Freedom of Information Act
Agency Views on Changes Resulting from New Administration Policy Gao ID: GAO-03-981 September 3, 2003The 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").
GAO-03-981, Freedom of Information Act: Agency Views on Changes Resulting from New Administration Policy
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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:
GAO Highlights:
Highlights of GAO-03-981, a report to the Ranking Minority Member,
Committee on the Judiciary, U.S. Senate
Why GAO Did This Study:
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.
What GAO Found:
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.
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.
[End of section]
Contents:
Letter:
Results in Brief :
Appendix:
Appendix I: Agency Views on Changes Resulting from New Administration
Policy:
Abbreviations:
DOJ: Department of Justice:
FOIA: Freedom of Information Act:
ISOO: Information Security Oversight Office:
OIP: Office of Information and Privacy:
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.[Footnote 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.
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[Footnote 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 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
w [Hyperlink, http://www.gao.gov] ww.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:
Signed by Linda D. Koontz:
[End of section]
Appendixes:
[End of section]
Appendix I: Agency Views on Changes Resulting from New Administration
Policy:
[See PDF for image]
[End of figure]
[End of section]
(310380):
FOOTNOTES
[1] 5 U.S.C. §552(e)(5).
[2] We have amended the briefing slides as of August 15, 2003, to
include technical corrections and clarifications.
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