MODIFIED OPERATIONS DUE TO THE COVID-19 Pandemic
PARDON implemented modified operations to maximize social distancing in accordance with CDC.gov and Coronavirus.gov guidance at the beginning of March 2020, which are still in place today. Such actions include maximum telework and maximum work flexibility, which has not altered our commitment or ability to accomplish the mission of supporting the Department and the President on executive clemency matters or handling FOIA requests. Although PARDON is one of the oldest components within DOJ, we are also one of the smallest. Therefore, we have no control over the limited available staff to process our more complex and voluminous records requests, but simple and narrowed requests receive a final response well within the timeframe allowed. As the Department of Justice’s FOIA Guidelines emphasize, the FOIA “reflects our nation’s fundamental commitment to open government.” During these times, even as we are working under new constraints in light of COVID-19, our legal obligations under the FOIA continue. We believe that the FOIA law remains an important tool for the public to gain access to government information to stay informed about government activities. Accordingly, as a general matter, to the extent feasible, we will continue to ensure that our FOIA operations continue in compliance with the FOIA's requirements, and we will continue to assess our FOIA program as circumstances evolve with a focus on finding workable solutions to maximize the efficiency and effectiveness of FOIA administration within the parameters of our workplace policies.
Average processing time for 2020
30 working days for simple requests
426 working days for complex requests
HOW DO I SUBMIT A FOIA REQUEST TO THE PARDON ATTORNEY
Things to know before making a request
As a general matter, Presidents in recent times have rarely announced their reasons for granting or denying clemency, although the President may choose to do so in a given case. Consistent with long-standing policy, if the President does not issue a public statement concerning his action in a clemency matter, no explanation is provided by the Department of Justice. Moreover, deliberative communications pertaining to agency and presidential decision-making are confidential and not available under existing case law interpreting the Freedom of Information Act and Privacy Act. See 28 CFR § 1.5
Petitions, reports, memoranda, and communications submitted or furnished in connection with the consideration of a petition for executive clemency generally shall be available only to the officials concerned with the consideration of the petition. However, they may be made available for inspection, in whole or in part, when in the judgment of the Attorney General their disclosure is required by law or the ends of justice.
Privacy Act Requests (1st person requests)
Would you like to request a copy of your own clemency petition? If so, you will need to verify your identity as required by Department regulation 28 C.F.R. § 16.41(d) (2018). Specifically, if you would like this Office to process your request and search for responsive records in this Office, you will need to either (1) return a completed Certification of Identity form to this Office, or (2) provide a statement notarized or under penalty of perjury pursuant to 28 U.S.C. § 1746, indicating your full name, place of birth, date of birth, and current address. A Certification of Identity form is available online at http://www.justice.gov/oip/doj-reference-guide-attachment-d-copies-forms. See 28 C.F.R. § 16.3(a)(3)
Media Requests/3rd Party Requests
If you are a media outlet or third party requesting a portion of or the entire clemency casefile of someone other than yourself, you will need to get the permission of the petitioner by having them complete a Certification of Identity form and listing your name in the Authorization to Release Information to Another Person section of the form. A Certification of Identity form is available online at http://www.justice.gov/oip/doj-reference-guide-attachment-d-copies-forms. See 28 C.F.R. § 16.3(a)(3)
DOJ’s FOIA Regulations
What records are excluded from the FOIA?
Congress has provided special protection in the FOIA for three narrow categories of law enforcement and national security records. The provisions protecting those records are known as “exclusions.” The first exclusion protects the existence of an ongoing criminal law enforcement investigation when the subject of the investigation is unaware that it is pending and disclosure could reasonably be expected to interfere with enforcement proceedings. The second exclusion is limited to criminal law enforcement agencies and protects the existence of informant records when the informant’s status has not been officially confirmed. The third exclusion is limited to the Federal Bureau of Investigation and protects the existence of foreign intelligence or counterintelligence, or international terrorism records when the existence of such records is classified. Records falling within an exclusion are not subject to the requirements of the FOIA. So, when an office or agency responds to your request, its response will encompass those records that are subject to the FOIA.
