Freedom of Information Act: Agency Views on Changes Resulting
from New Administration Policy (03-SEP-03, GAO-03-981).
The Freedom of Information Act (FOIA) is based on principles of
openness and accountability in government. FOIA establishes that
federal agencies must provide the public with access to
government information, unless the information falls into one of
nine specifically exempted categories (for example, certain
information compiled for law enforcement purposes). However,
agencies can use their discretion to disclose information even if
it falls into one of the nine exempted categories; this is known
as a "discretionary disclosure." At the beginning of a new
administration, the Attorney General traditionally issues a
policy memorandum regarding FOIA, including policy on
discretionary disclosure. Attorney General Ashcroft issued such a
memorandum on October 12, 2001, replacing Attorney General Reno's
1993 FOIA memorandum. 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.
-------------------------Indexing Terms-------------------------
REPORTNUM: GAO-03-981
ACCNO: A08303
TITLE: Freedom of Information Act: Agency Views on Changes
Resulting from New Administration Policy
DATE: 09/03/2003
SUBJECT: Federal law
Freedom of information
Government information
Government information dissemination
Information disclosure
******************************************************************
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GAO-03-981
A
Letter
September 3, 2003 The Honorable Patrick J. Leahy Ranking Minority Member
Committee on the Judiciary United States Senate Dear Mr. Leahy: Based on
principles of openness and accountability in government, the Freedom of
Information Act (FOIA) establishes that federal agencies must provide the
public with access to government information (unless the information falls
into certain categories), thus enabling them to learn about government
operations and decisions. Under FOIA, nine categories of information are
specifically exempted from disclosure; examples of these categories
include trade secrets, personnel files, and certain information compiled
for law enforcement purposes. However, agencies can use their discretion
to disclose information, even if it falls into one of the nine exempted
categories; this is known as a *discretionary disclosure.*
Under FOIA, the U. S. Department of Justice is to encourage agency
compliance with the act. 1 Accordingly, the Attorney General has
traditionally issued a policy memorandum regarding FOIA at the beginning
of new administrations. Attorney General Ashcroft issued one such
memorandum on October 12, 2001, replacing Attorney General Reno*s 1993
FOIA memorandum.
The Ashcroft memorandum has two primary differences from the Reno
memorandum. 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, Justice will defend an agency*s withholding
information if the agency has a *sound legal basis* for such withholding
under FOIA, while under the Reno policy, Justice would defend an agency*s
withholding information only when the agency reasonably anticipated that
disclosure would harm an interest protected by an exemption.
1 5 U. S. C. S:552( e)( 5).
You requested that we review the effect of these changes in policy on FOIA
implementation. We agreed to determine (1) to what extent, if any, 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.
To fulfill the first objective, we analyzed Justice guidance on FOIA
implementation. To determine the views of FOIA officers regarding the new
policy and its effects, if any, and regarding the available FOIA guidance,
we administered Web- based and paper- based surveys. Our work was
conducted from October 2002 to April 2003 in accordance with generally
accepted government auditing standards. On June 18, 2003, we provided a
briefing to your office on the results of our
work. The briefing slides 2 are included as appendix I. The purpose of
this report is to provide the published briefing slides for dissemination
to you and the Attorney General.
Results in Brief Changes have been made in Justice*s FOIA guidance to
refer to and reflect current policy as stated in the Ashcroft memorandum,
which superseded
the previous administration*s policy. These changes reflect the *careful
consideration* policy for making discretionary disclosures and the *sound
legal basis* standard for defending agencies that withhold information
based on FOIA exemptions.
When asked about views regarding the effects of the new policy, FOIA
officers most frequently reported that they did not notice changes in
their agencies* responses to FOIA requests when compared with previous
years. Of the FOIA officers surveyed, 48 percent reported that they did
not notice a change with regard to the likelihood of their agency making
discretionary disclosures. About one third of the FOIA officers reported a
decreased likelihood; and of these officers, 75 percent cited the new
policy as a top factor influencing the change. When FOIA officers were
asked about changes in the use of particular FOIA exemptions, 62 percent
reported no change with regard to the use of these exemptions. One fourth
of the officers reported a change in this regard. Among these respondents,
the
2 We have amended the briefing slides as of August 15, 2003, to include
technical corrections and clarifications.
two factors cited most frequently as influencing this change were the
policy stated in the Ashcroft memorandum and concerns over protecting
critical infrastructure information and other sensitive information
related to homeland security.
