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THE ASHCROFT MEMO:

"Drastic" Change or
"More Thunder Than Lightning"?

 

The National Security Archive
Freedom of Information Act Audit

Phase One Presented March 14, 2003

2003 National Freedom of Information Day Conference

 

 
Introduction
Executive Summary
Methodology
Findings Regarding Implementation of Attorney General Guidance Regarding FOIA
Preliminary Findings Regarding Implementation of White House Guidance Regarding FOIA and Classification
Findings Regarding Administration Openness/Secrecy Agenda
Findings Regarding Administrative Processing of FOIA Requests
Further Research
 

FINDINGS REGARDING IMPLEMENTATION OF ATTORNEY GENERAL GUIDANCE REGARDING FOIA

Summary Table of Attorney General Ashcroft Memo FOIA Requests (405KB)
Table of Attorney General Ashcroft Memo FOIA Requests by Processing Times (125KB)
Table of Attorney General Ashcroft Memo FOIA Requests by Level of Implementation (74KB)
The Data: FOIA Correspondence and Documents on the Ashcroft Memorandum

When the Ashcroft Memorandum was issued, the press and access advocates greeted it with serious concern. The 1993 Reno Memorandum, which was issued along with a Presidential memorandum discussing the importance of openness in government and requesting enhanced administration of the FOIA, had provided that the U.S. Department of Justice would "no longer defend an agency's withholding of information merely because there is a 'substantial legal basis'" for withholding. Instead, the Reno Memorandum indicated that it would "apply a presumption of disclosure" and that the FOIA exemptions from disclosure should be used "with specific reference to [harm to governmental or private interests], and only after consideration of the reasonably expected consequences of disclosure in any particular case." It specifically encouraged agencies to make "discretionary disclosures," particularly where only a government interest in non-disclosure was at stake. The Reno Memorandum summarized that "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."

The Ashcroft Memorandum replaced the FOIA memorandum issued by Attorney General Janet Reno in October 1993. In the months after it was distributed to department and agency heads, the Archive was told anecdotally by a few agency FOIA professionals that the Ashcroft Memorandum had had little impact on their FOIA processing, which was counter to the public perception. Indeed, one senior agency official indicated the Ashcroft Memorandum may have had the "softest landing" that could be expected. An agency lawyer characterized it as "more thunder than lightening." One official administering the FOIA at the appellate level for an agency receiving several thousand requests per year noted his panel's work "hasn't been at all affected, virtually not." And, a FOIA official at a defense agency reacted to the new Memorandum with a shrug: "Yeah. Okay." Importantly, the memorandum does not direct any specific activity by agencies. The memorandum does, however, highlight the considerations that may counsel against discretionary releases and highlights the importance of invoking Exemption (b)(5) to protect recognized legal privileges such as the deliberative process privilege. Finally, we are not aware of similar studies of the impact of the Reno Memorandum that would allow for a valid comparison.

Readers should keep in mind three important caveats about our findings, however, one concerning policy, another concerning data. First, our survey indicated a divide between FOIA policy and FOIA processing; i.e., some agency officials who actually process requests indicated the Ashcroft Memorandum had little or no impact even though their agency might have undertaken significant policy changes or implementation activities. Second, as of today, 2 of the 35 agencies-the Social Security Administration and the Department of Veterans Affairs-have failed to provide documentation for this study and so are not included. Third, as noted in the Methodology section above, there may be still more data out there.

As a final consideration, our interviews also indicated some conflation of the concerns articulated in the Ashcroft Memo; the White House Memorandum on Weapons of Mass Destruction information; concerns stemming from the terror attacks of September 11, 2001; and, to some extent, concerns stemming from the Global War on Terrorism.

Agency policy-makers took a range of approaches upon receipt of the Ashcroft Memorandum. Generally, we find Agency implementation of the Ashcroft Memorandum varied by agency and can be characterized in terms of four categories:

Significant Change
Engaged in Implementation Activities
Dissemination of Ashcroft Memo-Little Implementation or Change
No Dissemination of the Ashcroft Memo-No Implementation or Change

 

  • Agencies That Adopted Significant Changes Resulting From the Ashcroft Memorandum

5 of 33 Federal departments or agencies surveyed (15 %) indicated significant changes in regulations, guidance, and training materials and that the Ashcroft Memorandum was widely disseminated.

