FOIA Update
Vol. XIX, No. 4
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Office of the Attorney General
Washington, D.C. 20530
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September 3, 1999
MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
FROM: THE ATTORNEY GENERAL
SUBJECT: The Freedom of Information Act
On October 4, 1993, President Clinton issued a Freedom of
Information Act (FOIA) policy memorandum (Attachment 1), in
which he called upon all federal departments and agencies to
renew their commitment to the FOIA, to its underlying
principles of government openness, and to its sound
administration. This is an appropriate time for all agencies
to take a fresh look at their administration of the Act, to
reduce backlogs of FOIA requests, and to conform agency
practice to the new litigation guidance issued by the Attorney
General, which is attached. (Attachment 2)
The President pointed out that the FOIA was enacted based
upon the fundamental principle that an informed citizenry is
essential to the democratic process and that the more the
American people know about their Government the better they
will be governed. Openness in government is essential to
accountability and the FOIA has become an integral part of
that process.
He directed that federal departments and agencies should
handle requests for information in a customer-friendly manner.
The use of the FOIA by ordinary citizens is not complicated,
nor should it be. The existence of unnecessary bureaucratic
hurdles has no place in its implementation.
After more than 5 years, I think we should all take a
fresh look once again at the way in which each of our
departments or agencies is implementing the FOIA to ensure
that we are doing everything possible to promote openness in
the Government and to respond to citizens' requests for
information in a customer-friendly manner.
I have had the opportunity to address FOIA officers from
nearly all the federal departments and agencies. I am
impressed with their dedication and commitment to the proper
enforcement of the FOIA. However, there is still work to be
done and we must back them up in every way possible in their
day-to-day administration of this statute. FOIA officers
increasingly must rely on the cooperation of agency personnel
who hold primary responsibilities in other areas of agency
activity. Without the support and timely assistance of others
at their agencies, FOIA officers cannot provide the FOIA-requester
community with the best possible service in
accordance with this Administration's openness-in-government
and customer-service principles.
We should all reinforce how important it is for all
employees to support the FOIA process and make clear the
Administration's support for the work being done by the FOIA
officers.
I would like to draw your attention to two very important
areas of FOIA administration which require the support of all
agency personnel:
Discretionary Disclosure. A major policy objective
established for the FOIA in 1993 is the "maximum responsible
disclosure of government information." (See Attachment 2,
FOIA litigation guidance dated October 4, 1993.) This
objective is best served when agencies apply a "foreseeable
harm" standard in their FOIA decision making and consider
whether they can make a discretionary disclosure of a
requested record or portion of a record even though it falls
within one of the Act's exemptions. In short, information
should be withheld from a FOIA requester only when it is not
possible for an agency to disclose it as a matter of
administrative discretion.
As a practical matter, the application of this policy
requires close cooperation between an agency's FOIA officers
and the agency's institutional custodians of the records that
are sought by FOIA requests. Such agency employees who
understandably are primarily concerned with their own agency
programs and institutional interests, must be made aware of
this Administration's openness-in-government policy and be
mindful of its importance. Most importantly, they must be
open to the possibility of making a discretionary disclosure
of information in response to a FOIA request in cooperation
with their agency's FOIA officers. This widespread awareness
and receptivity among all agency employees is essential to the
success of an agency's FOIA program.
Information Resources Management (IRM)-Related Activity.
A similar, but relatively new type of cooperation is necessary
between an agency's FOIA officers and its IRM personnel. Two
years ago, the Electronic Freedom of Information Act Amendments
of 1996 (Electronic FOIA amendments), Pub. L. No. 104-231,
placed additional obligations on agencies with respect to
information maintained in electronic form. Under the
Electronic FOIA amendments, for example, agencies now are
required to make "reasonable efforts" to search for and produce
records in various electronic forms or formats upon request,
often requiring sophisticated computer expertise.
Most significantly, the Electronic FOIA amendments also
require agencies to maintain "electronic reading rooms" and to
make a growing variety of information available to the public
on the World Wide Web. During the past 2 years, these
amendments have spurred the development of agency web sites for
FOIA purposes and an agency's FOIA Web site has become an
essential means by which its FOIA obligations are satisfied.
This requires that an agency's FOIA officers and its IRM
personnel work together in a new partnership, with strong
institutional ties, to achieve efficient information disclosure
through electronic means. It should be a primary mission of
each agency's IRM staff that it facilitate the prompt and
accurate disclosure of information through the agency's FOIA
sites on the World Wide Web. This assistance is now vital to
the full and proper administration of the Act.
I hope you will do all you can within your department or
agency to foster this new working relationship between FOIA
officers and agency IRM personnel, as well as to promote
continued commitment to government openness by all agency
personnel. Accordingly, I ask that you disseminate this
memorandum and its attachment widely throughout your department
or agency, with particular attention to distribution to all
agency IRM personnel.
Attachment (2)
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