When FOIA officers were asked to consider all the existing FOIA guidance
and reference material according to various topic areas, the largest
proportion reported that guidance was adequate to a great or very great
extent (that is, at 4 or 5 on a 5- point scale, where 1 was *to no
extent*). In response to questions regarding specific Justice guidance,
such as that in
the FOIA Guide and the *FOIA Post* Web site (the Department of Justice*s
main vehicles of disseminating guidance), the largest proportion of FOIA
officers responding reported satisfaction with the guidance to a great or
very great extent.
In providing oral comments on a draft of this report, a Justice Office of
Information and Privacy (OIP) co- director and another staff member stated
that the department generally agreed with the report*s facts and
conclusions. The OIP officials also made a number of technical comments,
which we incorporated as appropriate.
As agreed with your office, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 5 days from the
date of this letter. We are sending copies of this report to the Attorney
General and the heads of other interested congressional committees. Copies
will be
made available to others on request. In addition, this report will be
available at no charge on our Web site at www. gao. gov.
If you have any questions concerning this report, please call me at (202)
512- 6240 or contact me by E- mail at koontzl@ gao. gov. Key contacts and
major contributors to this report are Thomas Beall, Elizabeth Bernard,
Barbara Collier, Katherine Howe, David Plocher, Jamie Pressman, and Joan
D. Winston.
Sincerely yours, Linda D. Koontz Director, Information Management Issues
Appendi xes Agency Views on Changes Resulting from New
Appendi x I
Administration Policy Freedom of Information Act: Agency Views on Changes
Resulting from New Administration Policy Briefing for staff of the Senate
Committee on the Judiciary
June 18, 2003
Agenda * Introduction Objectives Scope and Methodology Results in
Brief Background Changes in Justice Guidance Views of FOIA Officers
Regarding the New Policy Views of FOIA Officers Regarding Available FOIA
Guidance Conclusions Agency Comments Attachment 1: List of FOIA
Exemptions Attachment 2: Views on FOIA Guidance Regarding Homeland
Security and Critical
Infrastructure Information Attachment 3: 25 Agencies Surveyed
2
Introduction The Freedom of Information Act (FOIA) was enacted in 1966.
Based on principles of openness and accountability in government, FOIA
establishes that federal agencies must provide the public with access to
government information, unless the information falls into nine
specifically exempted categories (see attachment 1). Agencies can use
their discretion to disclose information, even if it falls into one of the
nine exempted categories; this is known as a *discretionary disclosure.*
At the beginning of a new administration, the Attorney General has
traditionally issued a memorandum concerning FOIA policy.
On October 12, 2001, Attorney General Ashcroft issued a FOIA policy
memorandum (also referred to as the *new policy*), which superseded the
previous memorandum issued by Attorney General Reno in 1993. According to
Justice, the new policy has two primary differences from the Reno policy
(see next slide).
3
Introduction (cont*d)
Policy for discretionary disclosure
The Ashcroft memorandum stresses that when making decisions on
discretionary disclosure, agencies should carefully consider protecting
fundamental values held by our society, including safeguarding national
security, enhancing the effectiveness of law enforcement agencies, and
preserving personal privacy.
The Reno memorandum established an overall *presumption of disclosure* and
promoted discretionary disclosures to achieve *maximum responsible
disclosure* under FOIA.
Standard for defense of agency decisions to withhold information
According to the Ashcroft memorandum, Justice will defend an agency*s
withholding of information if the agency has a *sound legal basis* for
withholding information under FOIA.
Under the Reno policy, Justice would defend an agency*s withholding of
information only when the agency reasonably anticipated that disclosure
would harm an interest protected by an exemption (a *foreseeable harm*
standard).
