White House does welcome FOIA about-face / Judge gives web-only newsletter media status under FOIA

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Mar 20, 2009 White House does welcome FOIA about-face / Judge gives web-only newsletter media status under FOIA

Curiously, the federal Freedom of Information Act ("FOIA") was not spawned by Watergate, but instead was passed in 1966, eight years before Nixon left the White House for good. Then again, I loved to hate Richard Nixon for surreptitiously taping conversations, but then learned that Lyndon Johnson showed Nixon how to use the already tape-rigged White House recording system.


Thanks to fellow listserv member Derek Brett and the FOIA blog for covering U.S. Attorney General Eric Holder’s March 19, 2009, FOIA memo, which directs federal agencies to act with a presumption that requested information be disclosed.

The day after being sworn in, President Obama issued a memorandum providing that: "All agencies should adopt a presumption in favor of disclosure, in order to renew their commitment to the principles embodied in FOIA, and to usher in a new era of open Government.  The presumption of disclosure should be applied to all decisions involving FOIA." He directed "the Attorney General to issue new guidelines governing the FOIA to the heads of executive departments and agencies, reaffirming the commitment to accountability and transparency, and to publish such guidelines in the Federal Register."

On March 19, 2009, Attorney General issued a memorandum to federal agency heads, saying, in part:"[T]he Department of Justice will defend a denial of a FOIA request only if (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the statutory exemptions, or (2) disclosure is prohibited by law. With regard to litigation pending on the date of the issuance of this memorandum, this guidance should be taken into account and applied if practicable when, in the judgment of the Department of Justice lawyers handling the matter and the relevant agency defendants, there is a substantial likelihood that application of the guidance would result in a material disclosure of additional information."

Holder’s memo is a welcome about face from the state of affairs announced in John Ashcroft’s October 12, 2001, FOIA memo issued weeks after the September 11 tragedy. Holder’s memo "hereby rescind[s] the Attorney General’s FOIA Memorandum of October 12, 2001, which stated that the Department of Justice would defend decisions to withhold records ‘unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.’"


Thanks to the FOIA blog for reporting on this week’s D.C. federal trial court decision treating an online-only newsletter as a “representative of the news media" entitled to a waiver for search and copying fees under the FOIA. Federal Cure v. Lappin, ___ F.Supp. 2d ___ (D.D.C., March 18, 2009).

The First Amendment and the FOIA took effect before anybody knew about an Internet. How far will courts go in granting one-person blogging shows to receive the benefits of press protection under the First Amendment, news media representative benefits under the FOIA, and access to courts to challenge denial of press passes to government news conferences and other government events open to the news media?

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