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FINDINGS REGARDING IMPLEMENTATION OF ATTORNEY
GENERAL GUIDANCE REGARDING FOIA
When the Ashcroft
Memorandum was issued, the press and access advocates
greeted it with serious concern. The 1993
Reno Memorandum, which was issued along with a Presidential
memorandum discussing the importance of openness in
government and requesting enhanced administration of the FOIA,
had provided that the U.S. Department of Justice would "no
longer defend an agency's withholding of information merely
because there is a 'substantial legal basis'" for withholding.
Instead, the Reno Memorandum indicated that it would "apply
a presumption of disclosure" and that the FOIA exemptions
from disclosure should be used "with specific reference
to [harm to governmental or private interests], and only after
consideration of the reasonably expected consequences of disclosure
in any particular case." It specifically encouraged agencies
to make "discretionary disclosures," particularly
where only a government interest in non-disclosure was at stake.
The Reno Memorandum summarized that "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."
The Ashcroft Memorandum replaced the FOIA memorandum
issued by Attorney General Janet Reno in October 1993. In the
months after it was distributed to department and agency heads,
the Archive was told anecdotally by a few agency FOIA professionals
that the Ashcroft Memorandum had had little impact on their
FOIA processing, which was counter to the public perception.
Indeed, one senior agency official indicated the Ashcroft Memorandum
may have had the "softest landing" that could be expected.
An agency lawyer characterized it as "more thunder than
lightening." One official administering the FOIA at the
appellate level for an agency receiving several thousand requests
per year noted his panel's work "hasn't been at all affected,
virtually not." And, a FOIA official at a defense agency
reacted to the new Memorandum with a shrug: "Yeah. Okay."
Importantly, the memorandum does not direct any specific activity
by agencies. The memorandum does, however, highlight the considerations
that may counsel against discretionary releases and highlights
the importance of invoking Exemption (b)(5) to protect recognized
legal privileges such as the deliberative process privilege.
Finally, we are not aware of similar studies of the impact of
the Reno Memorandum that would allow for a valid comparison.
Readers should keep in mind three important caveats
about our findings, however, one concerning policy, another
concerning data. First, our survey indicated a divide between
FOIA policy and FOIA processing; i.e., some agency officials
who actually process requests indicated the Ashcroft Memorandum
had little or no impact even though their agency might have
undertaken significant policy changes or implementation activities.
Second, as of today, 2 of the 35 agencies-the Social Security
Administration and the Department of Veterans Affairs-have failed
to provide documentation for this study and so are not included.
Third, as noted in the Methodology section above, there may
be still more data out there.
As a final consideration, our interviews also
indicated some conflation of the concerns articulated in the
Ashcroft Memo; the White House Memorandum on Weapons of Mass
Destruction information; concerns stemming from the terror attacks
of September 11, 2001; and, to some extent, concerns stemming
from the Global War on Terrorism.
Agency policy-makers took a range of approaches
upon receipt of the Ashcroft Memorandum. Generally, we find
Agency implementation of the Ashcroft Memorandum varied by agency
and can be characterized in terms of four categories:
Significant Change
Engaged in Implementation Activities
Dissemination of Ashcroft Memo-Little Implementation or Change
No Dissemination of the Ashcroft Memo-No Implementation or
Change
5 of 33 Federal departments or agencies surveyed
(15 %) indicated significant changes in regulations, guidance,
and training materials and that the Ashcroft Memorandum was
widely disseminated.
Department of the Air Force ("Air Force")
Department of the Army ("Army")
Department of the Navy ("Navy")
Department of the Interior ("DOI")
Nuclear Regulatory Commission ("NRC")
Most of the agencies that made significant changes in response
to the Ashcroft Memorandum were from the Defense establishment.
Part of this stems from the bureaucratic culture within the
agencies that interprets guidance as ordering or directing activity
and that looks for and responds to directives, rather than as
guiding or advising policy. As one interviewee described it,
"In DoD, we're trained to take orders." Nevertheless,
this same person articulated a countervailing tendency that
places limits on policy innovation in that an agency cannot
and will take not make a policy change "unless there's
a requirement" to do so.
Discussion of Agencies
Department of the Air Force. Air Force's
implementation of the Ashcroft Memorandum illustrates the duality
of the bureaucratic response . For example, documents the Archive
gained under FOIA reveal that Judge Advocate General ("JAG")
lawyers argued that the Ashcroft Memorandum reflects a "drastic"
policy change, but that the Ashcroft Memorandum itself was disseminated
to FOIA officers as "low priority" and without commentary.
