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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
 
METHODOLOGY


As this study attempted to survey Freedom of Information Act ("FOIA") policies and procedures, the Archive used requests under the Freedom of Information Act to generate data. By using the FOIA process, the Archive sought to enhance the insights into actual FOIA practice and policy. Consequently, the Archive submitted three separate FOIA requests to each of 35 different U.S. federal agencies or departments. The 35 agencies included the 25 agencies surveyed in the General Accounting Office ("GAO") studies and ten additional agencies to which the Archive frequently submits FOIA requests. GAO's studies considered 25 federal agencies accounting for an estimated 97% of all FOIA requests government-wide.

As an important caveat for all phases of the study, there are limitations to requesting documents under the FOIA. The Archive cannot be certain that every relevant office was searched, that every responsive document was found and that we have all the data on these issues without following through with administrative appeals and litigation in every case. Moreover, the wide range of types of responses received suggest that there almost certainly are additional responsive documents that were not disclosed. Nevertheless, the documents disclosed appear to offer sufficient information to describe the impact of the Ashcroft Memorandum and there likely will be sufficient information to subsequently analyze the impact of the White House Memorandum and "10 Oldest" Requests pending at Agencies.

 

PHASE ONE: FOIA Request Regarding Implementation of Attorney General FOIA Guidance

On October 12, 2001, Attorney General John Ashcroft issued a new Department of Justice ("DOJ") FOIA Policy Memorandum to the heads of all departments and agencies ("Ashcroft Memorandum") to supersede the one issued by Janet Reno in October 1993 ("Reno Memorandum"). In replacing the Reno Memorandum, the Ashcroft Memorandum highlighted the importance of Exemption (b)(5) of the FOIA, which permits information to be withheld to protect the deliberative process and other recognized privileges, and counseled that any discretionary decision to release information protected under FOIA should fully consider the institutional, commercial and personal privacy interests that could be implicated by disclosure of the information. In addition, the Ashcroft Memorandum established a new "sound legal basis" standard governing the Department of Justice's decisions on whether to defend agency actions under the FOIA. This differed from the "foreseeable harm" standard that was employed under the Reno Memorandum.

The Archive submitted requests to the 35 agencies that sought:

All records, including but not limited to guidance or directives, memoranda, training materials, or legal analyses, concerning the [Agency]'s implementation of U.S. Attorney General John Ashcroft's October 12, 2001 memorandum on the U.S. Freedom of Information Act.

The Ashcroft Memorandum requests were faxed to the central FOIA processing office of each agency, as identified on the Department of Justice "Principal Agency FOIA Contacts" list, on September 3 and 4, 2002. The 20-business day statutory time limit for a substantive FOIA response expired on September 30/October 1, 2002. On January 28, 2003, after 99-100 business days had expired, appeals were filed with nine (9) agencies that had not substantively responded to the requests. Two (2) appeals were filed based on substantive denials of records. In addition, Archive staff interviewed a senior FOIA official at each agency that provided a "no records" response to determine more details concerning the response.

In analyzing Agency responses and reaching our conclusions, we studied:

(1) the variety of correspondence generated pursuant to our FOIA requests (letter,
fax, email, telephone);
(2) documents received from the Agency under FOIA;
(3) documents obtained from Agency FOIA web-pages; and
(4) notes from "not for attribution" interviews of FOIA officials at selected agencies.

In 'scoring' an agency based on the impact of the Ashcroft Memorandum, we considered the degree of implementation activities in terms of:

(1) scope of dissemination of Ashcroft Memorandum;
(2) change in Agency regulations;
(3) change in Agency FOIA guidance;
(4) change in Agency training materials; and
(5) FOIA officials' descriptions of the impact.

