Smithsonian formally adopts new FOIA-like policy

The Smithsonian Institution on Monday formally adopted a new policy for responding to records requests, bowing to pressure from the Senate and open government groups.

The museum complex is not subject to the Freedom of Information Act because of a 1997 federal court ruling in Dong v. The Smithsonian Institution. But it has now formally adopted the policy for releasing records patterned after FOIA that it announced it has been using since November.

“It is the policy of the Smithsonian Institution . . . to respond timely to written requests for Smithsonian information consistent with the principles of disclosure under the Freedom of Information Act and in a manner that fosters openness and accountability and supports the Smithsonian’s mission,” the new policy states.

“When considering requests for Smithsonian information, the Smithsonian will apply a presumption of disclosure. It will be the policy of the Smithsonian to disclose information unless this Directive clearly provides otherwise, except where disclosure would be harmful to an interest protected by an exemption. Where release would not be harmful to the Smithsonian or to an interest protected by an exemption, the Smithsonian may choose to release information that falls within an existing exemption,” it continues.

The Smithsonian has been criticized for limiting access to information in the past — including for asserting the privacy rights of animals at the National Zoo. In June, several senators introduced legislation that would have required the Smithsonian to comply with FOIA.

The Smithsonian’s new policy is meant to quash those concerns while still allowing the institution flexibility in withholding some information.

Because some portions of the Smithsonian are profit-generating and run as any other business, rather than as part of the government, the institution will be able to protect those documents.

For example, the policy says the institution will withhold “Smithsonian trade secrets and Smithsonian commercial or financial information directly related to the Smithsonian’s revenue-generating activities, including fund-raising and development activities, and where release of the information would be likely to cause the Smithsonian substantial competitive harm or impair its ability to carry out its charitable and educational mission by raising private funds.”

The new policy gives requesters an administrative appeal right similar to the process at other agencies that fall under FOIA. However, requesters will still not be able to file a lawsuit to seek access to denied records.

Sen. Patrick Leahy, who is on the Smithsonian Board of Regents, has pushed for such a policy for some time. In a press release he said, “The proposal adopted today reflects a continuing dialogue between the Smithsonian, members of the FOIA community, and interested members of Congress. It is an important first step in ensuring more openness and accountability, consistent with the time-honored principles of FOIA.”