The Obama Administration has approved a new set of guidelines concerning implementation of the Freedom of Information Act.  This memo replaces the aging Ashcroft memo and its antiquated transparency principles.  In fulfillment of President Obama’s Jan. 21 order, the DOJ has acted with impressive speed and emphasis - this memo shows great promise for government openness and the public’s ability to access government information.

If you remember, the last two memos on FOIA by Attorneys General Reno and Aschroft came out in October of their respective years.  The Holder memo, however, is being released within the first 100 days signifying an increased recognition in the administration that transparency is critical to accountability.

The Reno memo, a pre-9/11 product, had established the standard of government openness that promoted the release of information absent of foreseeable harm.  The later Ashcroft memo which replaced Reno became emblematic of post-9/11 paranoia by instilling the principle of “when in doubt, classify.” 

Studies and media coverage, however, demonstrated that the Ashcroft memo led to massive overclassification and did more harm than good.  Increased secrecy was an enormous financial burden to taxpayers, led to inconsistent practices regarding declassification, and enabled the federal government to hide gross violations of the public trust.  It is our hope that the new guidance will resolve these problems for, at least, the duration of the current administration.

What we see in this version is a complete reversal of the Aschroft memo.  Using the Reno document as its foundation, the administration takes these critical steps forward:

• The DOJ will only defend witholdings in court that demonstrate a reasonably foreseeable risk of harm to an interest protected by FOIA exemptions or statutory law.
• Adding enforcement measures by holding FOIA Officers accountable for compliance with the law and in recommending "adjustments to agency practices, personnel, and funding"
• Encouraging agencies to post information online that is in the public interest in advance of public requests to do so.
• Focusing on timeliness, stating that "unnecessary bureaucratic hurdles have no place in the 'new era of open government' that the President has proclaimed."

Further, the memo's guidelines will be applied to existing pending litigation "if practicable" and where there is a "substantial likelihood" that the guidance would result in material disclosure.  Although it doesn't stray far from the Reno memo, the Obama administration seems to have gone beyond it particularly in adding the proactive disclosure and enforcement elements.

 Image by Flickr user Mooganic used under a creative commons liscence.