OIP Issues Guidance on the Presumption of Openness and Foreseeable Harm Standard

Today, the Office of Information Policy (OIP) issued new guidance on applying a presumption of openness and the foreseeable harm standard. This guidance addresses the presumption of openness emphasized in the Attorney General’s FOIA Guidelines issued in March 2022 and discusses in detail the requirement that agencies may only withhold information if they reasonably foresee that disclosure would harm an interest protected by an exemption or disclosure is prohibited by law. 

The guidance advises agencies to review records with an eye toward disclosure and with transparency in mind.   The guidance provides practical advice to agencies on applying the foreseeable harm standard in light of case law that has developed since this standard was codified by the FOIA Improvement Act of 2016.  It explains that agencies should analyze records on a case-by-case basis, while employing practical and efficient means of assessing foreseeable harm with the information and context readily available to them.  The guidance also provides practical advice on considering discretionary disclosures as encouraged by the Attorney General’s FOIA Guidelines.     

Communication with requesters is emphasized as a key element of administering the FOIA with a presumption of openness.  As detailed in the guidance, agencies should communicate promptly with requesters throughout the request process, including by providing status updates, and clearly explaining the basis for denials in response letters, along with acknowledging that they have considered the foreseeable harm standard when asserting exemptions.

OIP is available to answer any questions or provide additional guidance to agencies.  Please contact 202-514-3642 or DOJ.OIP.FOIA@usdoj.gov for assistance.