4
Objectives As requested by the Ranking Member of the committee, our
objectives were to
1. determine to what extent, if any, Justice guidance for agencies on FOIA
implementation has changed as a result of the new policy;
2. determine the views of FOIA officers at 25 agencies regarding the new
policy and its effects, if any; and
3. determine the views of FOIA officers at 25 agencies regarding available
FOIA guidance.
We also agreed to obtain FOIA officer views regarding guidance on (1)
sensitive information related to homeland security and (2) critical
infrastructure information. The results of our inquiries on these two
areas are presented in attachment 2.
5
Scope and Methodology To determine the extent to which Justice guidance
for agencies on FOIA implementation has changed as a result of the new
policy, we analyzed Justice guidance on this topic, which is disseminated
by the following:
Freedom of Information Act Guide and Privacy Act Overview (also referred
to as the FOIA Guide ). We compared the most recent edition (2002) with
the previous one (2000).
FOIA Post . We reviewed documents posted to Justice*s FOIA Post Web site
between October 2001 and April 2003 to identify any guidance related to
implementation of the new policy.
6
Scope and Methodology (cont*d) To determine FOIA officers* views regarding
the new policy and its effects, if any, and regarding available FOIA
guidance, we did the following:
We administered a Web- based survey to 205 agency- identified
departmentlevel and component- level FOIA officers at 25 agencies. These
25 agencies, which were the subject of our previous FOIA reviews, 1 are
the 24 agencies specified under the 1990 Chief Financial Officer Act and
the Central Intelligence Agency. Together, these agencies handle over 97
percent of FOIA requests governmentwide (attachment 3 lists the agencies).
Our survey had a response rate of 89 percent (183 out of 205 FOIA
officers) with at least 1 FOIA Officer responding from 23 of the 25
agencies.
We did not independently verify responses to this survey. 1 U. S.
General Accounting Office, Information Management: Update on
Implementation of the 1996 Electronic Freedom of Information Act
Amendments, GAO- 02- 493 (Washington, D. C.: Aug. 30, 2002).
7
Scope and Methodology (cont*d) We also administered a paper- based
questionnaire to department- level FOIA
officers at the 25 agencies to obtain an agency response on any agency
actions taken to implement the new policy as well as agency guidance.
We received 24 of 25 agency responses. We did not independently verify
agency responses to the paper- based
questionnaire. We performed our work from October 2002 to April 2003 in
accordance with
generally accepted government auditing standards. 8
Results in Brief: Objective 1
Changes to guidance
As a result of the new policy, Justice made the following changes to its
guidance for agencies on FOIA implementation:
Changes in Justice guidance refer to and reflect the new policy, as
stated in the Ashcroft memorandum, which superseded the previous
administration*s policy:
for discretionary disclosures, the *careful consideration* policy for
making discretionary disclosures and
for Justice*s defense of agencies, the *sound legal basis* standard for
defending agencies that withhold information based on FOIA exemptions.
9
Results in Brief: Objective 2
Effect of new policy
FOIA officers reported most frequently that they did not notice changes
resulting from the new policy when compared with previous years.
Specifically:
With regard to the likelihood of their agency making discretionary
disclosures, the largest proportion of respondents (88 of 183, or 48%)
reported that they noticed no change.
About one third of FOIA officers reported a decreased likelihood (57 of
183, or 31%). Most of these (43 of 57, or 75%) cited the new policy as a
top factor influencing the change.
12 FOIA officers (7% of the total) reported an increased likelihood, and
26 (14% of the total) reported *don*t know/ no basis to judge* or made no
response.
With regard to the use of particular FOIA exemptions, about two- thirds
of FOIA officers responding (114 of 183, or 62%) reported that they
noticed no change.
One fourth of FOIA officers did report a change (45 of 183, or 25% of
respondents). Most of these (28 of 45, or 62%) cited the new policy as a
top factor influencing the change.
