Scott Hodes on the Future of the Freedom of Information Act

From FOIA Blog.

Historically, Democratic Presidents (Carter, Clinton) have been much more pro-disclosure than Republican Presidents (Ford, Reagan, Bush, and Bush II). I would expect the Obama administration to be more like the Clinton and Carter FOIA model than that of the current administration.

Initially, I look for the Ashcroft memorandum to be stricken. This memorandum which came out in the Fall of 2001 said that any properly used FOIA exemption would be defended by the Justice Department. It superseded (without expressly stating that it did) the Reno memorandum of 1993 which said even if something could be withheld under a FOIA exemption, agencies should look to make discretionary disclosures of material as long as there was no foreseeable harm in government activities in releasing the material. For instance, privileged material in a document that could be withheld under FOIA exemption 5 should be looked at to see if the material could be released even though legally it could be withheld under FOIA exemption 5--the test was would the release do any foreseeable harm to the government. If the answer was no, the material went. Under current policy agencies don't have to ask, they just defend the withholding. Under the Obama administration I look for a similar foreseeable harm test to return.

I also look for an increased awareness in FOIA programs. FOIA Operations will get greatersupportt from those in charge of agencies. While money will be tight in the new administration, I look for investments in the use of new technology to streamline FOIA Operations making them more efficient and answerable to requesters. Additionally, I think the Department of Justice will provide more guidance in FOIA operations, both legally and procedurally.

Finally, I think agencies will overall be more pro-disclosure. I don't know how to quantify that idea, but I think there is a feeling in many FOIA Offices that they can't release information because the current administration doesn't want them to. I think this will slowly change and some agencies will release information they are now withholding. Again, I can't quantify it nor give specific examples.