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In 2009, during his first Sunshine Week as attorney general, Holder issued a memorandum promising, among other things, that DOJ would defend agency decisions to withhold requested information only when disclosure clearly was prohibited by law or would produce actual harm. This significant change reversed an earlier directive by former Attorney General John Ashcroft requiring DOJ attorneys to aggressively defend virtually all agency denials of FOIA requests. Holder said his new policy was intended to effectuate the pro-transparency proclamation issued by President Obama on his first full day in office: to administer the FOIA "with a clear presumption: In the face of doubt, openness prevails."
But DOJ's conduct since these pronouncements leaves us wondering whether Obama and Holder forgot to send their directives to the DOJ attorneys responsible for litigating FOIA cases on behalf of federal agencies. From cases involving records on environmental issues, to those detailing criminal investigations of members of Congress, our experience suggests there is no agency withholding DOJ lawyers won't defend. A recent study conducted by the Transactional Records Access Clearinghouse at Syracuse University, in which researchers were "unable…to identify a single instance of the DOJ declining to defend a FOIA withholding case," supports this conclusion.
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