Defensive Standards Hinder FOIA Openness

When the Obama administration came to office in January 2009, it promised openness and transparency in government. On his first full day in office, President Barack Obama issued a memorandum concerning his administration’s beliefs on the Freedom of Information Act (FOIA), ordering federal officials to err on the side of openness. The President wrote that FOIA should be “administered with a clear presumption: In the face of doubt, openness prevails.” Pursuant to this memorandum, Obama’s new attorney general, Eric Holder, on March 19, 2009 issued a directive to emphasize the importance of the FOIA law’s purpose and “to ensure that it is realized in practice.”

This report considers whether or not a key component of that March 2009 directive which set forth new “defensive standards” for FOIA litigation has been obeyed. Henceforth, the AG’s memorandum stated, the Department of Justice would “defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”

After careful review of the record and interviews with numerous attorneys involved with FOIA litigation, TRAC found little evidence that these new standards are actually being followed. In fact, some individuals interviewed by TRAC expressed the opinion that Justice Department attorneys had become even more aggressive in defending anything that federal agencies chose to withhold.

The Critical Role Played by FOIA Defensive Standards

Under the Freedom of Information Act, if an agency does not provide records requested under FOIA, the requestor can file an action in federal court seeking a court order to compel their disclosure, 5 USC § 552(a)(4)(B). When an agency’s withholding is challenged in court, attorneys from the Justice Department are typically called upon to defend the agency’s action. Therefore the standards used by these attorneys in determining which withholding actions will be defended, and which will not, send a powerful signal to federal agency officials and FOIA staff on the extent to which the agency will have a free hand in withholding government records.

In addition, whatever the ultimate decision of the courts, the slow pace of federal litigation means that the decision to defend an agency’s withholding effectively postpones the need to turn over documents to the public for many years. Thus, agencies can use this tactic to effectively delay access to sought-after records until public interest in their contents dies down.

Each new administration since the late 1970s has issued memos and guidance on what issues should be considered by DOJ attorneys when deciding whether FOIA-related litigation should be defended.

Holder’s stance is in many ways very similar to a 1993 memo issued by then Attorney General Janet Reno, who ordered DOJ attorneys to follow a similar standard when determining whether to defend a case. This was a change from a previous standard, established in 1981, that directed attorneys to defend a FOIA-related case merely because there was a “substantial legal basis,” meaning the case should be defended because it could be, regardless of the merits of the request.

“Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be,” Reno wrote.

In Oct. 2001, newly-arrived Attorney General John Ashcroft issued his own directive clearly laying out when cases should be defended. Turning back the clock, the Ashcroft memo specifically ordered that the Department of Justice would defend all decisions to withhold records, “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.”

Similarly, when Attorney General Holder issued his directive, he noted that it rescinded the memo by Ashcroft. And it staked out a much different and far more open position, switching from the inherently minimizing language of defending all “unless” to the much more expansive directive to defend a FOIA denial “only if.”

Anne Weismann, chief counsel for Citizens for Responsibility and Ethics in Washington (CREW) and a former DOJ official in the Civil Division where she defended the government in FOIA litigation cases, reiterated the huge change that the Holder memo represented, at least on its face.

“I was at the Justice Department when the Ashcroft memo came out, and I always understood from the memo that the default was non-disclosure. I have always interpreted the Holder memo to be the flip of that,” Weismann said.

The difference in stance is striking. While not the only standards announced in the AG’s 2009 directive, they certainly form a prominent pillar of the overall message, which was ostensibly one of establishing a new era of openness.

Implementation Steps Missing

Holder’s memo ordered what amounted to an “about-face” on the way the DOJ attorneys should handle FOIA cases — or at least a hard turn. When attempting to evaluate whether such a change had occurred, it would make sense that the massive bureaucratic machinery encompassing the administration of FOIA would need to grind to a halt before reversing course, or take a sharp turn or veer slightly. At the very least, there would need to be some slowing of momentum, and such activity would leave very visible tracks — evidence of the effort involved with implementing such a change.

These tracks were visible in the previous two instances of a change in policy. Under Reno, in addition to specifically citing cases in which the new policy made a difference, the DOJ publicly bragged about what steps had been taken to push the new policy. In her memo, Reno directed the heads of the Civil and Tax Divisions, as well as all U.S. Attorneys, to “undertake a review of the merits of all pending FOIA cases handled by them, according to the standards set forth above.” These reviews were later credited with finding the cases that DOJ felt it could no longer defend. In fact, in a 1994 release, the DOJ identified eight cases in which the review resulted in new disclosures, which in almost all cases satisfied the plaintiff’s request or left nothing to litigate over.

Again, under Ashcroft, the AG’s memo and related statements from the Department’s Office of Information Policy (OIP) — the office charged with encouraging all federal agency compliance with FOIA — seemed to make concerted efforts to let agencies know what the new standards for disclosure were, and described, quite plainly, what cases the DOJ was prepared to defend — essentially all cases.

“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,” the OIP guidelines stated.

In sharp contrast to previous administrations, the Justice Department under Holder did little to implement these new defensive standards after their announcement in March of 2009. Patrice McDermott, executive director of OpenTheGovernment.org, noted. “we don’t know of any guidelines being set out.”

