Ashcroft’s FOI Act memo prompts concerns

From the Winter 2002 issue of The News Media & The Law, page 25.

By Rebecca Daugherty

Attorney General John Ashcroft’s Freedom of Information Act instruction last October telling agencies they could issue denials with the government’s blessing continued to spark editorial attention well into January.

“Years of hard-won battles that turned FOIA into a fundamental routine bulwark against government secrecy were undermined in a day,” the Christian Science Monitor wrote. “The memo ushered out the principle of ‘right to know’ and replaced it with ‘need to know.’ Now the presumption is that information is inherently risky.”

The Gannett News Service called the memo the beginning of an “ignorance is bliss policy,” with the Bush administration believing that “the less Americans know about how our government works, the better off we are.”

The San Francisco Chronicle wrote “without fanfare, the attorney general simply quashed the FOIA.”

In the Oct. 12 memorandum, Ashcroft revoked the 1993 FOI instructions of former Attorney General Janet Reno, which told federal workers that if they did not have to withhold information, they should give it out. They should invoke discretionary exemptions only if they could point to some foreseeable harm that would occur from disclosure.

Ashcroft instead told government agencies that the Justice Department will defend agencies denying information any time there is a “sound legal basis” for doing so. He said the department would refuse to defend a denial only if a lawsuit might jeopardize the government’s ability to continue withholding information.

Ashcroft expressed support for the FOI Act and acknowledged that a well-informed citizenry holds national leaders accountable. But he also wrote that his department and the Bush 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.”

Editorial writers conceded, as did the Scripps-Howard newspapers, that in the immediate aftermath of Sept. 11, a case could be made for stepping back and reviewing national security issues. But in mid-January, the newspaper chain wrote: “Plenty of time for review has passed, but Ashcroft’s memo, with its wink-wink, nudge-nudge suggestion that it’s OK to ignore the freedom of information law, still stands.”

But for Dan Metcalfe, co-director of the Justice Department’s Office of Information and Privacy, the Ashcroft memorandum does not represent a “drastic” shift in the government’s FOI policies as many have claimed. But it is “certainly a shift in tone,” he said.

The Justice Department gives guidance and training on FOI matters to all federal agencies. It also litigates against FOI requesters on behalf of most government agencies.

Steve Garfinkel, retiring director of the federal office that oversees classification, dismissed the relevance of either memorandum.

“You know what? The Janet Reno memorandum is all but meaningless. The John Ashcroft memorandum is all but meaningless,” Garfinkel said in a speech before the annual symposium of the American Society of Access Professionals last December in Washington, D.C. “What you do every day on the job is what is truly meaningful in the area of access to government information.”

For years, attorneys general have instructed federal agencies on carrying out the mandates of the FOI Act. In 1977, then-Attorney General Griffin Bell told agencies that they should “not withhold documents unless it is important to the public interest to do so.”

In 1981, William French Smith reversed the Bell policies. The government would defend all denials unless they lacked a substantial legal basis or would jeopardize the government’s ability to withhold other records. The Ashcroft memorandum echoed that instruction.

The Reno memorandum, issued in 1993, was accompanied by a memorandum from President Clinton. Clinton told heads of departments and agencies that they were to handle FOI requests in a “customer-friendly manner,” eliminate unnecessary bureaucratic hurdles in implementing the FOI Act and enhance public access through use of electronic information systems.

Ashcroft’s instruction replaced the Reno memorandum but did not address instructions from Clinton.

Justice officials actually started drafting the memorandum before the terrorist attacks. After the memorandum was issued, the department held a closed meeting with FOI officers and specialists to discuss the new instructions, the use of Exemption 2 to deny records which might be useful to terrorists and the requirements of the Electronic FOI Act of 1996 in light of heightened concerns for security after the terrorist attacks.

The FOI Act’s Exemption 2 protects records related “solely to the internal personnel rules and practices” of an agency. Courts have found the exemption to protect everything from trivial matters to those that, if disclosed, could help someone break the law. (Attorney General’s Memorandum of Oct. 12, 2001)