II. Exemptions Ripe for Discretionary Disclosure

Following up on Attorney General Holder’s FOIA memorandum, the Department of Justice’s Office of Information Policy (“OIP”) released guidance on discretionary disclosures in April of 2009.¹² Applying the “foreseeable harm” standard set forth in the Holder FOIA memorandum, OIP instructed that every records request be processed with a “presumption of openness” and “should be reviewed by agencies for its content, and the actual impact of disclosure for that particular record, rather than simply looking at the types of document or the type of file the record is located in.”¹³

OIP Guidance states that opportunities for a discretionary release are ripe when Exemptions 2, 5, 7, 8 and 9 are implicated.¹⁴ The age and content sensitivity of a document are universal guideposts for agencies to consider when determining if a discretionary release is appropriate. As a result, you should assert an argument that, given the passage of time, the document contains information that is no longer sensitive and that regardless of its age, release would not cause any foreseeable harm to any governmental interest protected by the relevant exemption. It is also a good idea to highlight why the records are of public interest, further necessitating the release.

OIP suggests that Exemption 5 withholdings on “deliberative process” grounds present the greatest opportunity for a discretionary release. “There is no doubt that records protected by Exemption 5 hold the greatest promise for increased discretionary release under the Attorney General’s Guidelines.”¹⁵ Exemption 5 deliberative process claims are particularly good candidates depending on the document’s age, content sensitivity, the nature and status of the decision at issue and what government officials were involved.¹⁶

In all cases, you should emphasize how disclosure would serve a public good by better informing the public about government operations and decision making and how disclosure would not significantly interfere with the ability of government officials to internally debate policy and courses of action.

Exemption 2 records related to internal personnel rules and agency practices are also good candidates for discretionary release because, as OIP notes, they are trivial by nature and it is highly unlikely any harm would result from disclosure.¹⁷

Law enforcement records protected under Exemption 7 (save for those protected under the personal privacy provision of 7(C)) are also prime candidates for discretionary disclosure if no foreseeable harm will result. OIP guidance states that agencies should be particularly loathe to withhold records under Exemption 7 based on speculation or abstract fears.¹⁸ It goes on to state that “agencies should consider whether records which reference a law enforcement technique or procedure are now outdated, or no longer sensitive, or not specific enough to cause harm.”¹⁹ Once again, you should argue that the information requested is now in some fashion stale or otherwise of no operational value.

OIP Guidance further states that “due to the breadth of protection afforded information provided by a confidential source, records covered by Exemption 7(D) also hold potential for discretionary disclosure,” noting that “[s]ome agencies already release much source-provided information when processing records of historical significance.”²⁰ You should therefore attempt to argue that Exemption 7(D) concerns are not implicated when information related to a past confidential source is already public.