Freedom of Information Act Post September 11th

A New Era of FOIA Policy Unveiled

For more than a quarter of a century, the Freedom of Information Act has ratified the public's right to know what the government, its agencies and its officials have done. It has substituted transparency for secrecy and our country has benefited from the truths that been extracted from public records. No one disputes that we must safeguard our national security. All of us want to protect our nation from further acts of terrorism. But we must never allow the public's right to know, enshrined in the Freedom of Information Act, to be suppressed for the sake of official convenience.

On October 12, 2001, Attorney General John D. Ashcroft issued a new memorandum, on behalf of the Bush Administration, directing federal agency heads to, in effect, search for and use any legal authority for denying access to records under the Freedom of Information Act (FOIA).  The policy--effective immediately upon issuance--supercedes a 1993 memorandum issued by Attorney General Janet Reno, which ordered that agencies should make allowable discretionary disclosures except where there was "demonstrable harm." Ashcroft promised:

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.

On February 7, Congressman Henry Waxman (D-Los Angeles) sought and got a rebuke to Attorney General John Ashcroft's Freedom of Information Act policy.

The House Government Reform Committee, with oversight on FOIA issues, marked up a draft update of its popular "A Citizen's Guide on Using the Freedom of Information Act and the Privacy Act of 1974 to Request Government Records." The marked up draft stated in the introduction: "Above all, the statute requires Federal agencies to provide the fullest possible disclosure of information to the public."

Congressman Waxman offered, and Committee Chair Dan Burton (R-Indiana) approved, the addition of the following paragraphs immediately following that statement:

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.

The action represents a symbolic, bipartisan Congressional censure at Ashcroft's October directive.

In the Senate, Senator Patrick Leahy (D-Vermont) asked the General Accounting Office 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."

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