The text of the
Ashcroft FOIA Memorandum is as follows:
Heads of all Federal Departments and Agencies
From: John Ashcroft,
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.
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
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
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.
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.
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.
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
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.
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