Attorney General Gonzales Should Revisit Ashcroft FOIA Memo

By Stephen Gidiere
Attorney, Balch & Bingham
Birmingham, Ala.

     The nomination and confirmation of Alberto Gonzales as President Bush’s replacement for outgoing Attorney General John Ashcroft proved a lightning rod for criticism of many Bush Administration policies. The administration’s definition of torture, abusive treatment of prisoners in Iraq, implementation of the USA Patriot Act, the death penalty, and other controversial topics played center stage at Gonzales’ confirmation hearing before the Senate Judiciary Committee.
     One topic that attracted less attention–but to many a topic that is equally as important as these hot-button issues–was public access to executive branch information under the Freedom of Information Act. Gonzales faced questioning from Sen. Patrick Leahy (D-Vt.), ranking Democrat on the committee and long-time champion of open government, on several FOIA-related topics that some say are key to increasing public access to government information and curbing government secrecy.
     One question involved an October 2001 policy memorandum on FOIA implementation issued to all federal agencies by Attorney General Ashcroft–the so-called Ashcroft Memo. In written questions posed to Gonzales, Leahy queried whether he would reverse the positions taken in the memo if he took office. The Ashcroft Memo says that the Justice Department will defend agencies’ decisions to withhold documents from a FOIA requester under one of the statute’s exemptions "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."
     Leahy is no fan of the Ashcroft Memo. He is co-sponsor of the Open Government Act of 2005, which would allow less agency withholding in many circumstances and seeks to reverse the trend toward secrecy that many believe the Ashcroft Memo encourages.
     Gonzales responded that, if confirmed, he would "undertake an examination of the department’s policies and practices concerning FOIA disclosures." Presumably, Gonzales’ examination will include an evaluation of the Ashcroft Memo. It should.
     Ashcroft was not the first attorney general to disseminate a policy memo on how federal agencies should apply FOIA exemptions. The practice began in the Carter Administration in 1977 with Attorney General Griffin Bell, and was continued by Attorney General William French Smith in 1981 and Attorney General Janet Reno in 1993. In other words, Democrats and Republicans have issued dueling FOIA memos for about the last three decades. The Reno Memo espoused a policy that tipped toward disclosure by providing that "it shall be the policy of the Department of Justice to defend the assertion of a FOIA exemption only in those cases where the agency reasonable foresees that disclosure would be harmful to an interest protected by that exemption." The Ashcroft Memo with its "sound legal basis" standard encourages (or at least supports) greater use of FOIA exemptions by federal agency personnel.
     Perhaps the first question that Gonzales should ask is why the attorney general should issue a FOIA memorandum at all. It is said that these memorandum derive their bite from the fact that the Justice Department is given nearly exclusive authority to represent the United States and its agencies in litigation and will ultimately be called upon to defend any agency withholding decision that is challenged in court.
     But, according to a study conducted by the Government Accountability Office in 2002 and 2003, the Ashcroft Memo has been largely ineffective at influencing the decisions of federal FOIA officials. Only 43 of 188 officials that responded to GAO reported a decrease in the discretionary disclosures as a result of the Ashcroft Memo. That’s less than 23 percent. In contrast, 100 of the respondents (or 53 percent) said either that the Ashcroft Memo did not produce a change in their disclosures or that their discretionary discloses actually increased in recent years. It seems, then, that FOIA professionals at the federal agencies are consistently doing their job despite the see-saw policies of the political parties. Perhaps Gonzales should consider withdrawing the memo and simply allow these professionals to do their job.
     Assuming Gonzales decides to continue the tradition of attorney general FOIA memoranda, the Ashcroft Memo is in bad need of updating. One justification proffered for the Ashcroft Memo is to increase protection for information about national and homeland security. But since the memo was issued, FOIA law on this subject has changed dramatically, perhaps more substantially than any other time in the statute’s history.
     After the events of Sept. 11, 2001 (and after issuance of the Ashcroft Memo), new federal statutes and regulations have been issued to protect information now considered potentially dangerous in the hands of would-be terrorists. For example, under the Homeland Security Act of 2002, information about critical facilities that private parties voluntarily submit to the Department of Homeland Security is protected from further disclosure. Also in response to Sept. 11, Congress for the first time placed statutory limitations on the types of "persons" that are entitled to receive certain records under FOIA. As part of the Intelligence Authorization Act for Fiscal Year 2003, Congress amended FOIA to prohibit the federal intelligence agencies from disclosing records in response to a FOIA request from a foreign government or its representative.
     In addition to these congressional actions, some federal agencies have established new rules that control access to certain homeland security information. For example, the Federal Energy Regulatory Commission issued new rules governing access to information it collects about critical energy infrastructure. FERC’s rules now specifically state how it will treat such information when it falls within one of the FOIA exemptions. No need to guess how FERC will exercise its discretion–the agency has put its position in formal regulations. Courts, too, have provided clarification on the application of FOIA’s exemptions to homeland security information.
     Thus, in the three-and-a-half years since the Ashcroft Memo was issued, the legal landscape relating to national and homeland security information has changed. After evaluating these new legal developments, Attorney General Gonzales may conclude that the Ashcroft Memo is unnecessary and a distraction that draws attention away from the many other aspects of federal information policy that need work, such as increasing access to agency records on the Internet and declassifying information that is no longer sensitive. No attorney general has withdrawn or modified a FOIA memo in the middle of a president’s tenure. Perhaps Gonzales will be the first.
     Gidiere’s book on how to access government records in the wake of recent changes in the FOIA will be published by the American Bar Association in June. He can be reached via e-mail at