Attorney General Merrick B. Garland Issues New FOIA Guidelines to Favor Disclosure and Transparency

On March 15, 2022, the Department of Justice published the following:

To mark the start of Sunshine Week, Attorney General Merrick B. Garland issued comprehensive new Freedom of Information Act (FOIA) guidelines today that strengthen the federal government’s commitments to transparency in government operations and the fair and effective administration of FOIA.

The Attorney General’s guidelines, which were announced in a memorandum (see below), direct the heads of all executive branch departments and agencies to apply a presumption of openness in administering the FOIA and make clear that the Justice Department will not defend nondisclosure decisions that fail to do so. The guidelines also emphasize that the proactive disclosure of information is fundamental to the faithful application of the FOIA and note the Justice Department’s efforts to encourage proactive agency disclosures, including by providing more specific criteria regarding how relevant metrics should be reported in agency Annual FOIA Reports, as the Government Accountability Office recommended.

“At the Justice Department, and across government, our success depends upon the trust of the people we serve. That trust must be earned every day,” said Attorney General Garland. “For more than fifty years, the Freedom of Information Act has been a vital tool for advancing the principles of open government and democratic accountability that are at the heart of who we are as public servants. Together with our partners across the federal government, the Justice Department will work every day to uphold those principles, which are essential to the rule of law.”

In addition, the Attorney General’s FOIA guidelines direct federal departments and agencies to continue efforts to remove barriers to requesting and accessing government records and to reduce FOIA processing backlogs. The guidelines note, for example, that the Justice Department’s Executive Office for Immigration Review is changing a policy under which it had long required individuals to file FOIA requests to obtain official copies of their own records of immigration court proceedings. The Attorney General encouraged all agencies to examine whether they have similar or other categories of records that they could make more readily accessible without requiring individuals to file FOIA requests.

“The Attorney General’s new FOIA guidelines underscore the Justice Department’s commitment to government that is open, transparent and accountable to the people we serve,” said Associate Attorney General Vanita Gupta, who also serves as the Department’s Chief FOIA Officer. “The Office of Information Policy looks forward to working with agencies to ensure the presumption of openness is applied across the government.”

The Attorney General’s guidelines highlight the key role played by agency Chief FOIA Officers who report each year to the Department of Justice on their progress in improving FOIA administration and also direct agencies to training and guidance documents issued by the Justice Department’s Office of Information Policy designed to help ensure proper training and compliance with FOIA across the federal government. For more information visit www.justice.gov/oip.