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.
“I am pleased that the attorney general has moved quickly,” said Sen. Patrick Leahy, D-Vt., chairman of the Senate Judiciary Committee and a longtime proponent of the Freedom of Information Act. Leahy called the new policy “a fresh and welcomed start to the new era of government responsibility.”
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.