oversight

Freedom of Information Act: Agency Views on Changes Resulting from New Administration Policy

Published by the Government Accountability Office on 2003-09-03.

Below is a raw (and likely hideous) rendition of the original report. (PDF)

                 United States General Accounting Office

GAO              Report to the Ranking Minority Member,
                 Committee on the Judiciary, U.S. Senate



September 2003
                 FREEDOM OF
                 INFORMATION ACT
                 Agency Views on
                 Changes Resulting
                 from New
                 Administration Policy




GAO-03-981
                 a
                                                September 2003


                                                FREEDOM OF INFORMATION ACT

                                                Agency Views on Changes Resulting
Highlights of GAO-03-981, a report to the       from New Administration Policy
Ranking Minority Member, Committee on
the Judiciary, U.S. Senate




The Freedom of Information Act                  Following the issuance of the Ashcroft memorandum, Justice changed its
(FOIA) is based on principles of                guidance for agencies on FOIA implementation to refer to and reflect the
openness and accountability in                  two primary policy changes in the memorandum. First, under the Ashcroft
government. FOIA establishes that               memorandum, agencies making decisions on discretionary disclosure are
federal agencies must provide the               directed to carefully consider such fundamental values as national security,
public with access to government
information, unless the information
                                                effective law enforcement, and personal privacy; the Reno memorandum had
falls into one of nine specifically             established an overall “presumption of disclosure” and promoted
exempted categories (for example,               discretionary disclosures to achieve “maximum responsible disclosure.”
certain information compiled for                Second, according to the Ashcroft memorandum, Justice will defend an
law enforcement purposes).                      agency’s withholding information if the agency has a “sound legal basis” for
However, agencies can use their                 such withholding under FOIA; under the Reno policy, Justice would defend
discretion to disclose information              an agency’s withholding information only when the agency reasonably
even if it falls into one of the nine           foresaw that disclosure would harm an interest protected by an exemption.
exempted categories; this is known
as a “discretionary disclosure.”                Regarding effects of the new policy, FOIA officers most frequently reported
                                                that they did not notice changes in their agencies’ responses to FOIA
At the beginning of a new
administration, the Attorney
                                                requests compared to previous years. For example, as shown in the figure, of
General traditionally issues a policy           the FOIA officers surveyed, 48 percent reported that they did not notice a
memorandum regarding FOIA,                      change with regard to the likelihood of their agencies’ making discretionary
including policy on discretionary               disclosures. About one third of the FOIA officers reported a decreased
disclosure. Attorney General                    likelihood; of these FOIA officers, 75 percent cited the new policy as a top
Ashcroft issued such a                          factor influencing the change.
memorandum on October 12, 2001,
replacing Attorney General Reno’s               When FOIA officers were asked to consider all the existing FOIA guidance
1993 FOIA memorandum.                           and reference material according to various topic areas, the largest
                                                proportion (ranging from 50 percent to 75 percent, depending on the type of
GAO was asked to determine (1) to               guidance) reported that guidance was adequate to a great or very great
what extent, if any, Department of
Justice guidance for agencies on
                                                extent (that is, at 4 or 5 on a 5-point scale, where 1 was “to no extent”).
FOIA implementation has changed
as a result of the new policy;                  In commenting on a draft of this report, Justice officials generally agreed
(2) the views of FOIA officers at 25            with its contents.
agencies regarding the new policy
and its effects, if any; and (3) the            Effect of Ashcroft Policy on Likelihood of Agencies’ Making Discretionary Disclosures
views of FOIA officers at 25
agencies regarding available FOIA
guidance.




www.gao.gov/cgi-bin/getrpt?GAO-03-981.

To view the full product, including the scope
and methodology, click on the link above.
For more information, contact Linda Koontz at
(202) 512-6240 or koontzl@gao.gov.
Contents



Letter                                                                                                              1
                         Results in Brief                                                                           2


Appendix
           Appendix I:   Agency Views on Changes Resulting from New
                         Administration Policy                                                                      5




                         Abbreviations

                         DOJ          Department of Justice
                         FOIA         Freedom of Information Act
                         ISOO         Information Security Oversight Office
                         OIP          Office of Information and Privacy



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                         Page i                                            GAO-03-981 Freedom of Information Act
A
United States General Accounting Office
Washington, D.C. 20548



                                    September 3, 2003                                                               Leter




                                    The Honorable Patrick J. Leahy
                                    Ranking Minority Member
                                    Committee on the Judiciary
                                    United States Senate

                                    Dear Mr. Leahy:

                                    Based on principles of openness and accountability in government, the
                                    Freedom of Information Act (FOIA) establishes that federal agencies must
                                    provide the public with access to government information (unless the
                                    information falls into certain categories), thus enabling them to learn about
                                    government operations and decisions. Under FOIA, nine categories of
                                    information are specifically exempted from disclosure; examples of these
                                    categories include trade secrets, personnel files, and certain information
                                    compiled for law enforcement purposes. However, agencies can use their
                                    discretion to disclose information, even if it falls into one of the nine
                                    exempted categories; this is known as a “discretionary disclosure.”

