AG Issues New FOIA Guidelines Favoring Transparency and Disclosure

On March 15, 2022, the Attorney General of the United States issued a guidance memorandum for the heads of executive departments and agencies to consider when responding to a Freedom of Information Act (“FOIA”) request.

Presumption of Openness

The memorandum reaffirms the government’s “Presumption of Openness” with regard to FOIA requests. Under this presumption, as established by 5 U.S.C. § 552(a)(8)(A)(i), the government may only withhold responsive records if: “(1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law.”

Even if the information falls within one of these nine exceptions, the memo clarifies that the information should not be withheld unless the agency “can identify a foreseeable harm or legal bar to disclosure .” because “[i]n case of doubt, openness should prevail.” As such, information which can be segregated from the potentially harmful information should also be disclosed if the agency can take “reasonable steps” to do so without implicating the harm or legalities.

Proactive Disclosures

According to § 552(a)(2)(D)(ii) of the FOIA, where previously released records have been requested three or more times or "have become or are likely to become the subject of subsequent requests[,]" agencies are required to proactively disclose these categories of records.

Under the new guidance, agencies should “maximize their efforts to post more records online quickly and systematically in advance of any public request” pursuant to the “fundamental” nature of proactive disclosures to the application of FOIA.

Removing Barriers to Access and Reducing FOIA Request Backlogs

Agencies should “continue their efforts to remove barriers to requesting and accessing government records and to reduce FOIA processing backlogs” by  ensuring that records are posted online quickly and systematically in a manner which is “most useful, searchable and open format[ed] [as] possible” so that “the public can readily find information that the government makes available.”

In addition, agencies should ensure that barriers incurred by the public in requests which were previously required by law, such as requiring “individuals to file FOIA requests to obtain official copies of their own records of immigration court proceedings[,]” no longer hinder the request process.  

Ensuring Fair and Effective FOIA Administration

The AG encouraged the “agency Chief FOIA Officers to undertake comprehensive reviews of all aspects of their agencies' FOIA administration” and to report to the Justice Department each year the steps that they have taken to improve FOIA operations, in accordance with 5 U.S.C. § 552G)(2)(D).