With the House Committee on Oversight and Reform and the Senate Committee on the Judiciary raising concerns over agencies’ FOIA compliance, the U.S. Department of Justice has responded with FOIA guidelines and related testimony before the Senate Committee on the Judiciary.
The past two months have seen Congress and the U.S. Department of Justice (DOJ) focus significant attention on both the importance of and ways to improve the federal Freedom of Information Act (FOIA), 5 U.S.C. § 552. For example, on March 14, DOJ kicked off its 12th annual celebration of Sunshine Week. At the event, Associate Attorney General Vanita Gupta highlighted the significance of FOIA in improving the public’s understanding of the federal government and announced that Attorney General Merrick Garland would “be issuing new Guidelines that underscore [DOJ’s] commitment to administering the FOIA with a presumption of openness.” The next day, the attorney general issued the guidelines — addressed to all heads of federal executive departments and agencies — to “update and strengthen the federal government’s commitment to the fair and effective administration of FOIA.”
The attorney general issued the guidelines only a few weeks after members of Congress requested that he “issue a memorandum to all agencies encouraging the implementation of [FOIA] in a manner that emphasizes openness and transparency.” And, only a few weeks after the attorney general issued the guidelines, DOJ’s Director of Office of Information Policy (OIP) Bobak Talebian testified before the Senate Judiciary Committee on the issue.
Letter From Congress
By letter dated February 23, several members of Congress requested that the attorney general issue the guidance memorandum. Signing the letter were Representatives Carolyn Maloney (D-NY 12th Dist.) and James Comer (R-KY 1st Dist.), respectively the chairwoman and ranking member of the House Committee on Oversight and Reform; Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), respectively the chairman and ranking member of the Senate Committee on the Judiciary; and Senators Patrick Leahy (D-VT) and John Cornyn (R-TX), also members of the Senate Judiciary Committee.1
Observing that past attorneys general have issued FOIA standards during the first year of a new administration, the letter identified an “increasingly urgent” need for such guidance as the Biden administration was already into its second year. In particular, the letter called for DOJ guidance “that emphasizes a presumption of openness and transparency” and “reiterate[s] and underscore[s] that FOIA ‘is not authority to withhold information from Congress.'” (Quoting 5 U.S.C. § 552(d).) The letter also noted the importance of “properly training federal employees on compliance with FOIA” and asked DOJ to advise “of any new steps that OIP is taking to implement [the Government Accountability Office’s (GAO)] recommendations in order to ensure that agencies are complying with FOIA’ s proactive disclosure requirement and that reporting requirements are effectively updated.”
In reference to these concerns, the letter cited GAO reports, showing increases in agencies’ exemption claims relative to FOIA requests; showing that 25 agencies reported no proactive disclosures in recent years; and showing agencies’ lower rates of processing FOIA requests and increasing backlogs of requests.
The Attorney General’s Guidelines
The attorney general’s March 14 guidelines address four primary subjects: (1) the presumption of openness; (2) proactive disclosures; (3) removing barriers to access and reducing FOIA request backlogs; and (4) ensuring fair and effective FOIA administration. While the guidelines reflect priorities for the administration of the federal government, the guidelines also disclaim that they do not create enforceable rights against the federal government.
A. Presumption of Openness
In addition to acknowledging existing law relating to the presumption of openness,2 the guidelines advise that federal agencies should do the following:
- Withhold records on the basis of identified foreseeable harms or legal bars — rather than mere technicalities, speculative or abstract concerns, or fears of embarrassment;
- Make discretionary disclosures where appropriate; and
- Confirm in response letters to requestors that FOIA’s foreseeable-harm standard has been considered when reviewing records and applying FOIA exemptions.
The guidelines indicate that DOJ will apply the presumption of openness in determining whether to defend an agency’s nondisclosure in litigation, and DOJ “will not defend nondisclosure decisions that are inconsistent with FOIA or with these guidelines.” The guidelines also offer DOJ’s further guidance to agencies in “close cases,” “support and training” in implementing the guidelines, and consultation regarding specific FOIA litigation.
B. Proactive Disclosures
The guidelines also address proactive disclosures in reference to FOIA’s requirement that an agency “make available for inspection in an electronic format” certain information and materials, 5 U.S.C. § 552(a)(2), including records that “because of the nature of their subject matter, the agency determines have become or are likely to become the subject of subsequent requests for substantially the same records” or “[p]reviously have been requested 3 or more times,” id. § 552(a)(2)(D).
