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Ashcroft promises support for FOI Act denials

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  1. Freedom of Information

    NMU         WASHINGTON, D.C.         Freedom of Information         Oct 18, 2001    

Ashcroft promises support for FOI Act denials

  • The attorney general of the United States rescinded a government-wide directive supporting minimal use of Freedom of Information Act exemptions, replacing it with an assurance that the Justice Department will support denials.

Attorney General John Ashcroft told federal agencies on Oct. 16 that when they carefully consider Freedom of Information requests and decide to withhold records they can “be assured” that the Department of Justice will defend their decisions.

Only if those decisions lack a “sound legal basis” or could lead to an unfavorable court decision that might impair the government’s ability to deny records in the future, would the department not support denials, Ashcroft said.

The memorandum supersedes a 1993 directive by then-Attorney General Janet Reno which directed federal agencies to exercise any discretion to release information in favor of openness. If agencies had the discretion to grant or deny records that fell within an exemption, they were to grant those requests unless they could point to a foreseeable harm that would occur from disclosure.

The change will be most readily apparent in agencies’ use of the internal memoranda exemption, known as “Exemption 5,” which protects candid exchange of opinions during decision making and allows agencies to invoke some legal privileges.

“No leader can operate effectively without confidential advice and counsel,” Ashcroft wrote.

Before the Reno memorandum, agencies routinely invoked Exemption 5 regardless of whether they could point to any harm that might occur from disclosure. Use of the exemption fell significantly after Reno directed agencies to favor openness.

Even under Reno, federal agencies rarely gave out information they could find exempt under commercial or privacy exemptions.

The new memorandum dated Oct.12 was issued on Oct.16. The Justice Department’s Office of Information and Privacy scheduled an Oct. 18 meeting with all Washington, D.C.-area FOI officers to discuss it.

FOI officers were also to discuss how agencies could use FOI Act exemptions, in the aftermath of the Sept. 11 attacks, to protect a wide range of information that might be used to circumvent the law. The agenda also called for a discussion of how agencies should carry out the Electronic FOI Act which directs them to post information on their Web sites.

Ashcroft wrote that the “Department of Justice and this Administration are committed to full compliance with the Freedom of Information Act” and acknowledged that “only through a well-informed citizenry” can national leaders remain accountable or the American people be assured that “neither fraud nor government waste is concealed.”

It then says that the department and administration are “equally committed” to other values, among them “national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy.”

Ashcroft’s memorandum recognizes that agencies have the discretion to release some records that technically would fall with an exemption but urges them to make those decisions only after “full and deliberate consideration of the institutional, commercial and personal privacy interests that could be implicated by disclosure.”

(Attorney General’s Memorandum of Oct.12, 2001) RD

© 2001 The Reporters Committee for Freedom of the Press

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