Canadian Association of Journalists

For The Record

Read This!

On October 12, 2001,U.S.Attorney General Ashcroft issued a memorandum to the heads of all departments and agencies that supersedes the Department of Justice FOIA policy memorandum that had been in effect since October 1993.

The new Ashcroft FOIA Memorandum was effective immediately upon issuance, and the presidential statement on the FOIA that was issued in 1993 remains in effect as well.

The following is an edited version of the October memorandum.

From: John Ashcroft,Attorney General Subject: The Freedom of Information Act.

UNDER THE SPOTLIGHT: After months of uncritical coverage, some media outlets such as the investigative and leftleaning Mother Jones, have taken the Bush administration to task for the way it has curtailed access to information in the wake of the September 11 terrorist attacks.When he issued his famous memo, it became clear that attorney general John Ashcroft was the chief architect of the administration’s restrictive policies.

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. 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.
In light of ….further terrorist activity in their aftermath, federal agencies are concerned with the need to protect critical systems, facilities, stockpiles, and other assets from security breaches and harm — and in some instances from their potential use as weapons of mass destruction in and of themselves.Such protection efforts, of course,must at the same time include the protection of any agency information that could enable someone to succeed in causing the feared harm.