| Section I |
On-Line Issues: C |
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C. Ashcroft Memo on FOIA Policy
Limits Access to Information
Attorney General John Ashcroft’s instruction in 2001 telling federal agencies that they could issue Freedom of Information Act denials with the government’s blessing continued to spark attention and concern throughout 2002. In a memorandum dated Oct. 12, 2001, Mr. Ashcroft revoked the 1993 FOI instructions of former attorney general Janet Reno, which told federal workers that if they did not have to withhold information, they should give it out. Ms. Reno said they should invoke discretionary exemptions only if they could point to some foreseeable harm that would occur from disclosure.
Mr. Ashcroft instead told government agencies that the Justice Department will defend agencies denying information any time there is a “sound legal basis” for doing so. He said the department would refuse to defend a denial only if a lawsuit might jeopardize the government’s ability to continue withholding information.
In the memorandum, Mr. Ashcroft expressed support for the FOI Act and acknowledged that a well-informed citizenry holds national leaders accountable. But he also wrote that his department and the Bush Administration are “equally committed” to other values, among them “national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information, and, not least, preserving personal privacy.” The Justice Department gives guidance and training on FOI matters to all federal agencies. It also litigates against FOI requesters on behalf of most government agencies.
In late 2001, Justice Department officials said the memorandum did not represent a “drastic” shift in the government’s FOI policies, although Dan Metcalfe, co-director of the Justice Department’s Office of Information and Privacy, said the instruction was “certainly a shift in tone.” But by late 2002, Richard Huff, co-director of OIP with Mr. Metcalfe, acknowledged there is a considerable amount of material -- particularly building and site plans and maps -- that the government no longer releases as a result of the Ashcroft memorandum.
In recent decades, attorneys general have instructed federal agencies on carrying out the mandates of the FOI Act. In 1977, Attorney General Griffin Bell told agencies that they should “not withhold documents unless it is important to the public interest to do so.” In 1981, William French Smith reversed the Bell policies. The government would defend all denials unless they lacked a substantial legal basis or would jeopardize the government’s ability to withhold other records. The Ashcroft memorandum echoed that instruction.
The Reno memorandum, issued in 1993, was accompanied by a memorandum from President Clinton. Mr. Clinton told heads of departments and agencies that they were to handle FOI requests in a “customer-friendly manner,” eliminate unnecessary bureaucratic hurdles in implementing the FOI Act, and enhance public access through use of electronic information systems.
Although the Ashcroft memorandum was released shortly after the Sept. 11, 2001 terrorist attacks, Justice officials actually started drafting the memorandum months earlier. After the memorandum was issued, the department held a closed meeting with FOI officers and specialists to discuss the new instructions, the use of Exemption 2 to deny records that might be useful to terrorists, and the requirements of the Electronic FOI Act of 1996 in light of heightened concerns for security after the terrorist attacks.
The FOI Act’s Exemption 2 protects records related “solely to the internal personnel rules and practices” of an agency. Courts have found the exemption to protect everything from trivial matters to those that, if disclosed, could help someone break the law. Attorney General’s Memorandum (Oct. 12, 2001).
Although caught off guard, news organizations realized the impact of the memorandum by early 2002. The Gannett News Service called the memo the beginning of an “ignorance is bliss policy,” with the Bush Administration believing that “the less Americans know about how our government works, the better off we are.”
Editorial writers conceded that in the immediate aftermath of Sept. 11, a case could be made for stepping back and reviewing national security issues. But in mid-January 2002, editorial writers for the Scripps-Howard newspaper chain wrote: “Plenty of time for review has passed, but Ashcroft’s memo, with its wink-wink, nudge-nudge suggestion that it’s OK to ignore the freedom of information law, still stands.”
A prominent senator who is a strong proponent of FOI called upon the General Accounting Office to examine how federal agencies enforce the FOI Act after Mr. Ashcroft’s October 2001 memorandum. Sen. Patrick Leahy (D-Vt.) told the GAO in February 2002 that the Ashcroft memorandum replaces a policy under Ms. Reno that “favored openness in government operations and encouraged a presumption of disclosure.”
By contrast, he said, the Ashcroft memo encourages denials even when “there is doubt whether an exemption applies and no foreseeable harm from disclosure.” Sen. Leahy asked the GAO to assess the impact of the new policy on agency responses to FOI requests, agency backlogs of requests, litigation involving federal agencies for withholding records, and fee waivers for requests from news media.
In early March 2002, the House Government Reform Committee agreed to edit a popular citizen’s guide to refute the Ashcroft memorandum. The committee has oversight over FOI matters. In the introduction to the 81-page publication, A Citizen’s Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records, the committee added a new paragraph to the FOI explanation. The existing admonition states: “Above all, the statute requires Federal agencies to provide the fullest possible disclosure of information to the public.”
The new language follows: “The history of the act reflects that it is a disclosure law. It presumes that requested records will be disclosed, and the agency must make its case for withholding in terms of the act’s exemptions to the rule of disclosure.
“The application of the act’s exemptions is generally permissive -- to be done if information in the requested records requires protection -- not mandatory. Thus, when determining whether a document or set of documents should be withheld under one of the FOIA exemptions, an agency should withhold those documents only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption.
“Similarly, when a requestor asks for a set of documents, the agency should release all documents, not a subset or selection of those documents. Contrary to the instructions issued by the Department of Justice on October 12, 2001, the standard should not be to allow the withholding of information whenever there is merely a ‘sound legal basis’ for doing so.”
Rep. Henry Waxman (D-Calif.), the committee’s ranking minority member, submitted the editorial changes, and Rep. Dan Burton (R-Ind.) approved them.
In the final days of 2002, Congress passed new FOI Act exemptions under the auspices of the Homeland Security Act that Sen. Leahy described as the “most severe weakening of the Freedom of Information Act in its 36-year history.” The Homeland Security Act that originated in the House of Representatives (H.R. 5710) and passed in November 2002 provides that any officer or employee of the U.S. government who “publishes, divulges, discloses or makes known in any manner” information concerning the critical infrastructure will face fines up to $5,000 and/or imprisonment up to one year.
The final bill displaced a compromise agreement in the Senate that would have given protection outside the normal use of exemptions to the Freedom of Information Act. The compromise agreement hammered out in the late summer gave new statutory protection to information provided by businesses but, unlike the final version, did not levy criminal penalties for leaks. The new law also immunizes companies that share information from liability for wrongdoing revealed in the information and from antitrust prosecutions.
Congressional proposals to criminalize leaks of information classified to protect national security have been rejected over the past several years for fear that the threat of prosecution would chill government employees from discussing important public issues. Critical infrastructure information covered by the new law is not classified or classifiable.
Sen. Leahy was blunt about the impact of the new law. “This would hurt and not help our national security, and along the way it would frustrate enforcement of the laws that protect the public’s health and safety. For example, if a company submits information that its factory is leaching arsenic in ground water, that information no longer could be used in a civil or criminal proceeding brought by local authorities or by the neighbors who were harmed by drinking the water,” he said.
At the behest of businesses that might share critical infrastructure information with the government, Congress had attempted for five years to enact legislation protecting against public disclosures. The Homeland Security Act gives businesses everything they ever sought as a condition for sharing information with the government that might aid in protection of the infrastructure. (See Chapter A in this section .)
--Lucy Dalglish
The staff of the Reporters Committee for Freedom of the Press provided research assistance.
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