10
Results in Brief: Objective 3
Available guidance
When asked to consider all the existing guidance and reference material
according to various topic areas, the largest proportion of responding
FOIA officers (ranging from 50% to 75%, depending on the particular type
of guidance) reported that guidance was adequate to a great or very great
extent (that is, at 4 or 5 on a 5- point scale, where 1 was *to no
extent*).
In response to questions regarding specific Justice guidance, such as that
in the
FOIA Guide and FOIA Post , the largest proportion of FOIA officers
responding reported satisfaction with guidance to a great or very great
extent; percentages ranged from 56 to 74 percent, depending on the
particular type of guidance.
11
Results in Brief: Agency Comments In providing oral comments on a draft of
this briefing, officials of Justice*s Office of Information and Privacy
(OIP) generally agreed with the facts and conclusions as presented. The
OIP officials also made a number of technical comments, which we
incorporated as appropriate.
12
Background Enacted in 1966, FOIA generally provides that any person has a
right, enforceable in court, to obtain access to federal agency records,
except to the extent that such records (or portions of them) are protected
from public disclosure by one of nine exemptions (see attachment 1). There
are also FOIA exclusions for specific sensitive records held by law
enforcement agencies.
Agencies may use their administrative discretion to disclose information
in many cases when an exemption might otherwise be used to withhold
information.
FOIA amendments in 1974, 1976, 1986, and 1996 made procedural changes,
exempted or otherwise protected certain material from disclosure under
FOIA, created fee and fee waiver provisions, established timeliness and
reporting requirements, and required certain material to be made available
electronically.
Regarding fees, FOIA provides for three levels of fees that agencies may
assess in response to FOIA requests, depending on the categories of FOIA
requestors and the intended use of the information sought. A fee waiver
may be granted when it is determined that such action is *in the public
interest because furnishing the information can be considered as primarily
benefiting the general public.*
13
Background (cont*d) Under FOIA, the U. S. Department of Justice is to
encourage agency compliance with the act. Justice will also defend
agencies in court when litigation is filed against them on FOIA- related
matters.
Justice*s OIP has lead responsibility for providing FOIA guidance and
support for agencies, including training sessions and a counselor service.
The main vehicles of disseminating guidance are the following:
FOIA Guide , OIP*s primary reference volume, contains an extensive
discussion of FOIA exemptions and procedures. Prepared by the attorney
staff of OIP, it is published every 2 years. May 2002 is the most recent
published edition.
FOIA Post serves as a primary means of FOIA policy dissemination and is
OIP*s vehicle for communicating FOIA- related information to agency FOIA
personnel and others who are interested in the act*s administration.
14
Changes in Justice guidance Justice guidance on FOIA implementation has
been changed to incorporate the new policy set forth in the Ashcroft
memorandum.
Language referring specifically to the Reno memorandum was updated with
references to the Ashcroft memorandum. For example, in the 2000 edition of
the
FOIA Guide , the following sentence appears: As a general rule, an
agency*s ability to make a discretionary disclosure of
exempt information in accordance with Attorney General Reno*s FOIA
memorandum will vary according to the nature of the FOIA exemption and the
underlying interests involved.
In the 2002 edition of the FOIA Guide , the sentence reads: As a general
rule, an agency*s ability to make a discretionary disclosure of
exempt information as recognized in Attorney General Ashcroft*s FOIA
memorandum will vary according to the nature of the FOIA exemption and the
underlying interests involved.
15
Changes in Justice guidance In other cases, language referring to the Reno
memorandum and policy was deleted.
Other changes reflect the two main points of the Ashcroft memorandum in
which the Ashcroft policy differs from the Reno policy:
Throughout the 2002 edition of the guide, references are deleted to the
*foreseeable harm* standard for withholding information and to the
*maximum responsible disclosure,* regarding discretionary disclosures.
In the introduction to the 2002 FOIA Guide , language is added referring
to the Ashcroft policy, specifically, the *sound legal basis* standard for
withholding information and the need to carefully consider the interests
of public disclosure with protecting sensitive information.
Justice made changes to guidance on exemptions, fees, or fee waivers to
refer to the new policy, but the large majority of changes were to reflect
the development of new case law.
