President Orders Presumption of Disclosure in FOIA Matters

President Orders Presumption of Disclosure in FOIA Matters

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On January 21, 2009, President Obama, on his first full day in office, issued a memorandum emphasizing a shift towards government transparency. The memorandum noted that "the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government," and instructed that FOIA should be administered by federal agencies with a "clear presumption" that "[i]n the face of doubt, openness prevails." The memorandum directed the Attorney General to issue and publish new guidelines governing FOIA.

The President's memorandum continues the focus on transparency evident in the Obama administration's transition, which included meetings with pro-transparency organizations for the purpose of soliciting views on how FOIA administration and policy can be improved. The memorandum marks a substantial break with the approach to FOIA of the outgoing Bush administration, which, under the directive issued by then-Attorney General John Ashcroft in October 2001, advocated a more limited approach to FOIA disclosure and a vigorous defense of agencies' decisions not to disclose information.

The practical impact of the President's memorandum remains to be seen from the Attorney General's forthcoming guidelines, and the manner in which they are applied to particular FOIA requests. Of particular relevance to the business community, the memorandum is silent as to what changes, if any, will be made to the policies regarding the disclosure or non-disclosure of information obtained by the government from private parties, such as trade secrets or commercial or financial information. See 5 U.S.C. § 552(b). The Obama administration's signals may cause some federal agencies to be more willing to disclose information obtained from private entities. If so, this may lead to a rise in requests for disclosure by the press, consumers and/or competitors, and in filings of reverse-FOIA claims by businesses seeking to block or limit such disclosure.

WilmerHale will continue to monitor developments in the administration's approach under FOIA.

To view President Obama's January 21, 2009 Memorandum, click here.

To view the October 12, 2001 Memorandum by Attorney General Ashcroft, click here.

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