The Ashcroft Memo
On October 12, 2001, Attorney General John Ashcroft issued a new Department of Justice Freedom of Information Act Policy Memorandum to the heads of all federal departments and agencies.
It superseded a memorandum issued by his predecessor, Janet Reno, in 1993 outlining how government employees should consider requests for documents under FOIA. Reno’s memo established a “presumption” in favor disclosure. It encouraged all government agencies to review FOIA requests in a manner most favorable to openness and to release information, even though it might fall within one of the nine exemption categories, if no “foreseeable harm” would result from the disclosure. The goal was to achieve the “maximum responsible disclosure.”
The Ashcroft Memorandum reversed the process. Agencies were told that in making discretionary FOIA decisions they should carefully consider the fundamental values behind the exemptions – national security, privacy, government’s interests, etc – and to lean in their favor whenever possible.
He said the Justice department would defend any agency that had a “sound legal basis” for not disclosing information.
To use a contemporary political descriptive, AG’s office had flip-flopped on FOIA. The memo literally changed the marching orders from openness to closure.
Here’s the text of the memo:
DEPARTMENTS AND AGENCIES
FROM: John Ashcroft, Attorney General
SUBJECT: The Freedom of Information Act
As you know, the Department of Justice and this Administration are committed to full compliance with the Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2000). It is only through a well-informed citizenry that the leaders of our nation remain accountable to the governed and the American people can be assured that neither fraud nor government waste is concealed.
The Department of Justice and this Administration are equally committed to protecting other fundamental values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal privacy.
Our citizens have a strong interest as well in a government that is fully functional and efficient. Congress and the courts have long recognized that certain legal privileges ensure candid and complete agency deliberations without fear that they will be made public. Other privileges ensure that lawyers' deliberations and communications are kept private. No leader can operate effectively without confidential advice and counsel. Exemption 5 of the FOIA, 5 U.S.C. § 552(b)(5), incorporates these privileges and the sound policies underlying them.
I encourage your agency to carefully consider the protection of all such values and interests when making disclosure determinations under the FOIA. Any discretionary decision by your agency to disclose information protected under the FOIA should be made only after full and deliberate consideration of the institutional, commercial, and personal privacy interests that could be implicated by disclosure of the information.
In making these decisions, you should consult with the Department of Justice's Office of Information and Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. When you carefully consider FOIA requests and decide to withhold records, in whole or in part, you can be assured that the Department of Justice will defend your decisions unless they lack a sound legal basis or present an unwarranted risk of adverse impact on the ability of other agencies to protect other important records.
This memorandum supersedes the Department of Justice's FOIA Memorandum of October 4, 1993, and it likewise creates no substantive or procedural right enforceable at law.
