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Background on the Guidelines and FOIA

On March 15, 2022, the United States Department of Justice (“DOJ”) released new guidelines favoring the disclosure of federal agency records under the Freedom of Information Act (“FOIA”). Signed into law by President Lyndon B. Johnson in 1967, FOIA established a statutory right of public access to executive branch records. At a high-level, FOIA provides that any person has a legally enforceable right to obtain federal agency records subject to the Act to the extent that such records are not protected from public disclosure by one of FOIA’s nine exemptions. The Supreme Court has explained that “the basic purpose of FOIA is to ensure an informed citizenry,” which is “needed to check against corruption and hold the governors accountable to the governed.”

The DOJ’s new guidelines direct federal departments and agencies to apply a presumption of openness in administering FOIA and explicitly state that the DOJ will not defend nondisclosure decisions that fail to do so. Under the new guidelines, the executive branch should not withhold requested information that might fall within one of FOIA’s exemptions unless the relevant agency can identify a foreseeable harm or legal bar to disclosure. The guidelines also remind federal agencies that FOIA requires the proactive disclosure of records and emphasize that such agencies should make records more readily accessible without requiring individuals to file FOIA requests. As an example, the guidelines note that the DOJ’s Executive Office for Immigration Review will no longer require individuals to file FOIA requests to obtain copies of their own records of immigration court proceedings.…

Continue Reading New DOJ Guidelines Regarding FOIA Create Presumption of Openness

Several recent rulings have highlighted the uncertainty surrounding the discoverability of information provided to the government, either as a part of a government investigation or subsequent proceedings. The decisions suggest that the views of courts on such issues may vary widely, which creates uncertainty for companies interacting with the government.

On March 14, 2016, the U.S. Securities and Exchange Commission (“SEC”) was able to avoid producing documents it had collected during a foreign bribery investigation of Wal-Mart Stores, Inc. in Robbins Geller Rudman & Dowd LLP v. U.S. Securities and Exchange Commission, No. 14-cv-02197 (M.D. Tenn.). In 2014, a law firm brought an action for injunctive relief pursuant to the Freedom of Information Act, claiming that the SEC had failed to provide materials in response to a request that Wal-Mart had provided to the SEC in connection with the agency’s Foreign Corrupt Practices Act investigation into Wal-Mart. Notably, some of these materials had already been disclosed by Wal-Mart itself as well as by the New York Times. However, the SEC refused to produce any materials in response to the request, claiming that the materials were subject to exemption 7(A) of the Freedom of Information Act, which allows an agency to withhold information that was “compiled for law enforcement purposes” where its disclosure “could reasonably be expected to interfere with enforcement proceedings.” 5 U.S.C. § 552(b)(7)(A). The SEC sought summary judgment on the same issue. …
Continue Reading Freedom of Access or Freedom to Investigate? Uncertainty Remains Concerning the Discoverability of Materials Provided to the Government

There are 99 federal agencies that are subject to the Freedom of Information Act (FOIA) and—according to the Justice Department’s Office of Information Policy (OIP)—there are also 99 sets of FOIA regulations.  As Congress contemplates a move to further legislate agency responses to FOIA demands, the OIP is commencing an interagency effort this Spring to draft a single regulation to iron out inconsistences among the varied federal practices.  Additionally, a number of federal agencies have moved to adopt the FOIAOnline website, which allows users to submit FOIA requests online and track the progress of those requests. The renewed attention to FOIA and—relatedly—denials of FOIA requests, highlights the risks that accompany document productions made to federal authorities.  Consider the not-uncommon scenario:

  • Your Company gets subpoenaed by the federal government.
  • You produced thousands, if not hundreds of thousands, of Company records.
  • Now, your documents are subject to a FOIA request and possible public dissemination.

Is there any way to protect against this?

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Continue Reading Take 4 – Protecting Confidential Commercial Information from FOIA