The FOIA memo

From the Winter 2009 issue of The News Media & The Law, page 9.

Since the Freedom of Information Act became law in 1966, every presidential administration has had its attorney general interpret for the federal agencies how they should treat the law. Democrats have historically preferred a broader read — releasing records under FOIA unless there is specific need to withhold them as set forth in the law. Republicans, except for President Gerald Ford, have generally narrowed the reach of the law — asking agencies to keep records back when they might fall into categories set out in the law.

More recently, former Attorney General John Ashcroft set the most restrictions to date, urging agencies to find categories under the law to justify withholding records and underscoring that with a promise to back up their decisions in court, if at all lawful. That abruptly changed the course of the memo former Attorney General Janet Reno issued during the Clinton presidency, pushing for disclosure unless an agency was fairly certain disclosure would be harmful.

On Obama’s first day in office, he directed his attorney general to issue what might be the most expansive disclosure yet. Beyond really pushing the “openness prevails” standard that Reno’s memo basically encompassed, he has directed Attorney General Eric Holder to have agencies take affirmative steps to use technology to make information available even if it is not specifically requested — perhaps a nod to the 1996 Electronic FOIA Amendments. Holder must also address delays in disclosure.