[iwar] [fc:New.Attorney.General.FOIA.Memorandum.Issued]

From: Fred Cohen (fc@all.net)
Date: 2001-10-18 18:39:36
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Date: Thu, 18 Oct 2001 18:39:36 -0700 (PDT)
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Subject: [iwar] [fc:New.Attorney.General.FOIA.Memorandum.Issued]
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New Attorney General FOIA Memorandum Issued

A new statement of Administration policy on the Freedom of Information
Act has been issued by Attorney General John Ashcroft and has been
transmitted to all agencies across the executive branch of the federal
government. 

On October 12, Attorney General Ashcroft issued a memorandum to the
heads of all departments and agencies that supersedes the Department of
Justice FOIA policy memorandum that had been in effect since October
1993.  The new Ashcroft FOIA Memorandum was effective immediately upon
issuance, and the presidential statement on the FOIA that was issued in
1993 remains in effect as well. 

The Ashcroft FOIA Memorandum emphasizes the Administration's commitment
to full compliance with the FOIA as an important means of maintaining an
open and accountable system of government.  At the same time, it
recognizes the importance of protecting the sensitive institutional,
commercial, and personal interests that can be implicated in government
records -- such as the need to safeguard national security, to maintain
law enforcement effectiveness, to respect business confidentiality, to
protect internal agency deliberations, and to preserve personal privacy. 

In replacing the predecessor FOIA memorandum, the Ashcroft FOIA
Memorandum establishes a new "sound legal basis" standard governing the
Department of Justice's decisions on whether to defend agency actions
under the FOIA when they are challenged in court.  This differs from the
"foreseeable harm" standard that was employed under the predecessor
memorandum.  Under the new standard, agencies should reach the judgment
that their use of a FOIA exemption is on sound footing, both factually
and legally, whenever they withhold requested information. 

Significantly, the Ashcroft FOIA Memorandum also recognizes the
continued agency practice of considering whether to make discretionary
disclosures of information that is exempt under the Act, subject to
statutory prohibitions and other applicable limitations.  It also places
particular emphasis on the right to privacy among the other interests
that are protected by the FOIA's exemptions. 

The text of the Ashcroft FOIA Memorandum is as follows:

Memorandum for Heads of all Federal Departments and Agencies

From: John Ashcroft, Attorney General

Subject: The Freedom of Information Act

As you know, the Department of Justice and this Administration are
committed to full compliance with the Freedom of Information Act (FOIA),
5 U.S.C.  § 552 (2000).  It is only through a well-informed citizenry
that the leaders of our nation remain accountable to the governed and
the American people can be assured that neither fraud nor government
waste is concealed. 

The Department of Justice and this Administration are equally committed
to protecting other fundamental values that are held by our society. 
Among them are safeguarding our national security, enhancing the
effectiveness of our law enforcement agencies, protecting sensitive
business information and, not least, preserving personal privacy. 

Our citizens have a strong interest as well in a government that is
fully functional and efficient.  Congress and the courts have long
recognized that certain legal privileges ensure candid and complete
agency deliberations without fear that they will be made public.  Other
privileges ensure that lawyers' deliberations and communications are
kept private.  No leader can operate effectively without confidential
advice and counsel.  Exemption 5 of the FOIA, 5 U.S.C.  § 552(b)(5),
incorporates these privileges and the sound policies underlying them. 

I encourage your agency to carefully consider the protection of all such
values and interests when making disclosure determinations under the
FOIA.  Any discretionary decision by your agency to disclose information
protected under the FOIA should be made only after full and deliberate
consideration of the institutional, commercial, and personal privacy
interests that could be implicated by disclosure of the information. 

In making these decisions, you should consult with the Department of
Justice's Office of Information and Privacy when significant FOIA issues
arise, as well as with our Civil Division on FOIA litigation matters. 
When you carefully consider FOIA requests and decide to withhold
records, in whole or in part, you can be assured that the Department of
Justice will defend your decisions unless they lack a sound legal basis
or present an unwarranted risk of adverse impact on the ability of other
agencies to protect other important records. 

