Vol. XIV, No. 3
Attorney General Reno's FOIA Memorandum
October 4, 1993
MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
SUBJECT: The Freedom of Information Act
President Clinton has asked each Federal department and agency to take steps to ensure it is in compliance with both the letter and the spirit of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Department of Justice is fully committed to this directive and stands ready to assist all agencies as we implement this new policy.
First and foremost, we must ensure that the principle of openness in government is applied in each and every disclosure and nondisclosure decision that is required under the Act. Therefore, I hereby rescind the Department of Justice's 1981 guidelines for the defense of agency action in Freedom of Information Act litigation. The Department will no longer defend an agency's withholding of information merely because there is a "substantial legal basis" for doing so. Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of disclosure.
To be sure, the Act accommodates, through its exemption structure, the countervailing interests that can exist in both disclosure and nondisclosure of government information. Yet while the Act's exemptions are designed to guard against harm to governmental and private interests, I firmly believe that these exemptions are best applied with specific reference to such harm, and only after consideration of the reasonably expected consequences of disclosure in each particular case.
In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that exemption. Where an item of information might technically or arguably fall within an exemption, it ought not to be withheld from a FOIA requester unless it need be.
It is my belief that this change in policy serves the public interest by achieving the Act's primary objective -- maximum responsible disclosure of government information -- while preserving essential confidentiality. Accordingly, I strongly encourage your FOIA officers to make "discretionary disclosures" whenever possible under the Act. Such disclosures are possible under a number of FOIA exemptions, especially when only a governmental interest would be affected. The exemptions and opportunities for "discretionary disclosures" are discussed in the Discretionary Disclosure and Waiver section of the "Justice Department Guide to the Freedom of Information Act." As that discussion points out, agencies can make discretionary FOIA disclosures as a matter of good public policy without concern for future "waiver consequences" for similar information. Such disclosures can also readily satisfy an agency's "reasonable segregation" obligation under the Act in connection with marginally exempt information, see 5 U.S.C. § 552(b), and can lessen an agency's administrative burden at all levels of the administrative process and in litigation. I note that this policy is not intended to create any substantive or procedural rights enforceable at law.
In connection with the repeal of the 1981 guidelines, I am requesting that the Assistant Attorneys General for the Department's Civil and Tax Divisions, as well as the United States Attorneys, undertake a review of the merits of all pending FOIA cases handled by them, according to the standards set forth above. The Department's litigating attorneys will strive to work closely with your general counsels and their litigation staffs to implement this new policy on a case-by-case basis. The Department's Office of Information and Privacy can also be called upon for assistance in this process, as well as for policy guidance to agency FOIA officers.
In addition, at the Department of Justice we are undertaking a complete review and revision of our regulations implementing the FOIA, all related regulations pertaining to the Privacy Act of 1974, 5 U.S.C. § 552a, as well as the Department's disclosure policies generally. We are also planning to conduct a Department-wide "FOIA Form Review." Envisioned is a comprehensive review of all standard FOIA forms and correspondence utilized by the Justice Department's various components. These items will be reviewed for their correctness, completeness, consistency, and particularly for their use of clear language. As we conduct this review, we will be especially mindful that FOIA requesters are users of a government service, participants in an administrative process, and constituents of our democratic society. I encourage you to do likewise at your departments and agencies.
Finally, I would like to take this opportunity to raise with you the longstanding problem of administrative backlogs under the Freedom of Information Act. Many Federal departments and agencies are often unable to meet the Act's ten-day time limit for processing FOIA requests, and some agencies -- especially those dealing with high-volume demands for particularly sensitive records -- maintain large FOIA backlogs greatly exceeding the mandated time period. The reasons for this may vary, but principally it appears to be a problem of too few resources in the face of too heavy a workload. This is a serious problem -- one of growing concern and frustration to both FOIA requesters and Congress, and to agency FOIA officers as well.
It is my hope that we can work constructively together, with Congress and the FOIA-requester community, to reduce backlogs during the coming year. To ensure that we have a clear and current understanding of the situation, I am requesting that each of you send to the Department's Office of Information and Privacy a copy of your agency's Annual FOIA Report to Congress for 1992. Please include with this report a letter describing the extent of any present FOIA backlog, FOIA staffing difficulties and any other observations in this regard that you believe would be helpful.
In closing, I want to reemphasize the importance of our cooperative efforts in this area. The American public's understanding of the workings of its government is a cornerstone of our democracy. The Department of Justice stands prepared to assist all Federal agencies as we make government throughout the executive branch more open, more responsive, and more accountable.
The following is the full text of a memorandum recently sent by Attorney General Janet Reno to the heads of all individual components of the Department of Justice, as a follow-up to the Attorney General's FOIA Memorandum, on the subject of FOIA backlog reduction within the Department:
Last month, President Clinton and I issued new Freedom of Information Act policy memoranda to the heads of all Federal departments and agencies (copies attached), as part of our Openness In Government initiative. Our policy calls for a strong presumption of disclosure under the FOIA, with information withheld only where it need be withheld in order to prevent foreseeable harm under an applicable FOIA exemption. This applies to law enforcement agencies such as the Department of Justice as well as to other Federal agencies. We are strongly encouraging all Federal agencies to make discretionary FOIA disclosures whenever this standard is not met, and we will decide whether to defend FOIA cases in litigation according to this higher standard as well. Additionally, we are committed to reducing FOIA backlogs as quickly as possible.
These backlog-reduction efforts are now actively underway within the Department, but they need your strong support as well. We all should recognize that there is no single solution to this longstanding problem. Obviously, the allocation of additional resources to FOIA administration and the reallocation of existing resources are among the choices to be considered. We also should redouble our efforts to employ practices and procedures of FOIA administration that make the most cost-effective use of all resources available.
Equally important, I believe, is the institutional attitude that is brought to matters of day-to-day FOIA administration. To implement the meaningful change in FOIA policy we announced last month, we must depend not only on those directly involved in that activity on a daily basis, but also the many Department employees on whom FOIA officers depend for timely assistance. In many instances, the Department's FOIA officers simply cannot function without the cooperation of the custodians of requested records and other interested program personnel within each component. They, too, must make timely FOIA compliance a greater priority in the future.
So, I ask that you join me in promoting a new institutional attitude toward FOIA administration, for purposes of backlog reduction as well as toward greater information disclosure. Please transmit these new FOIA policy memoranda as widely as necessary within your individual components to ensure that this new spirit of government openness and FOIA priority is communicated in all aspects of FOIA administration throughout the Department. It is my goal, and the President's as well, that this new spirit reach all Federal agency employees who are in any way involved in the administration of the Act.
(The attachments were the memorandum at the top of this page and President's Memorandum.
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