We have included the Air Force in this category of responses to
the Ashcroft Memorandum, although it is difficult to determine
from their disclosures the actual impact of the Memorandum. In
the JAG document, which appears to be an article for publication,
two USAF Majors postulate that the Ashcroft Memorandum constitutes
"a marked shift in FOIA policy and will fundamentally change
the way the federal government responds to FOIA requests."
They note that "a hailstorm of discussion has followed the
[Attorney General] [M]emorandum among those who regularly work
with FOIA policy," and reference a November 19, 2001 Memorandum
from Henry McIntyre, Department of Defense, Directorate for Freedom
of Information and Security review regarding "DoD Guidance
on Attorney General Freedom of Information Act (FOIA) Memorandum"
("McIntyre
Memorandum") that references upcoming changes to
internal Department of Defense FOIA regulations. The article posits
that the Ashcroft Memorandum returns FOIA processing to pre-Attorney
General Reno practices and the use of the low (b)(2) and (b)(5)
exemptions. It also notes that the Ashcroft Memorandum "tacitly
encourage[es] even greater withholding under the high-2 exemption
and exemption 6." It also encourages the use of the "high-2"
exemption to meet the call for denying adversaries information
expressed in an October 18, 2001 Deputy Secretary of Defense Paul
Wolfowitz Memorandum ("Wolfowitz
Memorandum"). It is not clear from the disclosure
how widely this article may have been disseminated within the
Air Force. A second summary, entitled "General Law, New Trends
in Freedom of Information Law," also stresses the increased
use of exemptions (b)(5) and (b)(2) and the increased weight given
to privacy rights of military personnel. It specifically references
the new policy of the military to "withhold lists of names
and other identifying information of personnel …." See
November 9, 2001 Memorandum
of David Cooke, DoD Director of Administration and Management.
Notably, the actual forwarding of the Ashcroft Memorandum from
the Air Force FOIA office, however, is labeled "Importance:
Low."
Department of the Army. The Department of
Army disseminated both the Ashcroft Memorandum and the McIntyre
Memorandum instructing that the Ashcroft Memorandum "supersedes"
the Reno Memorandum. Although disseminated "throughout Army,"
the emails note the new policy but don't articulate it further.
In addition, the Army is in the process of revising its internal
regulations "to include the provisions of the Ashcroft memorandum."
As the regulation has not been finalized, it was withheld from
disclosure to the Archive.
Department of the Navy. The Department of
Navy also disseminated the memorandum to all components and implemented
changes to its FOIA programs. It instructs:
a. [Navy] activities will no longer use the "foreseeable
harm" standard when adjudicating whether to release/deny
information. Rather, DON activities will adopt the "Sound
Legal Basis" standard reflected in the AG memo. DON activities
will be responsible for presenting a rationale for denial that
DOJ will be able to defend if the denial is litigated.
b. While the [AG] memo does not eliminate the ability to make
a discretionary disclosure, DON activities are no longer encouraged
to do so.
c. Exemption low (b)(2) is available for use by DON activities
to protect routine housekeeping information that is relatively
trivial in nature. Activities are encouraged to consult the
DOJ "Freedom of Information Act Guide & Privacy Act
Overview" for man in depth discussion of law (b)(2).
d. DON activities should consider using high (b)(2) to protect
vulnerability assessments, stockpile information, and security
assessments.
While not specific to FOIA, it further advises:
On 18 Oct 01, the Deputy Secretary of Defense (DepSecDef) [Paul
Wolfowitz] issued a memorandum entitled "Operations Security
Throughout the Department of Defense." The DepSecDef memo
states "Much of the information we use to conduct DOD's
operations must be withheld from public release because of its
sensitivity. If in doubt, do not release or discuss official
information except with DOD personnel." ("Wolfowitz
Memo")
It includes detailed instructions for responding
to FOIA requests for names. With respect to lists of DON personnel,
the Memorandum indicates that the information should be considered
exempt under "high (b)(2)" and (b)(6). It counsels that,
in considering the release of individual names, "DON activities
should weigh heavily the public's right to know versus the individual's
personal privacy," and offers the example that high ranking
officials and individuals that interact with the public as their
primary job should be releasable. It also notes that the case
law is mixed as to the reliance on high (b)(2), suggesting that
other potential bases for non-release should be considered. It
indicates that issues may arise with respect to previously released
information that now may pose a security risk. The memorandum
then provides specific instructions regarding the impact of the
changes on requests for credit card holders, directories and organizational
charts, as well as the Department's proactive placement of materials
on its Web site.
