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Attorney General Garland Calls for More Openness From Federal Agencies

by Kevin W. Bliss
Attorney General Merrick Garland released a new set of Freedom of Information Act (“FOIA”) guidelines March 16, 2022. The guidelines call for more dedication to openness and proactive disclosures from government agencies. Simultaneously, the Government Accountability Office (“GAO”) was asked to conduct a comprehensive study on systemic issues that would prevent federal agencies from complying with these guidelines.

A series of FOIA guidelines recently released focuses more on openness from federal agencies. The Department of Justice (“DOJ”) stated that it would no longer defend decisions that failed to meet the presumption of openness first.

There currently exists nine exemptions to the FOIA where the requested information would not be made public. Yet, the new guidelines state that a government agency should not rely on these exemptions but use them sparingly.

The guidelines read: “Information that might technically fall within an exemption should not be withheld from an FOIA requester unless the agency can identify a foreseeable harm or legal bar to disclosure. In case of doubt, openness should prevail.”

The guidelines require quicker response time, contemporary e-communication for request processing, and proactive disclosure of frequently requested documents. The GAO stated that not one of 25 agencies reviewed published a proactive disclosure during Fiscal Year 2018 or 2019.

In addition to the guidelines, U.S. House Representatives Carolyn Maloney and James Comer together with U.S. Senators Richard Durbin and Chcuk Grassley wrote a letter to Comptroller General Gene Dodardo asking for an analysis from the GAO on the new guidelines. The completed analysis urged chief FOIA officers to do a critical review of administration and procedures to make request processing faster and more efficient. Agencies need to take advantage of updated electronic communications and that leadership support and proper training are highly important in this transition.

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