Attorney General Merrick Garland championed the importance of the Freedom of Information Act in a video message to employees of the Department of Justice’s Office of Information Policy during Sunshine Week last month. After four years of a Trump administration that trampled on the public’s access to accurate information and abused FOIA exemptions to circumvent accountability, such a public declaration of support for open government and accountability is highly encouraging but insufficient.
In a letter this week, more than 25 good government advocacy organizations urged Garland to take more tangible steps to implement the recommendations in Accountability 2021 to restore accountability at the DOJ and throughout the federal government.
As the Biden administration progresses toward its first 100 days, the groups called on Garland to follow in the footsteps of his predecessors by quickly issuing a memorandum to all government agencies that standardizes how to interpret and apply FOIA. More specifically, Garland’s guidance should reflect the presumption of openness and the law’s requirement that agencies release records unless releasing the information would result in “foreseeable harm” as intended by Congress in the FOIA Improvement Act in 2016.
Additionally, agencies should be required to certify they have used appropriate exemptions to curtail the overly broad use of exemptions that currently allows agencies to avoid scrutiny.
At a time when only 20 percent of Americans believe public officials in Washington are capable of doing the right thing, the DOJ has the responsibility and opportunity to set a new standard of accountability in the federal government. It can accomplish this by directing agencies to maximize their proactive disclosures, grant FOIA personnel access to electronic records, and set tougher criteria for defending agencies that are sued under FOIA.
Information requests that escalate to litigation because of agencies’ obstructionist practices are time-consuming and expensive. Garland can address waste and uphold the public’s right to know by directing the DOJ’s Civil Division to conduct a review of all pending FOIA litigation to identify cases where agencies did not uphold the law. To date no attorney general since Janet Reno in 1993 has ordered such a review, even as litigation increased over the years, costing taxpayers $38,700,000 in 2019. In addition to being fiscally sound, the review would shed light on the DOJ’s criteria for continuing to defend agencies in ongoing litigation, and whether the records requested would unveil government malfeasance.
Lastly, to curb unaccountable conduct at the DOJ, Garland must end the agency’s battle with FOIA reforms that require more transparency and urge courts to narrow their interpretation of exemptions. Under his leadership, prioritizing transparency and adopting policies that maximize accountability can forge a new path at the DOJ and across government, one long overdue following a dark four years at the agency under the previous administration.