Attorney General Considers Writing New FOIA Memo

Attorney General Alberto Gonzales recently announced he would reconsider the government's position on the Freedom of Information Act (FOIA), previously established in a controversial 2001 memo by then Attorney General John Ashcroft. The Ashcroft memo, which has been criticized by open government advocates, directed federal agency officials to presumptively withhold information requested under FOIA if they were uncertain whether the information should be released. A Gonzales redefinition of the government position on FOIA would be precedent setting. Since the Carter administration several attorneys general have issued FOIA memoranda, but always after an administration change. No attorney general has ever retracted a FOIA memo during an administration. Several journalist associations, including the Associated Press, Associated Press Managing Editors Association, Cox Newspapers, the Newspaper Association of America, and The Reporters Committee for Freedom of the Press, have sent letters urging the new attorney general to reverse the current FOIA position. The groups claim that the Ashcroft memo's presumption of withholding has had a chilling effect on agencies and led to dramatically less information being released under FOIA. According to a 2003 Government Accountability Office report, the Ashcroft memo led to increased information withholding among many federal agencies. Of 183 FOIA officers surveyed, 31 percent said they began withholding more information after the Ashcroft memo. Citizen and nonprofit organizations have complained that the reduction of available information limits government accountability and prevents groups form identifying and addressing important problems such as public health and safety threats. Open government advocates also note flaws in FOIA implementation beyond the Ashcroft memo including long delays, exorbitant fees, and the lack of a request-tracking system. While it remains unclear if Gonzales will take action on FOIA implementation, Congress has already begun to weigh in on the issue with several bills aimed at improving the FOIA process:
  • S. 1181 would require that legislation, which exempts government-held information from public access, specifically state the exemption; in addition, it sets the intent that documents should be available under FOIA, unless Congress explicitly creates an exception. It was passed on a voice vote in the Senate.
  • S. 589 and H.R. 1620, the Faster FOIA bills, would establish a commission that would report on delays in responding to FOIA requests and recommend solutions. The Senate version, S. 589, passed favorably out of the Judiciary Committee on March 17.
  • S. 394 and H.R.867, the OPEN Government Acts contain measures to strengthen FOIA including easier recovery of legal costs, expanded fee waivers, a tracking system for requests, and mediation for FOIA disputes, as well as extension of FOIA to information held by federal contractors.
  • H.R. 2331, the Restore Open Government Act would revoke the Ashcroft memo and another memo written by White House Chief of Staff Andrew Card, as well as promote disclosure of information, curtail secret advisory committee meetings, and restore public access to presidential records.
Many individuals and organizations have urged Congress to improve FOIA and expressed their support for the current legislation. If you would like to contact your elected officials on this issue, click here.
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