Several weeks ago, Attorney General Eric Holder Jr. marked Sunshine Week, the annual celebration of government transparency, with a keynote address touting his agency’s commitment to openness and asserting that its work over the past three years has produced “meaningful, measurable progress” in improving government compliance with the Freedom of Information Act. As attorneys who each have more than 30 years’ experience litigating FOIA cases in the federal courts, our assessment is decidedly less rosy.
In 2009, during his first Sunshine Week as attorney general, Holder issued a memorandum promising, among other things, that DOJ would defend agency decisions to withhold requested information only when disclosure clearly was prohibited by law or would produce actual harm. This significant change reversed an earlier directive by former Attorney General John Ashcroft requiring DOJ attorneys to aggressively defend virtually all agency denials of FOIA requests. Holder said his new policy was intended to effectuate the pro-transparency proclamation issued by President Obama on his first full day in office: to administer the FOIA “with a clear presumption: In the face of doubt, openness prevails.”