Department of the Air Force ("Air Force")
Department of the Army ("Army")
Department of the Navy ("Navy")
Department of the Interior ("DOI")
Nuclear Regulatory Commission ("NRC")

Most of the agencies that made significant changes in response to the Ashcroft Memorandum were from the Defense establishment. Part of this stems from the bureaucratic culture within the agencies that interprets guidance as ordering or directing activity and that looks for and responds to directives, rather than as guiding or advising policy. As one interviewee described it, "In DoD, we're trained to take orders." Nevertheless, this same person articulated a countervailing tendency that places limits on policy innovation in that an agency cannot and will take not make a policy change "unless there's a requirement" to do so.

 

Discussion of Agencies

Department of the Air Force. Air Force's implementation of the Ashcroft Memorandum illustrates the duality of the bureaucratic response . For example, documents the Archive gained under FOIA reveal that Judge Advocate General ("JAG") lawyers argued that the Ashcroft Memorandum reflects a "drastic" policy change, but that the Ashcroft Memorandum itself was disseminated to FOIA officers as "low priority" and without commentary. We have included the Air Force in this category of responses to the Ashcroft Memorandum, although it is difficult to determine from their disclosures the actual impact of the Memorandum. In the JAG document, which appears to be an article for publication, two USAF Majors postulate that the Ashcroft Memorandum constitutes "a marked shift in FOIA policy and will fundamentally change the way the federal government responds to FOIA requests." They note that "a hailstorm of discussion has followed the [Attorney General] [M]emorandum among those who regularly work with FOIA policy," and reference a November 19, 2001 Memorandum from Henry McIntyre, Department of Defense, Directorate for Freedom of Information and Security review regarding "DoD Guidance on Attorney General Freedom of Information Act (FOIA) Memorandum" ("McIntyre Memorandum") that references upcoming changes to internal Department of Defense FOIA regulations. The article posits that the Ashcroft Memorandum returns FOIA processing to pre-Attorney General Reno practices and the use of the low (b)(2) and (b)(5) exemptions. It also notes that the Ashcroft Memorandum "tacitly encourage[es] even greater withholding under the high-2 exemption and exemption 6." It also encourages the use of the "high-2" exemption to meet the call for denying adversaries information expressed in an October 18, 2001 Deputy Secretary of Defense Paul Wolfowitz Memorandum ("Wolfowitz Memorandum"). It is not clear from the disclosure how widely this article may have been disseminated within the Air Force. A second summary, entitled "General Law, New Trends in Freedom of Information Law," also stresses the increased use of exemptions (b)(5) and (b)(2) and the increased weight given to privacy rights of military personnel. It specifically references the new policy of the military to "withhold lists of names and other identifying information of personnel …." See November 9, 2001 Memorandum of David Cooke, DoD Director of Administration and Management. Notably, the actual forwarding of the Ashcroft Memorandum from the Air Force FOIA office, however, is labeled "Importance: Low."

Department of the Army. The Department of Army disseminated both the Ashcroft Memorandum and the McIntyre Memorandum instructing that the Ashcroft Memorandum "supersedes" the Reno Memorandum. Although disseminated "throughout Army," the emails note the new policy but don't articulate it further. In addition, the Army is in the process of revising its internal regulations "to include the provisions of the Ashcroft memorandum." As the regulation has not been finalized, it was withheld from disclosure to the Archive.

Department of the Navy. The Department of Navy also disseminated the memorandum to all components and implemented changes to its FOIA programs. It instructs:

a. [Navy] activities will no longer use the "foreseeable harm" standard when adjudicating whether to release/deny information. Rather, DON activities will adopt the "Sound Legal Basis" standard reflected in the AG memo. DON activities will be responsible for presenting a rationale for denial that DOJ will be able to defend if the denial is litigated.
b. While the [AG] memo does not eliminate the ability to make a discretionary disclosure, DON activities are no longer encouraged to do so.
c. Exemption low (b)(2) is available for use by DON activities to protect routine housekeeping information that is relatively trivial in nature. Activities are encouraged to consult the DOJ "Freedom of Information Act Guide & Privacy Act Overview" for man in depth discussion of law (b)(2).
d. DON activities should consider using high (b)(2) to protect vulnerability assessments, stockpile information, and security assessments.