                                    Under FOIA, the U.S. Department of Justice is to encourage agency
                                    compliance with the act.1 Accordingly, the Attorney General has
                                    traditionally issued a policy memorandum regarding FOIA at the beginning
                                    of new administrations. Attorney General Ashcroft issued one such
                                    memorandum on October 12, 2001, replacing Attorney General Reno’s 1993
                                    FOIA memorandum.

                                    The Ashcroft memorandum has two primary differences from the Reno
                                    memorandum. Under the Ashcroft memorandum, agencies making
                                    decisions on discretionary disclosure are directed to carefully consider
                                    such fundamental values as national security, effective law enforcement,
                                    and personal privacy; the Reno memorandum had established an overall
                                    “presumption of disclosure” and promoted discretionary disclosures to
                                    achieve “maximum responsible disclosure.” Second, according to the
                                    Ashcroft memorandum, Justice will defend an agency’s withholding
                                    information if the agency has a “sound legal basis” for such withholding
                                    under FOIA, while under the Reno policy, Justice would defend an agency’s
                                    withholding information only when the agency reasonably anticipated that
                                    disclosure would harm an interest protected by an exemption.

                                    1
                                     5 U.S.C. §552(e)(5).




                                    Page 1                                     GAO-03-981 Freedom of Information Act
                   You requested that we review the effect of these changes in policy on FOIA
                   implementation. We agreed to determine (1) to what extent, if any, Justice
                   guidance for agencies on FOIA implementation has changed as a result of
                   the new policy; (2) the views of FOIA officers at 25 agencies regarding the
                   new policy and its effects, if any; and (3) the views of FOIA officers at 25
                   agencies regarding available FOIA guidance.

                   To fulfill the first objective, we analyzed Justice guidance on FOIA
                   implementation. To determine the views of FOIA officers regarding the new
                   policy and its effects, if any, and regarding the available FOIA guidance, we
                   administered Web-based and paper-based surveys. Our work was
                   conducted from October 2002 to April 2003 in accordance with generally
                   accepted government auditing standards.

                   On June 18, 2003, we provided a briefing to your office on the results of our
                   work. The briefing slides2 are included as appendix I. The purpose of this
                   report is to provide the published briefing slides for dissemination to you
                   and the Attorney General.



Results in Brief   Changes have been made in Justice’s FOIA guidance to refer to and reflect
                   current policy as stated in the Ashcroft memorandum, which superseded
                   the previous administration’s policy. These changes reflect the “careful
                   consideration” policy for making discretionary disclosures and the “sound
                   legal basis” standard for defending agencies that withhold information
                   based on FOIA exemptions.

                   When asked about views regarding the effects of the new policy, FOIA
                   officers most frequently reported that they did not notice changes in their
                   agencies’ responses to FOIA requests when compared with previous years.
                   Of the FOIA officers surveyed, 48 percent reported that they did not notice
                   a change with regard to the likelihood of their agency making discretionary
                   disclosures. About one third of the FOIA officers reported a decreased
                   likelihood; and of these officers, 75 percent cited the new policy as a top
                   factor influencing the change. When FOIA officers were asked about
                   changes in the use of particular FOIA exemptions, 62 percent reported no
                   change with regard to the use of these exemptions. One fourth of the
                   officers reported a change in this regard. Among these respondents, the

                   2
                    We have amended the briefing slides as of August 15, 2003, to include technical corrections
                   and clarifications.




                   Page 2                                             GAO-03-981 Freedom of Information Act
two factors cited most frequently as influencing this change were the policy
stated in the Ashcroft memorandum and concerns over protecting critical
infrastructure information and other sensitive information related to
homeland security.

When FOIA officers were asked to consider all the existing FOIA guidance
and reference material according to various topic areas, the largest
proportion reported that guidance was adequate to a great or very great
extent (that is, at 4 or 5 on a 5-point scale, where 1 was “to no extent”). In
response to questions regarding specific Justice guidance, such as that in
the FOIA Guide and the “FOIA Post” Web site (the Department of Justice’s
main vehicles of disseminating guidance), the largest proportion of FOIA
officers responding reported satisfaction with the guidance to a great or
very great extent.

In providing oral comments on a draft of this report, a Justice Office of
Information and Privacy (OIP) co-director and another staff member stated
that the department generally agreed with the report’s facts and
conclusions. The OIP officials also made a number of technical comments,
which we incorporated as appropriate.


As agreed with your office, unless you publicly announce the contents of
this report earlier, we plan no further distribution until 5 days from the date
of this letter. We are sending copies of this report to the Attorney General
and the heads of other interested congressional committees. Copies will be
made available to others on request. In addition, this report will be
available at no charge on our Web site at www.gao.gov.




