A skeptical person might presume that the new Freedom of Information Act policy 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 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 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 (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 (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 (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 (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.