When implementing other aspects of the Holder directive, the OIP took many steps including the issuance of guidance and procedures, holding meetings and conducting training sessions for all federal agencies. However, it did nothing concrete to implement the change in defensive standards. Indeed, when asked by TRAC Co-Director Susan Long, at a panel discussion sponsored by the American Bar Association, what steps or actions DOJ had taken to ensure that the defensive standards were being implemented appropriately, Melanie Ann Pustay, director of the DOJ’s Office of Information Policy, stated that there were none, as nothing further was needed beyond what the AG’s March 2009 directive had stated.

This would seem improbable, considering the sharp turn in policy described by Holder, and considering the efforts made under previous attorneys general. It is also disturbing because it demonstrates a lack of commitment at the top of the food chain. If DOJ staff are going to possibly consider backing off of a case, there are going to be questions and there is going to be pushback, and the type of messages sent by those at the top during the Reno and Ashcroft eras are not only non-existent, but are replaced by the message that no further action is needed.

As recently as Feb. 24, 2012, Director Pustay declared in a radio interview that great advances in the FOIA process had been achieved — and credited Holder’s March 2009 memo as the catalyst. Although changing defensive standards was a major and specific directive in Holder’s memo, she again made no mention at all of FOIA litigation, success in changing the standards by which FOIA cases are determined worthy of defending, or even any effort to do so.

No Known Changes in Court Cases

A coalition of open government advocates has repeatedly asked for, among other things, a list of cases in which the DOJ has made the decision to stop defending a FOIA denial. The group, which includes The National Security Archive, the Electronic Frontier Foundation, the American Civil Liberties Union, Citizens for Responsibility and Ethics in Washington and OpenTheGovernment.org, has made these requests both in-person and in formal written letters.

David Sobel, senior counsel for the Electronic Frontier Foundation, said that on Dec. 9, 2009 — nearly nine months after Holder issued his directive — the group asked Assistant Attorney General Thomas J. Perrelli, who oversees internal DOJ policy as well as numerous offices including the Civil Division and OIP, for a list of cases. The request was reiterated, in writing, in a letter signed by all five of the organizations, sent to Perrelli on Jan. 25, 2010.

“To date we have seen no list,” Sobel said.

An attempt by TRAC to isolate a number of FOIA-related lawsuits that were pending when the Holder memo was released and analyze them to find whether an obvious change in policy was evident yielded no apparent occasions.

No Evidence of Change in Defensive Standards

In addition to the absence of any official record from the DOJ that some sort of steps had been taken to carry out such a “flip” in official agency policy, TRAC was also unable, through examination of files and interviews with attorneys involved with FOIA litigation, to identify a single instance of the DOJ declining to defend a FOIA withholding case.

Scott Hodes, an attorney in private practice who specializes in FOIA litigation and who from 1998 to 2002 was the acting unit chief of the DOJ’s FOIA/Privacy Act Section’s litigation unit, said he knew of no cases, his own or others, where the DOJ has indicated a change in its defensive standards. On the question of whether there was an effort to change, Hodes was blunt, saying that he believes DOJ attorneys handling FOIA cases don’t consider the documents at the center of a FOIA denial case, and maintain a policy of always defending the cases.

“They will still pretty much defend a ham sandwich in a FOIA exemption case,” Hodes told TRAC.

The reason for this, Hodes said, was because there was no backing for a change from higher up in the agency that provided the support or infrastructure for attorneys handling cases to decide not to defend a case.

“I think the important thing is that there has been no training, specifically for FOIA litigators. There’s no guidelines — there isn’t even discussion of when they should release something. Quite frankly, they’re not serious about it.”

If Hodes has found no change, and instead a stolid insistence on defending cases no matter what, others have seen the opposite — an increased aggressiveness in defending cases.

Weismann, whose organization CREW has filed many FOIA-related lawsuits, said that in her own experience, not only have there been no signs of relaxing the defensive standards, the opposite seems to be true.

“All I can tell you is that in every case I have, the Department of Justice is litigating as aggressively as ever, and in many ways seems to go out of its way to more aggressively defend agency withholdings,” she said.

Jason Aldrich, a staff attorney at Judicial Watch who worked on two lawsuits that were examined by TRAC to see if they were affected by the new policy (neither were), said that in 12 years of litigating FOIA-related cases, extending back to the Clinton administration, he has seen no signs that DOJ attorneys are less likely to defend a case.

“I’m not really seeing any additional openness or willingness to exercise discretion, if anything people are just hunkering down, especially anything that looks like it might be remotely political,” he told TRAC.

Just this year, in a FOIA case that TRAC filed, and that is now before the Second Circuit Court of Appeals, the Justice Department attorney argued that the government was entitled to withhold the names of many political appointees on government employment rolls — extending even to withholding the name of the head of a federal agency — even though names of federal employees had been a matter of public record since 1816. In that same case, the DOJ attorney also argued that data compiled for statistical purposes containing the county or city where federal workers were located was exempt from disclosure on privacy grounds, whether or not it was possible to associate the data with any identifiable individual.

Supporting these observations, the National Security Archive recently “honored” the Department of Justice for contradicting the stated policy of “presuming disclosure.” Among the acts earning the DOJ this dubious award were statements made by Assistant to the Solicitor General Anthony Yang during oral arguments before the United States Supreme Court on Jan. 19, 2011 (in the Federal Communications Commission et al v. AT&T Inc., et al). Asked by Associate Justice Antonin Scalia about the long established rule that exemptions to the FOIA law should be applied as narrowly as possible, Yang replied: “We do not embrace that principle.”

Conclusion

Available evidence indicates that no affirmative steps needed to implement the new defensive standards were ever taken. Further, there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding. In short, the new defensive standards seem to have become simply empty words on paper.