Beltway Bulletin

Attorney General Merrick Garland Seeks to Improve Compliance With the Freedom of Information Act

By Cissy Jackson and Dan Renberg

Before joining Arent Fox, Cissy Jackson served as counsel and national security adviser to Sen. Doug Jones, D-Ala. Jackson also has extensive experience in the private practice of law, handling white collar, False Claims Act, grand jury investigation, and commercial property tax appeal matters. She has represented multinational corporations, small businesses, and individuals in high-stakes civil and criminal litigation. Dan Renberg is a former senior Senate staff member and presidential appointee and has helped numerous clients since joining Arent Fox as a partner in 2003. Recognized as a top federal lobbyist, one of Renberg’s advocacy efforts was included in the “Top 10 Lobbying Triumphs of 2009” by The Hill, and he has been listed annually since 2014 in The Best Lawyers in America. “Sunlight is said to be the best of disinfectants.” —Louis D. Brandeis, 1913

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, was intended to help ensure transparency, accessibility, and accountability in government by providing access to government documents and records. The act provides every person with the legal right to access official records held by government departments and public bodies, the right to correct or update personal information held about them, and the right to be given reasons for decisions by public bodies that affect them. Enacted in 1966 and amended several times since, FOIA’s processes have frequently been criticized as frustrating and ineffective. Indeed, the difficulty of obtaining information under FOIA spurred New Jersey high school students researching unsolved civil rights crimes to draft legislation that would enable people looking for such records to avoid having to go through the FOIA process at all. Their idea was to establish a digitized public collection of these records at the National Archives. In a remarkable example of constituent engagement in our democratic system, the students’ bill, the Civil Rights Cold Case Records Collection Act, became law in 2019, only six months after it was filed.

On Jan. 26, the Government Accountability Office (GAO) released a report assessing the pandemic’s impact on FOIA administration.1 The GAO reported that FOIA requests declined by 8 percent in fiscal year 2020 compared to fiscal year 2019. Nevertheless, agencies processed roughly 12 percent fewer requests during this period, and the already substantial backlog of FOIA requests has continued to grow in recent years. According to the report, “[f]rom fiscal years 2012 to 2020, the government-wide [FOIA request] backlog increased by 97 percent.”

On March 15, Attorney General Merrick Garland issued a memorandum2 to the heads of executive departments and agencies providing guidelines intended to “update and strengthen the federal government’s commitment to the fair and effective administration of FOIA.” The Senate Judiciary Committee turned its attention to FOIA shortly thereafter, with a March 29 hearing. Standing in for Chair Dick Durbin, D-Ill., Sen. Patrick Leahy, D-Vt., noted several instances when FOIA requests made important contributions to government accountability but acknowledged that there is room for improvement. Ranking Member Chuck Grassley, R-Iowa, complimented the attorney general on having issued the guidelines but expressed skepticism about their prospects for significant impact.

The new 2022 guidelines focus on four objectives: reinforcing a commitment to the act’s presumption of openness, encouraging more timely and fulsome proactive disclosures, removing barriers to access and reducing request backlogs, and ensuring fair and effective administration of the act’s processes. The memo offers a number of recommendations with respect to each of these objectives, many of which highlight particular provisions of the act. Additionally, as part of the Department of Justice’s (DOJ’s) effort to remove barriers to access and to reduce backlogs, the memo announces that the Executive Office for Immigration Review will no longer require individuals to file FOIA requests to obtain their own immigration court records and urges other agencies to make similar kinds of records more readily available. The memo also reminds agency chief FOIA officers to review all aspects of their FOIA administration, paying specific attention to their backlogs and their allocation of resources to FOIA compliance.

The presumption of openness is fundamental to the purposes of the act, and in that regard, the attorney general’s memo makes clear that under FOIA, agencies must identify a concrete—as opposed to speculative—foreseeable harm or legal bar to disclosure and says agencies should confirm in writing that they have considered the foreseeable harm standard when applying FOIA exemptions to a particular request. The memo further emphasizes that the act places the burden on the agency to justify a decision to withhold

information and that DOJ will not defend an agency’s decision that is inconsistent with the act or DOJ’s guidelines.

A commitment to these principles can certainly help agencies better fulfill their obligations under FOIA and help the act fulfill its purpose. Even with dedication and commitment, however, agencies have limited resources, as was mentioned several times during the Senate Judiciary Committee hearing. At the conclusion of the hearing, Senator Leahy asked the witnesses to highlight one or two interventions that Congress or the agencies could make to fundamentally improve FOIA administration. In her response, witness Alina Semo, director of the Office of Government Information (OGIS) at the National Archives and Records Administration made an important point: FOIA is not the primary mission of most agencies, and as a result, FOIA programs often don’t receive the attention and funding they deserve. She encouraged Congress to change that focus.

The attorney general’s memo merely sets forth “guidelines”—using words like “should” and “encourage”—and the Senate Judiciary hearing was not focused on any proposed legislative changes to FOIA. Whether Congress and the agencies will implement the attorney general’s recommendations as well as those offered by OGIS and GAO, and whether doing so measurably improves administration of FOIA, remains to be seen.  1U.S. Gov’t Accountability Off., Freedom of Information Act: Selected Agencies Adapted to the COVID-19 Pandemic but Face Ongoing Challenges and Backlogs (Jan. 2022), https://www.gao.gov/assets/gao-22-105040.pdf. 2Off. of the Att’y Gen., Memorandum for Heads of Executive Departments and Agencies (Mar. 15, 2022), https://www.justice.gov/ ag/page/file/1483516/download.

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