How FOIA works

The federal FOIA1 provides access to all records of all federal agencies in the executive branch, unless those records fall within one of nine categories of exempt information that agencies are permitted (but generally not required) to withhold.

On President Barack Obama’s first full day in office — Jan. 21, 2009 — he issued two memos addressing government transparency and FOIA. Announcing that his administration is “committed to creating an unprecedented level of openness in Government,” Obama’s Memorandum on Transparency and Open Government pledged that the White House would work with the public “to ensure the public trust and establish a system of transparency, public participation, and collaboration.”

With regard to FOIA, the Memorandum on the Freedom of Information Act directed his incoming attorney general to reestablish the presumption of disclosure for government records. This memo was almost certainly meant to address the previous standard established in 2001 by former U.S. Attorney General John Ashcroft. The Ashcroft standard encouraged federal agencies to thoroughly consider reasons for invoking exemptions to FOIA, and assured agency personnel that the Justice Department would fully support denials of exempt material so long as they were legally defensible and would not jeopardize the government’s ability to continue to withhold other information.2

Obama’s Day One memorandum brought the administration’s interpretation of FOIA back in step with the 1993 memorandum issued by then-Attorney General Janet Reno. She had instructed agencies to use their discretion to release documents. Even if requested information arguably or technically fell within an exemption, agencies were not to invoke that exemption unless they could point to a “foreseeable harm” that would come from disclosure.3

The January 2009 Obama directive is even more proactive, ordering agencies to take “affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government.” Finally, it urges timely disclosure — a long-standing barrier to filling requests.

The new attorney general is expected to further formalize the administration’s approach to interpreting FOIA through his or her own memorandum, presumably in the first 120 days in office.

1 FOIA appears in the United States Code at 5 U.S.C. § 552.

2 Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (Oct. 12, 2001).

3 Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (Oct. 4, 1993).