Page 3                                      GAO-03-981 Freedom of Information Act
If you have any questions concerning this report, please call me at (202)
512-6240 or contact me by E-mail at koontzl@gao.gov. Key contacts and
major contributors to this report are Thomas Beall, Elizabeth Bernard,
Barbara Collier, Katherine Howe, David Plocher, Jamie Pressman, and Joan
D. Winston.

Sincerely yours,




Linda D. Koontz
Director, Information Management Issues




Page 4                                    GAO-03-981 Freedom of Information Act
Appendix I

Agency Views on Changes Resulting from New                                  Appendx
                                                                                  ies




Administration Policy                                                        Append
                                                                                  x
                                                                                  Ii




   Freedom of Information Act: Agency Views on
   Changes Resulting from New Administration Policy

   Briefing for staff of the
   Senate Committee on the Judiciary


   June 18, 2003




                               Page 5   GAO-03-981 Freedom of Information Act
                          Appendix I
                          Agency Views on Changes Resulting from New
                          Administration Policy




                                                                                             Agenda


• Introduction
• Objectives
• Scope and Methodology
• Results in Brief
• Background
• Changes in Justice Guidance
• Views of FOIA Officers Regarding the New Policy
• Views of FOIA Officers Regarding Available FOIA Guidance
• Conclusions
• Agency Comments
• Attachment 1: List of FOIA Exemptions
• Attachment 2: Views on FOIA Guidance Regarding Homeland Security and Critical
  Infrastructure Information
• Attachment 3: 25 Agencies Surveyed


                                                                                                       2




                          Page 6                                       GAO-03-981 Freedom of Information Act
                             Appendix I
                             Agency Views on Changes Resulting from New
                             Administration Policy




                                                                                          Introduction



The Freedom of Information Act (FOIA) was enacted in 1966. Based on principles
of openness and accountability in government, FOIA establishes that federal
agencies must provide the public with access to government information, unless
the information falls into nine specifically exempted categories (see attachment 1).
Agencies can use their discretion to disclose information, even if it falls into one of
the nine exempted categories; this is known as a “discretionary disclosure.”
At the beginning of a new administration, the Attorney General has traditionally
issued a memorandum concerning FOIA policy.
On October 12, 2001, Attorney General Ashcroft issued a FOIA policy
memorandum (also referred to as the “new policy”), which superseded the previous
memorandum issued by Attorney General Reno in 1993. According to Justice, the
new policy has two primary differences from the Reno policy (see next slide).




                                                                                                          3




                             Page 7                                       GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                                              Introduction (cont’d)



Policy for discretionary disclosure
The Ashcroft memorandum stresses that when making decisions on discretionary
disclosure, agencies should carefully consider protecting fundamental values held
by our society, including safeguarding national security, enhancing the
effectiveness of law enforcement agencies, and preserving personal privacy.
The Reno memorandum established an overall “presumption of disclosure” and
promoted discretionary disclosures to achieve “maximum responsible disclosure”
under FOIA.
Standard for defense of agency decisions to withhold information
According to the Ashcroft memorandum, Justice will defend an agency’s
withholding of information if the agency has a “sound legal basis” for withholding
information under FOIA.
Under the Reno policy, Justice would defend an agency’s withholding of
information only when the agency reasonably anticipated that disclosure would
harm an interest protected by an exemption (a “foreseeable harm” standard).

                                                                                                         4




                            Page 8                                       GAO-03-981 Freedom of Information Act
                             Appendix I
                             Agency Views on Changes Resulting from New
                             Administration Policy




                                                                                            Objectives



As requested by the Ranking Member of the committee, our objectives were to
    1. determine to what extent, if any, Justice guidance for agencies on FOIA
       implementation has changed as a result of the new policy;
    2. determine the views of FOIA officers at 25 agencies regarding the new
       policy and its effects, if any; and
    3. determine the views of FOIA officers at 25 agencies regarding available
       FOIA guidance.
We also agreed to obtain FOIA officer views regarding guidance on (1) sensitive
information related to homeland security and (2) critical infrastructure information.
The results of our inquiries on these two areas are presented in attachment 2.




                                                                                                          5




                             Page 9                                       GAO-03-981 Freedom of Information Act
                           Appendix I
                           Agency Views on Changes Resulting from New
                           Administration Policy




                                                                        Scope and Methodology



To determine the extent to which Justice guidance for agencies on FOIA
implementation has changed as a result of the new policy, we analyzed Justice
guidance on this topic, which is disseminated by the following:
  • Freedom of Information Act Guide and Privacy Act Overview (also referred to
    as the FOIA Guide). We compared the most recent edition (2002) with the
    previous one (2000).
  • FOIA Post. We reviewed documents posted to Justice’s FOIA Post Web site
    between October 2001 and April 2003 to identify any guidance related to
    implementation of the new policy.