Nuclear Regulatory Commission. The NRC engaged
in a detailed examination of the impact of the Ashcroft Memorandum.
It issued guidance within the agency on the discretionary release
of information, including Web site postings. As part of a broader
effort to protect against security risks, it shut down its Website
while it engaged in an evaluation of what materials could be posted.
The guidance on discretionary releases advised that the agency
"continue to handle and process all FOIA requests in the
same manner as before, but … separately identify documents
that fall within the [discretionary release] criteria." Those
criteria indicate that "you should consider not releasing
a document if it contains" information about plants that
implicates critical infrastructure vulnerabilities or materials.
(emphasis in original). A later memorandum updates the criteria
to account for the agency's need to disclose certain information
to the public. Like other agencies, it eliminated the need for
"foreseeable harm" statements when records were determined
to be withheld. Personnel were also instructed to pay close attention
to records that contain information that could be potentially
helpful to an adversary for possible additional review and the
application of exemptions from disclosure. Personnel were directed
to draft sensitivity statements to explain their concerns. The
various guidance memoranda issued within the agency repeatedly
caution that FOIA exemptions should continue to be applied as
they had been prior to September 11, 2001. The agency changed
its internal regulations to incorporate the Ashcroft Memorandum.
Department of the Interior. The Department
of Interior disseminated the Ashcroft Memorandum to all FOIA officers
by e-mail entitled "News Flash - Foreseeable Harm is Abolished."
Departmental guidance implementing the memorandum required discretionary
releases to be cleared by written approval of the Designated FOIA
Attorney. The Department also advised that "bureaus/offices
once again may use the 'low 2' exemption." Other guidance
within the Department indicates "[w]e wish to emphasize that
the shift related to release of information under the FOIA has
moved from a presumption of 'discretionary disclosure' of information
to the need to safeguard institutional, commercial, and personal
privacy interests." After attending the OIP FOIA Officers'
meeting, Department personnel advised that OIP provided informal
guidance on the use of "high (2)" in circumstances that
might allow a terrorist to obtain information necessary to breach
governmental security and the possibility of Exemption (b)(3)
legislation being introduced to help protect such information.
The Ashcroft Memorandum was also discussed at a departmental FOIA
officers meeting. E-mails show that the meeting discussion included
discussion of Exemption (b)(2). In addition, e-mails indicate
internal discussion about Exemption 5, including one view that
the elimination of "foreseeable harm" determinations
means that all drafts can be exempt from disclosure under Exemption
(b)(5). The Attorney General policy was also incorporated into
training materials. In telephone contact with the Archive, the
Departmental FOIA Officer indicated that the Chief Information
Officer had issued a bulletin on January 6, 2003 and published
it on the DOI website that sets into regulation the Departmental
FOIA guidance.
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Agencies Engaging in Activities Implementing
the Ashcroft Memorandum
8 of 33 Federal departments or agencies surveyed (24 %)
indicated implementation activities concerning the Ashcroft
Memo, including its dissemination and incorporation into FOIA
regulations and procedures.
Department of Commerce ("Commerce")
Department of Defense ("DoD")
Department of Justice ("DOJ")
Department of State ("State")
Environmental Protection Agency ("EPA")
National Aeronautics and Space Administration ("NASA")
Office of Management and Budget ("OMB")
Small Business Administration ("SBA")
A number of agencies took a hard look at the Ashcroft
Memorandum, disseminated it, and recognized the Memorandum as
a change in their FOIA policy, but not a fundamental change in
administering the law.
Discussion of agencies
Department of Commerce. Commerce's Office
of General Counsel disseminated the Ashcroft Memorandum to Commerce
FOIA officers with a cover memorandum describing the new caution
on discretionary disclosures and emphasis on the "institutional,
commercial, and privacy interests". It explained that the
new policy "provides for withholding of information protected
by FOIA exemptions, without requiring a foreseeable harm analysis."
It also indicates that "[w]hen determining whether to make
discretionary disclosures, an agency should consider such interests
as national security, law enforcement effectiveness, business
confidentiality, internal Government deliberations, and personal
privacy." Finally, it instructs that the written statement
explaining a denial, "(formerly the foreseeable harm statement)
must reflect why all withheld information falls within a FOIA
exemption or exemptions."
