- The Washington Times - Thursday, March 19, 2009

WASHINGTON (AP) - The Obama administration is ready to tell federal agencies to release records to the public unless foreseeable harm would result, a Justice Department official said Thursday.

Attorney General Eric Holder has approved new guidelines fleshing out President Barack Obama’s Jan. 21 order to reveal more government records to the public under the Freedom of Information Act, the official said. This person spoke anonymously because the official announcement has not been made.

The guidelines were expected to be released later Thursday, amid Sunshine Week, an annual national observation by journalism groups and other organizations to promote open government and freedom of information.

The new standard essentially returns to one issued by Attorney General Janet Reno during the Clinton administration. It would replace a more restrictive policy imposed by the Bush administration under which the Justice Department would defend any sound legal argument for withholding records.

Justice is responsible for government-wide guidance on how to implement the records law because it defends agencies in court if they are sued by people who disagree with a decision to withhold records. Under the Holder standard, Justice lawyers would not defend a decision to withhold records unless their release could be shown to produce foreseeable harm.

The new standards were also expected to encourage agencies to release more documents where the law leaves the decision to their discretion _ an amplification of Obama’s order that they adopt a “presumption for disclosure.”

The standards could also affect the outcome of a dozen or more pending lawsuits, including ones to obtain the legal rationales behind Bush administration anti-terrorism tactics like wiretapping Americans without a warrant and harsh interrogation of terrorism detainees.

It was not immediately clear whether all pending lawsuits would be reviewed under the new standards. If not, the requesters could just file new freedom of information act requests for the same data after the new guidelines take effect.

The Freedom of Information Act dates back to 1967. Since then, Democratic and Republican administrations have engaged in a three-decade pingpong game over how it should be enforced.

In May 1977, President Jimmy Carter’s attorney general, Griffin Bell, issued guidance to err on the side of releasing information and said Justice would only defend withholding records whose release could cause “demonstrable harm.” In 1981 under President Ronald Reagan, Attorney General William French Smith reversed that; he told them when in doubt _ withhold _ and Justice would defend any “substantial legal basis” for withholding records.

Under Clinton, Reno reversed it again; she told agencies their presumption should be for release and she would only defend withholding information to prevent “foreseeable harm.”

But President George Bush’s first attorney general, John Ashcroft, went back the other way in October 2001. He told agencies that he would defend any sound legal justification for withholding documents.

Congress later sought to undercut Ashcroft’s order, passing legislation in December 2007 that toughened FOIA by establishing a hot-line service to help people requesting information deal with problems they may encounter and an ombudsman to provide an alternative to litigation in disclosure disputes. But money to pay for the ombudsman was only recently passed by Congress and signed by Obama.

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