OIP Guidance: Applying a Presumption of Openness and the Foreseeable Harm Standard

On March 15, 2022, Attorney General Garland issued new FOIA Guidelines that “strengthen the federal government’s commitment to the fair and effective administration of FOIA.”  The 2022 FOIA Guidelines supersede the 2009 FOIA Guidelines issued by Attorney General Holder. 

The disclosure obligations under FOIA are not absolute, as the 2022 FOIA Guidelines recognize.  Congress established nine exemptions to protect, for example, national security, personal privacy, privileged records, and law enforcement interests.  See 5 U.S.C. § 552(b).  Agencies may not, however, withhold information based merely on speculative or abstract fears or fears of embarrassment.  And the 2022 FOIA Guidelines emphasize the requirement—previously reflected in Attorney General Holder’s 2009 Guidelines and now codified in FOIA itself—that an agency may only withhold information if: (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law.  See id. § 552(a)(8)(A)(i).  Moreover, the 2022 FOIA Guidelines strongly encourage agencies to consider making discretionary releases when appropriate even if FOIA’s requirements for withholding are met.  As the 2022 FOIA Guidelines instruct, when in doubt, agencies should favor openness in making disclosure determinations.  And, when an agency determines that it cannot or should not make full disclosure of a requested record, FOIA requires that it “consider whether partial disclosure of information is possible” and “take reasonable steps necessary to segregate and release nonexempt information.”  Id. § 552(a)(8)(A)(ii). 

The 2022 FOIA Guidelines also reinforce the importance of prompt and cooperative communication with FOIA requesters regarding their requests.  Accordingly, this guidance also addresses effective communication with requesters.  Working with a presumption of openness in mind and maintaining good communication with requesters are cornerstones of effective FOIA administration. 

Applying a Presumption of Openness in General

When applying FOIA, agencies should keep in mind its primary purpose.  FOIA is a fundamental tool of our democracy that helps citizens understand the government’s work.  As the Supreme Court has declared: “FOIA is often explained as a means for citizens to know what ‘their Government is up to.’”  NARA v. Favish, 541 U.S. 157, 171 (2004) (quoting U.S. Dep’t of Justice v. Reps. Comm. for Freedom of the Press, 489 U.S. 749, 773 (1989)).  The Court elaborated that “[t]his phrase should not be dismissed as a convenient formalism.”  Id. at 171-72.  Rather, “[i]t defines a structural necessity in a real democracy.”  Id. at 172.

Applying a presumption of openness means that agencies should continue to consider all disclosure determinations with transparency in mind.  Records should be reviewed with an eye toward determining what can be disclosed, rather than what can be withheld.  As the Attorney General states in the 2022 FOIA Guidelines, “[i]n case of doubt, openness should prevail.” 

When full disclosure of a record is not possible, agencies should consider making a partial disclosure.  The 2022 FOIA Guidelines reminded agencies that “FOIA requires that [we] ‘consider whether partial disclosure of information is possible’ and [that we] ‘take reasonable steps necessary to segregate and release nonexempt information.’”

Because FOIA is a disclosure statute, agencies generally have discretion as to whether a FOIA exemption should be asserted, unless the information must be protected due to classification or another law outside FOIA.  Accordingly, in applying a presumption of openness to disclosure determinations, the 2022 FOIA Guidelines strongly encourage making discretionary releases whenever appropriate, even when the elements of an exemption and the requirements of the foreseeable harm standard are technically met.  Among other factors, agencies may consider discretionary releases of information when the reasonable likelihood of significant harm occurring is low and the public interest in the information is high. 

Applying the “Foreseeable Harm” Standard

Applying the “foreseeable harm” standard is a key element in administering FOIA with a presumption of openness.  The FOIA Improvement Act of 2016 codified the “foreseeable harm” standard articulated in the 2009 FOIA Guidelines.  OIP issued guidance on the application of the foreseeable harm standard when it was a matter of policy in 2009, which includes practical considerations that are still relevant.  In accordance with the standard codified in the statute, even where an exemption would otherwise apply, agencies may withhold information only when (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law.  See 5 U.S.C. § 552(a)(8)(A)(i). 

