Today, OTG and 5 endorsing organizations provided comment to the Justice Department on its “Release to One, Release to All” draft FOIA policy guidance developed by the Office of Information Policy (OIP). The comments recommend changes to ensure that the policy guidance is utilized to maximize the amount information available to the public in accordance with the FOIA, and not cited to restrict regular online posting of information in the public interest.
The comments raise concerns with problematic broad exclusions and exceptions to posting requirements, and specifically raise objection to the “good cause” exemption, which includes a provision that, if implemented, would constitute a broad carve-out for law enforcement and intelligence agencies wishing to not publicly release records under the so-called “mosaic theory” argument. This theory has been promoted, for many years, as a justification for restricting access to information that would otherwise be disclosable. Such a broad exception for law enforcement and intelligence agencies could allow these and other agencies to inappropriately assert expansive claims of discretion to refuse to post information, and to circumvent their proactive disclosure requirements under FOIA.
The comments also draw attention to the provision in the draft policy that would allow for agencies to exclude from posting records that agencies find are “not necessarily appropriate for posting, such as graphic videos of an automobile accident or records that raise scientific integrity risks.” In order to ensure agencies do not use this exclusion broadly to refuse to make information publicly available, the comments recommend that the guidance require agencies to provide written justification that reasonably describes the harm that the publication of the records would cause and obtain approval from the Chief FOIA Officer of that agency when citing this exemption.
Overall, the letter expresses support for the ongoing efforts to implement the policy, emphasizing that the open government community has increasingly called for more information to be made available proactively. The ability of the public to more easily find the information they seek should thus reduce some of the need for FOIA requests and improve response time for the requests that are submitted. Thus, OIP’s Release to All policy may help lessen the burden on FOIA offices throughout the federal government.
Read the comments here.