While not specific to FOIA, it further advises:

On 18 Oct 01, the Deputy Secretary of Defense (DepSecDef) [Paul Wolfowitz] issued a memorandum entitled "Operations Security Throughout the Department of Defense." The DepSecDef memo states "Much of the information we use to conduct DOD's operations must be withheld from public release because of its sensitivity. If in doubt, do not release or discuss official information except with DOD personnel." ("Wolfowitz Memo")

It includes detailed instructions for responding to FOIA requests for names. With respect to lists of DON personnel, the Memorandum indicates that the information should be considered exempt under "high (b)(2)" and (b)(6). It counsels that, in considering the release of individual names, "DON activities should weigh heavily the public's right to know versus the individual's personal privacy," and offers the example that high ranking officials and individuals that interact with the public as their primary job should be releasable. It also notes that the case law is mixed as to the reliance on high (b)(2), suggesting that other potential bases for non-release should be considered. It indicates that issues may arise with respect to previously released information that now may pose a security risk. The memorandum then provides specific instructions regarding the impact of the changes on requests for credit card holders, directories and organizational charts, as well as the Department's proactive placement of materials on its Web site.

Nuclear Regulatory Commission. The NRC engaged in a detailed examination of the impact of the Ashcroft Memorandum. It issued guidance within the agency on the discretionary release of information, including Web site postings. As part of a broader effort to protect against security risks, it shut down its Website while it engaged in an evaluation of what materials could be posted. The guidance on discretionary releases advised that the agency "continue to handle and process all FOIA requests in the same manner as before, but … separately identify documents that fall within the [discretionary release] criteria." Those criteria indicate that "you should consider not releasing a document if it contains" information about plants that implicates critical infrastructure vulnerabilities or materials. (emphasis in original). A later memorandum updates the criteria to account for the agency's need to disclose certain information to the public. Like other agencies, it eliminated the need for "foreseeable harm" statements when records were determined to be withheld. Personnel were also instructed to pay close attention to records that contain information that could be potentially helpful to an adversary for possible additional review and the application of exemptions from disclosure. Personnel were directed to draft sensitivity statements to explain their concerns. The various guidance memoranda issued within the agency repeatedly caution that FOIA exemptions should continue to be applied as they had been prior to September 11, 2001. The agency changed its internal regulations to incorporate the Ashcroft Memorandum.

Department of the Interior. The Department of Interior disseminated the Ashcroft Memorandum to all FOIA officers by e-mail entitled "News Flash - Foreseeable Harm is Abolished." Departmental guidance implementing the memorandum required discretionary releases to be cleared by written approval of the Designated FOIA Attorney. The Department also advised that "bureaus/offices once again may use the 'low 2' exemption." Other guidance within the Department indicates "[w]e wish to emphasize that the shift related to release of information under the FOIA has moved from a presumption of 'discretionary disclosure' of information to the need to safeguard institutional, commercial, and personal privacy interests." After attending the OIP FOIA Officers' meeting, Department personnel advised that OIP provided informal guidance on the use of "high (2)" in circumstances that might allow a terrorist to obtain information necessary to breach governmental security and the possibility of Exemption (b)(3) legislation being introduced to help protect such information. The Ashcroft Memorandum was also discussed at a departmental FOIA officers meeting. E-mails show that the meeting discussion included discussion of Exemption (b)(2). In addition, e-mails indicate internal discussion about Exemption 5, including one view that the elimination of "foreseeable harm" determinations means that all drafts can be exempt from disclosure under Exemption (b)(5). The Attorney General policy was also incorporated into training materials. In telephone contact with the Archive, the Departmental FOIA Officer indicated that the Chief Information Officer had issued a bulletin on January 6, 2003 and published it on the DOI website that sets into regulation the Departmental FOIA guidance.

 

  • Agencies Engaging in Activities Implementing the Ashcroft Memorandum

    8 of 33 Federal departments or agencies surveyed (24 %) indicated implementation activities concerning the Ashcroft Memo, including its dissemination and incorporation into FOIA regulations and procedures.

    Department of Commerce ("Commerce")
    Department of Defense ("DoD")
    Department of Justice ("DOJ")
    Department of State ("State")
    Environmental Protection Agency ("EPA")
    National Aeronautics and Space Administration ("NASA")
    Office of Management and Budget ("OMB")
    Small Business Administration ("SBA")

A number of agencies took a hard look at the Ashcroft Memorandum, disseminated it, and recognized the Memorandum as a change in their FOIA policy, but not a fundamental change in administering the law.



