On April 17, the Office of Information Policy (OIP) at the Justice Department (DOJ) issued new guidance that expands upon the March 2009 FOIA memo by Eric Holder.  The OIP assessed the impact of Holder’s new guidelines as “a sea change in the way transparency is viewed across the government” and that implementation would require agencies to “review all aspects of their approach to transparency.”  The OIP further defined some of the accountability statements of the memo.

We are still waiting for agencies to begin acting on the proactive disclosure elements of the FOIA guidelines.  One of the Holder memo directions was to “not wait for specific requests from the public” but to act in advance of public requests in releasing information.  The recently released OIP guidance goes further to suggest that agencies implement systems to routinely identify and systematically post such information.

There has been much consternation over whether or not the March guidelines have any teeth to them.  Certain organizations have already pointed out that agencies have yet to comply with the new guidelines.  EFF has criticized the FBI, for example, because the new guidelines favor discretionary release for what are referred to as “low 2” records but the Bureau has continued to withhold such records anyway.  “Low 2” refers to records that contain control markings that agencies contend are of little to no interest to the public and used solely for internal purposes.  These records technically fit under Exemption 2 of FOIA, but agencies have attempted to apply this more broadly and withhold records of entire databases simply because they are for internal use only.

The new OIP guidelines, however, impose a requirement that all Chief FOIA Officers report annually to the DOJ on the steps that they have taken to improve transparency in their agency.  They also mandate that the Chief FOIA Officer at each agency conduct a comprehensive review of FOIA practices for timeliness and to identify other problems such as backlog issues and resource requirements.  Regardless, OIP does not describe what actions, if any, that it will take to enforce penalties for noncompliance.