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The Department of Justice recently changed policy with respect to when government information will be released under the Freedom of Information Act (FOIA). Abandoning the Clinton administration policy of releasing information unless it is “reasonably foreseeable that disclosure would be harmful,” the new policy allows governmental agencies to resist FOIA requests whenever there is a legal basis to do so. This change perhaps is best explained by the times. In the post-Sept. 11 world, the government is preoccupied with security and protection. Still, the new policy should not be used to shield government information on a wide variety of issues from legitimate inquiry. BACKGROUND ON FOIA Congress added real teeth to FOIA in the immediate post-Watergate era. Government accountability to the public was deemed of paramount importance. Under the statute, government information is required to be provided to any person on request within very short time frames unless one of several narrow exemptions applies. According to the U.S. Supreme Court, the public is entitled to know “what the government is up to.” If a government agency fails to provide information properly on request under FOIA, the statute allows the filing of a civil lawsuit to obtain the information. The statute further awards attorney fees and costs if the requestor substantially prevails in court. CLINTON ADMINISTRATION POLICY In October 1993, President Clinton and Attorney General Janet Reno adopted a new policy of “openness” with respect to governmental disclosure under FOIA. In a memorandum to federal agency and department heads, President Clinton called upon them “to renew their commitment to the Freedom of Information Act, to its underlying principles of government openness, and to its sound administration.” In making this call to action, President Clinton noted: “For more than a quarter century now, the Freedom of Information Act has played a unique role in strengthening our democratic form of government. The statute was enacted based upon the fundamental principle that an informed citizenry is essential to the democratic process and that the more the American people know about their government the better they will be governed. Openness in government is essential to accountability and the Act has become an integral part of that process.” Attorney General Reno, in an accompanying memorandum, went so far as to create a presumption of “maximum responsible disclosure of information.” In her view, the government “must ensure that the principle of openness in government is applied in each and every disclosure and nondisclosure decision that is required under the Act.” Because the “American public’s understanding of the workings of its government is a cornerstone of our democracy,” Reno declared that the “Department of Justice stands prepared to assist all Federal agencies as we make government throughout the executive branch more open, more responsive, and more accountable.” THE NEW BUSH ADMINISTRATION POLICY On Oct. 12, 2001, John Ashcroft, President Bush’s Attorney General, superseded the Clinton administration FOIA policy with a new policy that defends nondisclosure of governmental information when there is a “sound legal basis” to do so. This new policy finds its roots, according to the Department of Justice, in “the importance of protecting sensitive institutional, commercial, and personal interests that can be implicated in government records — such as the need to safeguard national security, to maintain law enforcement effectiveness, to respect confidentiality, to protect internal agency deliberations, and to preserve personal privacy.” In his memorandum to federal agency and department heads, Ashcroft encouraged consideration of “the protection of all such values and interests when making disclosure determinations under the FOIA.” Indeed, “any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.” Ashcroft provided comfort to government heads that “when you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.” GOING FORWARD Time will tell whether the word change of the government’s FOIA policy truly will alter the level of disclosure under the statute. With respect to sensitive information relating to national security and law enforcement, protection already has been in place for quite some time under FOIA’s exemptions. Perhaps even greater efforts will be made to safeguard information in this area, which may be a good thing, at least for the time being. However, it is important that the new policy change does not frustrate the core purpose of FOIA — shining a light on “what the government is up to.” Eric J. Sinrod is a partner in the San Francisco office of Duane Morris, where he focuses on technology and litigation matters. His Web site is sinrodlaw.com and his firm’s site is Duane Morris.Sinrod may be reached by e-mail at [email protected]

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