U.S. Department of Justice
To: Principal FOIA Administrative and Legal Contacts at All Federal Agencies
From: Richard L. Huff
Subject: Attorney General Memorandum on FOIA
Enclosed is a copy of a memorandum, with attachments, from Attorney General Janet Reno to the heads of all federal departments and agencies regarding the Freedom of Information Act. Attorney General Reno has asked us to facilitate the distribution of this memorandum to all of its agency-head recipients today, and we have done so. At the same time, we are also disseminating it to the principal FOIA contacts at all federal agencies.
You will note that Attorney General Reno's memorandum refers back to, and attaches, the FOIA memoranda that previously were issued by her and by President Clinton in October 1993, in a reiteration of the FOIA principles and FOIA litigation standards that were established by them at that time. Most significantly, Attorney General Reno's September 1999 memorandum then builds upon her appearance before several hundred FOIA personnel at our major FOIA training session last year to strongly support--and to urge all agency heads, in turn, to support--the efforts of all FOIA officers throughout the executive branch. Specifically, this memorandum's latter two pages are designed to reinforce the Attorney General's personal encouragement of FOIA officers in their work and to maximize the cooperation that they receive from others within their agencies. We are especially pleased that Attorney General Reno has now formally asked the heads of all your agencies to do all they can to support your efforts, most particularly your coordinated efforts with your agency's Information Resources Management (IRM) personnel.
This September 1999 Attorney General FOIA memorandum, together with copies of the two October 1993 FOIA memoranda, should be circulated widely within your agency by your agency head. Additionally, we encourage you to make use of it wherever it can be used to support your work, e.g., to gain cooperation in making discretionary FOIA disclosures and in making information available electronically under the Act, on a day-to-day basis in your administration of the FOIA. We also suggest that you continue to use the videotape of last year's governmentwide training session involving the Attorney General, which we distributed at the end of last year, for in-house FOIA-training purposes. Please note in this regard that as part of its transition to a new publication cycle, the Freedom of Information Act Guide and Privacy Act Overview will next be published in the month of May during the coming year and that the next such governmentwide training session (at which we will distribute a "pre-publication" copy of the May 2000 "FOIA Guide") is now scheduled to be held on June 15, 2000, in conjunction with that new publication process.
Lastly, we want to remind all agencies that the final implementation deadline of the Electronic Freedom of Information Act Amendments of 1996, Pub. L. No. 104-231, is approaching at the end of this year. Specifically, all agencies are required, by December 31, 1999, to have their indexes of their "frequently requested" FOIA records available electronically, which should mean having them available for convenient reference on their FOIA sites on the World Wide Web. See 5 U.S.C. § 552(a)(2)(E) (as amended). We recommend your close attention to this statutory obligation and suggest that Attorney General Reno's September 1999 FOIA memorandum should serve to foster the necessary cooperation of your agency's IRM personnel in meeting this obligation in a timely and efficient fashion.
Office of the Attorney General
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 attachments widely throughout your department or agency, with particular attention to distribution to all agency IRM personnel.