16
Views regarding effects of new policy
Awareness
Agencies and FOIA officers reported being aware of the Ashcroft
memorandum. Of the 183 FOIA officers who responded, 161 (88%) stated
they had read the
Ashcroft FOIA memorandum. Of the 24 agencies that responded, 20 (83%)
have distributed the Ashcroft
FOIA memorandum to agency FOIA personnel. Approximately half of the
agencies (11 of 24) indicated that they prepared and
disseminated additional written guidance (e. g., directives, memorandums,
legal analyses) on implementing the new policy to their FOIA processors.
17
Views regarding effects of new policy
Areas of possible change
Agencies and FOIA officers most frequently reported that in comparison
with previous years, they did not notice changes in the following areas,
as a result of the new policy:
likelihood of making discretionary disclosures, use of exemptions,
factors affecting FOIA processing, and factors affecting administrative
appeals and litigation.
18
Views regarding effects of new policy
Discretionary disclosures
As shown in the chart, the largest proportion of FOIA officers responding
(88 of 183, or 48%), noticed no change compared with previous years in the
likelihood of their agency making discretionary disclosures under FOIA.
About one third of respondents noticed a decreased likelihood (combining
the 23% who reported a slight decrease and the 8% who reported a great or
moderate decrease).
a Other includes *don*t know/ no basis* and *no response.* b Increase
includes slight, moderate, and great increase. 19
Views regarding effects of new policy
Discretionary disclosures (cont*d) The approximately one- third of FOIA
officers who noticed a decreased likelihood of discretionary disclosures
totaled 57 (31% of 183). Among these, the following three factors were
cited most frequently as influencing this change:
the policy stated in Attorney General Ashcroft*s FOIA memorandum (43 of
57, or 75%);
concerns over privacy protections (38 of 57, or 67%); and concerns
over protecting critical infrastructure information and other sensitive
information related to homeland security (37 of 57, or 65%). Of the 24
agencies responding, 20 (83%) indicated that they had not further
specified or elaborated on criteria or factors to be used in deciding
whether to make a discretionary release of information under the policy.
20
Views regarding effects of new policy
Exemptions
FOIA officers were asked, *Subsequent to Attorney General Ashcroft*s FOIA
memorandum, have you noticed any changes in the use of particular FOIA
exemptions when compared to previous years?*
Of the 183 FOIA officers who responded, 114 (62%) said they did not notice
a change in application of exemptions compared with previous years. (See
chart.)
21
Views regarding effects of new policy
Exemptions (cont*d) One fourth of the respondents (45 of 183, or 25%)
indicated that they had noticed a change in the use of particular
exemptions over previous years. These respondents most frequently cited
the following two factors as influencing the change in the use of FOIA
exemptions:
the policy stated in the Ashcroft memorandum (28 of 45, or 62%) and
concerns over protecting critical infrastructure information and other
sensitive
information related to homeland security (23 of 45, or 51%). (Attachment 2
provides further discussion of our results regarding critical
infrastructure information and other sensitive information related to
homeland security.)
22
Views regarding effects of new policy
FOIA processing
FOIA officers were asked to select the top 4 factors, from a list of 13,
that influence various FOIA processing areas: the time required to process
FOIA requests, the number of pending FOIA requests, and the age of pending
FOIA requests.
About 3 percent or less of responding FOIA officers reported that the new
policy was one of four top factors influencing each of the FOIA processing
areas:
time required to process FOIA requests (6 of 178, or 3%); number of
pending FOIA requests (3 of 179, or 2%); and age of pending FOIA
requests (2 of 179, or 1%). Of the factors suggested as influential, FOIA
officers most frequently selected scope or complexity of requests, volume
of responsive material, and resources available.
23
Views regarding effects of new policy
Administrative appeals and litigation
FOIA officers were asked to select the top 4 factors, from a list of 16,
that influence the likelihood of requestors filing administrative appeals
and litigation.
