U.S. Department of Justice Office of Information Policy (OIP) Director Bobby Talebian provided an update on the Attorney General guidelines at this year’s American Society of Access Professionals National Training Conference in Arlington, Va. With regard to FOIA’s foreseeable harm standard, which Congress added to the Freedom of Information Act (FOIA) statute in 2016 and is emphasized in the guidelines, Mr. Talebian offered the following language that agencies can use in FOIA response letters: “Please be advised that we have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.” OIP will be issuing guidance on various aspects of the guidelines, he said.
Earlier this year, U.S. Attorney General Merrick Garland issued a memo for heads of executive branch departments and agencies regarding FOIA guidelines. In his memo, Garland noted four key tenets, which are summarized below with accompanying suggestions from the Justice Department.
1 – A presumption of openness should prevail unless an agency can identify a foreseeable harm and if in doubt, openness should triumph. Agencies should give due consideration to making partial disclosures when possible and communicate to requesters that they have considered the foreseeable harm standard when applying exemptions. Last, the new guidelines also ensure that the Justice Department will also apply a presumption of openness when determining an agency’s non-disclosure decision as the “burden is on the agency” to prove a need to withhold records or information.
2 – Agencies should seek to make proactive disclosures, when possible, in order to ensure information is available to all. FOIA already requires agencies to disclose certain types and categories of records; however, the memo noted that this work should be done quickly and systematically ahead of any public requests.
3 – Agencies should work to remove barriers to access and reduce FOIA backlogs and aim to establish a “spirit of cooperation” between FOIA requesters and agency staff. The memo suggests that federal agencies should review their policies and adjust them accordingly so that more materials can be accessible without having to use FOIA. In addition, agency FOIA websites should be easily navigable, and records should be presented in useful, searchable formats. FOIA.gov is the federal government’s central website for FOIA and agencies should ensure compliance with its features. Last, agency Chief FOIA Officers are encouraged to undertake a comprehensive review of their FOIA programs to ensure timely disclosure of records.
4 – Chief FOIA Officers and agencies should ensure fair and effective FOIA administration. Chief FOIA Officers are encouraged to initiate internal reviews of all aspects of their agencies’ administration of FOIA with a focus toward the items noted in the Garland memo. This includes reviewing backlogs and evaluation of agency resources as it relates to FOIA as well as participation in the Chief FOIA Officers Council—which develops recommendations for increasing FOIA compliance and efficiency, among other statutory duties. Last, agencies should ensure that ongoing training is provided for those who work with requesters to administer FOIA to ensure proper implementation of all aspects of the statute.