                                                                                                        6




                           Page 10                                      GAO-03-981 Freedom of Information Act
                                 Appendix I
                                 Agency Views on Changes Resulting from New
                                 Administration Policy




                                                                    Scope and Methodology (cont’d)



To determine FOIA officers’ views regarding the new policy and its effects, if any,
and regarding available FOIA guidance, we did the following:
   • We administered a Web-based survey to 205 agency-identified department-
     level and component-level FOIA officers at 25 agencies. These 25 agencies,
     which were the subject of our previous FOIA reviews,1 are the 24 agencies
     specified under the 1990 Chief Financial Officer Act and the Central
     Intelligence Agency. Together, these agencies handle over 97 percent of FOIA
     requests governmentwide (attachment 3 lists the agencies).
         • Our survey had a response rate of 89 percent (183 out of 205 FOIA
           officers) with at least 1 FOIA Officer responding from 23 of the 25
           agencies.
         • We did not independently verify responses to this survey.



1 U.S.General Accounting Office, Information Management: Update on Implementation of the 1996
Electronic Freedom of Information Act Amendments, GAO-02-493 (Washington, D.C.: Aug. 30, 2002).

                                                                                                              7




                                 Page 11                                      GAO-03-981 Freedom of Information Act
                        Appendix I
                        Agency Views on Changes Resulting from New
                        Administration Policy




                                                           Scope and Methodology (cont’d)



• We also administered a paper-based questionnaire to department-level FOIA
  officers at the 25 agencies to obtain an agency response on any agency
  actions taken to implement the new policy as well as agency guidance.
   • We received 24 of 25 agency responses.
   • We did not independently verify agency responses to the paper-based
     questionnaire.
• We performed our work from October 2002 to April 2003 in accordance with
  generally accepted government auditing standards.




                                                                                                     8




                        Page 12                                      GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                                         Results in Brief: Objective 1
                                                                             Changes to guidance


As a result of the new policy, Justice made the following changes to its guidance
for agencies on FOIA implementation:
  • Changes in Justice guidance refer to and reflect the new policy, as stated in the
    Ashcroft memorandum, which superseded the previous administration’s policy:
      • for discretionary disclosures, the “careful consideration” policy for making
        discretionary disclosures and
      • for Justice’s defense of agencies, the “sound legal basis” standard for
        defending agencies that withhold information based on FOIA exemptions.




                                                                                                             9




                            Page 13                                          GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                                         Results in Brief: Objective 2
                                                                               Effect of new policy

FOIA officers reported most frequently that they did not notice changes resulting
from the new policy when compared with previous years. Specifically:
  • With regard to the likelihood of their agency making discretionary disclosures,
    the largest proportion of respondents (88 of 183, or 48%) reported that they
    noticed no change.
      • About one third of FOIA officers reported a decreased likelihood (57 of
        183, or 31%). Most of these (43 of 57, or 75%) cited the new policy as a
        top factor influencing the change.
      • 12 FOIA officers (7% of the total) reported an increased likelihood, and 26
        (14% of the total) reported “don’t know/no basis to judge” or made no
        response.
  • With regard to the use of particular FOIA exemptions, about two-thirds of FOIA
    officers responding (114 of 183, or 62%) reported that they noticed no change.
      • One fourth of FOIA officers did report a change (45 of 183, or 25% of
        respondents). Most of these (28 of 45, or 62%) cited the new policy as a
        top factor influencing the change.
                                                                                                            10




                            Page 14                                          GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                                         Results in Brief: Objective 3
                                                                                Available guidance


When asked to consider all the existing guidance and reference material according
to various topic areas, the largest proportion of responding FOIA officers (ranging
from 50% to 75%, depending on the particular type of guidance) reported that
guidance was adequate to a great or very great extent (that is, at 4 or 5 on a 5-
point scale, where 1 was “to no extent”).
In response to questions regarding specific Justice guidance, such as that in the
FOIA Guide and FOIA Post, the largest proportion of FOIA officers responding
reported satisfaction with guidance to a great or very great extent; percentages
ranged from 56 to 74 percent, depending on the particular type of guidance.




                                                                                                            11




                            Page 15                                          GAO-03-981 Freedom of Information Act
                             Appendix I
                             Agency Views on Changes Resulting from New
                             Administration Policy




                                                            Results in Brief: Agency Comments



In providing oral comments on a draft of this briefing, officials of Justice’s Office of
Information and Privacy (OIP) generally agreed with the facts and conclusions as
presented. The OIP officials also made a number of technical comments, which we
incorporated as appropriate.




