Attorney General Merrick Garland is directing agencies to apply a “presumption of openness” when processing open records requests, as lawmakers seek a major deep dive on the issues agencies face in complying with the Freedom of Information Act.

The new FOIA guidelines issued by Garland on Tuesday also state the Justice Department will not defend decisions that fail to apply a presumption of openness. It encourages agencies to not just rely on one of nine exemptions that allows agencies to withhold information.

“Information that might technically fall within an exemption should not be withheld from a FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure,” the guidance states. “In case of doubt, openness should prevail. Moreover, agencies are strongly encouraged to make discretionary disclosures of information where appropriate.”

The guidelines, which were released during Sunshine Week, come as lawmakers ask the Government Accountability Office to conduct a “comprehensive study of systemic issues” agencies face in meeting FOIA obligations.

GAO has issued several reports in recent years on FOIA challenges facing a handful of agencies, but lawmakers are seeking a government-wide analysis as they weigh potential changes to FOIA laws.

“A broader analysis of the systemic FOIA issues across the government would be beneficial for weighing potential reforms to improve and modernize FOIA modernization,” the March 16 letter to Comptroller General Gene Dodaro states. It was led by House Committee on Oversight and Reform Chairwoman Carolyn Maloney (D-N.Y.) and Ranking Member James Comer (R-Ky.), as well as Senate Judiciary Committee Chairman Richard Durbin (D-Ill.) and Ranking Member Chuck Grassley (R-Iowa).

The COVID-19 pandemic has only made FOIA administration more challenging. A GAO report released this past January found the FOIA backlog increased by 18% from fiscal year 2019 to FY 20, with a total of 141,762 pending cases at the end of FY 20.

GAO surveyed five agencies as part of the report and found they processed less requests during FY 20 in-part due to “efforts to protect employees’ safety and provide staff with work-life balance, among other reasons.”

The new DOJ guidance also says agencies should remove barriers to accessing and reducing the FOIA request backlog, including by complying with FOIA.gov’s interoperability requirements and communicating electronically with requesters to the greatest extent possible.

“Agency FOIA professionals should continue to work with FOIA requesters in a spirit of cooperation,” the guidance states. “Each agency should actively work with requesters to remove barriers to access and to help requesters understand the FOIA process and the nature and scope of the records the agency maintains. Agencies should also ensure that they promptly communicate with requesters about their FOIA requests.”

Ginger Quintero-McCall, legal director at Demand Action, said Garland’s new guidance is a good step, but said the Biden administration needs to take additional actions to bolster FOIA.

“We’ve seen other administrations commit to a presumption of openness. We need more,” she said during a Wednesday event hosted by the Advisory Committee on Transparency. “We need greater funding and resources for FOIA offices. I bang that drum whenever I can, because I’ve worked in FOIA offices and because I know what they’re dealing with: chronically understaffed, usually don’t have access to very good technology.”

Garland’s new guidance urges, but does not direct, chief FOIA officers to undertake “comprehensive reviews of all aspects of their agencies’ FOIA administration.” The guidance stresses the importance of support from agency leadership, as well as proper training and “a full understanding of FOIA obligations by the entire agency workforce.”

Proactive disclosures

Garland’s memo also emphasizes “proactive disclosures” where agencies release records without being asked for them.

“In making proactive disclosures, agencies should post records online as soon as feasible,” it states. “Agencies should also continue to maximize their efforts to post more records online quickly and systematically in advance of any public request.”

While the FOIA Improvement Act of 2016 expanded proactively disclosure requirements for agencies, a March 2021 GAO report found 25 agencies reported zero active disclosures in FY 18 and FY 19.

Danielle Brian, executive director at the Project on Government Oversight, said increasing proactive disclosures would help relieve the FOIA backlog.

“I would like us to go to a new place where we’re focusing on proactive disclosure, where FOIA is a backstop,” Brian said during the Advisory Committee on Transparency event. “If information created by the executive branch would be released through FOIA, it should just be proactively released, should be created in a format so it’s automatically released, so we don’t have to wait for people to even know enough to ask for the information.”

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