USA: Courts pay attention to new FOIA policy

Courts Pay Attention to New FOIA Policy
<http://www.fas.org/blog/secrecy/2009/03/attention_foia.html>

A skeptical person might presume that the new Freedom of Information Act
policy <http://www.fas.org/sgp/news/2009/03/ag031909.html>
announced by Attorney General Eric Holder on March 19 declaring that
agencies should "adopt a presumption in favor of disclosure" is a rhetorical
posture without much practical significance.

After all, requesters who used FOIA during the Clinton era know that
agencies frequently withheld information even when it would have caused no
"foreseeable harm," despite the policy
<http://www.fas.org/sgp/clinton/reno.html>
of Attorney General Reno that such information should be released. (Nor,
for that matter, did agencies during the Bush Administration always withhold
information every time they were legally entitled to do so, as the Ashcroft
policy <http://www.fas.org/sgp/foia/ashcroft.html>
advised.)

But remarkably, federal courts are already considering the new Holder policy
in response to plaintiff requests and are modifying the course of pending
FOIA litigation as a result.

In one case, the Electronic Frontier Foundation <http://www.eff.org/> (EFF)
asked a court to stay a proceeding and to order the Office of the Director
of National Intelligence and the Department of Justice to reconsider their
denial of requested records by employing the new Holder guidelines. Those
agencies opposed the idea. But in a March 23 opinion
<http://www.fas.org/sgp/jud/eff032309.pdf> (pdf),
Judge Jeffrey S. White of the Northern District of California granted the
EFF motion.

Likewise, in another EFF FOIA lawsuit this week, Judge John D. Bates ordered

<http://www.fas.org/sgp/jud/eff032409.pdf> (pdf)
the Department of Justice "to evaluate whether the new FOIA guidelines
affect the scope of its disclosures and claimed withholdings in this case."

"We now have four cases in which there are similar court orders," said David
Sobel, EFF senior counsel, which are "the result of our motions to stay
proceedings pending issuance of the new guidelines."

"I think it shows that a bit of aggressiveness on the part of FOIA litigants
will likely force the government to reconsider prior withholding decisions,"
he said.

The final sentence of the new Holder policy
<http://www.fas.org/sgp/foia/ag031909.pdf> (pdf)
states that "This memorandum is not intended to, and does not, create any
right or benefit, substantive or procedural, enforceable at law or equity by
any party against the United States, its departments, [or] agencies."

Whatever that sentence means, it is not stopping courts from invoking the
new memorandum against the government and against the Department of Justice
itself.

----
Mark Perkins MLIS, MCLIP
www.markperkins.info

https://keyserver.pgp.com/