The Day Ashcroft Foiled FOIA

by Ruth Rosen, San Francisco Chronicle

The President didn't ask the networks for television time. The attorney general didn't hold a press conference. The media didn't report any dramatic change in governmental policy. As a result, most Americans had no idea that one of their most precious freedoms disappeared on Oct. 12.

Yet it happened. In a memo that slipped beneath the political radar, U.S. Attorney General John Ashcroft vigorously urged federal agencies to resist most Freedom of Information Act requests made by American citizens.

Passed in 1974 in the wake of the Watergate scandal, the Freedom of Information Act has been hailed as one of our greatest democratic reforms. It allows ordinary citizens to hold the government accountable by requesting and scrutinizing public documents and records. Without it, journalists, newspapers, historians and watchdog groups would never be able to keep the government honest. It was our post-Watergate reward, the act that allows us to know what our elected officials do, rather than what they say. It is our national sunshine law, legislation that forces agencies to disclose their public records and documents.

Yet without fanfare, the attorney general simply quashed the FOIA. The Department of Justice did not respond to numerous calls from The Chronicle to comment on the memo.

So, rather than asking federal officials to pay special attention when the public's right to know might collide with the government's need to safeguard our security, Ashcroft instead asked them to consider whether "institutional, commercial and personal privacy interests could be implicated by disclosure of the information." Even more disturbing, he wrote:

"When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records."

Somehow, this memo never surfaced. When coupled with President Bush's Nov. 1 executive order that allows him to seal all presidential records since 1980, the effect is positively chilling.

In the aftermath of Sept. 11, we have witnessed a flurry of federal orders designed to beef up the nation's security. Many anti-terrorist measures have carefully balanced the public's right to know with the government's responsibility to protect its citizens.

Who, for example, would argue against taking detailed plans of nuclear reactors, oil refineries or reservoirs off the Web?

No one. Almost all Americans agree that the nation's security is our highest priority.

Yet half the country is also worried that the government might use the fear of terrorism as a pretext for protecting officials from public scrutiny.

Now we know that they have good reason to worry. For more than a quarter of a century, the Freedom of Information Act has ratified the public's right to know what the government, its agencies and its officials have done. It has substituted transparency for secrecy and we, as a democracy, have benefited from the truths that been extracted from public records.

Consider, for example, just a few of the recent revelations -- obtained through FOIA requests -- that newspapers and nonprofit watchdog groups have been able to publicize during the last few months:

- The Washington-based Environmental Working Group, a nonprofit organization, has been able to publish lists of recipients who have received billions of dollars in federal farm subsidies. Their Web site,, has not only embarrassed the agricultural industry, but also allowed the public to realize that federal money -- intended to support small family farmers -- has mostly enhanced the profits of large agricultural corporations.

- The Charlotte Observer has been able to reveal how the Duke Power Co., an electric utility, cooked its books so that it avoided exceeding its profit limits. This creative accounting scheme prevented the utility from giving lower rates to 2 million customers in North Carolina and South Carolina.

- USA Today was able to uncover and publicize a widespread pattern of misconduct among the National Guard's upper echelon that has continued for more than a decade. Among the abuses documented in public records are the inflation of troop strength, the misuse of taxpayer money, incidents of sexual harassment and the theft of life-insurance payments intended for the widows and children of Guardsmen.

- The National Security Archive, a private Washington-based research group, has been able to obtain records that document an unpublicized event in our history. It turns out that in 1975, President Gerald Ford and Secretary of State Henry Kissinger gave Indonesian strongman Suharto the green light to invade East Timor, an incursion that left 200,000 people dead.

-- By examining tens of thousands of public records, the Associated Press has been able to substantiate the long-held African American allegation that white people -- through threats of violence, even murder -- cheated them out of their land. In many cases, government officials simply approved the transfer of property deeds. Valued at tens of million of dollars, some 24,000 acres of farm and timber lands, once the property of 406 black families, are now owned by whites or corporations.

These are but a sample of the revelations made possible by recent FOIA requests. None of them endanger the national security. It is important to remember that all classified documents are protected from FOIA requests and unavailable to the public.

Yet these secrets have exposed all kinds of official skullduggery, some of which even violated the law. True, such revelations may disgrace public officials or even result in criminal charges, but that is the consequence -- or shall we say, the punishment -- for violating the public trust.

No one disputes that we must safeguard our national security. All of us want to protect our nation from further acts of terrorism. But we must never allow the public's right to know, enshrined in the Freedom of Information Act, to be suppressed for the sake of official convenience.

Ruth Rosen is an editorial writer for the San Francisco Chronicle.


New Attorney General FOIA Memorandum Issued

A new statement of Administration policy on the Freedom of Information Act has been issued by Attorney General John Ashcroft and has been transmitted to all agencies across the executive branch of the federal government.

On October 12, Attorney General Ashcroft issued a memorandum to the heads of all departments and agencies that supersedes the Department of Justice FOIA policy memorandum that had been in effect since October 1993. The new Ashcroft FOIA Memorandum was effective immediately upon issuance, and the presidential statement on the FOIA that was issued in 1993 remains in effect as well.

The Ashcroft FOIA Memorandum emphasizes the Administration's commitment to full compliance with the FOIA as an important means of maintaining an open and accountable system of government. At the same time, it recognizes the importance of protecting the sensitive institutional, commercial, and personal interests that can be implicated in government records -- such as the need to safeguard national security, to maintain law enforcement effectiveness, to respect business confidentiality, to protect internal agency deliberations, and to preserve personal privacy.

