Update May 31, 2009
U.S. Attorney General Eric Holder’s Memorandum For Heads of Executive Departments and Agencies provides a nice summary of what the presumption of openness means. The Attorney General identifies three ingredients:
1. Only assert an exemption if nondisclosure serves the exemption’s public purpose.
2. When possible, redact exempt information rather than withhold an entire document.
3. Never assert an exemption merely to hide mistakes or because of abstract concerns.
Here is what the memo actual states:
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.”
One way to tell a good public records law from a bad law is that a good law starts with a presumption that all records are open and then defines exceptions. A bad law will presume the opposite and instead define what records have to be disclosed.
Washington law has always included the presumption of disclosure. Here is a story about South Dakota, which just amended its public records law to include the presumption of disclosure.
Washington law codifies this presumption in two provisions of the Public Records Act:
RCW 42.56.550(1) provides “The burden of proof shall be on the agency to establish that refusal to permit public inspection and copying is in accordance with a statute that exempts or prohibits disclosure in whole or in part of specific information or records.”
RCW 42.56.030 then heightens the burden an agency will have to meet before it can withhold a record by providing that the Act “shall be liberally construed and its exemptions narrowly construed” to promote the Act’s stated purpose of allowing the public to stay informed about government.
The result of these two provisions is that an agency must disclose any public record, unless it can prove that under a narrow interpretation of a statutory exemption, the record is exempt from disclosure.