Attorney General Commands Open Government

In a recent memorandum to heads of federal executive departments and agencies, Attorney General Eric Holder, Jr. has followed President Obama's earlier lead in instructing that the Freedom of Information Act (FOIA) be administered with the clear presumption of openness.

According to the Attorney General, this presumption has two important implications.

The first implication is that an agency should not withhold requested government information simply because it is permitted to do so under the law. Rather, discretionary disclosures are strongly encouraged. Just because an agency technically may be able to establish that certain records are covered by a FOIA exemption is not reason enough to withhold the records.

The second implication is that even when an agency concludes that it cannot make a full disclosure with respect to requested records, it nevertheless must consider whether a partial disclosure is appropriate. Indeed, according to the Attorney General, agencies always should be cognizant that the FOIA requires that reasonable steps be taken to segregate and release non-exempt information.

The Attorney General, of course, notes that the disclosure obligation arising under the FOIA is not absolute. He understands that the statute contains meaningful exemptions designed to protect interests such as national security, personal privacy, and law enforcement.

Nevertheless, the Attorney General echoes the President in reminding government officials that they cannot shield information as confidential merely because they may be embarrassed by disclosure, because errors or failures might be made public, or because of "speculative or abstract fears."

In responding to President Obama's directive that he issue new FOIA guidelines, Attorney General Holder rescinded an Attorney General FOIA memorandum from 2001 that provided that the Department of Justice would defend decisions to withhold records "unless they lack a sound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."

In its place, Attorney General Holder has announced that the Department of Justice now will defend a denial of a FOIA request only if the agency reasonably foresees that disclosure would harm an interest protected by one of the FOIA exemptions or if disclosure is prohibited as a matter of law.

In response to the President's instruction to agencies to "use modern technology to inform citizens what is known and done by their Government," the Attorney General has directed that agencies should "readily and systematically post information online in advance of any public request."

Attorney General Holder also has encouraged agencies to reduce FOIA backlogs and to respond to information requests in a more timely manner. Along those lines, he notes that "timely disclosure of information is an essential component of transparency," and that "long delays should not be viewed as an inevitable and insurmountable consequence of high demand."

Perhaps the foregoing directives by the Attorney General will cause more sun to shine on the affairs and activities of government. However, this will not happen overnight. Agencies are staffed by actual human beings. These people have been operating within a different, less-disclosure-oriented culture over the past eight years. But, over time, paradigm shifts are possible, starting from the top down.

Eric Sinrod is a partner in the San Francisco office of Duane Morris LLP where he focuses on litigation matters of various types, including information technology and intellectual property disputes. His website is http://www.sinrodlaw.com and he can be reached at ejsinrod@duanemorris.com. To receive a weekly email link to Mr. Sinrod's columns, please send an email to him with Subscribe in the subject line.

This column is prepared and published for informational purposes only and should not be construed as legal advice. The views expressed in this column are those of the author and do not necessarily reflect the views of the author's law firm or its individual partners