Discussion of agencies

Department of Commerce. Commerce's Office of General Counsel disseminated the Ashcroft Memorandum to Commerce FOIA officers with a cover memorandum describing the new caution on discretionary disclosures and emphasis on the "institutional, commercial, and privacy interests". It explained that the new policy "provides for withholding of information protected by FOIA exemptions, without requiring a foreseeable harm analysis." It also indicates that "[w]hen determining whether to make discretionary disclosures, an agency should consider such interests as national security, law enforcement effectiveness, business confidentiality, internal Government deliberations, and personal privacy." Finally, it instructs that the written statement explaining a denial, "(formerly the foreseeable harm statement) must reflect why all withheld information falls within a FOIA exemption or exemptions."

Department of Defense. Given the Department of Defense (DoD)'s central policy advisory role for defense agencies, components, and the military services, it is significant that DoD issued and widely disseminated its own "DoD Guidance on Attorney General Freedom of Information Act (FOIA) Memorandum," the McIntyre Memorandum, implementing the Ashcroft Memorandum. The McIntyre Memorandum describes the Ashcroft Memorandum, indicates that there will be changes to Departmental FOIA program regulations, discusses the use of Exemption 2, and indicates that discretionary disclosures are no longer encouraged. The DoD indicated in its response to the Archive's FOIA request that there are no records aside from the McIntyre Memorandum responsive to the request. While some DoD components are in the process of revising internal FOIA program regulations, no records were produced to indicate that the DoD revised its internal regulations or training documents. In keeping with this finding, two months after the Ashcroft Memorandum was issued and a month after issuing his own FOIA memo, DoD's McIntyre downplayed the new policies, telling an audience of FOIA and information professionals "FOIA is the same; it is the law of the land."

Department of Justice. As the agency charged with issuing and guiding the new FOIA policy, the DOJ undertook significant initiatives and instituted changes in FOIA policy. First, Justice's Office of Information and Privacy ("OIP") was the agency that drafted the Ashcroft Memorandum in conjunction with White House legal officials-as it did in prior administrations. Second, OIP issued a summary cover memorandum to accompany the Ashcroft Memorandum. Third, it posted the Ashcroft Memorandum on FOIA Post, its valuable FOIA reference Internet portal. The FOIA Post commentary summarized the Memorandum and the authority for the Memorandum, and highlighted the use of Exemption 2 to protect information regarding critical systems, facilities, stockpiles or other assets from security breaches or harm. (http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm) Fourth, OIP and other Justice officials disseminated and incorporated the Ashcroft Memorandum into its Department-wide and government-wide training programs, including the October 2001 FOIA Officers Conference where the Ashcroft Memorandum had its debut before agency officials charged with its implementation.

Nevertheless, given its central role, several factors indicate DOJ may not have been the policy heavyweight it would seem. First, DOJ and specifically, OIP may well have undertaken similar activities and initiatives with the 1993 Reno Memorandum. Second, even as it implemented the directive, OIP counseled against interpreting the Ashcroft Memorandum as a reversal in overall FOIA policy. For example, in its FOIA Post guidance accompanying the Ashcroft Memo, OIP clarifies that the Clinton Memorandum on FOIA remains in effect. Third, OIP officials have argued in public forums that the Ashcroft Memorandum represents a change in "tone" or is a "policy emphasis." Indeed, documents we received under our FOIA requests from agencies that attended OIP's October 2001 FOIA Officers Conference indicate that OIP stressed the continuity of prior practices and did not treat the Ashcroft Memorandum as a fundamental change in FOIA policy.

Both in terms of their promulgation of the new policy and their caution about its implementation, OIP officials' statements and activities carry weight because OIP is the lead Federal office for government-wide FOIA policy.

Department of State. Office of Information Resources Management Programs and Services officials, who administer the FOIA for State, reported on the issuance of the Ashcroft Memorandum with the comment that it "specifically 'supersedes' the Reno 1993 memorandum and replaces it with a 'sound legal basis' standard for defending FOIA withholdings…. One focus of the Ashcroft memorandum is the need to protect material covered by exemption 5 which was the subject of discretionary disclosure encouraged by the Reno memorandum." DOS also revised internal materials to drop reference to "foreseeable harm." Finally, in an email distributed to personnel engaged in records review, it foresees the Ashcroft Memorandum impacting the use of Exemptions 1, 7, 4, 6 and 5. Nevertheless, the guidance notes that "DOJ/OIP chose to emphasize continuity over change" with respect to agency practices and that "the Ashcroft Memorandum did not change the underlying statute and extensive case law on the FOIA." It does find that "all things being equal" DOJ would be likely to defend "close calls" if the agency were to come down on the side of protecting confidential business information, law enforcement material and personal privacy interests. It notes that the "Ashcroft standard technically revives [low (b)(2)]." With respect to Exemption 5, it counsels that "reviewers should continue to make judgments based on possible harm from release, including such quintessentially deliberative documents as drafts." Finally, under the heading "A More Robust (b)(2) Exemption," the guidance offers details as to how to use high (b)(2). Nevertheless, dissemination and discussion of the Ashcroft Memorandum were limited within the FOIA and disclosure office.

