• A senator with longstanding interest in the federal Freedom of Information Act has asked for an investigation of agency FOI responses following a memorandum from the attorney general that appears to support denials of FOI requests.

Sen. Patrick Leahy (D-Vt.) on Feb. 28 called upon the General Accounting Office to examine how federal agencies enforce the Freedom of Information Act after Attorney General John Ashcroft's Oct. 12 memorandum guaranteeing strong legal support to agencies when they deny FOI requests.

Leahy told the GAO that the Ashcroft memorandum replaces a policy under former Attorney General Janet Reno that "favored openness in government operations and encouraged a presumption of disclosure." By contrast, the Ashcroft memo encourages denials even when "there is doubt whether an exemption applies and no foreseeable harm from disclosure."

The Ashcroft memorandum encourages agencies to disclose information protected under the act "only after full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated," Leahy wrote.

The senator asked the GAO to assess the impact of the new policy on agency responses to FOI requests, agency backlogs of requests, litigation involving federal agencies for withholding records and fee waivers for requests from news media.

The request concerning fee waivers for news media follows recent initial refusals by the Department of Justice to grant "representative of the news media" status to a researcher for American Lawyer Magazine and to a reporter for a newsletter for tax professionals.

In each of those cases, agencies granted journalists the fee benefits but only after asking them to respond to written questions and to reveal how they intended to use the requested material. In 1986 when the fee benefit was added to the FOI Act, Leahy said it should have a broad application.

Leahy, the Senate's strongest supporter of FOI and the driving force behind passage of the 1996 Electronic Freedom of Information Act, also asked the GAO to review agency policies under that act. Specifically, he asked the GAO to ascertain whether agencies were accepting electronically filed FOI requests, particularly since the anthrax threat has compromised delivery of mail.

The 1996 act did not require agencies to accept electronic requests, but, if they did, it could help them meet their statutory FOI responsibilities, Leahy said.

His letter to Comptroller General David Walker stated that "American society, federal agencies and the Freedom of Information Act continue to cross the threshold from the era of paper records to the era of the Internet."

The GAO studied E-FOIA compliance in March 2001, recommending to Congress that agencies address reporting inconsistencies and data quality problems. Leahy asked the GAO to also assess whether those recommendations are being followed.

-- RD

Related stories:

• Accounting office evaluates agency compliance with EFOIA (3/21/2001)

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