What are the 9 FOIA Exemptions
Not all records are required to be released under the FOIA. Congress established nine exemptions from disclosure for certain categories of information to protect against certain harms, such as an invasion of personal privacy, or harm to law enforcement investigations. The FOIA authorizes agencies to withhold information when they reasonably foresee that disclosure would harm an interest protected by one of these nine exemptions.
The nine exemptions are described below.
- Exemption 1: Information that is classified to protect national security.
- Exemption 2: Information related solely to the internal personnel rules and practices of an agency.
- Exemption 3: Information that is prohibited from disclosure by another federal law.
- Exemption 4: Trade secrets or commercial or financial information that is confidential or privileged.
- Exemption 5: Privileged communications within or between agencies, including those protected by the:
- Deliberative Process Privilege (provided the records were created less than 25 years before the date on which they were requested)
- Attorney-Work Product Privilege
- Attorney-Client Privilege
- Presidential Communications Privilege
- Exemption 6: Information that, if disclosed, would invade another individual’s personal privacy.
- Exemption 7: Information compiled for law enforcement purposes that:
- 7(A). Could reasonably be expected to interfere with enforcement proceedings
- 7(B). Would deprive a person of a right to a fair trial or an impartial adjudication
- 7(C). Could reasonably be expected to constitute an unwarranted invasion of personal privacy
- 7(D). Could reasonably be expected to disclose the identity of a confidential source
- 7(E). Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law
- 7(F). Could reasonably be expected to endanger the life or physical safety of any individual
- Exemption 8: Information that concerns the supervision of financial institutions.
- Exemption 9: Geological information on wells.
Many documents are available to the public without having to make a FOIA request. These documents are called "proactive disclosures" because they are automatically posted online by Department components.
The Office of the Pardon Attorney’s (Pardon Attorney) primary function is to receive, evaluate, and investigate clemency applications and prepare the recommendation of the Department as to the appropriate disposition of each application for the signature of the Deputy Attorney General and consideration by the President. The Pardon Attorney also responds to inquiries concerning executive clemency petitions and the clemency process from applicants, their legal representatives, members of the public, elected officials, and various federal, state, and local officials and agencies; prepares all necessary documents to effect the President’s decision to grant, as well as deny clemency; and notifies each clemency applicant of the President’s decision concerning his or her clemency request once such decisions are final. When requested by the White House, the Pardon Attorney also provides general advice to the President concerning executive clemency procedures and the historical background of clemency matters.
DOJ Reference Guide:
A comprehensive guide to the FOIA that serves as a handbook for obtaining information from the Department.
Special information required to make a FOIA request:
For clemency case files, please provide the full name of the person who applied, was granted or was denied clemency, as well as the date or President you believe made the final disposition of the case. This office does not have cases catalogued by offense type, jurisdiction, sex of petitioner, race of petitioner or any other grouping so we are unable to respond to FOIA requests of this kind.
Release of Denied Applicant Names
In accordance with the ruling by the federal court of the District of Columbia in Lardner v. Department of Justice, 638 F.Supp.2d 14 (D.D.C. 2009), affirmed, Lardner v. United States Department of Justice, No. 09-5337, 2010 WL 4366062 (D.C. Cir. Oct. 28, 2010) (unpublished), the Office of the Pardon Attorney is obliged to release existing lists of the names of persons who have been denied executive clemency by the President to anyone who requests such records pursuant to the Freedom of Information Act. Given the frequency of such requests, the Pardon Attorney has started to proactively disclose the names of persons who have been denied executive clemency by the President on our website, in accordance with our Freedom of Information Act obligations. Conversely, we also proactively disclose the names of those who have been granted clemency and provide a dowloadable PDF file of the Presiden't clemency warrant for more recent administrations. We hope to make this information available through history as time and resources allow, but we do not have a timeframe for completing that task at this time.
Requester Service Center: 202-616-6070 or PardonAttorneyFOIA@usdoj.gov
FOIA Public Liaison: Malawi Welles - Records & Information Management Specialist (202) 616-6070
Component Point of Contact: Lisa Porcari - Attorney Advisor (202) 616-6070