Attorney General Holder wows open-government advocates with new guidelines pressing federal agencies to release more information

Attorney General Eric Holder has been neither slow nor shy about reversing controversial policies of his Republican predecessors. A recent example–particularly auspicious for supporters of government openness–was his issuance of guidelines on the federal Freedom of Information Act.

Conspicuously replacing Bush-era guidelines emphasizing agencies’ discretion under FOIA to withhold information, Holder directed government agencies to tilt the scales in favor of making information public. His mechanism for enforcing this policy reversal: Henceforth, Justice Department lawyers may defend a federal agency’s discretionary denial of a FOIA request only if “disclosure would harm an interest protected by” one of FOIA’s express exemptions.

To better gauge the meaning and likely impact of the “Holder Guidelines,” we solicited the views of open-government experts around the country, including Meredith Fuchs, General Counsel of the National Security Archive in Washington, DC; Lucy Dalglish, Executive Director of the Reporters’ Committee for Freedom of the Press; Terry Francke, General Counsel of Californians Aware in Sacramento; David Sobel of the Electronic Frontier Foundation’s Washington, DC office, and Harry Hammitt, editor and publisher of Access Reports. –PETER SCHEER

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Some of their comments:

Meredith Fuchs of the National Security Archive gives Holder high marks. “The guidelines read as if there is a new show in town and for the first time in eight years everyone is welcome to come see it.” Although the new rules technically apply only in contested FOIA cases, Fuchs points out that:

“President Obama also issued an open government memorandum that initiated a process to draft an open government directive” whose focus will be on “transparency, public participation and collaboration in government.” That directive “may have a significant impact on the culture of secrecy and transparency in government, Fuchs says. “There may even be spillover effects on congressional transparency.”
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Lucy Dalglish, Executive Director of the Reporters’ Committee for Freedom of the Press, said Holder’s guidelines compare favorably with similar guidance given to agencies by the Clinton administration during the 1990s. “Experience teaches us that the attorney general memo issued every time a new administration comes in is extremely important in forshadowing how the executive branch will respond to requests for information” generally, says Dalglish. The Holder memo is “even better than the [Clinton era] memo,” she says. “I have already heard from folks in the agencies that they will once again be allowed to make discretionary disclosures. They are pleased” with the change.

The Holder memo could have an effect on documents whose release the Bush administration had resisted. The policy change applies not only prospectively, but also to pending law suits where, in the memo’s legalese, “there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information.”

Dalglish points to ongoing litigation over FOIA requests by the Bloomberg news service for records on the Treasury Department’s emergency bailout of financial institutions. “I’ve heard the folks at Bloomberg muse that perhaps they’ll get more info now,” says Dalglish.
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Calaware’s Terry Francke contrasts the Holder guidelines for FOIA with the practice of local and state agencies under the California Public Records Act (CPRA): ” The Obama/Holder policy shows where CPRA policy could and should be, but getting there depends crucially on having a governor showing real interest and leadership in transparency.” Francke continues:

“Structurally, federal and California information policies are identical. Some records are always public—no ifs, ands or buts—for example in California law the disclosures of personal financial interests that public officials must file to deter them from using their government powers for self-enrichment. Many others are always confidential, for example income tax returns, medical and educational records. But most government records are presumed to be public, and subject to release unless the government can show it has the right to withhold them under some optional exemption, for example the one for law enforcement investigation files.

In California, that middle category, while presuming access, is given a tilt toward secrecy by both a rule and a reflex. The rule—a wild card against disclosure— is that even if no specific exemption allows withholding a given record, the government may still do so by showing that on the existing facts and circumstances, the balance of public interests favors withholding. The reflex is the nigh-universal practice of California officials to say that if they are permitted to exempt a record under some specific rule, they will—no further justification needed.

This is where the Obama/Holder policy is very different; it says that officials must have both a specific exemption allowing secrecy and a “reasonable” anticipation that disclosure would actually cause harm to an interest protected by that exemption. As applied in California, for example, the rule would mean that many completed law enforcement investigation files would be largely disclosed when no harm to privacy or the criminal justice system could result—and the effectiveness and integrity of that system would be open to public scrutiny.

The Obama/Holder policy could become California law by legislation, and would have to be. By far most of the decisions about defending litigation under the CPRA are made not by the Attorney General but by city attorneys, county counsel and lawyers advising the vast complex of education and special districts across the state. No single executive fiat could reach beyond state agencies to affect these decision-makers.

But while it’s entirely conceivable that the Obama/Holder approach could pass the Legislature easily (it would not affect lawmakers, who have their own transparency code), Governor Schwarzenegger is a different question. He has already vetoed a mild bill calling for a study of which public records should be placed on state websites to allow better public examination of governmental performance. He saw that measure as somehow an adverse reflection on his own record of transparency, and killed it on that basis.

This doesn’t mean he shouldn’t be given a bill codifying the Obama/Holder policy, but he should view it for what it is: a chance dramatically to fulfill his original campaign pledge to open up California government to the scrutiny of the people—and to become a leader among governors in fearless transparency initiatives.”
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David Sobel of the Electronic Frontier Foundation, which often litigates against federal agencies on access issues, is not waiting to find out how, and whether, Holder’s policy change affects pending cases. He says EFF had already “filed motions in several of our FOIA cases asking the courts to delay further proceedings until the new guidelines are issued and the defendant agencies can consider the impact of the new pro-disclosure policies of the Obama administration.”

Sobel is optimistic but eager to see concete results. “The President and the Attorney General have articulated an extremely pro-transparency policy for the federal government. The fact that these pronouncements come so early in the life of the new administration is a particularly promising development. But, as they say, the proof is in the pudding and it remains to be seen if these proclamations from on high produce real results down in the bureaucratic trenches.”
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Harry Hammitt of Access Reports is also upbeat about the new policies:

“Obama’s Jan. 21 memo is very broad and goes beyond anything I’ve seen before. However, the Holder memo is similar to the Reno memo and the standard is apparently going to be “foreseeable harm” and it will be applied to as many exemptions as possible, primarily Exemption 2 and 5, which cover government interests as opposed to third-party non-government interests.

The fact that the memo applies only to executive agencies is nothing of note. The FOIA applies only to the executive branch so Holder had no authority to go beyond that. One area where Obama could show his bona fides would be to make access to White House records more open. Several court cases in recent years have restricted access to a variety of White House components, most notably the NSC, and Obama could open those up if he wanted to. The court decisions stand only for the proposition that those agencies are not subject to FOIA but that doesn’t mean they can’t field FOIA requests as a matter of discretion or choice.

We don’t know how the pending cases language will work out. Those who are litigating have decided that they need to take the bull by the horns and ask the court or at least the DOJ attorney to review specific pending cases in light of the new policy. The ACLU litigation for the torture memos, etc, was the specific legal driving force that resulted in that recent disclosure, although Holder could have disclosed those memos as a matter of discretion, which he actually did.”
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