Federal agencies release previously protected information

WASHINGTON, D.C. — Under federal Freedom of Information Act policy guidance issued a year ago by Attorney General Janet Reno, agencies appear willing to release some types of information that “could certainly have been protected” prior to the memorandum, according to an Access Reports article published in early November.

The bi-weekly newsletter on open government reported that the Department of Justice, which sets FOI Act policy for the federal government and defends it against FOI lawsuits, has even shown in some cases “that it is willing to release records that are clearly protected under case law precedents.”

The Reno memorandum issued last year directed agencies to avoid use of “discretionary” exemptions to the Freedom of Information Act unless some foreseeable harm might occur from disclosure. President Clinton issued a memorandum the same day endorsing greater openness under the FOI Act.

A Justice Department list cited by Access Reports discusses seven lawsuits dropped after the Reno memorandum prompted disclosure of most of the records plaintiffs had requested. The Department also cited two cases in which it gave requested records to plaintiffs who had lost lawsuits for the records.

The FOI Act’s internal agency memoranda exemption (Exemption 5) was once the exemption most frequently cited by the government in withholding records. Most of the “discretionary” releases of otherwise exempt records have involved records that might previously have been protected by Exemption 5.

The FOI Act guidance published by the Justice Department in November also indicates that agencies should no longer use the internal agency rules exemption (Exemption 2) to refuse to disclose internal administrative information once withheld largely to avoid the administrative burdens of disclosure. It also suggests agencies can make discretionary releases of certain law enforcement information protected by Exemption 7 and banking information protected by Exemption 8.

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