The National Security Archive The Freedom of Information Act Audit

The National Security Archive

• The Freedom of Information Act Audit

• Phase 1 - March 18, 2003

• Phase 2 – November 17, 2003

March 17, 2000,

• March 17, 2000,

• won the George Polk Award

• "for piercing the self-serving veil of government secrecy, guiding journalists in search for the truth, and informing us all.”

• 28,000+ Freedom of Information Act Requests filed since 1985, liberating 6 million+ pages of former secrets.

• Litigated 34 FOI cases as Plaintiff, Counsel, or Amicus Curiae (won White House e-mail, Oliver North notebooks, JFK-Khrushchev letters, Terry Anderson kidnapper files, etc.).

Comparative Study of Agency FOIA Processing and Impact of Policy Changes

• Comparative Study of Agency FOIA Processing and Impact of Policy Changes
• Identify Best Practices and Problems
• Recommend Improvements
• Identify Issues to Pursue
• Describe Problems Encountered By FOIA Requester Community
• Assemble Information To Aid Other FOIA Requesters

THE FOIA AUDIT

• The Phases of the FOIA Audit:

• Phase One -
• The Ashcroft Memorandum
• - Phase Two –The Ten Oldest FOIA Requests
• Phase Three – Website Audit
• Phase Four - The Card Memorandum

The FOIA Audit: The ASHCROFT MEMO

• Was the San Francisco Chronicle right in asserting that the guidance effectively repealed the FOIA?

PHASE ONE: Ashcroft Memo

• Eliminates AG Reno’s “Presumption of Disclosure” for Discretionary Releases.

• Ashcroft Memo:

• “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.”

PHASE ONE: Ashcroft Memo

• Eliminates ‘Foreseeable Harm’ Standard – Replaces With ‘Sound Legal Basis.’

• Ashcroft: “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…”

Ashcroft Memo FOIA Request

Ashcroft Memo: FOIA Requests

Ashcroft Memo: Findings

• 5 of 33 Federal departments or agencies surveyed (15 %) indicated significant changes in regulations, guidance, and training materials and that the Ashcroft Memorandum was widely disseminated.

Ashcroft Memo: Findings

• Ashcroft Memo: Findings

• 8 of 33 Federal Departments or Agencies Surveyed (24 %) Indicated Implementation Activities Concerning the Ashcroft Memo, Including its Dissemination and Incorporation into FOIA Regulations and Procedures.

Ashcroft Memo: Findings

• 17 of 33 Federal departments or agencies surveyed (52 %) indicated awareness and dissemination of the Ashcroft Memo, but indicated little change in regulations, guidance or training materials reflecting the new policy.

Ashcroft Memo: Findings

• 3 of 33 Federal Departments or Agencies Surveyed (9 %) Indicated No Changes in Regulations, Guidance or Training Materials, And Little if No Dissemination of The Ashcroft Memorandum.

• U.S. Central Command, Federal Emergency Management Agency, National Science Foundation

Ashcroft Memo: Conclusion

• RESULT: More Secrecy In Government

More Secrecy in Government?

Phase Two: The 10 Oldest FOIA Requests

• Do agency annual FOIA reports accurately portray agency backlog?

• What are the oldest pending FOIA requests in the federal government?

• How extensive is each agency’s backlog?

• How long are FOIA requesters waiting?

The 10 Oldest FOIA Requests

10 Oldest FOIA Requests: Findings

10 Oldest FOIA Requests: Findings

10 Oldest FOIA Requests: Findings

• ARMY: Oldest FOIA pending - 3500 days

• 02’ annual report median - 25 days

• CIA: Oldest FOIA pending - 4090 days

• 02’ annual report median – 601 days

• FBI: Oldest FOIA pending - 3970 days

• 02’ annual report median – 90 days

10 Oldest FOIA Requests: Findings

10 Oldest FOIA Requests: Findings

10 Oldest FOIA Requests: Findings

10 Oldest FOIA Requests: Conclusion

FOIA Audit: Administrative Findings

• Inaccurate or incomplete information about agency FOIA contacts.

• Failure to acknowledge requests.

• Lost requests.

• Excessive Backlogs.

• Complete Decentralization Leading to Delay and Lack of Oversight.

FOIA Audit: Administrative Findings

• Complete Decentralization Leading to Delay and Lack of Oversight.

• Inconsistent Practices Regarding the Acceptance of Administrative Appeals.

• Appealing for Lack of Response May Delay Processing, But Also May Get The Agency’s Attention.

• Conflation of Fee Categorization and Fee Waiver Standards.

FOIA Audit in the News

The FOIA Audit: Coming Soon

• Phase 4 – Card Memo Requests

• March 19, 2002 issued by White House Chief of Staff Andrew Card

• Advised government information, regardless of its age, when related to weapons of mass destruction should be more readily protected.

Credits PowerPoint Presentation Designed by Barbara Elias FOIA Audit Reports Written by Meredith Fuchs Additional Research by Barbara Elias, Will Ferroggiaro and Meredith Fuchs Edited by Thomas Blanton