About 3 percent of responding FOIA officers reported that the new policy
was among the top factors in influencing
likelihood of requestors filing administrative appeals (6 of 179, or 3%)
and likelihood of requestors filing litigation (6 of 179, or 3%). Of the
factors suggested as influential, FOIA officers most frequently selected
requester concerns about the use of particular exemptions and requester
concerns over the extent of redaction in material supplied in response to
requests.
24
Views Regarding Available Guidance
Areas of guidance
When asked to consider existing guidance and reference material for areas
cited in the table below, the largest proportion of FOIA officers
responding reported that guidance was adequate to a great or very great
extent (that is, at 4 or 5 on a 5- point scale, where 1 was *to no
extent*). The table shows responses according to specific areas of
guidance.
Percentage and number of respondents ( n = 183) who reported that guidance
was adequate on a 5- point scale
Great or very Moderate
Small or no Guidance to determine great extent a extent extent a Other b
Whether an exemption applies to information requested under FOIA 75% (138)
14% (25) 3% (6) 8% (14)
Whether to make a discretionary disclosure 50% (92) 24% (44) 15% (27) 11%
(20) Whether to waive part or all of applicable fees 57% (104) 20% (37)
13% (23) 10% (19) Whether the records being requested under FOIA were for
commercial use 58% (107) 20% (37) 12% (22) 9% (17)
Whether the party making a FOIA request was an educational or
noncommercial scientific institution 60% (109) 20% (36) 11% (21) 9% (17)
Whether the party making a FOIA request was a representative of the news
media 62% (114) 16% (30) 13% (24) 8% (15)
Whether disclosure of the requested information was in the public interest
when a fee waiver was being requested 51% (94) 24% (44) 15% (27) 10% (18)
Source: GAO. Note: Percentages may not equal 100 percent due to rounding.
a Combined responses. b *Other* includes *don*t know/ no basis* and *no
response.*
25
Views Regarding Available Guidance
Sources of guidance
In response to questions regarding specific sources of Justice guidance,
the largest proportion of FOIA officers responding reported satisfaction
with guidance to a great or very great extent. The table shows responses
according to specific sources of guidance.
Percentage and number of respondents ( n = 183) reporting satisfaction
with guidance on a 5- point scale
Great or very Small or no
Guidance great extent a Moderate extent extent a Other b
The Department of Justice*s FOIA Guide 74% (135) 11% (20) 7% (13) 8% (15)
The FOIA guidance that Justice has issued via FOIA Update and now issues
via FOIA Post 63% (115) 17% (31) 9% (17) 11% (20)
The FOIA training that the Department of Justice provides 63% (116) 11%
(21) 7% (12) 19% (34)
Other information resources that Justice provides via OIP*s Web site 56%
(102) 19% (34) 8% (15) 17% (32)
Source: GAO. a Combined responses. b *Other* includes *don*t know/ no
basis* and *no response.*
26
Conclusions As a result of the new policy, changes to Justice guidance for
agencies on FOIA implementation have been largely limited to reflecting
the two points of difference between the Ashcroft and Reno memorandums:
that is, the policy for discretionary disclosure and the standard for
defense of agency decisions to withhold information.
Overall, FOIA officers are aware of the Ashcroft memorandum; however, most
of them report that they have not noticed an impact on the application of
exemptions and the likelihood of agencies making discretionary
disclosures.
The largest proportion of FOIA officers responding consider that the
guidance they have received from the Department of Justice is adequate to
a great or very great extent.
27
Agency Comments On June 12, 2003, one of the co- directors and other staff
members of OIP provided oral comments on a draft of these briefing slides.
These officials generally agreed with the facts and conclusions as
presented. The OIP officials also made a number of technical comments,
which we incorporated as appropriate.