Environmental Protection Agency. EPA Administrator Christine Todd Whitman disseminated the Ashcroft Memorandum throughout the Agency. Her accompanying cover memorandum notes that the Ashcroft Memorandum supersedes the Reno Memo, urges adherence to the new policy, and references FOIA Post. However, her memorandum also urges compliance with the 1993 Clinton Memorandum and EPA's own FOIA procedures. This is may well be the only statement issued by an agency head to agency employees concerning the Ashcroft Memorandum. Within the General Counsel's Office, the Ashcroft Memorandum was understood to mean that "[I]n order to justify withholding a record, the agency no longer needs to be able to articulate a foreseeable harm that will befall us if the record is released." There was also extensive inter-and intra-office discussion of the Ashcroft Memorandum at EPA.

National Aeronautics and Space Administration. Following issuance of the Ashcroft Memo, NASA FOIA personnel attended an OIP meeting of all agencies to discuss the Memorandum at which they were alerted to the removal of information formerly posted on Web sites and the possibility of "new protective legislation … to further support withholding restrictions under FOIA." At NASA, FOIA issues, Website information issues, and the later White House Memorandum regarding weapons of mass destruction were not considered in isolation. For example, in November 2001, NASA issued guidance on "NASA Web Site Registration and Internet Publishing Content Guidelines." The guidance provided for review and access controls to NASA Web sites. Further, in his August 2002 report on implementation of the White House Memo, NASA Administrator Sean O'Keefe noted "In response to the October 12, 2001 policy memorandum from Attorney General Ashcroft…NASA Headquarters instructed all of its Center FOIA offices to carefully review all requests for information and to report any security-related requests as well as any others that appear to be unusual or questionable to the Agency FOIA Officer for appropriate coordination with the Agency's Office of Security Management and Safeguards."

Office of Management and Budget. OMB incorporated the Ashcroft Memo, issuing a circular that summarizes the impact of the Memorandum. It states in full:

"Many agency budget documents that are subject to the Freedom of Information act (FOIA) are exempt from mandatory release pursuant to 5 U.S.C. §552(b)(5). Depending on the nature of the record requested, other FOIA exemptions may apply. When deciding whether to withhold a budget document that is exempt from mandatory release, follow the FOIA memorandum issued by the Attorney General on October 12, 2001. Any discretionary decision by an agency to disclose protected information should be made only after full and deliberate consideration of the institutional interests that could be implicated by disclosure, as well as after consultation with OMB. Agency heads are responsible for determining the propriety of records releases under FOIA."

Small Business Administration. The Small Business Administration disseminated the Ashcroft Memorandum to FOIA administrative officers and responded to inquiries regarding the meaning of the "sound legal basis" standard. Its FOIA personnel advised that the Ashcroft Memorandum "now allows low 2 protection; the previous [Attorney General's] memo had made low 2 ineffective." They further explained "High 2 protects anything that can allow someone to breach the law." Finally, it concluded "[a]s for Ex. 5, DOJ no longer affirmatively encourages discretionary disclosure …. As always, it is better to error [sic] on the side of caution, especially at the initial level as the requester still has two more levels of review available."

 

  • Agencies That Disseminated the Ashcroft Memorandum but Undertook Little Implementation or Change in FOIA Policy

17 of 33 Federal departments or agencies surveyed (52 %) indicated awareness and dissemination of the Ashcroft Memo, but indicated little change in regulations, guidance or training materials reflecting the new policy.

Agency for International Development ("AID")
Central Intelligence Agency ("CIA")
Drug Enforcement Administration ("DEA")
Defense Intelligence Agency ("DIA")
Department of Agriculture ("Agriculture")
Department of Education ("Education")
Department of Energy ("DOE")
Department of Health and Human Services ("HHS")
Department of Housing and Urban Development ("HUD")
Department of Labor ("DOL")
Department of Transportation ("DOT")
Department of Treasury ("Treasury")
Federal Bureau of Investigation ("FBI")
General Services Administration ("GSA")
National Archives and Records Administration ("NARA")
Office of Personnel Management ("OPM")
Securities and Exchange Commission ("SEC")

 

Discussion of agencies

Many agencies, including AID, DEA, Agriculture, Education, and FBI simply disseminated the memorandum-sometimes to components and field offices, sometimes only within the FOIA Office itself-apparently without any guidance on the significance or impact of the memorandum. DEA noted in its response to our FOIA request that "as a component of the Department of Justice, DEA conformed to the Agency Rules and guidance issued by the Department" and that it did not "issue any further directives or guidance." Similarly, OPM and GSA circulated the memorandum to officials, but did little more than essentially restate what the Attorney General stated in the Memorandum.

