In his confirmation hearing testimony, Attorney General Merrick Garland drew clear parallels between his task of restoring the integrity of the Justice Department today, in the wake of the Trump administration’s rampant politicization, and his early service when the department implemented policies to reaffirm its post-Watergate commitment to the rule of law. Garland noted that reading the Freedom of Information Act (FOIA) “generously” was one of those vital policies.
While Garland’s to-do list is long, improving transparency through a reinvigorated FOIA should not take a back seat. Indeed, it should be an early priority. It is notable that President Biden, unlike President Obama in 2009, did not sign a “Day One” executive order on transparency and that, at least as of this writing, Garland, unlike Attorney General Eric Holder, has not expressed any plan to issue a Justice Department memorandum on FOIA implementation.
Strengthening the implementation of FOIA is just as important to preserving our democracy today as it was following Watergate, if not more so.
We began 2021 with a deep transparency backlog.
During Congress’s impeachment inquiry into President Trump’s attempts to pressure Ukraine to investigate his political opponent, the executive branch flatly refused to turn over subpoenaed documents. Only through FOIA litigation by outside watchdogs were Congress and the public able to access documents that shed light on the Ukraine scandal. Documents released in response to FOIA requests also exposed the extent of politicization of certain Justice Department matters and numerous other examples of problematic conduct of public import during the Trump administration.
But the FOIA victories were incomplete; much more remains to be done for disclosure. Moreover, FOIA came under attack during Trump’s tenure. At some agencies, political appointees appear to have politicized FOIA processing to prevent inconvenient or damaging information from coming to light, while other agencies took unreasonable positions in court to prevent disclosure. High-ranking government officials used personal email accounts to conduct official business, preventing their records from being produced in response to FOIA requests absent litigation.
Garland should take swift action to reaffirm the executive branch’s commitment to transparency. Early in their tenures, his predecessors Holder and Janet Reno issued FOIA policy memoranda promoting administration-wide transparency. These memoranda were not perfect, and the Clinton and Obama administrations did not meet every aspiration, but they elevated transparency as a core value — as it should be. The standards articulated in the memoranda — particularly the “foreseeable harm” standard requiring agencies to justify withholding information — laid the groundwork for later congressional improvements of the law and established the standards by which those administrations agreed to be judged.
Garland can and should lead the charge in strengthening FOIA in the same way. His memo should seek to improve FOIA implementation, prevent unreasonable withholdings, and discourage politicization and unlawful recordkeeping practices. It can do this by articulating some of the following DOJ policies on what agency actions and practices the department will refuse to defend in court.
I. Require a Real “Foreseeable Harm” When Withholding Information
In 2016, Congress codified a requirement — based on policies articulated by Reno and Holder — that information could not be withheld as exempt unless disclosure would cause foreseeable harm to the interest protected by the exemption (or if disclosure was prohibited by law). In plain language, that means agencies are supposed to be able to explain why disclosure would cause harm and cannot resort to tautological reasoning to justify secrecy.
In practice, however, agencies have often continued to apply discretionary exemptions to broad swaths of material with little analysis of the actual potential harm of disclosure — and little to no consideration given to the public interest served by disclosure. USPS, for example, has applied blanket redactions to the substance of all 1,024 entries on Postmaster General Louis DeJoy’s calendar, assessing, implausibly, that harm would be caused by disclosing even a scintilla of information about his activities leading a large federal agency. And DOJ is, at least currently, defending USPS’s unreasonable stonewall in court.
What we are seeing is a presumption of secrecy, not a presumption of disclosure; a decision to withhold what the government can, not what it must.
Attorney General Garland should change the culture by leveraging DOJ’s role as lawyers for federal agencies, making clear that DOJ will defend withholdings only if agencies have reasonably assessed that a foreseeable harm could be precipitated by disclosure. To ensure agencies rigorously assess the risk of harm before withholding information, the memorandum should lay out the factors to be considered in assessing whether harm is actually sufficiently foreseeable. Because agencies most often cite the deliberative process privilege to withhold information, these factors could focus on considerations likely to arise in the release of documents that contain internal deliberations.
- Is the relevant agency decision-making process completed? The deliberative process privilege exists, in part, to prevent public confusion about agency policies. If a final agency decision or policy has already been reached and made public, there is less chance that confusion would be caused by releasing preceding deliberations.
