PUBLIC INFORMATION -- "A skeptical person might presume that the new Freedom of Information Act policy
announced by Attorney General Eric Holder on March 19 declaring that
agencies should adopt a presumption in favor of disclosure is a
rhetorical posture without much practical significance," comments Steven Aftergood in his Secrecy News blog.
After all, requesters who used FOIA during the Clinton era know that
agencies frequently withheld information even when it would have caused
no foreseeable harm, despite the policy
of Attorney General Reno that such information should be released.
(Nor, for that matter, did agencies during the Bush Administration
always withhold information every time they were legally entitled to do
so, as the Ashcroft policy advised.)
But remarkably, federal courts are already considering the new
Holder policy in response to plaintiff requests and are modifying the
course of pending FOIA litigation as a result.
In one case, the Electronic Frontier Foundation
(EFF) asked a court to stay a proceeding and to order the Office of the
Director of National Intelligence and the Department of Justice to
reconsider their denial of requested records by employing the new
Holder guidelines. Those agencies opposed the idea. But in a March 23 opinion (pdf), Judge Jeffrey S. White of the Northern District of California granted the EFF motion.
Likewise, in another EFF FOIA lawsuit this week, Judge John D. Bates ordered
(pdf) the Department of Justice to evaluate whether the new FOIA
guidelines affect the scope of its disclosures and claimed withholdings
in this case.
Incidentally, in its case filed in the Northern California District, "EFF seeks the disclosure of records maintained by Defendants concerning the alleged efforts of the agencies and telecommunications companies to encourage changes in federal foreign intelligence law, particularly changes to immunize telecommunication companies from liability concerning their role in the governments warrantless surveillance of Americans and other persons inside the United States following the terrorist attacks of September 11, 2001."
The Congressional legislation last year to provide retroactive immunity for domestic American telecommunications companies' collaboration in warrantless wiretapping passed, getting but not needing then Senator Obama's vote, to the deep consternation of his civil liberties supporters, who regarded his abandoned opposition to the immunity as an unprincipled flip-flop. And now his Justice Department is vigorously defending that immunity.