METHODOLOGY
As this study attempted to survey Freedom of Information Act ("FOIA")
policies and procedures, the Archive used requests under the Freedom
of Information Act to generate data. By using the FOIA process,
the Archive sought to enhance the insights into actual FOIA practice
and policy. Consequently, the Archive submitted three separate
FOIA requests to each of 35 different U.S. federal agencies or
departments. The 35 agencies included the 25 agencies surveyed
in the General Accounting Office ("GAO") studies and
ten additional agencies to which the Archive frequently submits
FOIA requests. GAO's studies considered 25 federal agencies accounting
for an estimated 97% of all FOIA requests government-wide.
As an important caveat for all phases of the study, there are
limitations to requesting documents under the FOIA. The Archive
cannot be certain that every relevant office was searched, that
every responsive document was found and that we have all the data
on these issues without following through with administrative
appeals and litigation in every case. Moreover, the wide range
of types of responses received suggest that there almost certainly
are additional responsive documents that were not disclosed. Nevertheless,
the documents disclosed appear to offer sufficient information
to describe the impact of the Ashcroft Memorandum and there likely
will be sufficient information to subsequently analyze the impact
of the White House Memorandum and "10 Oldest" Requests
pending at Agencies.
PHASE ONE: FOIA Request Regarding
Implementation of Attorney General FOIA Guidance
On October 12, 2001, Attorney General John Ashcroft issued a
new Department of Justice ("DOJ") FOIA Policy Memorandum
to the heads of all departments and agencies ("Ashcroft
Memorandum") to supersede the one issued by Janet
Reno in October 1993 ("Reno
Memorandum"). In replacing the Reno Memorandum, the
Ashcroft Memorandum highlighted the importance of Exemption (b)(5)
of the FOIA, which permits information to be withheld to protect
the deliberative process and other recognized privileges, and
counseled that any discretionary decision to release information
protected under FOIA should fully consider the institutional,
commercial and personal privacy interests that could be implicated
by disclosure of the information. In addition, the Ashcroft Memorandum
established a new "sound legal basis" standard governing
the Department of Justice's decisions on whether to defend agency
actions under the FOIA. This differed from the "foreseeable
harm" standard that was employed under the Reno Memorandum.
The Archive submitted requests to the 35 agencies that sought:
All records, including but not limited to guidance or directives,
memoranda, training materials, or legal analyses, concerning
the [Agency]'s implementation of U.S. Attorney General John
Ashcroft's October 12, 2001 memorandum on the U.S. Freedom of
Information Act.
The Ashcroft Memorandum requests were faxed to the central FOIA
processing office of each agency, as identified on the Department
of Justice "Principal Agency FOIA Contacts" list, on
September 3 and 4, 2002. The 20-business day statutory time limit
for a substantive FOIA response expired on September 30/October
1, 2002. On January 28, 2003, after 99-100 business days had expired,
appeals were filed with nine (9) agencies that had not substantively
responded to the requests. Two (2) appeals were filed based on
substantive denials of records. In addition, Archive staff interviewed
a senior FOIA official at each agency that provided a "no
records" response to determine more details concerning the
response.
In analyzing Agency responses and reaching our conclusions,
we studied:
(1) the variety of correspondence generated pursuant to our
FOIA requests (letter,
fax, email, telephone);
(2) documents received from the Agency under FOIA;
(3) documents obtained from Agency FOIA web-pages; and
(4) notes from "not for attribution" interviews of
FOIA officials at selected agencies.
In 'scoring' an agency based on the impact of the Ashcroft
Memorandum, we considered the degree of implementation activities
in terms of:
(1) scope of dissemination of Ashcroft Memorandum;
(2) change in Agency regulations;
(3) change in Agency FOIA guidance;
(4) change in Agency training materials; and
(5) FOIA officials' descriptions of the impact.