Department of Defense. Given the Department
of Defense (DoD)'s central policy advisory role for defense agencies,
components, and the military services, it is significant that
DoD issued and widely disseminated its own "DoD Guidance
on Attorney General Freedom of Information Act (FOIA) Memorandum,"
the McIntyre
Memorandum, implementing the Ashcroft Memorandum. The
McIntyre Memorandum describes the Ashcroft Memorandum, indicates
that there will be changes to Departmental FOIA program regulations,
discusses the use of Exemption 2, and indicates that discretionary
disclosures are no longer encouraged. The DoD indicated in its
response to the Archive's FOIA request that there are no records
aside from the McIntyre Memorandum responsive to the request.
While some DoD components are in the process of revising internal
FOIA program regulations, no records were produced to indicate
that the DoD revised its internal regulations or training documents.
In keeping with this finding, two months after the Ashcroft Memorandum
was issued and a month after issuing his own FOIA memo, DoD's
McIntyre downplayed the new policies, telling an audience of FOIA
and information professionals "FOIA is the same; it is the
law of the land."
Department of Justice. As the agency charged
with issuing and guiding the new FOIA policy, the DOJ undertook
significant initiatives and instituted changes in FOIA policy.
First, Justice's Office of Information and Privacy ("OIP")
was the agency that drafted the Ashcroft Memorandum in conjunction
with White House legal officials-as it did in prior administrations.
Second, OIP issued a summary cover memorandum to accompany the
Ashcroft Memorandum. Third, it posted the Ashcroft Memorandum
on FOIA Post, its valuable FOIA reference Internet portal.
The FOIA Post commentary summarized the Memorandum and
the authority for the Memorandum, and highlighted the use of Exemption
2 to protect information regarding critical systems, facilities,
stockpiles or other assets from security breaches or harm. (http://www.usdoj.gov/oip/foiapost/2001foiapost19.htm)
Fourth, OIP and other Justice officials disseminated and incorporated
the Ashcroft Memorandum into its Department-wide and government-wide
training programs, including the October 2001 FOIA Officers Conference
where the Ashcroft Memorandum had its debut before agency officials
charged with its implementation.
Nevertheless, given its central role, several factors
indicate DOJ may not have been the policy heavyweight it would
seem. First, DOJ and specifically, OIP may well have undertaken
similar activities and initiatives with the 1993 Reno Memorandum.
Second, even as it implemented the directive, OIP counseled against
interpreting the Ashcroft Memorandum as a reversal in overall
FOIA policy. For example, in its FOIA Post guidance accompanying
the Ashcroft Memo, OIP clarifies that the Clinton Memorandum on
FOIA remains in effect. Third, OIP officials have argued in public
forums that the Ashcroft Memorandum represents a change in "tone"
or is a "policy emphasis." Indeed, documents we received
under our FOIA requests from agencies that attended OIP's October
2001 FOIA Officers Conference indicate that OIP stressed the continuity
of prior practices and did not treat the Ashcroft Memorandum as
a fundamental change in FOIA policy.
Both in terms of their promulgation of the new policy
and their caution about its implementation, OIP officials' statements
and activities carry weight because OIP is the lead Federal office
for government-wide FOIA policy.
Department of State. Office of Information
Resources Management Programs and Services officials, who administer
the FOIA for State, reported on the issuance of the Ashcroft Memorandum
with the comment that it "specifically 'supersedes' the Reno
1993 memorandum and replaces it with a 'sound legal basis' standard
for defending FOIA withholdings…. One focus of the Ashcroft
memorandum is the need to protect material covered by exemption
5 which was the subject of discretionary disclosure encouraged
by the Reno memorandum." DOS also revised internal materials
to drop reference to "foreseeable harm." Finally, in
an email distributed to personnel engaged in records review, it
foresees the Ashcroft Memorandum impacting the use of Exemptions
1, 7, 4, 6 and 5. Nevertheless, the guidance notes that "DOJ/OIP
chose to emphasize continuity over change" with respect to
agency practices and that "the Ashcroft Memorandum did not
change the underlying statute and extensive case law on the FOIA."
It does find that "all things being equal" DOJ would
be likely to defend "close calls" if the agency were
to come down on the side of protecting confidential business information,
law enforcement material and personal privacy interests. It notes
that the "Ashcroft standard technically revives [low (b)(2)]."
With respect to Exemption 5, it counsels that "reviewers
should continue to make judgments based on possible harm from
release, including such quintessentially deliberative documents
as drafts." Finally, under the heading "A More Robust
(b)(2) Exemption," the guidance offers details as to how
to use high (b)(2). Nevertheless, dissemination and discussion
of the Ashcroft Memorandum were limited within the FOIA and disclosure
office.