                                                                                                         12




                             Page 16                                      GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                                                         Background



Enacted in 1966, FOIA generally provides that any person has a right, enforceable
in court, to obtain access to federal agency records, except to the extent that such
records (or portions of them) are protected from public disclosure by one of nine
exemptions (see attachment 1). There are also FOIA exclusions for specific
sensitive records held by law enforcement agencies.
Agencies may use their administrative discretion to disclose information in many
cases when an exemption might otherwise be used to withhold information.
FOIA amendments in 1974, 1976, 1986, and 1996 made procedural changes,
exempted or otherwise protected certain material from disclosure under FOIA,
created fee and fee waiver provisions, established timeliness and reporting
requirements, and required certain material to be made available electronically.
Regarding fees, FOIA provides for three levels of fees that agencies may assess in
response to FOIA requests, depending on the categories of FOIA requestors and
the intended use of the information sought. A fee waiver may be granted when it is
determined that such action is “in the public interest because furnishing the
information can be considered as primarily benefiting the general public.”

                                                                                                        13




                            Page 17                                      GAO-03-981 Freedom of Information Act
                             Appendix I
                             Agency Views on Changes Resulting from New
                             Administration Policy




                                                                              Background (cont’d)



Under FOIA, the U.S. Department of Justice is to encourage agency compliance
with the act. Justice will also defend agencies in court when litigation is filed against
them on FOIA-related matters.
Justice’s OIP has lead responsibility for providing FOIA guidance and support for
agencies, including training sessions and a counselor service. The main vehicles of
disseminating guidance are the following:
  • FOIA Guide, OIP’s primary reference volume, contains an extensive discussion
    of FOIA exemptions and procedures. Prepared by the attorney staff of OIP, it is
    published every 2 years. May 2002 is the most recent published edition.
  • FOIA Post serves as a primary means of FOIA policy dissemination and is
    OIP’s vehicle for communicating FOIA-related information to agency FOIA
    personnel and others who are interested in the act’s administration.




                                                                                                         14




                             Page 18                                      GAO-03-981 Freedom of Information Act
                           Appendix I
                           Agency Views on Changes Resulting from New
                           Administration Policy




                                                                    Changes in Justice guidance



Justice guidance on FOIA implementation has been changed to incorporate the
new policy set forth in the Ashcroft memorandum.
Language referring specifically to the Reno memorandum was updated with
references to the Ashcroft memorandum. For example, in the 2000 edition of the
FOIA Guide, the following sentence appears:
  • As a general rule, an agency’s ability to make a discretionary disclosure of
    exempt information in accordance with Attorney General Reno’s FOIA
    memorandum will vary according to the nature of the FOIA exemption and the
    underlying interests involved.
In the 2002 edition of the FOIA Guide, the sentence reads:
  • As a general rule, an agency’s ability to make a discretionary disclosure of
    exempt information as recognized in Attorney General Ashcroft’s FOIA
    memorandum will vary according to the nature of the FOIA exemption and the
    underlying interests involved.



                                                                                                       15




                           Page 19                                      GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                                     Changes in Justice guidance



In other cases, language referring to the Reno memorandum and policy was
deleted.
Other changes reflect the two main points of the Ashcroft memorandum in which
the Ashcroft policy differs from the Reno policy:
  • Throughout the 2002 edition of the guide, references are deleted to the
    “foreseeable harm” standard for withholding information and to the “maximum
    responsible disclosure,” regarding discretionary disclosures.
  • In the introduction to the 2002 FOIA Guide, language is added referring to the
    Ashcroft policy, specifically, the “sound legal basis” standard for withholding
    information and the need to carefully consider the interests of public disclosure
    with protecting sensitive information.
Justice made changes to guidance on exemptions, fees, or fee waivers to refer to
the new policy, but the large majority of changes were to reflect the development of
new case law.



                                                                                                        16




                            Page 20                                      GAO-03-981 Freedom of Information Act
                           Appendix I
                           Agency Views on Changes Resulting from New
                           Administration Policy




                                                       Views regarding effects of new policy
                                                                                Awareness


Agencies and FOIA officers reported being aware of the Ashcroft memorandum.
  • Of the 183 FOIA officers who responded, 161 (88%) stated they had read the
    Ashcroft FOIA memorandum.
  • Of the 24 agencies that responded, 20 (83%) have distributed the Ashcroft
    FOIA memorandum to agency FOIA personnel.
  • Approximately half of the agencies (11 of 24) indicated that they prepared and
    disseminated additional written guidance (e.g., directives, memorandums, legal
    analyses) on implementing the new policy to their FOIA processors.




                                                                                                       17




                           Page 21                                      GAO-03-981 Freedom of Information Act
                             Appendix I
                             Agency Views on Changes Resulting from New
                             Administration Policy




                                                         Views regarding effects of new policy
                                                                  Areas of possible change


Agencies and FOIA officers most frequently reported that in comparison with
previous years, they did not notice changes in the following areas, as a result of the
new policy:
  • likelihood of making discretionary disclosures,
  • use of exemptions,
  • factors affecting FOIA processing, and
  • factors affecting administrative appeals and litigation.




