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Breaking: new FOIA guidelines released

This is great news, especially given it’s coming during Sunshine Week! This looks like a repudiation of the Ashcroft memo which had reversed FOIA regulations that had been based on guidelines which had established a “presumption” in favor disclosure. The Ashcroft memo reversed those regulations and told agencies to “carefully consider the fundamental values behind the exemptions – national security, privacy, government’s interests, etc – and to lean in their favor whenever possible.” (quoted from Coalition of Journalists for Open Government).

Official: US to Release Data Unless Harm Foreseen. NY Times, March 19, 2009


The guidelines were expected to be released later Thursday, amid Sunshine Week, an annual national observation by journalism groups and other organizations to promote open government and freedom of information.

The new standard essentially returns to one issued by Attorney General Janet Reno during the Clinton administration. It would replace a more restrictive policy imposed by the Bush administration under which the Justice Department would defend any sound legal argument for withholding records.

Justice is responsible for government-wide guidance on how to implement the records law because it defends agencies in court if they are sued by people who disagree with a decision to withhold records. Under the Holder standard, Justice lawyers would not defend a decision to withhold records unless their release could be shown to produce foreseeable harm.

The new standards were also expected to encourage agencies to release more documents where the law leaves the decision to their discretion — an amplification of Obama’s order that they adopt a ”presumption for disclosure.”

The standards could also affect the outcome of a dozen or more pending lawsuits, including ones to obtain the legal rationales behind Bush administration anti-terrorism tactics like wiretapping Americans without a warrant and harsh interrogation of terrorism detainees.

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