New guidance from Justice on processing FOIA requests

Hannah Bergman | Freedom of Information | Feature | April 20, 2009

The Justice Department’s Office of Information Policy issued new guidance Friday further implementing the attorney general’s memo that gives direction to federal agencies regarding the Freedom of Information Act.

The guidance applies to all federal agencies and stresses "that the FOIA is to be administered with the presumption of openness.”

It also says the “combined impact” of the memos “is a sea change in the way transparency is viewed across the government.”

The change in attitude toward FOIA requests, personnel and the importance of transparency is particularly striking in the wake of the Bush-era guidelines on FOIA.

The new guidance came out in the same week that the Obama Justice Department released several controversial Office of Legal Counsel memos the Bush administration had relied on to justify torture.

The chain of events may translate into real change for FOIA requesters. For instance, one challenge in reversing the Bush administration policies is a concern that the attitudes of FOIA personnel may not adapt quickly.

On that point, the new guidance reminds agencies that change on the employee-level is crucial. 

“Agency personnel must alter their mind set in keeping with the President’s vision. This is the first and in many ways the most important step," the guidance says. "To achieve a ‘new era of open Government’ agency personnel must think about the FOIA differently. They must focus on the principles set out in the President's Memorandum and the Attorney General's Guidelines. Most importantly, agency personnel should view all FOIA decisions through the prism of openness."

The guidance did not mention the new Office of Government Information Services, which will be housed at the National Archives and Records Administration. OGIS will provide FOIA ombudsman services to requesters who seek information from agencies throughout the federal government. It is not yet clear how OGIS will interact with the Office of Information Policy. 

The DOJ guidance also is clear to state that the "disclosure obligation under the FOIA is not absolute."