                                                                                                         18




                             Page 22                                      GAO-03-981 Freedom of Information Act
                           Appendix I
                           Agency Views on Changes Resulting from New
                           Administration Policy




                                                         Views regarding effects of new policy
                                                                  Discretionary disclosures


As shown in the chart, the largest
proportion of FOIA officers responding
(88 of 183, or 48%), noticed no change
compared with previous years in the
likelihood of their agency making
discretionary disclosures under FOIA.
About one third of respondents noticed
a decreased likelihood (combining the
23% who reported a slight decrease and
the 8% who reported a great or
moderate decrease).


                                                 a Other includes “don’t know/no basis” and “no response.”
                                                 b Increase includes slight, moderate, and great increase.




                                                                                                                   19




                           Page 23                                                  GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                        Views regarding effects of new policy
                                                         Discretionary disclosures (cont’d)


The approximately one-third of FOIA officers who noticed a decreased likelihood of
discretionary disclosures totaled 57 (31% of 183). Among these, the following three
factors were cited most frequently as influencing this change:
  • the policy stated in Attorney General Ashcroft’s FOIA memorandum (43 of 57,
    or 75%);
  • concerns over privacy protections (38 of 57, or 67%); and
  • concerns over protecting critical infrastructure information and other sensitive
    information related to homeland security (37 of 57, or 65%).
Of the 24 agencies responding, 20 (83%) indicated that they had not further
specified or elaborated on criteria or factors to be used in deciding whether to make
a discretionary release of information under the policy.




                                                                                                        20




                            Page 24                                      GAO-03-981 Freedom of Information Act
                          Appendix I
                          Agency Views on Changes Resulting from New
                          Administration Policy




                                                      Views regarding effects of new policy
                                                                              Exemptions


FOIA officers were asked, “Subsequent
to Attorney General Ashcroft’s FOIA
memorandum, have you noticed any
changes in the use of particular FOIA
exemptions when compared to previous
years?”
Of the 183 FOIA officers who
responded, 114 (62%) said they did not
notice a change in application of
exemptions compared with previous
years. (See chart.)




                                                                                                      21




                          Page 25                                      GAO-03-981 Freedom of Information Act
                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                        Views regarding effects of new policy
                                                                       Exemptions (cont’d)


One fourth of the respondents (45 of 183, or 25%) indicated that they had noticed a
change in the use of particular exemptions over previous years. These respondents
most frequently cited the following two factors as influencing the change in the use
of FOIA exemptions:
  • the policy stated in the Ashcroft memorandum (28 of 45, or 62%) and
  • concerns over protecting critical infrastructure information and other sensitive
    information related to homeland security (23 of 45, or 51%).
(Attachment 2 provides further discussion of our results regarding critical
infrastructure information and other sensitive information related to homeland
security.)




                                                                                                        22




                            Page 26                                      GAO-03-981 Freedom of Information Act
                             Appendix I
                             Agency Views on Changes Resulting from New
                             Administration Policy




                                                         Views regarding effects of new policy
                                                                            FOIA processing


FOIA officers were asked to select the top 4 factors, from a list of 13, that influence
various FOIA processing areas: the time required to process FOIA requests, the
number of pending FOIA requests, and the age of pending FOIA requests.
About 3 percent or less of responding FOIA officers reported that the new policy
was one of four top factors influencing each of the FOIA processing areas:
  • time required to process FOIA requests (6 of 178, or 3%);
  • number of pending FOIA requests (3 of 179, or 2%); and
  • age of pending FOIA requests (2 of 179, or 1%).
Of the factors suggested as influential, FOIA officers most frequently selected
scope or complexity of requests, volume of responsive material, and resources
available.




                                                                                                         23




                             Page 27                                      GAO-03-981 Freedom of Information Act
                             Appendix I
                             Agency Views on Changes Resulting from New
                             Administration Policy




                                                       Views regarding effects of new policy
                                                      Administrative appeals and litigation


FOIA officers were asked to select the top 4 factors, from a list of 16, that influence
the likelihood of requestors filing administrative appeals and litigation.
About 3 percent of responding FOIA officers reported that the new policy was
among the top factors in influencing
      • likelihood of requestors filing administrative appeals (6 of 179, or 3%) and
      • likelihood of requestors filing litigation (6 of 179, or 3%).
Of the factors suggested as influential, FOIA officers most frequently selected
requester concerns about the use of particular exemptions and requester concerns
over the extent of redaction in material supplied in response to requests.




