Executive Branch Guidance

Provided by The Reporters Committee for Freedom of the Press
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Various administrations have issued guidance to executive branch agencies on the implementation and functioning of FOIA. Such guidance usually comes from the President or Attorney General. The Office of Information Policy at the Department of Justice also provides information and guidance for agencies on FOIA, as does OGIS.

History of executive branch guidance

President Jimmy Carter

President Ronald Reagan

President Reagan and his Attorney General William French Smith issued its FOIA policy on January 1st, 1981. This superseded the Carter administration's previous guidelines from 1977.
In the memo, Smith states that the Department of Justice's policy is to, "defend all suits challenging an agency's decision to deny a request submitted under the FOIA unless it is determined that:

  • (a) The agency's denial lacks a substantial legal basis; or
  • (b) Defense of the agency's denial presents an unwarranted risk of adverse impact on other agencies' ability to protect important records."

Reagan's emphasis on defending any case where there was material that could be exempt under FOIA countered the policies of the previous Carter and Ford administrations. Before Reagan took office, government agencies normally would release as much information and material as they could, even releasing some information that was technically exempt.
In addition to the FOIA guidance, Reagan also was in office during the 1986 FOIA Amendments, which increased the ability of the government to withhold law enforcement agencies' records.

President George H.W. Bush

President Bush upheld the FOIA guidance of the Reagan administration during his time in office.

President Bill Clinton

On October 4, 1993, Bill Clinton and his Attorney General Janet Reno issued their guidance on FOIA. Clinton and Reno rescinded a a 1981 rule from the Reagan Administration asking agencies to withhold information and documents that had a "substantial legal basis" behind not releasing them. Instead, Clinton shifted the focus from encouraging withholding information to a "presumption of disclosure". Under this policy, Reno said that the Department of Justice would defend agencies that are sued for non disclosure "only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption. 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."
In the memorandum, President Clinton wrote, "the use of the [Freedom of Information Act] by ordinary citizens is not complicated, nor should it be. The existence of unnecessary bureaucratic hurdles has no place in its implementation."

President George W. Bush

On October 12, 2001, barely a month after the attacks of September 11th, George W. Bush's Attorney General John Ashcroft sent out a memorandum for all heads of federal departments. In the memo, Ashcroft emphasizes the Bush administrations compliance with FOIA, but states that the "Department of Justice and [the Bush Administration] are equally committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy."

The Ashcroft standard encouraged federal agencies to thoroughly consider reasons for invoking exemptions to FOIA, and assured agency personnel that the Justice Department would fully support denials of exempt material so long as they were legally defensible and would not jeopardize the government’s ability to continue to withhold other information.[1]

President Barack Obama

On President Barack Obama’s first full day in office — Jan. 21, 2009 — he issued two memos addressing government transparency and FOIA. Announcing that his administration is “committed to creating an unprecedented level of openness in Government,” Obama’s Memorandum on Transparency and Open Government pledged that the White House would work with the public “to ensure the public trust and establish a system of transparency, public participation, and collaboration.”[2]

With regard to FOIA, President Obama's Memorandum on the Freedom of Information Act[3] directed his incoming attorney general to reestablish the presumption of disclosure for government records. This memo was almost certainly meant to address the previous standard established in 2001 by former U.S. Attorney General John Ashcroft under the administration of George W. Bush.

Obama’s Day One memorandum brought the administration’s interpretation of FOIA back in step with the 1993 memorandum issued by then-Attorney General Janet Reno. She had instructed agencies to use their discretion to release documents. Even if requested information arguably or technically fell within an exemption, agencies were not to invoke that exemption unless they could point to a “foreseeable harm” that would come from disclosure.[4]

The January 2009 Obama directive is even more proactive, ordering agencies to take “affirmative steps to make information public. They should not wait for specific requests from the public. All agencies should use modern technology to inform citizens about what is known and done by their Government.” Finally, it urges timely disclosure — a long-standing barrier to filling requests.

President Donald Trump

President Donald Trump's administration did not issue new guidance regarding FOIA.

Current guidance

On March 15, 2022, Attorney General Merrick Garland issued a FOIA memorandum directed to all executive department heads.[5]  The memo emphasizes FOIA’s presumption of openness and underscores several key tenets of FOIA, including its foreseeable harm provision, its mandate of segregability, and proactive disclosure of records in which there is significant public interest.  It encourages agencies to prioritize addressing their backlogs which cause significant delays in FOIA administration and also prompts agencies to leverage technology to facilitate easier access to government records. The memo's issuance was tied to Sunshine Week 2022.

OGIS guidance

See also OGIS

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OIP information and guidance

In 2023, OIP issued comprehensive guidance on applying FOIA's presumption of disclosure and implementing its foreseeable harm provision.[6] In that guidance, OIP reiterates the following key principles:
- Agencies may not withhold information based merely on speculative or abstract fears or fears of embarrassment.
- The foreseeable harm provision applies to each of FOIA's discretionary exemptions.
Further, it clarifies:

Particularly for large volumes of records, agency FOIA professionals should employ practical and efficient means of sufficiently assessing foreseeable harm with the information and context that is readily available to them. When assessing foreseeable harm, agencies may consider factors such as the age of the record, prior official disclosures that might weaken the foreseeable harms from disclosure of the record, and the overall sensitivity of the record in light of its context and purpose.[7]

See Also

External Links


  1. Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (Oct. 12, 2001)
  2. https://www.whitehouse.gov/the_press_office/TransparencyandOpenGovernment
  3. https://www.whitehouse.gov/the_press_office/FreedomofInformationAct
  4. Memorandum from the Office of the Attorney General to the Heads of Departments and Agencies (Oct. 4, 1993)
  5. Office of the Atty Gen., Memorandum for Heads of Executive Dep'ts and Agencies (Mar. 15, 2022), https://www.justice.gov/ag/page/file/1483516/download
  6. "OIP Guidance: Applying a Presumption of Openness and the Foreseeable Harm Standard". April 12, 2023.
  7. Id.