Federal Manager's Daily Report

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The Justice Department has issued new guidance to agencies on compliance with the Freedom of Information Act, stressing that the law creates a “presumption of openness” and reinforcing prior directives on making “proactive” disclosures.

For example, it says that “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. In case of doubt, openness should prevail. Moreover, agencies are strongly encouraged to make discretionary disclosures of information where appropriate.”

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Agencies also may not “withhold information based merely on speculative or abstract fears or fears of embarrassment” and where part of a requested record is exempt from disclosure they must release the rest, it adds.

It also reminds agencies that the law requires them to proactively disclose certain categories of records, including previously released records that have been requested three or more times or that have become or are likely to become the subject of subsequent requests. “In making proactive disclosures, agencies should post records online as soon as feasible. Agencies should also continue to maximize their efforts to post more records online quickly and systematically in advance of any public request,” it says.

The guidance also addresses removing barriers to access, reducing backlogs and training of employees on the law’s requirements.

The memo follows a request from a bipartisan group of House and Senate members urging department to issue such guidance. Many of those same members meanwhile have asked GAO to report systemic issues that may be hindering agency compliance with the law.

In both letters, they cited separate GAO reports of recent years finding that agencies’ use of exceptions was growing faster than the number of requests received; that two dozen agencies do not have the required procedures in place to proactively disclose information that would be releasable under the law even without a request being received; and that processing of requests fell by 12 percent in 2020 over 2019 while the backlog increased by 18 percent.

They said those reports have “helped us better understand the extent of and reasons for” FOIA backlogs, and asked for a more detailed look into the causes of those backlogs, the challenges to reducing them, and potential changes to rules or laws.

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