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                                                                          Views Regarding Available Guidance
                                                                                          Areas of guidance

When asked to consider existing guidance and reference material for areas cited in
the table below, the largest proportion of FOIA officers responding reported that
guidance was adequate to a great or very great extent (that is, at 4 or 5 on a 5-
point scale, where 1 was “to no extent”). The table shows responses according to
specific areas of guidance.
                                                           Percentage and number of respondents (n =183) who reported
                                                                         that guidance was adequate on a 5-point scale
                                                             Great or very      Moderate    Small or no
                                                                          a                            a                b
   Guidance to determine                                     great extent         extent       extent           Other
   Whether an exemption applies to information
   requested under FOIA                                     75% (138)         14%    (25)     3%     (6)    8% (14)
   Whether to make a discretionary disclosure               50%    (92)       24%    (44)   15%     (27)   11% (20)
   Whether to waive part or all of applicable fees          57% (104)         20%    (37)   13%     (23)   10% (19)
   Whether the records being requested under FOIA
   were for commercial use                                  58% (107)         20%    (37)   12%     (22)    9% (17)
   Whether the party making a FOIA request was an
   educational or noncommercial scientific institution      60% (109)         20%    (36)   11%     (21)    9% (17)
   Whether the party making a FOIA request was a
   representative of the news media                         62% (114)         16%    (30)   13%     (24)    8% (15)
   Whether disclosure of the requested information was
   in the public interest when a fee waiver was being
   requested                                                51%    (94)       24%    (44)   15%     (27)   10% (18)
   Source: GAO.
   Note: Percentages may not equal 100 percent due to rounding.
   a
    Combined responses. b“Other” includes “don’t know/no basis” and “no response.”

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                                      Agency Views on Changes Resulting from New
                                      Administration Policy




                                                                  Views Regarding Available Guidance
                                                                               Sources of guidance


In response to questions regarding specific sources of Justice guidance, the largest
proportion of FOIA officers responding reported satisfaction with guidance to a
great or very great extent. The table shows responses according to specific
sources of guidance.
                                                 Percentage and number of respondents (n = 183) reporting
                                                              satisfaction with guidance on a 5-point scale
                                          Great or very                            Small or no
Guidance                                  great extent a       Moderate extent        extent a          Other b
The Department of Justice’s FOIA
Guide                                           74% (135)              11% (20)       7% (13)         8% (15)
The FOIA guidance that Justice has
issued via FOIA Update and now
issues via FOIA Post                            63% (115)              17% (31)       9% (17)        11% (20)
The FOIA training that the
Department of Justice provides                  63% (116)              11% (21)       7% (12)        19% (34)
Other information resources that
Justice provides via OIP’s Web site             56% (102)              19% (34)       8% (15)        17% (32)
Source: GAO.
a                      b
 Combined responses. “Other” includes “don’t know/no basis” and “no response.”


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                            Agency Views on Changes Resulting from New
                            Administration Policy




                                                                                         Conclusions



As a result of the new policy, changes to Justice guidance for agencies on FOIA
implementation have been largely limited to reflecting the two points of difference
between the Ashcroft and Reno memorandums: that is, the policy for discretionary
disclosure and the standard for defense of agency decisions to withhold
information.
Overall, FOIA officers are aware of the Ashcroft memorandum; however, most of
them report that they have not noticed an impact on the application of exemptions
and the likelihood of agencies making discretionary disclosures.
The largest proportion of FOIA officers responding consider that the guidance they
have received from the Department of Justice is adequate to a great or very great
extent.




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                           Administration Policy




                                                                              Agency Comments



On June 12, 2003, one of the co-directors and other staff members of OIP provided
oral comments on a draft of these briefing slides. These officials generally agreed
with the facts and conclusions as presented. The OIP officials also made a number
of technical comments, which we incorporated as appropriate.




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                                          Agency Views on Changes Resulting from New
                                          Administration Policy




                                               Attachment 1: Freedom of Information Act Exemptions


 Exemption
 number    Matters that are exempt from FOIA
 (1)       (A) Specifically authorized under criteria established by an Executive
                  order to be kept secret in the interest of national defense or foreign policy and
           (B) are in fact properly classified pursuant to such Executive order.
 (2)       Related solely to the internal personnel rules and practices of an agency.
 (3)       Specifically exempted from disclosure by statute (other than section 552b of this title),
           provided that such statute
           (A) requires that the matters be withheld from the public in such a manner as to leave no
                  discretion on the issues, or
           (B) establishes particular criteria for withholding or refers to particular types of matters to
                  be withheld.
 (4)       Trade secrets and commercial or financial information obtained from a person and
           privileged or confidential.
 (5)       Inter-agency or intra-agency memorandums or letters which would not be available by law
           to a party other than an agency in litigation with the agency.
 (6)       Personnel and medical files and similar files the disclosure of which would constitute a
           clearly unwarranted invasion of personal privacy.


Source: 5 U.S.C. § 552(b)(1) through (b)(6).

