Attorney General Releases Administration’s Updated Guidance Amid Surge in FOIA Request Denials
Renzo Velez | POGO
On Tuesday, Attorney General (AG) Merrick Garland issued guidance to agency leadership regarding the Freedom of Information Act (P.L. 89-487), or FOIA. The guidance follows recent actions by a congressional coalition and civil society urging the Justice Department to address government transparency.
FOIA generally prohibits federal agencies from withholding public records, yet exemptions exist that enable the concealment of partial or whole documents. As a preventive measure, AGs have historically issued standards in the first year of a new administration. Growing apprehension concerning AG Garland's delay in implementing guidance coupled with reports of an increase in FOIA requests denials prompted a bipartisan group of lawmakers to urge the AG to emphasize federal transparency and set a standard of openness when handling FOIA requests.
Reps. Carolyn Maloney (D-NY) and James Comer (R-KY), Chair and Ranking Member of the House Committee on Oversight and Reform; Senators Dick Durbin (D-IL) and Chuck Grassley (R-IA), Chair and Ranking Member of the Senate Committee on the Judiciary; Senator Patrick Leahy (D-VT), Chair of the Judiciary's Subcommittee on Intellectual Property; and Senator John Cornyn, Ranking Member of the Judiciary's Subcommittee on Immigration, Citizenship, and Border Safety, penned the letter.
"The American people deserve an open and transparent government,” stated Rep. Comer, "Attorney General Garland’s long overdue FOIA guidance encourages agencies to fully comply with the law."
The Government Accountability Office (GAO) found that agencies used statutory exemptions more frequently from 2012 to 2019. The GAO's report documented the number of requests denied under FOIA increased by 10 percent, and the number of requests denied partially increased by 76 percent. Similarly, the GAO revealed that in the first year after the pandemic, agencies processed 12 percent fewer requests and FOIA backlogs increased by 97 percent from 2012 to 2020. GAO expected the backlog to increase further.
“Congress enacted FOIA so the American people could better understand the decisions being made by their government. FOIA requires that agencies respond to requests for information with a presumption of openness and without unnecessary withholdings, redactions, or delays,” wrote the congressional coalition, “A clear message from you that transparency is a priority would encourage agencies to fully comply with the law.”
Non-profit organizations that advocate a transparent and accountable government also asked the AG to oversee FOIA requests. The American Civil Liberties Union (ACLU), Demand Progress Education Fund, Human Rights Watch, and Project On Government Oversight (POGO), among others, urged updated guidance on interpreting the FOIA, and encouraged support of legislative reforms.
“Our hope was that the DOJ would address the government’s troubling tendency toward less disclosure and the increasing challenges requesters are facing during the FOIA process,” the organizations stated, “Unfortunately, the DOJ has historically been an obstacle to reform efforts and often resists the release of records in courts. We urge you to take up this historic opportunity to realign the Department’s approach to the FOIA, beginning with implementing a generous reading of the statute.”
Associate Attorney General (AAG) Vanita Gupta revealed the AG would release new guidelines in her Sunshine Week, outlining the Justice Department's commitment to openness and accountability.
Launched by the News Leaders Association in 2005 to honor transparency and good governance, Sunshine Week encourages citizens to make their representatives and government accountable. FEDagent, like many publications nationwide, honor the occasion by reporting on government activities disclosed in the public record, calling attention to various transparency-related measures, and highlighting violations of accountability.