PHASE TWO: FOIA Request Regarding Implementation of White House Classification and FOIA Guidance

On March 19, 2002, Andrew H. Card, White House Chief of Staff, issued a memorandum to all agency and department heads ("White House Memorandum"). The White House Memorandum concerned "Action to Safeguard Information Regarding Weapons of Mass Destruction and Other Sensitive Documents Related to Homeland Security." Accompanying the White House Memorandum was a memorandum from the Information and Security Oversight Office ("ISOO") and the Office of Information and Privacy ("OIP") at the DOJ. The White House Memorandum directed all agencies and departments to "review their records management procedures and, where appropriate, their holdings of documents to ensure that they are acting in accordance with …guidance" that (1) addresses the maintenance and extension of classification status, as well as reclassification of "information that could reasonably be expected to assist in the development or use of weapons of mass destruction"; and (2) highlights the use of Exemption (b)(2) of the FOIA, for records related to internal personnel rules and practices of an agency, and Exemption (b)(4), for confidential commercial information, as means of denying FOIA requests for "sensitive but unclassified information." The memorandum further directed that agencies and departments within 90 days "report the completion, or status, of their review to [the White House] through the Office of Homeland Security." For assistance regarding classification issues, the memorandum directed inquiries to the Information and Security Oversight Office or the Department of Energy, and "for assistance in applying exemptions of the Freedom of Information Act (FOIA) to sensitive but unclassified information," readers were directed to the Department of Justice's Office of Information and Privacy.

The Archive's White House Memorandum requests were faxed to the central FOIA processing office of each of the same 35 agencies on January 8 and 9, 2003. The requests sought:

All records, including but not limited to guidance or directives, memoranda, training materials, or legal analyses, concerning the March 19, 2002 memorandum issued by White House Chief of Staff Andrew Card to the heads of all federal departments and agencies regarding records containing information about Weapons of Mass Destruction (WMD). Attached with this memo was a supporting memorandum by the US Justice Department and Information Security Oversight Office.

The 20-business day statutory time limit for an FOIA response expired on February 5/6, 2002. On February 7, 2003, after 21/22 business days had expired, appeals were filed with 30 agencies that had not substantively responded to the requests.

The inquiry into the implementation of the White House guidance remains ongoing and will be completed as Phase Two of the Archive FOIA Audit. Because agency responses are still not complete 45 days after the requests, this report includes only preliminary findings regarding Phase Two of the Archive's Audit.

 

PHASE THREE: FOIA Request Regarding "10 Oldest" Pending FOIA Requests Within Agency

The third Phase of the Archive's FOIA Audit focused on the problem of delays and backlogs in FOIA processing. The Electronic Freedom of Information Amendments of 1996 ("EFOIA") were designed to speed up and improve the efficiency of agencies' processing with respect to FOIA requests and bring the benefits of electronic communication into the FOIA system to enhance public access to records. At the request of Congress, the General Accounting Office ("GAO") has completed the first two studies of a multi-phase evaluation of FOIA processing.[2001 Report - 2002 Report]. One of the key findings in the two GAO studies has been the persistent problem of agency backlogs of FOIA requests. 2002 GAO Report at 12. The GAO reports were based primarily on agency statutorily-mandated annual reports of FOIA statistics, which the GAO noted, in its studies, suffer from poor data quality and other reporting discrepancies. 2002 GAO Report at 59.

The Archive's method for measuring the backlog problem was to file a FOIA request, by fax on January 31, 2003, to each of the 35 agencies, seeking:

Copies of the [Agency's] ten oldest open or pending Freedom of Information Act requests currently being processed or held pending coordination with other agencies.

The request went to the central FOIA processing office of each agency. For agencies whose FOIA systems are highly decentralized the Archive limited the request to the "10 Oldest" FOIA requests pending in the Office of the Secretary, Solicitor, or other principal processing office. The statutory time limit for an FOIA response expired on March 3, 2003. Unlike the Ashcroft Memorandum requests and the White House Memorandum requests, each of 28 agencies with an outstanding "10 Oldest" request was contacted by telephone between February 24, 2003 and March 10, 2003 to ask for an update on the status of the request and to inquire as to why a seemingly simple FOIA for data that should be on hand in any FOIA office would take beyond 20 days to process.

The inquiry into the "10 Oldest" requests remains ongoing and will be completed as Phase Three of the Archive FOIA Audit.

 

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