This memorandum supersedes the Department of Justice's FOIA Memorandum
of October 4, 1993, and it likewise creates no substantive or procedural
right enforceable at law. 

* * * * * 

This policy memorandum was issued pursuant to the Attorney General's
specific statutory responsibility "to encourage agency compliance with
[the Freedom of Information Act]," 5 U.S.C.  § 552(e)(5) (2000), a
responsibility that the Department of Justice discharges in several
ways, including through statements of FOIA policy.  See, e.g.,
Department of Justice Calendar Year 2000 Annual FOIA Report at 99-107
("Description of Department of Justice Efforts to Encourage Agency
Compliance with the Act"). 

A new FOIA policy statement traditionally has been issued by the
Attorney General at the beginning of a new Administration.  Such
statements were issued in May 1977 by Attorney General Griffin B.  Bell,
in May 1981 by Attorney General William French Smith, and in October
1993 by Attorney General Janet Reno.  The Ashcroft FOIA Memorandum
continues that tradition and in so doing calls attention to the
administration of the FOIA at the highest levels of all agencies. 

Additionally, the Office of Information and Privacy is disseminating
this new FOIA policy memorandum to the principal administrative and
legal FOIA contacts at all agencies, with the request that it be further
disseminated as widely and expeditiously as possible through FOIA
administrative channels within each agency.  This dissemination should
ensure that the memorandum reaches all FOIA personnel within each agency
directly, in addition to through its distribution by each agency head. 

OIP also will be both distributing and discussing the Ashcroft FOIA
Memorandum at a FOIA Officers Conference to be held on October 18.  A
second topic to be discussed at this FOIA Officers Conference will be
agency implementation of the electronic availability and annual
reporting requirements of the Electronic Freedom of Information Act
Amendments of 1996, in accordance with this past year's General
Accounting Office Report entitled, "Progress in Implementing the 1996
Electronic Freedom of Information Act Amendments").  OIP issued a policy
guidance memorandum on that subject earlier this year, see FOIA Post,
"GAO E-FOIA Implementation Report Issued" (posted 3/23/01), and issued
follow-up guidance on the preparation of annual FOIA reports as well,
see FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted
8/13/01). 

Lastly, a third topic that will be discussed at this FOIA Officers
Conference is one that has become a subject of greatly increased
significance since the horrific events of September 11.  In light of
those events, and the possibilities for further terrorist activity in
their aftermath, federal agencies are concerned with the need to protect
critical systems, facilities, stockpiles, and other assets from security
breaches and harm -- and in some instances from their potential use as
weapons of mass destruction in and of themselves.  Such protection
efforts, of course, must at the same time include the protection of any
agency information that could enable someone to succeed in causing the
feared harm. 

Protection for such records or information, if requested under the FOIA,
is available under Exemption 2 of the Act, 5 U.S.C.  § 552(b)(2) (2000). 
Any agency assessment of, or statement regarding, the vulnerability of
such a critical asset should be protected pursuant to Exemption 2.  See
FOIA Update, Vol.  X, No.  3, at 3-4 ("OIP Guidance: Protecting
Vulnerability Assessments Through Application of Exemption Two"). 
Beyond that, a wide range of information can be withheld under Exemption
2's "circumvention" aspect, sometimes referred to as "high 2," as is
discussed in the "'High 2': Risk of Circumvention" Subsection of the
"Exemption 2" Section of the "Justice Department Guide to the Freedom of
Information Act." Agencies should be sure to avail themselves of the
full measure of Exemption 2's protection for their critical
infrastructure information as they continue to gather more of it, and
assess its heightened sensitivity, in the wake of the September 11
terrorist attacks. 

Any question concerning the Ashcroft FOIA Memorandum, about
implementation of the Electronic FOIA Amendments, about the use of
Exemption 2 to provide necessary protection in the wake of terrorism, or
about any aspect of FOIA administration can be raised through the Office
of Information and Privacy's FOIA Counselor service, at (202) 514-3642. 
(posted 10/15/01)

Go to: Main FOIA Post Page// DOJ FOIA Page // DOJ Home Page

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