Environmental Protection Agency. EPA Administrator
Christine Todd Whitman disseminated the Ashcroft Memorandum throughout
the Agency. Her accompanying cover memorandum notes that the Ashcroft
Memorandum supersedes the Reno Memo, urges adherence to the new
policy, and references FOIA Post. However, her memorandum
also urges compliance with the 1993 Clinton Memorandum and EPA's
own FOIA procedures. This is may well be the only statement issued
by an agency head to agency employees concerning the Ashcroft
Memorandum. Within the General Counsel's Office, the Ashcroft
Memorandum was understood to mean that "[I]n order to justify
withholding a record, the agency no longer needs to be able to
articulate a foreseeable harm that will befall us if the record
is released." There was also extensive inter-and intra-office
discussion of the Ashcroft Memorandum at EPA.
National Aeronautics and Space Administration.
Following issuance of the Ashcroft Memo, NASA FOIA personnel attended
an OIP meeting of all agencies to discuss the Memorandum at which
they were alerted to the removal of information formerly posted
on Web sites and the possibility of "new protective legislation
… to further support withholding restrictions under FOIA."
At NASA, FOIA issues, Website information issues, and the later
White House Memorandum regarding weapons of mass destruction were
not considered in isolation. For example, in November 2001, NASA
issued guidance on "NASA Web Site Registration and Internet
Publishing Content Guidelines." The guidance provided for
review and access controls to NASA Web sites. Further, in his
August 2002 report on implementation of the White House Memo,
NASA Administrator Sean O'Keefe noted "In response to the
October 12, 2001 policy memorandum from Attorney General Ashcroft…NASA
Headquarters instructed all of its Center FOIA offices to carefully
review all requests for information and to report any security-related
requests as well as any others that appear to be unusual or questionable
to the Agency FOIA Officer for appropriate coordination with the
Agency's Office of Security Management and Safeguards."
Office of Management and Budget. OMB incorporated
the Ashcroft Memo, issuing a circular that summarizes the impact
of the Memorandum. It states in full:
"Many agency budget documents that are subject to the
Freedom of Information act (FOIA) are exempt from mandatory
release pursuant to 5 U.S.C. §552(b)(5). Depending on the
nature of the record requested, other FOIA exemptions may apply.
When deciding whether to withhold a budget document that is
exempt from mandatory release, follow the FOIA memorandum issued
by the Attorney General on October 12, 2001. Any discretionary
decision by an agency to disclose protected information should
be made only after full and deliberate consideration of the
institutional interests that could be implicated by disclosure,
as well as after consultation with OMB. Agency heads are responsible
for determining the propriety of records releases under FOIA."
Small Business Administration. The Small
Business Administration disseminated the Ashcroft Memorandum to
FOIA administrative officers and responded to inquiries regarding
the meaning of the "sound legal basis" standard. Its
FOIA personnel advised that the Ashcroft Memorandum "now
allows low 2 protection; the previous [Attorney General's] memo
had made low 2 ineffective." They further explained "High
2 protects anything that can allow someone to breach the law."
Finally, it concluded "[a]s for Ex. 5, DOJ no longer affirmatively
encourages discretionary disclosure …. As always, it is better
to error [sic] on the side of caution, especially at the initial
level as the requester still has two more levels of review available."
- Agencies That Disseminated the Ashcroft Memorandum but
Undertook Little Implementation or Change in FOIA Policy
17 of 33 Federal departments or agencies surveyed
(52 %) indicated awareness and dissemination of the Ashcroft Memo,
but indicated little change in regulations, guidance or training
materials reflecting the new policy.
Agency for International Development ("AID")
Central Intelligence Agency ("CIA")
Drug Enforcement Administration ("DEA")
Defense Intelligence Agency ("DIA")
Department of Agriculture ("Agriculture")
Department of Education ("Education")
Department of Energy ("DOE")
Department of Health and Human Services ("HHS")
Department of Housing and Urban Development ("HUD")
Department of Labor ("DOL")
Department of Transportation ("DOT")
Department of Treasury ("Treasury")
Federal Bureau of Investigation ("FBI")
General Services Administration ("GSA")
National Archives and Records Administration ("NARA")
Office of Personnel Management ("OPM")
Securities and Exchange Commission ("SEC")
Discussion of agencies
Many agencies, including AID, DEA,
Agriculture, Education, and FBI simply disseminated
the memorandum-sometimes to components and field offices, sometimes
only within the FOIA Office itself-apparently without any guidance
on the significance or impact of the memorandum. DEA noted in
its response to our FOIA request that "as a component of
the Department of Justice, DEA conformed to the Agency Rules and
guidance issued by the Department" and that it did not "issue
any further directives or guidance." Similarly, OPM
and GSA circulated the memorandum to officials, but did
little more than essentially restate what the Attorney General
stated in the Memorandum.