PHASE TWO: FOIA Request Regarding Implementation
of White House Classification and FOIA Guidance
On March 19, 2002, Andrew H. Card, White House Chief
of Staff, issued a memorandum to all agency and department heads
("White
House Memorandum"). The White House Memorandum concerned
"Action to Safeguard Information Regarding Weapons of Mass
Destruction and Other Sensitive Documents Related to Homeland
Security." Accompanying the White House Memorandum was a
memorandum from the Information and Security Oversight Office
("ISOO") and the Office of Information and Privacy ("OIP")
at the DOJ. The White House Memorandum directed all agencies and
departments to "review their records management procedures
and, where appropriate, their holdings of documents to ensure
that they are acting in accordance with
guidance" that
(1) addresses the maintenance and extension of classification
status, as well as reclassification of "information that
could reasonably be expected to assist in the development or use
of weapons of mass destruction"; and (2) highlights the use
of Exemption (b)(2) of the FOIA, for records related to internal
personnel rules and practices of an agency, and Exemption (b)(4),
for confidential commercial information, as means of denying FOIA
requests for "sensitive but unclassified information."
The memorandum further directed that agencies and departments
within 90 days "report the completion, or status, of their
review to [the White House] through the Office of Homeland Security."
For assistance regarding classification issues, the memorandum
directed inquiries to the Information and Security Oversight Office
or the Department of Energy, and "for assistance in applying
exemptions of the Freedom of Information Act (FOIA) to sensitive
but unclassified information," readers were directed to the
Department of Justice's Office of Information and Privacy.
The Archive's White House Memorandum requests were faxed to the
central FOIA processing office of each of the same 35 agencies
on January 8 and 9, 2003. The requests sought:
All records, including but not limited to guidance or directives,
memoranda, training materials, or legal analyses, concerning
the March 19, 2002 memorandum issued by White House Chief of
Staff Andrew Card to the heads of all federal departments and
agencies regarding records containing information about Weapons
of Mass Destruction (WMD). Attached with this memo was a supporting
memorandum by the US Justice Department and Information Security
Oversight Office.
The 20-business day statutory time limit for an FOIA response
expired on February 5/6, 2002. On February 7, 2003, after 21/22
business days had expired, appeals were filed with 30 agencies
that had not substantively responded to the requests.
The inquiry into the implementation of the White House guidance
remains ongoing and will be completed as Phase Two of the Archive
FOIA Audit. Because agency responses are still not complete 45
days after the requests, this report includes only preliminary
findings regarding Phase Two of the Archive's Audit.
PHASE THREE: FOIA Request Regarding "10
Oldest" Pending FOIA Requests Within Agency
The third Phase of the Archive's FOIA Audit focused on the problem
of delays and backlogs in FOIA processing. The Electronic Freedom
of Information Amendments of 1996 ("EFOIA") were designed
to speed up and improve the efficiency of agencies' processing
with respect to FOIA requests and bring the benefits of electronic
communication into the FOIA system to enhance public access to
records. At the request of Congress, the General Accounting Office
("GAO") has completed the first two studies of a multi-phase
evaluation of FOIA processing.[2001
Report - 2002 Report].
One of the key findings in the two GAO studies has been the persistent
problem of agency backlogs of FOIA requests. 2002 GAO Report at
12. The GAO reports were based primarily on agency statutorily-mandated
annual reports of FOIA statistics, which the GAO noted, in its
studies, suffer from poor data quality and other reporting discrepancies.
2002 GAO Report at 59.
The Archive's method for measuring the backlog problem was to
file a FOIA request, by fax on January 31, 2003, to each of the
35 agencies, seeking:
Copies of the [Agency's] ten oldest open or pending Freedom
of Information Act requests currently being processed or held
pending coordination with other agencies.
The request went to the central FOIA processing office of each
agency. For agencies whose FOIA systems are highly decentralized
the Archive limited the request to the "10 Oldest" FOIA
requests pending in the Office of the Secretary, Solicitor, or
other principal processing office. The statutory time limit for
an FOIA response expired on March 3, 2003. Unlike the Ashcroft
Memorandum requests and the White House Memorandum requests, each
of 28 agencies with an outstanding "10 Oldest" request
was contacted by telephone between February 24, 2003 and March
10, 2003 to ask for an update on the status of the request and
to inquire as to why a seemingly simple FOIA for data that should
be on hand in any FOIA office would take beyond 20 days to process.
The inquiry into the "10 Oldest" requests remains ongoing
and will be completed as Phase Three of the Archive FOIA Audit.