Attorney General Reno's FOIA Memoranda …

Attorney General Reno's FOIA Memoranda                                                                      Page 1 of 2



                     Attorney General Reno's FOIA Memorandum
October 4, 1993

MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES

SUBJECT: The Freedom of Information Act

President Clinton has asked each Federal department and agency to take steps to ensure it is in compliance with
both the letter and the spirit of the Freedom of Information Act (FOIA), 5 U.S.C. § 552. The Department of Justice
is fully committed to this directive and stands ready to assist all agencies as we implement this new policy.

First and foremost, we must ensure that the principle of openness in government is applied in each and every
disclosure and nondisclosure decision that is required under the Act. Therefore, I hereby rescind the Department of
Justice's 1981 guidelines for the defense of agency action in Freedom of Information Act litigation. The Department
will no longer defend an agency's withholding of information merely because there is a "substantial legal basis" for
doing so. Rather, in determining whether or not to defend a nondisclosure decision, we will apply a presumption of
disclosure.

To be sure, the Act accommodates, through its exemption structure, the countervailing interests that can exist in
both disclosure and nondisclosure of government information. Yet while the Act's exemptions are designed to
guard against harm to governmental and private interests, I firmly believe that these exemptions are best applied
with specific reference to such harm, and only after consideration of the reasonably expected consequences of
disclosure in each particular case.

In short, it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in
those cases where the agency reasonably foresees that disclosure would be harmful to an interest protected by that
exemption. Where an item of information might technically or arguably fall within an exemption, it ought not to be
withheld from a FOIA requester unless it need be.

It is my belief that this change in policy serves the public interest by achieving the Act's primary objective --
maximum responsible disclosure of government information -- while preserving essential confidentiality.
Accordingly, I strongly encourage your FOIA officers to make "discretionary disclosures" whenever possible under
the Act. Such disclosures are possible under a number of FOIA exemptions, especially when only a governmental
interest would be affected. The exemptions and opportunities for "discretionary disclosures" are discussed in the
Discretionary Disclosure and Waiver section of the "Justice Department Guide to the Freedom of Information Act."
As that discussion points out, agencies can make discretionary FOIA disclosures as a matter of good public policy
without concern for future "waiver consequences" for similar information. Such disclosures can also readily satisfy
an agency's "reasonable segregation" obligation under the Act in connection with marginally exempt information,
see 5 U.S.C. § 552(b), and can lessen an agency's administrative burden at all levels of the administrative process
and in litigation. I note that this policy is not intended to create any substantive or procedural rights enforceable at
law.

In connection with the repeal of the 1981 guidelines, I am requesting that the Assistant Attorneys General for the
Department's Civil and Tax Divisions, as well as the United States Attorneys, undertake a review of the merits of
all pending FOIA cases handled by them, according to the standards set forth above. The Department's litigating
attorneys will strive to work closely with your general counsels and their litigation staffs to implement this new
policy on a case-by-case basis. The Department's Office of Information and Privacy can also be called upon for
assistance in this process, as well as for policy guidance to agency FOIA officers.




http://www.usdoj.gov/oip/foia_updates/Vol_XIV_3/page3.htm                                                       4/22/03
Attorney General Reno's FOIA Memoranda                                                                    Page 2 of 2



In addition, at the Department of Justice we are undertaking a complete review and revision of our regulations
implementing the FOIA, all related regulations pertaining to the Privacy Act of 1974, 5 U.S.C. § 552a, as well as
the Department's disclosure policies generally. We are also planning to conduct a Department  -wide "FOIA Form
Review." Envisioned is a comprehensive review of all standard FOIA forms and correspondence utilized by the
Justice Department's various components. These items will be reviewed for their correctness, completeness,
consistency, and particularly for their use of clear language. As we conduct this review, we will be especially
mindful that FOIA requesters are users of a government service, participants in an administrative process, and
constituents of our democratic society. I encourage you to do likewise at your departments and agencies.

Finally, I would like to take this opportunity to raise with you the longstanding problem of administrative backlogs
under the Freedom of Information Act. Many Federal departments and agencies are often unable to meet the Act's
ten-day time limit for processing FOIA requests, and some agencies -- especially those dealing with high-volume
demands for particularly sensitive records -- maintain large FOIA backlogs greatly exceeding the mandated time
period. The reasons for this may vary, but principally it appears to be a problem of too few resources in the face of
too heavy a workload. This is a serious problem -- one of growing concern and frustration to both FOIA requesters
and Congress, and to agency FOIA officers as well.

It is my hope that we can work constructively together, with Congress and the FOIA-requester community, to
reduce backlogs during the coming year. To ensure that we have a clear and current understanding of the situation, I
am requesting that each of you send to the Department's Office of Information and Privacy a copy of your agency's
Annual FOIA Report to Congress for 1992. Please include with this report a letter describing the extent of any
present FOIA backlog, FOIA staffing difficulties and any other observations in this regard that you believe would
be helpful.

In closing, I want to reemphasize the importance of our cooperative efforts in this area. The American public's
understanding of the workings of its government is a cornerstone of our democracy. The Department of Justice
stands prepared to assist all Federal agencies as we make government throughout the executive branch more open,
more responsive, and more accountable.




http://www.usdoj.gov/oip/foia_updates/Vol_XIV_3/page3.htm                                                     4/22/03