The FOIA Improvement Act of 2016: A New Era of Government Openness?

The Freedom of Information Act (FOIA) was first enacted in 1966, establishing the structure of FOIA as we know it today.  Since then, the story of FOIA has included a tug-of-war between greater government openness and greater government secrecy, as different administrations have favored or disfavored openness. For example, in 1992, the Reagan Administration issued an executive order that greatly expanded the government’s ability to withhold information under FOIA’s “Exemption 1,” which protects classified information.[1]

One such tug-of-war has taken place over the “Foreseeable Harm Rule.” The rule, first laid out in a memorandum by Attorney General Janet Reno during the Clinton Administration, announced that the Department of Justice would no longer defend agencies when they withheld information simply because it technically qualified for nondisclosure under one of FOIA’s exemptions.[2] Instead, according to the memo, the Department would only defend agencies when it was “reasonably foreseeable that disclosure would be harmful.”[3] In other words, agencies would have to consider whether it was really necessary to withhold the information, even if it was technically exempt.

In October of 2001, ten months after George W. Bush’s inauguration, Attorney General John Ashcroft issued his own memo, effectively repealing the Reno memo.[4] The Ashcroft memo announced that the Department of Justice would defend any agency decision to withhold information unless the withholding lacked a “sound legal basis.”[5] In other words, if a straight-faced argument could be made to withhold the information, the Department of Justice would make it in court, regardless of whether withholding was truly necessary to protect the government’s interests.

On January 21, 2009, just one day after President Barack Obama was inaugurated, the President himself issued a memo announcing that a “presumption of disclosure should be applied to all decisions involving FOIA,” in order to “usher in a new era of open Government.”[6] “Sunlight is said to be the best of disinfectants,” wrote the President, quoting Justice Louis Brandeis.[7] The memo further directed the Attorney General to issue updated guidance to the agencies.[8] Attorney General Eric Holder did so on March 19, 2009, announcing that the Department of Justice would once more defend agency decisions to withhold information only when “the agency reasonably foresees that disclosure would harm an interested protected by” the law.[9]

Enter Congress into this inter-administration, Executive Branch tussle.  In June of 2016, Congress passed the FOIA Improvement Act with bipartisan support.[10] The Act explicitly codified the presumption of openness described in both the Reno and Holder memos.[11] Henceforth, agencies would only be able to withhold a record when the agency reasonably foresaw “that disclosure would harm an interest protected by a [FOIA] exemption” or where “disclosure is prohibited by law.”[12] According to Representative Mark Meadows (R-N.C.), this presumption of openness was “the most important reform” in the bill.[13]

Will the FOIA Improvement Act truly usher in a new era of government openness?  This will largely depend on the third branch of government—the judiciary. In the coming years, as cases citing the new FOIA provisions, including the Foreseeable Harm rule, wind their way through the lower courts, it is judges who will determine whether the presumption of openness will have real bite to increase government transparency.

[1] Exec. Order No. 12356, 3 C.F.R. § 166 (1983).

[2] Memorandum for Heads of Departments and Agencies from Attorney Gen. Janet Reno regarding the Freedom of Information Act (Oct. 4, 2013),

[3] Id.

[4] Memorandum for Heads of Departments and Agencies from Attorney Gen. John Ashcroft regarding the Freedom of Information Act (Oct. 12, 2001),

[5] Id.

[6] Memorandum for Heads of Departments and Agencies from President Barack Obama regarding the Freedom of Information Act (Jan. 21, 2001),

[7] Id.

[8] Id.

[9] Memorandum for Heads of Departments and Agencies from Attorney Gen. Eric Holder regarding the Freedom of Information Act (Mar. 19, 2009),  Withholding is also permitted in circumstances where disclosure is otherwise prohibited by law.  Id.

[10] FOIA Improvement Act of 2016, Pub. L. No. 114-185 (codified at 5 U.S.C. § 552).

[11] S. Rep. No. 114-4, at 7 (2015).

[12] 5 U.S.C. § 552(a)(8)(A).

[13] Josh Gerstein, FOIA Reform Bill Headed to Obama, Politico (June 13, 2016), (quoting Obama Memo of 2009).