In replacing the predecessor FOIA memorandum, the Ashcroft FOIA Memorandum establishes a new "sound legal basis" standard governing the Department of Justice's decisions on whether to defend agency actions under the FOIA when they are challenged in court. This differs from the "foreseeable harm" standard that was employed under the predecessor memorandum. Under the new standard, agencies should reach the judgment that their use of a FOIA exemption is on sound footing, both factually and legally, whenever they withhold requested information.

Significantly, the Ashcroft FOIA Memorandum also recognizes the continued agency practice of considering whether to make discretionary disclosures of information that is exempt under the Act, subject to statutory prohibitions and other applicable limitations. It also places particular emphasis on the right to privacy among the other interests that are protected by the FOIA's exemptions.

The text of the Ashcroft FOIA Memorandum is as follows:

Memorandum for Heads of all Federal Departments and Agencies

From: John Ashcroft, Attorney General

Subject: The Freedom of Information Act

As you know, the Department of Justice and this Administration are committed to full compliance with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2000). It is only through a well-informed citizenry that the leaders of our nation remain accountable to the governed and the American people can be assured that neither fraud nor government waste is concealed.

The Department of Justice and this Administration are equally committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy.

Our citizens have a strong interest as well in a government that is fully functional and efficient. Congress and the courts have long recognized that certain legal privileges ensure candid and complete agency deliberations without fear that they will be made public. Other privileges ensure that lawyers' deliberations and communications are kept private. No leader can operate effectively without confidential advice and counsel. Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), incorporates these privileges and the sound policies underlying them.

I encourage your agency to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.

In making these decisions, you should consult with the Department of Justice's Office of Information and Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.

This memorandum supersedes the Department of Justice's FOIA Memorandum of October 4, 1993, and it likewise creates no substantive or procedural right enforceable at law.

* * * * *

This policy memorandum was issued pursuant to the Attorney General's specific statutory responsibility "to encourage agency compliance with [the Freedom of Information Act]," 5 U.S.C. § 552(e)(5) (2000), a responsibility that the Department of Justice discharges in several ways, including through statements of FOIA policy. See, e.g., Department of Justice Calendar Year 2000 Annual FOIA Report at 99-107 ("Description of Department of Justice Efforts to Encourage Agency Compliance with the Act").

A new FOIA policy statement traditionally has been issued by the Attorney General at the beginning of a new Administration. Such statements were issued in May 1977 by Attorney General Griffin B. Bell, in May 1981 by Attorney General William French Smith, and in October 1993 by Attorney General Janet Reno. The Ashcroft FOIA Memorandum continues that tradition and in so doing calls attention to the administration of the FOIA at the highest levels of all agencies.

Additionally, the Office of Information and Privacy is disseminating this new FOIA policy memorandum to the principal administrative and legal FOIA contacts at all agencies, with the request that it be further disseminated as widely and expeditiously as possible through FOIA administrative channels within each agency. This dissemination should ensure that the memorandum reaches all FOIA personnel within each agency directly, in addition to through its distribution by each agency head.

OIP also will be both distributing and discussing the Ashcroft FOIA Memorandum at a FOIA Officers Conference to be held on October 18. A second topic to be discussed at this FOIA Officers Conference will be agency implementation of the electronic availability and annual reporting requirements of the Electronic Freedom of Information Act Amendments of 1996, in accordance with this past year's General Accounting Office Report entitled, "Progress in Implementing the 1996 Electronic Freedom of Information Act Amendments"). OIP issued a policy guidance memorandum on that subject earlier this year, see FOIA Post, "GAO E-FOIA Implementation Report Issued" (posted 3/23/01), and issued follow-up guidance on the preparation of annual FOIA reports as well, see FOIA Post, "Supplemental Guidance on Annual FOIA Reports" (posted 8/13/01).

Lastly, a third topic that will be discussed at this FOIA Officers Conference is one that has become a subject of greatly increased significance since the horrific events of September 11. In light of those events, and the possibilities for further terrorist activity in their aftermath, federal agencies are concerned with the need to protect critical systems, facilities, stockpiles, and other assets from security breaches and harm --and in some instances from their potential use as weapons of mass destruction in and of themselves. Such protection efforts, of course, must at the same time include the protection of any agency information that could enable someone to succeed in causing the feared harm.

Protection for such records or information, if requested under the FOIA, is available under Exemption 2 of the Act, 5 U.S.C. § 552(b)(2) (2000). Any agency assessment of, or statement regarding, the vulnerability of such a critical asset should be protected pursuant to Exemption 2. See FOIA Update, Vol. X, No. 3, at 3-4 ("OIP Guidance: Protecting Vulnerability Assessments Through Application of Exemption Two"). Beyond that, a wide range of information can be withheld under Exemption 2's "circumvention" aspect, sometimes referred to as "high 2," as is discussed in the "'High 2': Risk of Circumvention" Subsection of the "Exemption 2" Section of the "Justice Department Guide to the Freedom of Information Act." Agencies should be sure to avail themselves of the full measure of Exemption 2's protection for their critical infrastructure information as they continue to gather more of it, and assess its heightened sensitivity, in the wake of the September 11 terrorist attacks.

Any question concerning the Ashcroft FOIA Memorandum, about implementation of the Electronic FOIA Amendments, about the use of Exemption 2 to provide necessary protection in the wake of terrorism, or about any aspect of FOIA administration can be raised through the Office of Information and Privacy's FOIA Counselor service, at (202) 514-3642. (posted 10/15/01)



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