I. Executive Directives on Discretionary Disclosures

Policy decisions regarding implementation of the federal Freedom of Information Act are set by the executive branch and can vary between presidential administrations.

Certain administrations, such as that of George W. Bush, followed a relatively strict interpretation of FOIA. Under Bush, agencies were advised to make discretionary releases only after “full and deliberate consideration” of the effects of disclosure and would receive Department of Justice support for all decisions to withhold a record “unless they lack a sound legal basis.”³

Other administrations have purported to take a more access-friendly view to FOIA. On his first full day in office, President Obama issued a memorandum to the heads of all executive departments and agencies regarding FOIA.⁴ Obama stated that all agencies were to “adopt a presumption in favor of disclosure” and that in the “face of doubt, openness prevails.”⁵

Among other things, the memorandum said: “The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve.”⁶

The memorandum also directed the U.S. Attorney General to issue new FOIA guidelines for the executive branch.⁷

On March 19, 2009, Attorney General Eric Holder issued his guidelines, encouraging agencies to make discretionary disclosures whenever possible.⁸ Holder directed that “an agency should not withhold information simply because it may do so legally.”⁹ Moreover, the memorandum stated that an “agency should not withhold records merely because it can demonstrate, as a technical matter, that the records fall within the scope of a FOIA exemption.”¹⁰              

The memorandum went on to rescind the October 12, 2001, FOIA memorandum issued by former Attorney General John Ashcroft and stated that the Department of Justice would “defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”¹¹

Debate continues over whether the Obama administration has lived up to its pledge to be more transparent than previous administrations. Nonetheless, the Obama administration’s FOIA policy announcements on discretionary disclosures represent a marked departure from previous policy and encourage agencies to make releases when no foreseeable harm from disclosure exists. When appropriate in an appeal letter, requesters should argue for a discretionary disclosure in accordance with current FOIA implementation policy.