New Freedom of Information Guidance Advances Openness

Department of Justice sealNew guidance issued Friday by the Department of Justice (DOJ) will help to ensure that a little-known part of the Freedom of Information Act (FOIA) will not be inappropriately used to shield agency activities from public scrutiny.

Under FOIA, the public has a right to request government information, and the government has to provide it unless it can give a good reason to keep it secret. Certain types of information are exempted from mandatory disclosure, like classified national security information or information that is deemed sensitive with regard to individual privacy. When agencies claim these exemptions, they have to notify both the requester and openly report their reason for withholding information.

Agencies may also withhold certain information by using FOIA's law enforcement exclusions. In certain circumstances, agencies may withhold information related to pending criminal investigations, informants, and classified foreign intelligence – and may do so without notifying the requester. For instance, in order to conceal the existence of an ongoing investigation, an agency can state that it has no information relevant to the request. Using an exemption, rather than an exclusion, in the same situation would require the agency to explain why it is withholding the records, thus revealing the essential fact of the investigation's existence.

DOJ's new guidance will make the use of exclusions more transparent to try to guard against overuse. Agencies will now have to report annually the number of times they applied an exclusion, continuing a practice that began with the 2012 Chief FOIA Officer reports. In addition, agencies will have to provide educational information about exclusions in their response letters to requesters and on their FOIA websites, thus alerting requesters to the fact that some information may have been excluded from the response.

In order for the American people to be able to exert their right to know what their government does, it is crucial that exclusions be narrowly applied, and only with great caution and effective oversight. DOJ's new guidance is a thoughtful step that should help advance a spirit of openness.

The guidance applies to all agencies and resolves a situation specific to DOJ itself. In March 2011, DOJ proposed updates to its FOIA rules, including controversial new language on the application of exclusions. After protest from Congress and the open government community, DOJ stated in November 2011 that it would abandon that approach. The other elements of DOJ's proposed regulations remain under review.

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