DOJ Issues Revised Guidance on "Foreseeable Harm" for FOIA Requests

[Lawrence Schnapf]

Office of Information Policy issues guidance to implement AG 2022  FOIA Guidelines which emphasized the requirement that an agency may only withhold information if: (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law.  See id. § 552(a)(8)(A)(i). 

More importantly, the OIP guidance emphasizes  that even where an exemption would otherwise apply, agencies may withhold information only when (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law.  See 5 U.S.C. § 552(a)(8)(A)(i).   

To meet this burden, agencies must “articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.

https://www.justice.gov/oip/blog/oip-issues-guidance-presumption-openness-and-foreseeable-harm-standard 

[Tom Gram]

1 hour ago, Lawrence Schnapf said:

Office of Information Policy issues guidance to implement AG 2022  FOIA Guidelines which emphasized the requirement that an agency may only withhold information if: (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law.  See id. § 552(a)(8)(A)(i). 

More importantly, the OIP guidance emphasizes  that even where an exemption would otherwise apply, agencies may withhold information only when (1) the agency reasonably foresees that disclosure would harm an interest protected by one of the nine exemptions that FOIA enumerates; or (2) disclosure is prohibited by law.  See 5 U.S.C. § 552(a)(8)(A)(i).   

To meet this burden, agencies must “articulate both the nature of the harm [from release] and the link between the specified harm and specific information contained in the material withheld.

https://www.justice.gov/oip/blog/oip-issues-guidance-presumption-openness-and-foreseeable-harm-standard 

Interesting. How do you think this will affect FOIA in practice? I’d like to request info from the FBI at some point on a few people and former agents from New Orleans, so I’m curious about the process.