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                                        Administration Policy




                                               Attachment 1: Freedom of Information Act Exemptions
                                                                                           (cont’d)

 Exemption
 number    Matters that are exempt from FOIA
 (7)       Records or information compiled for law enforcement purposes, but only to the extent that the
           production of such law enforcement records or information
           (A) could reasonably be expected to interfere with enforcement proceedings;
           (B) would deprive a person of a right to a fair trial or impartial adjudication;
           (C) could reasonably be expected to constitute an unwarranted invasion of personal privacy;
           (D) could reasonably be expected to disclose the identity of a confidential source, including a
               state, local, or foreign agency or authority or any private institution which furnished
               information on a confidential basis, and, in the case of a record or information compiled by
               a criminal law enforcement authority in the course of a criminal investigation or by an
               agency conducting a lawful national security intelligence investigation, information
               furnished by a confidential source;
           (E) would disclose techniques and procedures for law enforcement investigations or
               prosecutions, or would disclose guidelines for law enforcement investigations or
               prosecutions if such disclosure could reasonably be expected to risk circumvention of the
               law; or
           (F) could reasonably be expected to endanger the life or physical safety of an individual.
 (8)       Contained in or related to examination, operating, or condition reports prepared by, on behalf
           of, or for the use of an agency responsible for the regulation or supervision of financial
           institutions.
 (9)       Geological and geophysical information and data, including maps, concerning wells.
Source: 5 U.S.C. § 552(b)(7) through (b)(9).

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                            Appendix I
                            Agency Views on Changes Resulting from New
                            Administration Policy




                                            Attachment 2: Homeland Security and Critical
                                                              Infrastructure Information


When asked to respond to questions regarding the adequacy of guidance related to
(1) sensitive information related to homeland security and (2) critical infrastructure
information, the largest proportion of FOIA officers did not respond to the questions
or reported that they had no basis to judge whether the guidance and reference
materials were adequate.
The following guidance on information related to homeland security is available:
  • On March 19, 2002, the Assistant to the President and Chief of Staff issued a
    memorandum to all heads of federal departments and agencies instructing
    them to safeguard information regarding weapons of mass destruction and
    other sensitive documents related to homeland security.
  • Accompanying this memorandum was a joint memorandum issued by the
    National Archives’ Information Security Oversight Office (ISOO) and the
    Department of Justice’s Office of Information and Privacy (OIP). The
    memorandum provided additional guidance on safeguarding homeland security
    information, including the instruction to make determinations on disclosure of
    such information under FOIA in accordance with the Ashcroft memorandum.

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                           Administration Policy




                                           Attachment 2: Homeland Security and Critical
                                                      Infrastructure Information (cont’d)


The Homeland Security Act (enacted November 25, 2002) exempts certain critical
infrastructure information from disclosure under FOIA. In the Federal Register of
April 15, 2003, the Department of Homeland Security proposed for public comment
procedures for protecting critical infrastructure information.
The act also includes provisions for the development of guidance on protecting
sensitive homeland security information; however, this guidance was not available
at the time of our review.




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                                   Administration Policy




                                                   Attachment 2: Homeland Security and Critical
                                                              Infrastructure Information (cont’d)

A large proportion of FOIA officers (40 to 45 percent) either did not respond to the
questions or reported that they had no basis to judge whether guidance and
reference materials were adequate in the areas of guidance shown in the table.
The remainder of the responses were distributed as shown below.
Total number of respondents = 183
                                      Extent to which guidance and reference materials are adequate
                                  Very                                                    Don’t know/ no
                                  great        Great     Moderate       Small         No basis to judge or
 Area of guidance                extent       extent       extent       extent     extent    no response
 Whether unclassified records
 contain sensitive information      8%          15%            18%         12%        5%                   42%
 related to homeland security      (14)         (28)           (33)        (22)       (9)                  (77)
 Whether to disclose
 sensitive information related     11%          14%            20%         10%        4%                   40%
 to homeland security              (20)         (26)           (37)        (19)       (8)                  (73)
 Whether material is critical       8%          11%            17%         15%        5%                   43%
 infrastructure information        (14)         (21)           (32)        (28)       (9)                  (79)
 Whether to disclose critical      10%          13%            17%         12%        3%                   45%
 infrastructure information        (18)         (23)           (32)        (22)       (6)                  (82)
Source: GAO.
Note: Percentages may not equal 100 percent due to rounding.
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                                      Appendix I
                                      Agency Views on Changes Resulting from New
                                      Administration Policy




                                                                  Attachment 3: 25 Agencies Surveyed



       • Central Intelligence Agency                       • Department of the Treasury
       • Department of Agriculture                         • Department of Veterans Affairs
       • Department of Commerce                            • Environmental Protection Agency
       • Department of Defense                             • Federal Emergency Management Agency
                                                             (now part of Department of Homeland
       • Department of Education                             Security)
       • Department of Energy                              • General Services Administration
       • Department of Health and Human                    • National Aeronautics and Space
         Services                                            Administration
       • Department of Housing and Urban                   • National Science Foundation
         Development
                                                           • Nuclear Regulatory Commission
       • Department of the Interior
                                                           • Office of Personnel Management
       • Department of Justice
                                                           • Small Business Administration
       • Department of Labor
                                                           • Social Security Administration
       • Department of State
                                                           • U.S. Agency for International Development
       • Department of Transportation


     (310380)                                                                                                     34




(310380)                              Page 38                                      GAO-03-981 Freedom of Information Act
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