- How sensitive is the information being withheld? The deliberative process privilege is in part intended to promote the candor of advice from lower-level agency employees to their superiors. When documents do not contain particularly sensitive information or opinions, no harm is prevented by shielding the information from disclosure. Right now, even a debate over office furniture purchases would likely be withheld. Furthermore, the deliberative process privilege is already only a qualified privilege in non-FOIA contexts and does not achieve any blanket certainty of nondisclosure that an agency might argue is necessary to promote candid advice among subordinate officials. In litigation over high-profile Trump administration policies regarding, for example, the census, immigration, and the military’s ban on service by transgender people, plaintiffs provided sufficient showing of need for deliberative information. Courts never intended for the privilege to be absolute, and executive branch employees do not, even now, have ironclad confidence that their opinions will not become public.
- How old are the documents and the decision-making process? The potential for the release of information to discourage candor or create public confusion often diminishes as more time passes following a policy’s implementation. And of course, the potential harm to one’s willingness to share candid opinions diminishes even further when the records reflect the opinions of political appointees who are no longer in government.
- Would a significant public interest be served by disclosure? If records contain information of significant public interest, such as documents that show potential wrongdoing or that would shed light on matters of significant public concern, the benefit of that public interest should be weighed in assessing any potential harms that could result from disclosure.
II. Ensure Basic Preservation of Records Responsive to FOIA Requests
The Justice Department is responsible for defending in court the legal sufficiency of agencies’ searches for documents responsive to FOIA requests, a responsibility it should take seriously by adopting principles to guard against spoliation or data loss.
Garland’s memorandum should remind agency officials of their obligation to preserve records under the Federal Records Act, and should make clear that DOJ will not defend an agency’s search as legally adequate when there are indications that relevant officials may not have transferred or otherwise made available all relevant agency records, such as work-related communications that took place using personal accounts. For example, if emails produced in response to a FOIA request indicate that an official was also communicating through personal text messages, DOJ should not defend an agency’s search as legally adequate if it has not also searched the official’s text messages for responsive records.
Garland’s memorandum should also direct agencies to take sufficient steps to preserve potentially responsive documents — including through sending preservation holds to relevant officials — as soon as litigation over a FOIA request is reasonably foreseeable. If agencies fail to take appropriate preservation steps, DOJ should decline to defend the legal sufficiency of searches until the agencies undertake rigorous efforts to determine whether any responsive records were removed or destroyed and, if so, undertake to recover any such records.
III. Make Clear That Documents May Not Be Withheld for Political Reasons
During the Trump administration, agencies sometimes took plainly unreasonable positions in FOIA cases or otherwise manipulated the FOIA process to prevent disclosure. Scott Pruitt allegedly directed the EPA to process records from the prior administration before releasing documents created during his tenure — thereby delaying release of information that could be politically troublesome for him. Key documents related to Interior Secretary David Bernhardt’s service were withheld until after he was confirmed to serve in a permanent capacity. The Small Business Administration argued that Paycheck Protection Program loan recipient data was exempt from disclosure, even after the administration had stated it would be made public and despite the agency’s historical practice of releasing similar information. Finally, under DeJoy, USPS first argued that his agency calendar was a personal record not subject to FOIA (despite the fact that other agencies regularly release such calendars) and then, after being sued, produced the calendar — with all substance redacted.
Garland needs to rebalance the equation inside the administration. His memorandum should make clear that DOJ will not defend withholding or delaying the release of responsive records for political reasons and, relatedly, will not defend agencies’ unreasonable legal grounds for preventing disclosure of public records.
Garland testified that he aspires to a “generous” FOIA. Without implementation, aspirational testimony is not policy. He should take immediate, tangible steps to restore transparency to its rightful place. Indeed, government transparency is a core value of our democracy and embodied in FOIA.
Reno and Holder sent a clear message to the executive branch that the Department of Justice was committed to making the promise of FOIA real, and their policies laid the groundwork for later congressional action. As Garland seems to recognize, our democratic institutions and norms are more vulnerable now than at any point in recent memory. By powerfully demonstrating DOJ’s commitment to the vitality of the law that affords the public information about “what it’s government is up to,” Garland can help rebuild and strengthen our democracy. Issuing a FOIA policy memorandum is a necessary step.