holder issued comprehensive new Freedom of Information Act (FOIA) guidelines today that direct all executive branch departments and agencies to apply a presumption of openness when administering the FOIA. The new guidelines, announced in a memo to heads of executive departments and agencies, build on the principles announced by President Obama on his first full day in office when he issued a presidential memorandum on the FOIA that called on agencies to "usher in a new era of open government." At that time, President Obama also instructed Attorney General Holder to issue new FOIA guidelines that reaffirm the government’s commitment to accountability and transparency. The memo rescinds the guidelines issued by the previous administration.

"By restoring the presumption of disclosure that is at the heart of the Freedom of Information Act, we are making a critical change that will restore the public’s ability to access information in a timely manner," said Attorney General Holder. "The American people have the right to information about their government’s activities, and these new guidelines will ensure they are able to obtain that information under principles of openness and transparency."

The new FOIA guidelines address both application of the presumption of disclosure and the effective administration of the FOIA across the government. As to the presumption of disclosure, the Attorney General directs agencies not to withhold records simply because they can technically do so. In his memo, the Attorney General encourages agencies to make discretionary disclosures of records and to release records in part whenever they cannot be released in full.

More here.

Download PDF of guidelines here.

Truth-in-Labeling FOIA Exemptions: A GREAT Idea

Most people don’t realize this, but there are hundreds of exemptions to the Freedom of Information Act buried in laws passed by Congress.

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., and Sen. John Cornyn, R-Texas, introduced legislation today that would force lawmakers to “explicitly and clearly” state when they are creating such exemptions to FOIA in all future bills.

The legislation is intended to coincide with Sunshine Week, which starts on Sunday. For those in the dark, that is a week devoted to prying open the byzantine ways of Congress and the federal government.

The exemptions to FOIA addressed in the measure are known as (b)(3) statutory exemptions. They are typically tucked away in massive legislative proposals, making it difficult for requestors to determine whether access to information is subject to FOIA.Â

“This latest bill is an effort to further enhance government transparency and accountability,” Cornyn said. “Sunshine Week is an opportunity to highlight these important principles of our founding fathers; a truly self-governing society depends on an informed citizenry. Chairman Leahy and I will continue working together to ensure the public’s fundamental right to know what their government is doing.”

More here.

New Mexico Next on FOI Reform?

Attorney General Gary King plans to ask the Legislature next year to update a New Mexico sunshine law providing access to public records.

One change proposed by King will require governmental bodies to accept e-mail requests for documents under the Inspection of Public Records Act. Currently, the law is unclear whether e-mail are the same as a written request for public records, according to the attorney general's office.

"So what we're going to be working on is a total revamp of that part of the law so that it meets 21st century standards," King said in a recent interview with The Associated Press.

Last year, King's office issued an advisory opinion on the issue after New Mexico State University decided not to treat e-mail as a valid request for public records.

"I think that agencies, if they want to, can accept e-mail requests because you can print them out and turn them into a written request basically. But we just didn't think that the law required it," King said.

The attorney general's office and some other agencies accept e-mailed requests for public records.

More here.

HUGE FOIA News...

This just in...

Reversing a trend toward secrecy, federal agencies would have to be more responsive to Freedom of Information Act requests under legislation approved by the Senate Friday.

The bill, approved by voice vote, commits the government to be more open, shifting policies that since the Sept. 11 attacks have emphasized security in responding to requests for information.

The measure makes minor revisions to previously passed legislation to meet House concerns. The House could take it up next week, before adjourning for the year.

The bill would give the 40-year-old act its first makeover in a decade, streamlining a process plagued by long delays and bureaucratic obstacles. It is supported by dozens of media outlets, including The Associated Press.

It restores a presumption of disclosure standard that would commit agencies to releasing requested information unless there is a finding that such disclosure could do harm.

After Sept. 11, then Attorney General John Ashcroft instructed agencies against releasing information when there was any uncertainty over security or law enforcement exemptions.

The "Open Government Act" will "help to reverse the troubling trends of excessive delays and lax FOIA compliance in our government and help to restore the public's trust in their government," said Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., who sponsored the bill with Sen. John Cornyn, R-Texas.

Cornyn tried in previous years to push a similar bill he authored through the Senate. When he was stat attorney general, Cornyn was responsible for enforcing open government laws.

"It's encouraging to see us so close to enacting sweeping reforms that will let more sunshine in government and increase the people's right to know," Cornyn said.

Leahy has been working with the Justice Department on the legislation and the administration is expected to support it.

It would take steps to ensure that agencies abide by the 20-day deadline for responding to FOIA requests, including a requirement that FOIA offices get requests for information to the appropriate agency office within 10 days of receiving the request.

Agencies that fail to meet the 20-day deadline would have to refund search and duplication fees for noncommercial requesters.

The legislation creates a tracking system for FOIA requests to help members of the public and the media and establishes a FOIA hotline service for all federal agencies to deal with problems.

FOIA would be applied to government records held by private contractors and a FOIA ombudsman would be established to provide an alternative to litigation over disclosure disputes.

More here. And here.

Update on Kyl Hold

From Rebecca Carr at Cox Newspapers comes this depressing update:

Legislation that would strengthen the beleaguered Freedom of Information Act had all the makings of what Capitol Hill politicos call a hot line bill.

It cleared the Senate Judiciary Committee by voice vote. More than 100 groups from across the political spectrum support it. The House approved a companion measure by a wide margin.

Yet, the bill sponsored by Sens. John Cornyn, R-Texas, and Patrick Leahy, D-Vt., sits in limbo.

The reason? Arizona Republican Sen. Jon Kyl.

It's no secret that Kyl was the one who invoked a parliamentary procedure known as a secret hold last month to block the bill from sailing through the Senate without debate.

With just one objection, the bill went from "hot line" status to a legislative black hole.

"I cannot overestimate the power of each U.S. senator," said Robert Dove, the former parliamentarian of the Senate.

By placing the hold on the measure, Kyl is assured that nothing passes without his support, Dove said.