New FoIA Policy Directives Issued p. 18

By: Debra Gersh

New FoIA Policy Directives Issued p. 18

President Clinton and Attorney General Janet Reno call for
reversal of standing policy and presumption of openness
PRESIDENT CLINTON AND Attorney General Janet Reno have issued new Freedom of Information Act policy directives that reverse standing policy and call for a presumption of openness.
"The Freedom of Information Act . . . has been one of the primary means by which members of the public inform themselves about their government," Clinton wrote in a memo to department and agency heads.
"As Vice President Gore made clear in the National Performance Review, the American people are the federal government's customers. Federal departments and agencies should handle requests for information in a customer-friendly manner," the president noted.
"The use of the Act by ordinary citizens is not complicated, nor should it be. The existence of unnecessary bureaucratic hurdles has no place in its implementation," Clinton wrote.
The instructions revoke the government's policy of the past 12 years, which was based on a 1981 federal rule that called for withholding information whenever there was a "substantial legal basis" for such action.
In its place, the Clinton policy directive not only calls for the presumption of disclosure but restricts the Justice Department's defense of FoIA challenges, which will be defended only if it is "reasonably foreseeable that disclosure would be harmful."
As Reno explained in a memo to department and agency heads, "The Department [of Justice] will no longer defend an agency's withholding of information merely because there is a 'substantial legal basis' for doing so. Rather, in determining whether or not to defend a non-disclosure decision, we will apply a presumption of disclosure.
"To be sure, the Act accommodates, through its exemption structure, the countervailing interests that can exist in both disclosure and non-disclosure of government information," Reno's memo said. "Yet, while the Act's exemptions are designed to guard against harm to governmental and private interests, I firmly believe that these exemptions are best applied with specific reference to such harm and only after consideration of the reasonably expected consequences of disclosure in each particular case."
All Justice Department regulations regarding FoIA and the Privacy Act as well as FoIA forms will be reviewed.
In addition, FoIA officers have been instructed to review all pending litigation and determine which cases can be settled based on the new policy.
More than 500 lawsuits challenging FoIA restrictions are pending, said Daniel J. Metcalfe, co-director of the Justice Department's Office of Information and Privacy.
But as Associate Attorney General Webster L. Hubbell noted, "This is an important step and a big first step, but it is not the only step."
Hubbell urged journalists to contact the department regarding FoIA, not only to complain about the backlog but to help solve other problems.
Not coincidentally, the policy memos were issued the day before the annual meeting of about 600 FoIA officers from virtually every government agency. Metcalfe said the directives would be discussed at that meeting.
News of the policy change was greeted with optimism by freedom of information advocates, although they bridled it with caution.
"I'm absolutely delighted that the attorney general has followed in [former Attorney General] Griffin Bell's footsteps to turn the attitude of federal agencies around 180 degrees. I'm very pleased that President Clinton has emphasized his interest in more open government," said Paul McMasters, executive director of the Freedom Forum First Amendment Center at Vanderbilt University, Nashville, and incoming president of the Society of Professional Journalists.
"That said, it remains to be seen whether even the president and the attorney general can change the habits of federal bureaucrats, who have felt government information belonged to them and not to the public," added McMasters, former chairman of SPJ's Freedom of Information Committee.
The "clear articulation of a policy of presumption of openness . . . will be of immense help" to FoIA officers, he added.
"As you know, nobody is harder on the federal government for its secretiveness than I am, but I exclude the FoIA handlers," said McMasters, calling them "a good group of people. They really care about getting information to the public."
He explained, "We already have a dedicated group at the handler level; it's at the policy level where the problems" occur.
Lack of resources and support are the primary reasons for FoIA officers' difficulties, he said.
Clearing the backlog of requests would be a tremendous help and would be expedited if less information were withheld.
"This represents such a radical change in attitude at the top at the Justice Department," McMasters said. He explained that historically, the department considered it a "win" if information was withheld and a "loss" if it was disclosed.
"This is a clear statement from Janet Reno that the Justice Department is going to be a friend of openness," he said.
Jane Kirtley, executive director of the Reporters Committee for Freedom of the Press, Washington, responded with "cautious optimism."
"It sounds great but the proof of the pudding will be how effectively Justice will get this in place with the existing bureaucracy," Kirtley said.
Changing the Justice Department's mindset favoring secrecy is "not going to happen overnight" but the policy "certainly is a step in the right direction," she added.
The next step likely will be the proposal of specific regulations.

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