U.S. Department of Justice Seal 

Office of the Attorney General 

Washington, D.C. 20530 

March 19, 2009 

MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES 

FROM: THE ATTORNEY GENERAL 

SUBJECT: The Freedom of Information Act (FOIA) 

The Freedom of Information Act (FOIA), 5 U.S.C. § 552, reflects our nation's 

fundamental commitment to open government. This memorandum is meant to underscore that 

commitment and to ensure that it is realized in practice. 

A Presumption of Openness 

As President Obama instructed in his January 21 FOIA Memorandum, "The Freedom of 

Information Act should be administered with a clear presumption: In the face of doubt, openness 

prevails." This presumption has two important implications. 

First, an agency should not withhold information simply because it may do so legally. 

I strongly encourage agencies to make discretionary disclosures of information. An agency 

should not withhold records merely because it can demonstrate, as a technical matter, that the 

records fall within the scope of a FOIA exemption. 

Second, whenever an agency determines that it cannot make full disclosure of a requested 

record, it must consider whether it can make partial disclosure. Agencies should always be 

mindful that the FOIA requires them to take reasonable steps to segregate and release nonexempt 

information. Even if some parts of a record must be withheld, other parts either may not be 

covered by a statutory exemption, or may be covered only in a technical sense unrelated to the 

actual impact of disclosure. 

At the same time, the disclosure obligation under the FOIA is not absolute. The Act 

provides exemptions to protect, for example, national security, personal privacy, privileged 

records, and law enforcement interests. But as the President stated in his memorandum, "The 

Government should not keep information confidential merely because public officials might be 

embarrassed by disclosure, because errors and failures might be revealed, or because of 

speculative or abstract fears." 

Pursuant to the President's directive that I issue new FOIA guidelines, I hereby rescind 

the Attorney General's FOIA Memorandum of October 12, 2001, which stated that the 

Department of Justice would defend decisions to withhold records "unless they lack a sound 
Memorandum for Heads of Executive Departments and Agencies Page 2 

Subject: The Freedom of Information Act 

legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to 

protect other important records." 

Instead, the Department of Justice will defend a denial of a FOIA request only if (1) the 

agency reasonably foresees that disclosure would harm an interest protected by one of the 

statutory exemptions, or (2) disclosure is prohibited by law. With regard to litigation pending on 

the date of the issuance of this memorandum, this guidance should be taken into account and 

applied if practicable when, in the judgment of the Department of Justice lawyers handling the 

matter and the relevant agency defendants, there is a substantial likelihood that application of the 

guidance would result in a material disclosure of additional information. 

FOIA Is Even-one's Responsibility 

Application of the proper disclosure standard is only one part of ensuring transparency. 

Open government requires not just a presumption of disclosure but also an effective system for 

responding to FOIA requests. Each agency must be fully accountable for its administration of the 

FOIA. 

I would like to emphasize that responsibility for effective FOIA administration belongs to 

all of us—it is not merely a task assigned to an agency's FOIA staff. We all must do our part to 

ensure open government. In recent reports to the Attorney General, agencies have noted that 

competing agency priorities and insufficient technological support have hindered their ability to 

implement fully the FOIA Improvement Plans that they prepared pursuant to Executive Order 

13392 of December 14, 2005. To improve FOIA performance, agencies must address the key 

roles played by a broad spectrum of agency personnel who work with agency FOIA professionals 

in responding to requests. 

Improving FOIA performance requires the active participation of agency Chief FOIA 

Officers. Each agency is required by law to designate a senior official at the Assistant Secretary' 

level or its equivalent who has direct responsibility for ensuring that the agency efficiently and 

appropriately complies with the FOIA. That official must recommend adjustments to agency 

practices, personnel, and funding as may be necessary. 

Equally important, of course, are the FOIA professionals in the agency who directly 

interact with FOIA requesters and are responsible for the day-to-day implementation of the Act. 

I ask that you transmit this memorandum to all such personnel. Those professionals deserve the 

full support of the agency's Chief FOIA Officer to ensure that they have the tools they need to 

respond promptly and efficiently to FOIA requests. FOIA professionals should be mindful of 

their obligation to work "in a spirit of cooperation" with FOIA requesters, as President Obama 

has directed. Unnecessary bureaucratic hurdles have no place in the "new era of open 

Government" that the President has proclaimed. 
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Subject: The Freedom of Information Act 

Working Proactively and Promptly 

Open government requires agencies to work proactively and respond to requests 

promptly. The President's memorandum instructs agencies to "use modem technology to inform 

citizens what is known and done by their Government." Accordingly, agencies should readily 

and systematically post information online in advance of any public request. Providing more 

information online reduces the need for individualized requests and may help reduce existing 

backlogs. When information not previously disclosed is requested, agencies should make it a 

priority to respond in a timely manner. Timely disclosure of information is an essential 

component of transparency. Long delays should not be viewed as an inevitable and 

insurmountable consequence of high demand. 

In that regard. I would like to remind you of a new requirement that went into effect on 

December 31, 2008, pursuant to Section 7 of the OPEN Government Act of 2007, Pub. L. 

No. 110-175. For all requests filed on or after that date, agencies must assign an individualized 

tracking number to requests that will take longer than ten days to process, and provide that 

tracking number to the requester. In addition, agencies must establish a telephone line or Internet 

service that requesters can use to inquire about the status of their requests using the request's 

assigned tracking number, including the date on which the agency received the request and an 

estimated date on which the agency will complete action on the request. Further information on 

these requirements is available on the Department of Justice's website at 

www.usdoj.gov/oip/foiapost/2008foiapost30.htm. 

***** 

Agency Chief FOIA Officers should review all aspects of their agencies' FOIA 

administration, with particular focus on the concerns highlighted in this memorandum, and report 

to the Department of Justice each year on the steps that have been taken to improve FOIA 

operations and facilitate information disclosure at their agencies. The Department of Justice's 

Office of Information Policy (OIP) will offer specific guidance on the content and timing of such 

reports. 

I encourage agencies to take advantage of Department of Justice FOIA resources. OIP 

will provide training and additional guidance on implementing these guidelines. In addition, 

agencies should feel free to consult with OIP when making difficult FOIA decisions. With 

regard to specific FOIA litigation, agencies should consult with the relevant Civil Division, Tax 

Division, or U.S. Attorney's Office lawyer assigned to the case. 

This memorandum is not intended to, and does not, create any right or benefit, 

substantive or procedural, enforceable at law or equity by any party against the United States, its 

departments, agencies, instrumentalities or entities, its officers, employees, agents, or any other 

person.