Some agencies considered the impact of the memorandum
and implemented changes to their FOIA programs as a result, but
did not view the changes as dramatic shifts. The CIA revised
its "Overview of the Freedom of Information Act" training
document to incorporate the Ashcroft Memorandum by simply stating:
"Note that the Department of Justice plays a major role
in FOIA policy/implementation and particularly in litigation.
New guidance issued October 12, 2001, by Attorney General Ashcroft
uses "sound legal basis" test to defend withholdings."
However, the Overview also notes that with respect
to "Discretionary Disclosure" that "New DOJ policy
memorandum still allows such disclosures." The DIA
disseminated the Ashcroft Memorandum internally and updated its
Intranet FOIA training tutorial, describing it merely as new guidance,
but did not issue guidance or change regulations.
At the Department of Energy, the Ashcroft
Memorandum was incorporated into the agency's training program
and disseminated to all component FOIA officers, but was not treated
as a change in the law. Indeed, DOE's 1993 'openness' regulations,
which in some ways expand upon FOIA's requirements for inherently
DOE program information, remain in effect. At Housing and Urban
Development, no documents were located pertaining to the Ashcroft
Memo, although it did have some dissemination and HUD FOIA and
General Counsel officials attended the OIP FOIA Officers' Conference
in October 2001. The Department of Labor discussed and
disseminated the Ashcroft Memorandum in FOIA training seminars,
but does not appear to have treated the Memorandum as indicating
a change in the law or requiring supplemental Departmental or
component guidance. Similarly, at the Department of Transportation,
the Ashcroft Memorandum was distributed to all Departmental FOIA
contacts, and the General Counsel issued a memorandum to the DOT
Chief of Staff and Public Affairs director summarizing the Ashcroft
policy and noting a change in the standard for DOJ defense of
agency actions.
At Health and Human Services, the chief FOIA
official noted the issuance of the Ashcroft Memorandum and described
it by email to component FOIA officers, but did not forward it,
referring recipients instead to the FOIA Post website.
It was also incorporated into a General Counsel information law
reference document. Finally, in a memorandum to heads of divisions,
the HHS General Counsel noted "[w]hile the FOIA itself has
not changed the new policy is somewhat more deferential to agency
decisions" and that "the new policy is to defend agency
decisions unless they lack a sound legal basis."
The National Archives and Records Administration
responded to our FOIA request that "NARA has not issued any
new guidance, directives, memoranda, training materials or legal
analyses" implementing the "sound legal basis"
aspect of the Ashcroft Memorandum. However, NARA did adopt the
Justice Department's guidance to use Exemption Two to protect
"records of concern" from FOIA disclosure.
The Securities and Exchange Commission also
indicated no record of any implementation of the Ashcroft Memorandum.
Finally, the Department of Treasury appears to have acted
quite minimally upon the new policy, discussing the memorandum
at least at an October 30, 2001 Departmental FOIA Officers meeting.
No other documents were produced indicating any changes in policy
or practice.
3 of 33 Federal departments or agencies surveyed
(9 %) indicated no changes in regulations, guidance or training
materials, and little if no dissemination of the Ashcroft Memorandum.
US Central Command ("CENTCOM")
Federal Emergency Management Agency ("EPA")
National Science Foundation ("NSF")
Discussion of agencies
US Central Command or CENTCOM, which is the lead military
activity for both the war in Afghanistan and the impending war
with Iraq, indicated that it did not disseminate or discuss the
memorandum, did not change any of its FOIA programs, regulations,
training or other activities, and that the Ashcroft Memorandum
had no effect in terms of policy or daily workflow. This response
might well be representative of agencies that deal primarily with
classified information, in that there are specific guidelines
for protection or release of classified information and such information
is rarely if ever subject to discretionary disclosure. FEMA
and the National Science Foundation, as very small agencies,
indicated that dissemination and discussion of the Ashcroft Memorandum
was limited to the Office of General Counsel. There were no changes
in training materials, guidance or regulations at either agency.
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