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FOIA Update: Attorney General Reno Celebrates Annual Freedom of Information Day

FOIA Update
Vol. XV, No. 2

Attorney General Reno Celebrates Annual Freedom of Information Day

Furthering the strong spirit of government openness that has been a hallmark of her leadership at the Department of Justice, Attorney General Janet Reno celebrated annual Freedom of Information Day this year with a speech at the National Press Club on the subject of openness in government.

Before a capacity crowd of journalists and other media members at the National Press Club's annual FOIA Day celebration on March 16, Attorney General Reno gave a luncheon address that outlined the full range of openness-in-government initiatives undertaken by the Department of Justice during the past year, including the major policy changes made by the Department under the Freedom of Information Act. Through such actions, she emphasized, "[o]ur goal is to create meaningful, lasting change."

Attorney General Reno remarked that she and President Clinton share "a broad philosophy of open government" that is manifested both in President Clinton's FOIA Memorandum of October 4, 1993, and the Department of Justice's initiatives in the following policy activity areas:

New FOIA Policy Standards--Establishment of an overall "presumption of disclosure" applicable to FOIA decisionmaking; a new "foreseeable harm" standard governing the application of FOIA exemptions; and an accompanying emphasis on the making of discretionary disclosures of exempt information whenever possible under the Act. See FOIA Update, Summer/Fall 1993, at 1-5. Attorney General Reno observed that "in many instances, these discretionary disclosures can satisfy the goals of the Act" without harming an agency's or a private party's interests. (See pages 3-6 of this issue of FOIA Update for further policy guidance.

FOIA Litigation Review--Rescission of the Justice Department's former standards for the defense of FOIA litigation, together with a review of the merits of all pending and prospective FOIA litigation cases in accordance with the Department's new FOIA policy standards. This review has led to the complete resolution of several FOIA lawsuits, in some instances where all of the information withheld in the case was disclosed as a matter of administrative discretion and in others in which so much of it was disclosed that the FOIA requester then dropped the suit as to the remainder.

Perhaps the most notable example of a FOIA case disposed of through this new process of litigation review, Attorney General Reno told her FOIA Day audience, is the recent case involving a report recommending the exclusion from the United States of former U.N. Secretary-General Kurt Waldheim, Mapother v. Department of Justice, 3 F.3d 1533 (D.C. Cir. 1993). The Department's new litigation review process included that case, she noted, and it triggered a decision to disclose the report entirely as a matter of administrative discretion. "Even though there was a substantial legal basis for withholding, affirmed by the court of appeals," Attorney General Reno pointed out, "the new FOIA policy resulted in disclosure."

FOIA Form Review--Comprehensive reviews of all forms and standard correspondence formats used by the more than thirty different components of the Justice Department in their individual administration of the Act. The Department has made numerous improvements in the content, clarity and consistency of many of its components' written communications with FOIA requesters through this process, and it strongly advises other agencies to do the same.

An example of a major change made through the Justice Department's FOIA Form Review process is the Office of Information and Privacy's recommendation that all FOIA correspondence contain a telephone number at which requesters can contact appropriate agency FOIA officers with any questions that they might have. (OIP, as an example, now includes its telephone number as part of its preprinted letterhead on all of its correspondence for this purpose.) This simple step alone can facilitate better and more efficient communications with FOIA requesters and has been implemented widely within the Justice Department.

Attorney General Reno emphasized the importance of this in her FOIA Day presentation, stressing the strong connection between FOIA communications and the customer-service objectives of the National Performance Review: "The goal of our review, a goal being implemented governmentwide by the Vice President's National Performance Review, is to remind everybody that FOIA requesters are our customers. . . . Our procedures, forms and letters should treat FOIA requesters with the respect they deserve."

Backlog Reduction--Attention to all existing backlogs of FOIA requests, both within the Justice Department and governmentwide, with emphasis on backlog reduction to the maximum extent possible. Through the Attorney General's governmentwide call for agency backlog data in her FOIA Memorandum of October 4, 1993, the Department has compiled information showing backlog problems existing at nearly two-thirds of all federal agencies. Within her own agency, the Attorney General is focusing on all possible means of backlog reduction, including the development of automated FOIA-processing systems through the National Performance Review process, especially at such components as the FBI and INS where the problem is most severe. See also FOIA Update, Summer/Fall 1993, at 8-9.

To ensure that the importance of timely FOIA compliance is appreciated by all Justice Department employees, including those who are relied upon by FOIA officers to support the processes of FOIA administration, Attorney General Reno sent a memorandum to all Department components last year urging a "new institutional attitude" on everyone's part. See FOIA Update, Summer/Fall 1993, at 5. At the National Press Club program, she announced that the Department also would be disseminating this same strong message to each and every employee of the Justice Department directly through a special mailing that would be included "with their next paycheck" as well.

Expedited Access--Establishment of a new Justice Department policy affording expedited access under the Act for certain FOIA requests that meet exceptional standards of media-related interest. By a memorandum to all Justice Department components dated February 1, 1994, OIP announced that the Department was expanding its policy of granting requests for expedited FOIA processing beyond the existing judicially recognized grounds of either threatened physical safety or the loss of substantial due process rights. It established a third category of requests entitled to expedited access ahead of other FOIA requesters--consisting of all "FOIA requests for which the Director of [the Justice Department's Office of] Public Affairs expressly finds that:

  • there exists widespread and exceptional media interest in the requested information; and
  • expedited processing is warranted because the information sought involves possible questions about the government's integrity which affect public confidence."

Attorney General Reno highlighted this new Justice Department policy in her FOIA Day presentation, and the Department formally encourages all other federal agencies to adopt similar such policies for the treatment of media-related requests seeking expedited FOIA access. Additionally, the Justice Department's Director of Public Affairs, Carl Stern, is scheduled to make a keynote presentation at the American Society of Access Professionals' Annual Symposium this summer addressing the operation of this openness-in-government initiative.

New Disclosure Policy for Professional Misconduct Investigations--Creation of a mechanism for affirmative disclosure of the results of investigations conducted by the Department's Office of Professional Responsibility in accordance with a new public interest disclosure standard. The Attorney General also described the Department's "new policy requiring the quick handling and appropriate public disclosure of investigations . . . into complaints of misconduct by Justice Department attorneys and investigators." This policy provides for disclosure of findings of intentional wrongdoing and also of the results of investigations in which no wrongdoing is found, based upon a new "public accountability" standard developed and applied through OIP. It encourages other agencies to adopt their own such policies, under applicable Privacy Act "routine use" regulations.

In addition to her FOIA Day speech at the National Press Club, which was televised by C-SPAN, Attorney General Reno made similar openness-in-government presentations before other media organizations during the spring.

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Updated December 6, 2022