The guidelines emphasize the importance of proactive disclosures in “enabl[ing] information about federal government operations to be more readily available to all” and advise that “agencies should post records online as soon as feasible” and “continue to maximize their efforts to post more records online quickly and systematically in advance of any public request.”
In an effort to encourage agency disclosures, the guidelines also note that DOJ is “providing more specific criteria regarding how relevant metrics should be reported in agency Annual FOIA Reports.”
C. Removing Barriers and Reducing Backlogs
The guidelines encourage agencies to continue efforts to remove barriers to the public’s access to records and to reduce their backlogs in responding to FOIA requests. More specifically, they advise the following:
- An agency should post records online, quickly and systematically, for ready access by the public;
- An agency’s website should be user-friendly in providing access to records;
- An agency’s chief FOIA officer should comprehensively review the agency’s FOIA programs to ensure as much efficiency as possible in its searches for, reviews of, and productions of records; and
- An agency should communicate (electronically, to the fullest extent possible) with requestors promptly regarding their requests and help them understand the FOIA process and the scope and nature of records that the agency maintains.
For its part, DOJ is working to build on the functionality of FOIA.gov — “the government’s central website for FOIA administration” — and the guidelines also advise agencies to comply with FOIA.gov’s requirements.
In removing one specific barrier to access, the guidelines note the DOJ Executive Office for Immigration Review’s change in policy of “requir[ing] individuals to file FOIA requests to obtain official copies of their own records of immigration court proceedings.” The guidelines “encourage all agencies to examine whether they have similar or other categories of records that they could make more readily accessible without requiring individuals to file FOIA requests.”
D. Fair and Effective Administration
On the matter of fair and effective administration, the guidelines reinforce DOJ’s other recommendations and further emphasize agencies’ FOIA responsibilities with respect to review, reporting, participation, support, training, and cooperation.
As to review and reporting, such further matters include emphasizing that an agency’s chief FOIA officer should evaluate all agency FOIA operations (including a review of backlogs and evaluation of FOIA resources’ allocation within the agency) and must annually report to DOJ the agency’s efforts to improve FOIA operations and information disclosures.3 Regarding participation, the guidelines encourage new agency chief FOIA officers to participate on the Chief FOIA Officers Council4 “for the benefit of their own agencies and to improve government-wide FOIA administration.”
The guidelines emphasize the support FOIA professionals deserve from their chief FOIA officers and agency colleagues (including regular and proper FOIA training of agency personnel) and urge agencies to consult other DOJ resources on FOIA training and compliance, available on OIP’s website.
The guidelines also stress DOJ’s readiness to work with agencies, Congress, and requestors “to improve processing capacities, reduce backlogs, and make government more transparent, responsive, and accountable.”
The Senate Judiciary Committee Hearing
On March 29, the Senate Judiciary Committee held a hearing on “The Freedom of Information Act: Improving Transparency and the American Public’s Right to Know for the 21st Century.” The committee heard testimony from DOJ’s OIP Director Bobak Talebian, as well as the National Archives and Records Administration’s Director of the Office of Government Information Services Alina M. Semo and GAO Director of Strategic Issues James R. McTigue, Jr. The witnesses were questioned by the four committee members signing the February 23 letter to the attorney general, as well as Senators Dianne Feinstein (D-CA), Marsha Blackburn (R-TN), Sheldon Whitehouse (D-RI), Thom Tillis (R-NC), and Jon Ossoff (D-GA).
Mr. Talebian’s testimony included discussion of the attorney general’s guidelines. Senators Leahy and Grassley both raised concerns as to what actual effects the guidelines might have on agencies’ FOIA compliance, particularly in light of existing agency delays in responding to FOIA requests and increasing backlogs. Senator Grassley also questioned why it took the administration more than a year to issue the guidelines. In responding, Mr. Talebian emphasized that FOIA is a priority at DOJ and stated that management and reporting requirements, as well as training and guidance, would assist in ensuring agencies’ compliance. If DOJ were to become aware of an agency’s specific compliance issues, it would issue specific guidance to that agency.
The hearing also focused on challenges to agencies in FOIA implementation, with Senator Feinstein referring to the increasing backlogs and litigation as a “big problem.” The witnesses identified challenges, including the 2019 government shutdown, remote work required by the coronavirus pandemic, increases in the complexity of FOIA requests received and the volume and types of records sought, diversion of resources to address increasing FOIA litigation, technological shortcomings, lack of communication with requestors, confusion about processes, and a general insufficiency of resources. Discussion of possible means of addressing these challenges included release-to-one/release-to-all policies, advanced technology (including artificial intelligence) to assist in searching for records and possibly even processing requests, guidance, training, best practices, workshops, and other investments in technology and personnel.