Some agencies considered the impact of the memorandum and implemented changes to their FOIA programs as a result, but did not view the changes as dramatic shifts. The CIA revised its "Overview of the Freedom of Information Act" training document to incorporate the Ashcroft Memorandum by simply stating:

"Note that the Department of Justice plays a major role in FOIA policy/implementation and particularly in litigation. New guidance issued October 12, 2001, by Attorney General Ashcroft uses "sound legal basis" test to defend withholdings."

However, the Overview also notes that with respect to "Discretionary Disclosure" that "New DOJ policy memorandum still allows such disclosures." The DIA disseminated the Ashcroft Memorandum internally and updated its Intranet FOIA training tutorial, describing it merely as new guidance, but did not issue guidance or change regulations.

At the Department of Energy, the Ashcroft Memorandum was incorporated into the agency's training program and disseminated to all component FOIA officers, but was not treated as a change in the law. Indeed, DOE's 1993 'openness' regulations, which in some ways expand upon FOIA's requirements for inherently DOE program information, remain in effect. At Housing and Urban Development, no documents were located pertaining to the Ashcroft Memo, although it did have some dissemination and HUD FOIA and General Counsel officials attended the OIP FOIA Officers' Conference in October 2001. The Department of Labor discussed and disseminated the Ashcroft Memorandum in FOIA training seminars, but does not appear to have treated the Memorandum as indicating a change in the law or requiring supplemental Departmental or component guidance. Similarly, at the Department of Transportation, the Ashcroft Memorandum was distributed to all Departmental FOIA contacts, and the General Counsel issued a memorandum to the DOT Chief of Staff and Public Affairs director summarizing the Ashcroft policy and noting a change in the standard for DOJ defense of agency actions.

At Health and Human Services, the chief FOIA official noted the issuance of the Ashcroft Memorandum and described it by email to component FOIA officers, but did not forward it, referring recipients instead to the FOIA Post website. It was also incorporated into a General Counsel information law reference document. Finally, in a memorandum to heads of divisions, the HHS General Counsel noted "[w]hile the FOIA itself has not changed the new policy is somewhat more deferential to agency decisions" and that "the new policy is to defend agency decisions unless they lack a sound legal basis."

The National Archives and Records Administration responded to our FOIA request that "NARA has not issued any new guidance, directives, memoranda, training materials or legal analyses" implementing the "sound legal basis" aspect of the Ashcroft Memorandum. However, NARA did adopt the Justice Department's guidance to use Exemption Two to protect "records of concern" from FOIA disclosure.

The Securities and Exchange Commission also indicated no record of any implementation of the Ashcroft Memorandum. Finally, the Department of Treasury appears to have acted quite minimally upon the new policy, discussing the memorandum at least at an October 30, 2001 Departmental FOIA Officers meeting. No other documents were produced indicating any changes in policy or practice.

  • Agencies That Did Not Disseminate the Ashcroft Memorandum or Change Their FOIA Policy

3 of 33 Federal departments or agencies surveyed (9 %) indicated no changes in regulations, guidance or training materials, and little if no dissemination of the Ashcroft Memorandum.

US Central Command ("CENTCOM")
Federal Emergency Management Agency ("EPA")
National Science Foundation ("NSF")

Discussion of agencies

US Central Command or CENTCOM, which is the lead military activity for both the war in Afghanistan and the impending war with Iraq, indicated that it did not disseminate or discuss the memorandum, did not change any of its FOIA programs, regulations, training or other activities, and that the Ashcroft Memorandum had no effect in terms of policy or daily workflow. This response might well be representative of agencies that deal primarily with classified information, in that there are specific guidelines for protection or release of classified information and such information is rarely if ever subject to discretionary disclosure. FEMA and the National Science Foundation, as very small agencies, indicated that dissemination and discussion of the Ashcroft Memorandum was limited to the Office of General Counsel. There were no changes in training materials, guidance or regulations at either agency.

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