28
Attachment 1: Freedom of Information Act Exemptions
Exemption number Matters that are exempt from FOIA
(1) (A) Specifically authorized under criteria established by an Executive
order to be kept secret in the interest of national defense or foreign
policy and (B) are in fact properly classified pursuant to such Executive
order. (2) Related solely to the internal personnel rules and practices of
an agency. (3) Specifically exempted from disclosure by statute (other
than section 552b of this title),
provided that such statute (A) requires that the matters be withheld from
the public in such a manner as to leave no
discretion on the issues, or (B) establishes particular criteria for
withholding or refers to particular types of matters to
be withheld. (4) Trade secrets and commercial or financial information
obtained from a person and
privileged or confidential. (5) Inter- agency or intra- agency memorandums
or letters which would not be available by law
to a party other than an agency in litigation with the agency. (6)
Personnel and medical files and similar files the disclosure of which
would constitute a
clearly unwarranted invasion of personal privacy. Source: 5 U. S. C. S:
552( b)( 1) through (b)( 6).
29
Attachment 1: Freedom of Information Act Exemptions (cont*d)
Exemption number Matters that are exempt from FOIA
(7) Records or information compiled for law enforcement purposes, but only
to the extent that the production of such law enforcement records or
information (A) could reasonably be expected to interfere with enforcement
proceedings; (B) would deprive a person of a right to a fair trial or
impartial adjudication; (C) could reasonably be expected to constitute an
unwarranted invasion of personal privacy; (D) could reasonably be expected
to disclose the identity of a confidential source, including a
state, local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in the case of a
record or information compiled by a criminal law enforcement authority in
the course of a criminal investigation or by an agency conducting a lawful
national security intelligence investigation, information furnished by a
confidential source; (E) would disclose techniques and procedures for law
enforcement investigations or
prosecutions, or would disclose guidelines for law enforcement
investigations or prosecutions if such disclosure could reasonably be
expected to risk circumvention of the law; or (F) could reasonably be
expected to endanger the life or physical safety of an individual. (8)
Contained in or related to examination, operating, or condition reports
prepared by, on behalf
of, or for the use of an agency responsible for the regulation or
supervision of financial institutions.
(9) Geological and geophysical information and data, including maps,
concerning wells. Source: 5 U. S. C. S: 552( b)( 7) through (b)( 9).
30
Attachment 2: Homeland Security and Critical Infrastructure Information
When asked to respond to questions regarding the adequacy of guidance
related to (1) sensitive information related to homeland security and (2)
critical infrastructure information, the largest proportion of FOIA
officers did not respond to the questions or reported that they had no
basis to judge whether the guidance and reference materials were adequate.
The following guidance on information related to homeland security is
available: On March 19, 2002, the Assistant to the President and Chief
of Staff issued a
memorandum to all heads of federal departments and agencies instructing
them to safeguard information regarding weapons of mass destruction and
other sensitive documents related to homeland security.
Accompanying this memorandum was a joint memorandum issued by the
National Archives* Information Security Oversight Office (ISOO) and the
Department of Justice*s Office of Information and Privacy (OIP). The
memorandum provided additional guidance on safeguarding homeland security
information including the instruction to make determinations on disclosure
of such information under FOIA in accordance with the Ashcroft memorandum.
31
Attachment 2: Homeland Security and Critical Infrastructure Information
(cont*d)
The Homeland Security Act (enacted November 25, 2002) exempts certain
critical infrastructure information from disclosure under FOIA. In the
Federal Register of April 15, 2003, the Department of Homeland Security
proposed for public comment procedures for protecting critical
infrastructure information.
The act also includes provisions for the development of guidance on
protecting sensitive homeland security information; however, this guidance
was not available at the time of our review.
32
Attachment 2: Homeland Security and Critical Infrastructure Information
(cont*d)
A large proportion of FOIA officers (40 to 45 percent) either did not
respond to the questions or reported that they had no basis to judge
whether guidance and reference materials were adequate in the areas of
guidance shown in the table. The remainder of the responses were
distributed as shown below.
Total number of respondents = 183 Extent to which guidance and reference
materials are adequate Very
Don t know/ no great
Great Moderate
Small No
basis to judge or Area of guidance
extent extent extent extent extent no response
Whether unclassified records contain sensitive information
8% 15%
18% 12%
5% 42%
related to homeland security (14)
(28) (33)
(22) (9)
(77) Whether to disclose sensitive information related
11% 14%
20% 10%
4% 40%
to homeland security (20)
(26) (37)
(19) (8)
(73) Whether material is critical
8% 11%
17% 15%
5% 43%
infrastructure information (14)
(21) (32)
(28) (9)
(79) Whether to disclose critical
10% 13%
17% 12%
3% 45%
infrastructure information (18)
(23) (32)
(22) (6)
(82) Source: GAO. Note: Percentages may not equal 100 percent due to
rounding.