Of additional note, Senators Whitehouse and Ossoff raised issues regarding OIP policy to the effect that certain records requests from members of Congress are subject to FOIA. Responding to Senator Ossoff, Mr. Talebian stated that he would follow up in writing regarding the referenced OIP policy on congressional requests.
Also of note, Senator Blackburn asked about the possibility of a balancing test for disclosure — balancing an agency’s interest in withholding a record against the public interest in its release. Ms. Semo noted that there was interest among requestors in applying such a standard to multiple FOIA exemptions; however, a balancing test would not be well-suited for certain exemptions (for example, the exemption for information raising national security concerns). Mr. Talebian stated that DOJ would be ready to work with the committee on any legislative proposals, and Mr. McTigue deferred to Congress.
It is evident that Congress takes FOIA seriously and is willing to act to improve it as it has done in the past. E.g., FOIA Improvement Act of 2016, Pub. L. No. 114-185, 130 Stat. 538. At the March 29 hearing, Senators Leahy and Grassley referenced Congress’s current and historical spirit of bipartisanship in making FOIA work effectively and making it stronger. The substance of that hearing, as well as the earlier correspondence from the House Oversight Committee and Senate Judiciary Committee to the attorney general, were further proof of that.
Although Congress appears to appreciate the challenges that federal agencies have been facing in relation to their FOIA compliance, Congress’s first priority in FOIA is in seeing that citizens are able to effectively obtain information regarding the workings of government pursuant to that statute. While the attorney general has issued the guidelines and agencies are undertaking other measures to improve their implementation of FOIA with further guidance and instruction from DOJ and OIP, it remains to be seen whether Congress will determine that its own further action is necessary to reinforce the purposes of FOIA and, if so, how.
We will continue to monitor for further developments.
1 By a separate letter dated March 16, the same members of Congress requested that GAO “conduct a comprehensive study of systemic issues faced by federal agencies in fulfilling their obligations under” FOIA, with particular focus on “[t]he causes of the persistent backlog in FOIA requests;” “[c]hallenges to reducing the backlog;” and “[p]otential regulatory or legislative changes to reduce or eliminate the backlog quickly and efficiently.”
2 Under FOIA, there is a “strong presumption in favor of disclosure” that “places the burden on the agency to justify the withholding of any requested documents.” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991). A federal agency may withhold information under FOIA only if it “reasonably foresees that disclosure would harm an interest protected by an exemption described in” the statute or if “disclosure is prohibited by law.” 5 U.S.C. § 552(a)(8)(A)(i). If the “agency determines that a full disclosure of a requested record is not possible,” then it must “consider whether partial disclosure of information is possible.” Id. § 552(a)(8)(A)(ii)(I). And it must “take reasonable steps necessary to segregate and release nonexempt information.” Id. § 552(a)(8)(A)(ii)(II). The agency must carry its burden whether it “seeks to justify the redaction of identifying information in a particular document” or “seeks to withhold an entire document.” Ray, 502 U.S. at 173.
3 FOIA provides that “[t]he Chief FOIA Officer of each agency shall, subject to the authority of the head of the agency … review and report to the Attorney General, through the head of the agency, at such times and in such formats as the Attorney General may direct, on the agency’s performance in implementing [FOIA.]” 5 U.S.C. § 552(j)(2)(D).
4 The Chief FOIA Officers Council is comprised of the Office of Management and Budget’s deputy director for management, DOJ’s OIP director, the Office of Government Information Services’ director, the chief FOIA officer of each agency, and any other officer or employee of the United States designated by DOJ’s OIP director and the Office of Government Information Services’ director. 5 U.S.C. § 552(k)(2). The council’s duties with respect to FOIA include the following: (1) “[d]evelop[ing] recommendations for increasing compliance and efficiency;” (2) “[d]isseminat[ing] information about agency experiences, ideas, best practices, and innovative approaches;” (3) “[i]dentify[ing], develop[ing], and coordinat[ing] initiatives to increase transparency and compliance;” and (4) “[p]romot[ing] the development and use of common performance measures for agency compliance.” Id. § 552(k)(5)(A).