Cause of Action Institute (CoA Institute) launched an investigation last week into the Administration’s implementation of the Freedom of Information Act’s (FOIA) “foreseeable harm” standard.  That provision, which was added to the statute with passage of the FOIA Improvement Act of 2016, is designed to ensure that federal agencies only withhold requested records when they “reasonably foresee” that disclosure would harm an interest protected by a statutory exemption.  This “foreseeable harm” standard builds upon the so-called “presumption of openness,” which was introduced on a discretionary basis by the Obama White House.

Among other things, the FOIA Improvement Act of 2016 amended the FOIA to codify the “foreseeable harm” standard and require agencies to go beyond mere formulaic justifications for redacting records. Congress thus raised the standard by which an agency must evaluate its withholdings.  It is no longer enough that an agency make a case for the technical application of an exemption; it must instead articulate precise reasons why specific records, or portions of records, could be reasonably foreseen to harm a cognizable interest.  The unambiguous language of the “foreseeable harm” standard manifests Congress’s intent to require something more of an agency when it defends its withholding.

CoA Institute’s latest investigative efforts are particularly necessary given the complete failure of the Department of Justice Office of Information Policy (OIP)—which is tasked with providing guidance to the rest of the Executive Branch on proper administration of the FOIA—to publish any government-wide directives on the proper interpretation and implementation of the “foreseeable harm” standard.  Moreover, individual agencies have failed to proactively disclose any policies they may have developed, and federal courts have been slow to grapple substantively with the import of the new standard.

Based on records obtained from prior FOIA productions or publicly available sources, CoA Institute has identified passing references to agency-specific guidance on the “foreseeable harm” standard at three agencies, including the (1) Environmental Protection Agency, (2) U.S. Fish and Wildlife Service, and the (3) National Oceanic and Atmospheric Administration.  The actual substance of such guidance remains undisclosed.  But the records requested by CoA Institute in a recent batch of twenty-five FOIA requests should provide helpful insight into the administration of the FOIA and the “foreseeable harm” standard at these three agencies and many others.

Government accountably is a core pillar of our constitutional democracy.  And because the FOIA process is an integral vehicle for maintaining transparency, it is essential that we understand how agencies are upholding their statutory obligations, or whether they are politicizing the FOIA process by keeping information secret and out of public hands. CoA Institute will continue to track and publicize the responses to its requests as they are received.

The following agencies are part of CoA Institute’s “foreseeable harm” standard investigation:

  1. Department of State
  2. Department of the Treasury
  3. Internal Revenue Service
  4. Department of Defense
  5. Department of Justice
  6. Department of the Interior
  7. Department of Agriculture
  8. Department of Commerce
  9. Department of Labor
  10. Department of Health & Human Services
  11. Department of Transportation
  12. Department of Energy
  13. Department of Education
  14. Department of Veterans Affairs
  15. Department of Homeland Security
  16. White House Office of Management and Budget
  17. General Services Administration
  18. Small Business Administration
  19. Office of Personnel Management
  20. Council of Inspectors General on Integrity & Efficiency
  21. Federal Trade Commission
  22. Amtrak
  23. Administrative Conference of the United States
  24. Environmental Protection Agency
  25. Presidio Trust

A copy of the FOIA request directed to the Department of Defense, which is substantially similar to all the other requests, can be seen below:

Ryan P. Mulvey is Counsel at Cause of Action Institute.