The guidance addresses standards that agencies should use when deciding whether to deny a disclosure on the grounds that it would cause foreseeable harm. Image: Kristi Blokhin/Shutterstock.com
By: FEDweek StaffThe Justice Department has issued new guidance to agencies on carrying out policies it set last year stressing the “presumption of openness” under the Freedom of Information Act and “prompt and cooperative communication” with requesters.
“Applying a presumption of openness means that agencies should continue to consider all disclosure determinations with transparency in mind. Records should be reviewed with an eye toward determining what can be disclosed, rather than what can be withheld . . . When full disclosure of a record is not possible, agencies should consider making a partial disclosure,” it says.
It also notes that the 2022 policies “strongly encourage making discretionary releases whenever appropriate, even when the elements of an exemption and the requirements of the foreseeable harm standard are technically met. Among other factors, agencies may consider discretionary releases of information when the reasonable likelihood of significant harm occurring is low and the public interest in the information is high.”
Regarding communication with requesters, it says that when they inquire about the status of FOIA requests or request an estimated date of completion, agencies should “respond promptly and provide specific updates to keep requesters informed Agencies should also communicate with requesters when doing so will further the processing of the request, such as to clarify issues regarding the nature or scope of the request, the applicability of fees, or any justification for expedited processing.”
Further, final agency determinations “should clearly explain the basis for any denials, including, if applicable, any FOIA exemptions asserted and the number of records withheld, except in circumstances where this would cause harm.”
In addition, the guidance addresses standards that agencies should use when deciding whether to deny a disclosure on the grounds that it would cause foreseeable harm, as allowed by several of the exceptions under the FOIA. Among other points, it says that agencies should individually consider the applicable harms for each record or similar category of records rather than make a generalized denial and should consult with subject matter experts if the potential for harm is unclear.
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