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entitled 'Freedom of Information Act: Agency Views on Changes Resulting 
from New Administration Policy' which was released on September 15, 
2003.

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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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