WASHINGTON - The Obama administration advised federal agencies Thursday to release their records and information to the public unless foreseeable harm would result.
Attorney General Eric Holder issued new guidelines fleshing out President Barack Obama's Jan. 21 order to reveal more government records to the public under the Freedom of Information Act, whenever another law doesn't prohibit release.
The new standard essentially returned to one issued by Attorney General Janet Reno during the Clinton administration. It replaced a more restrictive policy imposed by the Bush administration under which the Justice Department defended any sound legal argument for withholding records.
"We are making a critical change that will restore the public's ability to access information in a timely manner," Holder said in a written statement.
Obama had given Holder until mid-May to issue these guidelines, but the attorney general acted much more quickly. They came out during Sunshine Week, an annual observation by journalists and other groups to promote freedom of information. Some open-government advocates had suggested such timing to the new administration and applauded its fast action.
Holder also directed that the new standard be used to re-evaluate the government's position in some, but not all, pending lawsuits challenging prior decisions to withhold records. He said the new guidance should be applied to those cases "if practicable when ... there is a substantial likelihood" that would make more material public.
Many of the outstanding lawsuits challenge the Bush administration's refusal to release the legal arguments supporting its anti-terrorism tactics, such as wiretapping Americans in this country without a warrant and its detention and treatment of terror suspects.
In a handful of those pending lawsuits, while the guidelines were still being drafted, the Obama Justice Department opposed or informally rejected delays suggested by the document requesters for the very purpose of giving Obama officials time to re-evaluate the government position.
With guidelines now out explicitly authorizing such review, the government position might change in some cases.
An attorney in several pending lawsuits, David Sobel, of the Electronic Frontier Foundation, a digital rights advocate, was pleased by Holder's decision to review some existing cases and said it should open more records to public view.
"Both the president and the attorney general have now articulated an extremely pro-disclosure policy for the federal government, and that is a very positive development," Sobel said. "If there is really a new presumption in favor of disclosure, one would expect to see the outright reversal of many Bush-era decisions to withhold information."
In fact, the Obama Justice Department recently voluntarily released some of the legal opinions sought in one pending case, including a Bush-era paper that argued U.S. troops could pursue terrorists in this country without obeying the Fourth Amendment ban on unreasonable searches and seizures.
"The new attorney general guidelines read as if there is a new show in town and for the first time in eight years everyone is welcome to come see it," said Meredith Fuchs, counsel for the National Security Archive, a private group that published declassified government documents and files many record requests. Fuchs said the Holder memo ought to help the Archive's lawsuit to obtain the legal memos on warrantless wiretapping.
Justice is responsible for governmentwide guidance on how to obey the records law because its lawyers defend agencies in court when they are sued by people who disagree with a decision to withhold records. Under the Holder standard, Justice lawyers would not defend a decision to withhold records unless their release could be shown to produce foreseeable harm.
In amplifying Obama's order that agencies adopt "a presumption for disclosure," the Holder guidelines told agencies not to withhold records merely because they are technically covered by an exemption in the act and urged them to voluntarily make information public in widely useable formats even before people request it.
"Agencies should readily and systematically post information online in advance of any public request," the guidelines said.
The Freedom of Information Act became law in 1967. Since then, Democratic and Republican administrations have engaged in a three-decade pingpong game over how to enforce it, with Democrats favoring more release than Republicans.
In May 1977, President Jimmy Carter's attorney general, Griffin Bell, issued guidance to err on the side of releasing information and said the Justice Department would only defend withholding records whose release could cause "demonstrable harm." In 1981 under President Ronald Reagan, Attorney General William French Smith reversed that. Smith told them: When in doubt, withhold; and Justice would defend any "substantial legal basis" for withholding records.
Under President Bill Clinton, Reno reversed it again; she told agencies the presumption should be for release and she would only defend withholding information to prevent "foreseeable harm."
But President George W. Bush's first attorney general, John Ashcroft, went back the other way in October 2001. He told agencies that he would defend any sound legal justification for withholding documents.