Independent New Hampshire Journalism · Northfield, NH

Four Attorneys General Rewrote the Same Records Rule. Only Congress Made One Stick.

A memo that no longer governs anything still explains why a records request gets denied, and why New Hampshire’s Right-to-Know Law outlasts whoever happens to be administering it.

Three pages went out from the Office of the Attorney General on March 19, 2009. The subject line was the Freedom of Information Act. The instruction underneath the signature was blunt: stop withholding records you are merely allowed to withhold.

That memo governs nothing today. Merrick Garland replaced it in 2022. Eric Holder had written it in the first place to rescind John Ashcroft’s memo of October 12, 2001, which told agencies close to the opposite. Janet Reno had issued her own in 1993. Four attorneys general, four answers to the same question, inside three decades.

One sentence out of those three pages still binds a federal agency. Not because Holder wrote it, and not because the Justice Department kept faith with it. Because Congress copied it into the statute in 2016. That distinction is the whole lesson, and it travels: it is also why New Hampshire’s Right-to-Know Law does not rise and fall with whoever happens to be answering requests in a town office.

What the three pages said

Page one set a presumption. “An agency should not withhold information simply because it may do so legally,” it told agency heads. Where a full release was impossible, the memo directed agencies to consider a partial one and to segregate what could be released. It encouraged discretionary disclosures, meaning releases an agency could lawfully refuse and chose to make anyway.

Page two set the test that decided real cases. The Justice Department would defend a denial in two situations: where the agency reasonably foresaw harm to an interest one of the exemptions protects, or where disclosure was prohibited by law. Nothing else. The page went on to make FOIA compliance the job of the whole agency rather than its records staff, and put direct responsibility on a senior official designated as Chief FOIA Officer.

Page three was about speed. Post records online before anyone asks for them. Assign a tracking number to any request that will take longer than ten days and give requesters a way to check where it stands, a requirement that took effect December 31, 2008 under Section 7 of the OPEN Government Act of 2007. And one sentence that anyone who has filed a request will recognize.

The part everyone skips is the last paragraph

Read to the bottom of page three and the memo disarms itself. It states that it is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States or its agencies, officers, or employees. No requester could sue on it. No court had to care about it.

It was an instruction from a superior to the agencies under him, and like any instruction it lasted exactly as long as the authority behind it. A requester in 2010 who cited those three pages to an agency that stonewalled her had an argument. A requester in 2023 citing the same pages had nothing.

Four attorneys general, four answers

The pattern is older than the Holder memo. A February 23, 2022 letter from the chairs and ranking members of the House Oversight and Senate Judiciary committees laid the sequence out in a footnote: Reno issued hers on October 4, 1993, Ashcroft on October 12, 2001, Holder on March 19, 2009. Garland added his on March 15, 2022, three weeks after that letter landed.

Each one moved the line. Reno said the department would defend a withholding only where the agency reasonably foresaw harm. Ashcroft replaced that with a promise to defend withholding unless it lacked a sound legal basis, which is close to defending all of it. Holder swung it back. The Justice Department’s own current guidance records the latest move in a single line: “The 2022 FOIA Guidelines supersede the 2009 FOIA Guidelines issued by Attorney General Holder.”

The dates carry their own argument. Ashcroft’s memorandum is dated October 12, 2001, one month and a day after the September 11 attacks. Whatever drove it, the effect was a government resetting its default in public, and that reset held for eight years until Holder reversed it. Garland reaffirmed the reversal thirteen years after that. A requester’s practical position moved every time, and not one word of the statute changed in between.

Those 2022 guidelines are still the department’s working framework. Its guidance for 2026 Chief FOIA Officer Reports, issued September 30, 2025, tells agencies what to report “in accordance with DOJ’s 2022 Guidelines.” Whether a fifth attorney general rewrites them is a question of who holds the office, not of what the law requires.

The sentence that stopped being optional

In 2016, Congress took the foreseeable-harm test out of the memo and put it in the United States Code. The FOIA Improvement Act wrote it into the statute itself, where it sits today.

The words barely changed. Their legal weight changed completely. Before 2016 the standard was a litigating position the department could abandon at will, and did. After 2016 it is a command an agency has to satisfy and a court can enforce. That is the difference between a memo and a law, and it is the only reason any part of those three pages still matters.

Courts have since given it edges. The Justice Department’s own guidance points agencies at what the D.C. Circuit now demands of them: an agency must articulate both the nature of the harm disclosure would cause and the link between that harm and the specific information being withheld. Generalized claims that releasing deliberative material could make staff less candid do not clear the bar. The agency has to name what breaks and show why this record breaks it. A requester in 2012 arguing from Holder’s three pages had a letter to wave. A requester today has a statute and a line of appellate decisions reading it.

None of it reaches your town hall

Federal FOIA binds federal agencies. It does not reach a New Hampshire select board, a school district, a county attorney, or a municipal police department. Not one of the four memos above ever applied to any of them. The law that does is older than the Holder memo and harder to move.

The preamble is one sentence worth keeping in mind when an office tells you it will get back to you: “Openness in the conduct of public business is essential to a democratic society.” That is statutory text, passed by a legislature, and no attorney general’s memorandum adds to it or subtracts from it.

New Hampshire also puts a clock on the counter, and it is far shorter than anything the federal memos discussed.

Note what that provision does not permit, which is silence. Going quiet for three weeks is not one of the three options. Neither is an open-ended promise to look into it. A body that needs more time has to say so in writing, say how much, and say why, inside five business days. That obligation does not depend on any official’s view of transparency, and it did not arrive by memorandum.

It is worth being exact about who the law covers, because this is where people get talked out of their rights. RSA 91-A grants access to every person on the same terms. There is no press tier in it. A reporter and a retiree asking the same clerk for the same document are standing on identical ground. Federal FOIA does have a news-media category, and it governs what a requester is charged, not what a requester may see.

What to take from a dead memo

Stop arguing with dispositions. An official’s stated commitment to transparency is worth whatever that official is worth on the day you ask, and the four memos are the proof. What survives a change in personnel is text: a deadline, a definition, an exemption written narrowly enough to be argued with.

So when a New Hampshire body stalls a request, the useful move is not to invoke anyone’s principles. It is to cite the statute, name the record, and put the clock on the page. That works on an office that believes in open government and on an office that resents it, which is the point of writing things down.

None of that is cynicism about the people behind the counter. Plenty of clerks in this state hand over a record the same afternoon and never make anyone ask twice. The statute is for the other kind of day, and you do not get to choose in advance which kind of day you are having.

Holder’s three pages were a good instruction, and by their own last paragraph they were unenforceable. The only piece that outlived the signature is the piece a legislature wrote down. None of that is a reason to ignore what officials promise. It is a reason never to mistake a promise for a right.

— Dexter Dow, Granite State Report

Fact check

Editor’s note. Every factual claim above was verified against primary sources opened for this article: the three photographed pages of the 2009 memorandum, the Justice Department’s own guidance pages, the February 2022 congressional letter, and the text of RSA 91-A. Two passages from the 2009 memorandum are quoted verbatim rather than one, because the article is about that document and the exact wording of both lines carries the argument. This article describes what the Justice Department’s 2026 reporting guidance says about the 2022 guidelines; it does not assert that those guidelines have gone unrevised since. Nothing here is legal advice. Corrections are published at the top of the article, permanently, and sent out on the same channels as the original. Send one to granitestatereport@gmail.com.