This foreseeable harm standard applies to all exemptions except for Exemption 3, which allows for withholding of certain matters “specifically exempted from disclosure by statute.”  See id. §§ 552(a)(8)(A)(i)(II), 552(b)(3).  In addition, elements for withholding records under Exemptions 1 (concerning properly classified information), 4 (concerning privileged or confidential trade secrets), 6 (concerning information the disclosure of which would “constitute a clearly unwarranted invasion of personal privacy”) and 7 (concerning information compiled for law enforcement purposes where certain predicates of likely harm are satisfied) should, in the ordinary course, establish that disclosure would result in reasonably foreseeable harm.  See, e.g., Executive Order 13,526, 75 Fed. Reg. 707, 709 § 1.4 (Dec. 29, 2009) (a condition for proper classification is a determination that disclosure of the information “could reasonably be expected to cause identifiable or describable damage to the national security”); Reporters Comm. for Freedom of the Press v. U.S. Customs & Border Protection, 567 F. Supp. 3d 97, 127–31 (D.D.C. 2021) (explaining that Exemption 7(E) “by its own terms already requires that an agency show a risk of foreseeable harm”); Citizens for Resp. & Ethics in Wash. v. DHS, 525 F. Supp. 3d 181, 192 n.4 (D.D.C. 2021) (similar). Further, the reasonable likelihood of foreseeable harm may be easier to establish for some Exemption 5 privileges, such as the attorney-client privilege.  See, e.g., Reporters Comm. for Freedom of the Press v. CBP, 567 F. Supp. 3d 97, 120 (D.D.C. 2021) (identifying the attorney-client privilege as one as to which “an agency’s burden under the foreseeable harm requirement may be more easily met” because “the risk of harm through disclosure is more self-evident”).

The foreseeable harm analysis should be made on a case-by-case basis and agencies should individually consider the applicable harms for each record or similar category of records.  The Court of Appeals for the District of Columbia has explained that to meet their burden, agencies must “articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.”  Reps. Comm. for Freedom of the Press v. FBI, 3 F.4th 350, 369 (D.C. Cir. 2021).  In the context of the deliberative process privilege in particular, agencies “cannot simply rely on ‘generalized’ assertions that disclosure ‘could’ chill deliberations,” but must focus on the type of “information at issue” and determine that its disclosure “‘would’ chill future internal discussions”   Machado Amadis v. U.S. Dep’t of State, 971 F.3d 364, 371 (D.C. Cir. 2020).   Agencies may satisfy the foreseeable harm requirement “on a category-by-category basis rather than a document-by-document basis,” i.e., by “‘group[ing] together like records’ and explain[ing] the harm that would result from release of each group.”  Reporters Comm., 3 F.4th at 369.   Agencies must then make a “focused and concrete” assessment of the categories of “information at issue or the role that they play in the relevant agency decisional processes (and, therefore, whether and how their release would harm similar deliberations in the future).”  Id. at 370, 372.

Particularly for large volumes of records, agency FOIA professionals should employ practical and efficient means of sufficiently assessing foreseeable harm with the information and context that is readily available to them.  When assessing foreseeable harm, agencies may consider factors such as the age of the record, prior official disclosures that might weaken the foreseeable harms from disclosure of the record, and the overall sensitivity of the record in light of its context and purpose.   

For example, if the record in question is an internal proposed draft that is subject to editing and deliberation, foreseeable harm cannot be assumed based on a “boilerplate” assumption that the disclosure of predecisional deliberative materials would likely cause employees to be more circumspect in the future.  If, however, the agency reasonably foresees that release of a specific type of document would impede the agency’s deliberations by, for example, deterring the drafters’ willingness to express their frank and unfiltered views, a context-specific showing should be enough to satisfy the foreseeable harm requirement.  In some cases, the “very context and purpose” of the information in question may make the foreseeability of harm from disclosure “manifest.”  See Reporters Comm., 3 F.4th at 372 (explaining that the “very context and purpose” of FBI communications bearing on sensitive undercover operations in the midst of a policy crisis “make the foreseeability of harm manifest” if such communications are disclosed, and that “the very nature of the follow-on discussions among FBI personnel about whether and how to change those undercover tactics and how to effectively implement such changes amid ongoing law enforcement operations conveyed particularized indicia of foreseeable harm”).

