In a memorandum circulated during “National Sunshine Week” celebrating the importance of open government, Attorney General Merrick Garland directed heads of executive agencies and departments to favor transparency and disclosure when considering Freedom of Information Act (FOIA) requests. The memorandum was released in the wake of bipartisan calls for increased Department of Justice (DOJ) guidance on agency FOIA responses. In February, six Democrat and Republican lawmakers co-signed a letter asking the Attorney General to issue a “clear message” to improve transparency and “encourage agencies to improve FOIA implementation.” The letter cited a 2021 Government Accountability Office report finding that agency’s use of FOIA’s limited disclosure exemptions had increased 135% between 2012 and 2019. This increased reliance on exemptions drove a 76% increase in partial denials and a 10% increase in full denials of FOIA requests in the same period.
The memorandum reiterated the government’s “Presumption of Openness” FOIA policy and reminded agencies that they may withhold records only if disclosure would harm an interest protected by one of the nine FOIA exceptions or disclosure is prohibited by law. Information that may fall within one of the exceptions should not be withheld unless the agency can identify a “foreseeable harm or legal bar to disclosure.” In cases of doubt, the Attorney General urges “openness should prevail.”
Attorney General Garland also warned that the DOJ would apply the same presumption of openness when deciding whether to defend an agency’s nondisclosure. DOJ will not defend nondisclosure decisions inconsistent with the policies outlined in the memorandum. “At the Justice Department, and across government, our success depends upon the trust of the people we serve. That trust must be earned every day,” said Attorney General Garland. He continued: “For more than fifty years, the Freedom of Information Act has been a vital tool for advancing the principles of open government and democratic accountability that are at the heart of who we are as public servants. Together with our partners across the federal government, the Justice Department will work every day to uphold those principles, which are essential to the rule of law.”
The new guidance emphasized the importance of proactive disclosures. Agencies should maximize their efforts to post more records online “quickly and systematically” before receiving a FOIA request. If a set of previously released records have been requested at least three times or is likely to be the subject of additional requests, the agency must make these records publicly available.
Agencies should also make efforts to remove barriers to requesting and accessing government records and continue to reduce their FOIA processing backlogs. As an example, DOJ committed to revising its policy that had long required individuals to file
FOIA requests to obtain records of their immigration court proceedings. Attorney General Garland encouraged all agencies to examine whether they had similar policies that could be changed to make records more readily accessible.
The memorandum urges that it should be easy for the public to find records online and that the records should be presented in the “most useful, searchable and open formats possible.” Agencies should work to make their FOIA websites easily navigable and regularly update their information on the government’s central website for FOIA administration, FOIA.gov.
For more information on the Freedom of Information Act or filing FOIA requests, please contact the author at firstname.lastname@example.org.
The author would like to thank our law clerk Allison Moors for her valuable contributions to this article.