33
Attachment 3: 25 Agencies Surveyed Central Intelligence Agency
Department of the Treasury Department of Agriculture
Department of Veterans Affairs Department of Commerce
Environmental Protection Agency Department of Defense
Federal Emergency Management Agency Department of Education
(now part of Department of Homeland Security) Department of Energy
General Services Administration Department of Health and Human
National Aeronautics and Space Services
Administration Department of Housing and Urban
National Science Foundation Development
Department of the Interior Nuclear Regulatory Commission
Department of Justice Office of Personnel Management
Department of Labor Small Business Administration
Department of State Social Security Administration
Department of Transportation U. S. Agency for International
Development
(310380) 34
(310380)
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Report to the Ranking Minority Member, Committee on the Judiciary, U. S.
Senate
September 2003 FREEDOM OF INFORMATION ACT Agency Views on Changes
Resulting from New Administration Policy
GAO- 03- 981
Contents Letter 1
Results in Brief 2 Appendix
Appendix I: Agency Views on Changes Resulting from New Administration
Policy 5
Abbreviations
DOJ Department of Justice FOIA Freedom of Information Act ISOO Information
Security Oversight Office OIP Office of Information and Privacy
This is a work of the U. S. government and is not subject to copyright
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a
GAO United States General Accounting Office
The Freedom of Information Act (FOIA) is based on principles of openness
and accountability in
government. FOIA establishes that federal agencies must provide the public
with access to government information, unless the information falls into
one of nine specifically exempted categories (for example, certain
information compiled for
law enforcement purposes). However, agencies can use their discretion to
disclose information even if it falls into one of the nine exempted
categories; this is known
as a *discretionary disclosure.* At the beginning of a new administration,
the Attorney General traditionally issues a policy memorandum regarding
FOIA,
including policy on discretionary disclosure. Attorney General Ashcroft
issued such a memorandum on October 12, 2001, replacing Attorney General
Reno*s 1993 FOIA memorandum.
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.
Following the issuance of the Ashcroft memorandum, 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, Justice will
defend an agency*s withholding information if the agency has a *sound
legal basis* for such withholding under FOIA; under the Reno policy,
Justice 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, FOIA officers most frequently
reported that they did not notice changes in their agencies* responses to
FOIA requests compared to previous years. For example, as shown in the
figure, of the FOIA officers surveyed, 48 percent reported that they did
not notice a change with regard to the likelihood of their agencies*
making discretionary disclosures. About one third of the FOIA officers
reported a decreased
likelihood; of these FOIA officers, 75 percent cited the new policy as a
top factor influencing the change.
When FOIA officers were asked to consider all the existing FOIA guidance
and reference material according to various topic areas, the largest
proportion (ranging from 50 percent to 75 percent, depending on the type
of guidance) reported that guidance was adequate to a great or very great
extent (that is, at 4 or 5 on a 5- point scale, where 1 was *to no
extent*).
In commenting on a draft of this report, Justice officials generally
agreed with its contents.
Effect of Ashcroft Policy on Likelihood of Agencies* Making Discretionary
Disclosures
www. gao. gov/ cgi- bin/ getrpt? GAO- 03- 981. To view the full product,
including the scope and methodology, click on the link above. For more
information, contact Linda Koontz at (202) 512- 6240 or koontzl@ gao. gov.
Highlights of GAO- 03- 981, a report to the
Ranking Minority Member, Committee on the Judiciary, U. S. Senate
September 2003
FREEDOM OF INFORMATION ACT
Agency Views on Changes Resulting from New Administration Policy
Page i GAO- 03- 981 Freedom of Information Act
Page 1 GAO- 03- 981 Freedom of Information Act United States General
Accounting Office Washington, D. C. 20548
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