UPDATE
ON PHASE ONE: THE ASHCROFT MEMORANDUM
As of the date of publication of Phase
One of the Archive Audit, on March 14, 2003, the Social Security
Administration and the Department of Veterans Affairs had failed
to provide documentation regarding the implementation of Attorney
General Ashcroft's October 12, 2001 memorandum on the Freedom
of Information Act. Each agency subsequently provided responses.
In addition, the Archive received a response from the Department
of Justice concerning its appeal of that agency's use of Exemption
(b)(5) to withhold records regarding implementation of the Ashcroft
Memorandum. These responses are summarized below.
In addition, in September 2003, the General Accounting Office
("GAO") released a report
assessing the impact of new administration FOIA policy on the
processing of FOIA requests. GAO was asked to determine (1)
to what extent, if any, Department of Justice guidance for agencies
on FOIA implementation has changed as a result of the new policy;
(2) the views of FOIA officers at 25 agencies regarding the new
policy and its effects, if any; and (3) the views of FOIA officers
at 25 agencies regarding available FOIA guidance. GAO found that
following the issuance of the Ashcroft memorandum, The Department
of Justice changed its guidance for agencies on FOIA implementation
to refer to and reflect the two primary policy changes in the
memorandum. First, under the Ashcroft memorandum, agencies making
decisions on discretionary disclosure are directed to carefully
consider such fundamental values as national security, effective
law enforcement, and personal privacy; the Reno memorandum had
established an overall "presumption of disclosure" and
promoted discretionary disclosures to achieve "maximum responsible
disclosure." Second, according to the Ashcroft memorandum,
DOJ will defend an agency's withholding information if the agency
has a "sound legal basis" for such withholding under
FOIA; under the Reno policy, DOJ would defend an agency's withholding
information only when the agency reasonably foresaw that disclosure
would harm an interest protected by an exemption. Regarding effects
of the new policy, GAO found that FOIA officers most frequently
reported that they did not notice changes in their agencies' responses
to FOIA requests compared to previous years. About one third of
the FOIA officers, however, reported a decreased likelihood in
their agency making discretionary releases; of these FOIA officers,
75 percent cited the new policy as a top factor influencing the
change.
Social Security Administration. In addition to the Ashcroft
Memorandum itself, SSA released "SSR Policy Interpretation
Ruling: Request under the Privacy Act or Freedom of Information
Act for Access to Records and for Disclosure of Materials Maintained
by the Office of Hearings and Appeals," and the materials
used to train staff persons who handle requests for Appeals Council
Working Papers. Although the Policy Interpretation Ruling does
not appear to specifically reference the Ashcroft Memorandum,
it does discuss the use of Exemptions (b)(2) and (b)(5) and indicate
that it is SSA policy to withhold Administrative Law Judge and
Appeals Council working papers. The training materials refer to
the new "sound legal basis" standard set by the Ashcroft
Memorandum and specifically describe the scope of Exemptions (b)(2)
and (b)(5). Two e-mails were released in part, with the excisions
based on Exemption 5. The released portion explains "[t]he
only thing different is that we don't have to describe the particular
harm that we anticipate from disclosure." Three other records
(one memorandum and two e-mails) were denied in their entirety
under Exemption (b)(5). A third e-mail was withheld under Exemption
(b)(2) because it contained internal personnel communications
including a list of personnel who attended training.
SSA released three documents in their entirety, denied two documents
in part and denied four documents in their entirety. The denials
were based on Exemptions (b)(2) and (b)(5).
Department of Veterans Affairs. The VA initially responded
to the Archive's request for records concerning implementation
of Attorney General Ashcroft's October 12, 2001 memorandum on
the Freedom of Information Act with a "no records" response.
Approximately two months later, the VA revised its response "after
considering alternate sources" and found three records. One
was an e-mail that described the FOIA Officers Conference organized
by the Department of Justice's Office of Information and Privacy
in October 2001. It explains:
The new policy will make it easier for agencies to withhold trivial
information and information covered by the various privileges,
such as the deliberative process privilege, the attorney-client
privilege, etc., since agencies will no longer be required to
make the additional determination that disclosure would be harmful.
The AG acknowledges that that discretionary disclosures may still
be made, but they are no longer actively encouraged as they were
under the previous administration.
The other two records are a copy of the Ashcroft memorandum that
was posted on an internal VA Office of General Counsel Web site
and an advisory informing staff of the posting. The advisory states:
Under the new standard, agencies should reach the judgment that
their use of a FOIA exemption is on sound footing, both factually
and legally, whenever they withhold requested information.[] DOJ
also states that the Memorandum "also recognizes the continued
agency practice of considering whether to make discretionary disclosures
of information that is exempt under the Act, subject to statutory
prohibitions and other applicable limitations.
Department of Justice. The Archive appealed DOJ's withholding
of three documents in full based on Exemption (b)(5). In its appeal,
the Archive noted that the Ashcroft Memorandum had been issued,
and that there was no remaining deliberative basis for withholding
the records. It further asked for reconsideration in light of
the central role that DOJ played in formulating and disseminating
the policy, noting that the Ashcroft Memorandum permits discretionary
releases. DOJ's decision on the appeal fully upheld the withholdings
without any additional justification.