Where the foreseeable harms from disclosure are unclear, when possible, it may be helpful for agencies to consult with subject-matter experts who are familiar with the sensitivities of particular records.  Additionally,  Chief FOIA Officer Reports published before the FOIA Improvement Act was enacted, when the foreseeable harm standard was being applied as a matter of policy, also offer many examples of information agencies released after considering the likelihood of foreseeable harm in disclosure. 

Communication with Requesters

Another key element of administering FOIA with a presumption of openness is working with requesters in a spirit of cooperation and effectively communicating agency FOIA determinations.  As the Attorney General’s 2022 FOIA Guidelines recognize, regular communication with requesters is a key part of effective FOIA administration.  In addition to accepting FOIA requests electronically, agencies should communicate with requesters electronically by default unless the requester has expressed a different preference.  When requesters inquire about the status of FOIA requests or request an estimated date of completion, agencies should respond promptly and provide specific updates to keep requesters informed.  Agencies should also communicate with requesters when doing so will further the processing of the request, such as to clarify issues regarding the nature or scope of the request, the applicability of fees, or any justification for expedited processing.  Agencies are encouraged to consult OIP’s multiple guidance articles on communicating with requesters and providing status information for requests to ensure they are most effectively working in a spirit of cooperation.  See The Importance of Good Communication with FOIA Requesters (March 1, 2010); The Importance of Good Communication with FOIA Requesters 2.0: Improving Both the Means and Content of Requester Communications (November 22, 2013); Assigning Tracking Numbers and Providing Status Information for Requests (Updated Guidance) (July 8, 2014).

Final agency determinations should clearly explain the basis for any denials, including, if applicable, any FOIA exemptions asserted and the number of records withheld, except in circumstances where this would cause harm.  The 2022 FOIA Guidelines also indicate that agencies should “confirm in response letters to FOIA requesters that they have considered the foreseeable harm standard when reviewing records and applying FOIA exemptions.”  In other words, if an agency has made a final determination invoking one or more FOIA exemptions (other than Exemption 3), it should explain to the requester that it considered the foreseeable harm standard.  In addition, to the extent practicable and efficient, agencies should consider brief, tailored explanations in response letters whenever doing so will increase understanding of the handling of the request.    

If FOIA requesters have questions or concerns about any adverse determination made by the agency, including its application of the foreseeable harm standard, they may contact the agency’s FOIA Requester Service Center or FOIA Public Liaison.  Agencies should promptly respond to any such inquiries by providing as much detail and context as possible without undermining any interests that are being protected by exemptions that the agency may have asserted.  Additionally, to facilitate effective communications with requesters, agencies should ensure that their contact information posted on their websites and on FOIA.gov is always up-to-date.  For additional information about the roles and responsibilities of FOIA Requester Service Centers and FOIA Public Liaisons, see OIP’s guidance, The Importance of Quality Requester Services: Roles and Responsibilities of FOIA Requester Service Centers and FOIA Public Liaisons (June 12, 2018).  A FOIA requester is also entitled to administratively appeal any adverse determination made by the agency, including its application of the foreseeable harm standard.  On appeal, agencies should take a fresh look at the initial application of exemptions and the foreseeable harm standard.   

Conclusion

As the Attorney General’s 2022 FOIA Guidelines highlight, agencies should administer FOIA with a presumption of openness.  Agencies should process records with an eye toward disclosure, applying FOIA’s foreseeable harm standard and giving due consideration to discretionary releases of information.  In making these determinations on a case-by-case basis, agencies should consider the factors highlighted in this and past OIP guidance.  FOIA professionals may also need to consult with subject matter experts within the agency in order to have a proper understanding of the harms involved in disclosure.  Finally, good communication with requesters is also key to applying the law with a presumption of openness.  When asserting exemptions, agencies should explain to requesters that they considered the likelihood of foreseeable harm from the disclosure of such information.  Upon request, agencies should also promptly make themselves available through their FOIA Requester Service Centers, FOIA Public Liaison, or the appeal process to provide any additional explanation or context regarding the withholding of information and the application of the foreseeable harm standard.