Research Questions Obama Administration FOIA Policy

5 March 2012

Research by The FOIA Project questions whether an early Obama administration policy shift has made any difference in the handling of freedom of information cases.

In March 2009 the new administration issued a directive which set forth new “defensive standards” memo that reversed a Bush administration interpretation. Under the new standard, the Department of Justice would “defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law.”

The FOIA Project, however, has concluded that “there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding.”

“In short, the new defensive standards seem to have become simply empty words on paper,” according to the group, which follows FOI developments and archives FOIA requests. The FOIA Project is associated with the Transactional Records Access Clearinghouse (TRAC),  a research center at Syracuse University.

Various groups have asked unsuccessfully for the Justice Department to document cases where the new standard was applied. The FOIA Project trolled for examples, without success, reporting that “found little evidence that these new standards are actually being followed.”

“In fact, some individuals interviewed by TRAC expressed the opinion that Justice Department attorneys had become even more aggressive in defending anything that federal agencies chose to withhold,” according to the report.

The groups also says that “available evidence indicates that no affirmative steps needed to implement the new defensive standards were ever taken.”

Further, there is little evidence that these new standards have made any impact on actual Department of Justice practices in defending federal agency withholding. In short, the new defensive standards seem to have become simply empty words on paper.

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