Attorney General's Memo on the Freedom of Information Act

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Office of the Attorney General
Washington, DC 20530

May 1, 1997

MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES
FROM: THE ATTORNEY GENERAL
SUBJECT: THE FREEDOM OF INFORMATION ACT

As you know, the President signed legislation last fall to amend and strengthen the Freedom of Information Act ("FOIA"), 5 U.S.C. section 552, as a means of public access to information about the activities of the departments and agencies of the Federal Government.

I am writing to bring to your attention the significant new requirements of this legislation that take effect at different times this year, and also to reemphasize the importance of the Administration's policy of striving for the maximum responsible disclosure of information under the FOIA.

The Electronic Freedom of Information Act Amendments of 1996 ("Electronic FOIA amendments"), P.L. 104-231, 10 Stat. 3048, contain provisions amending the FOIA with respect to records maintained in electronic formats, the timing of agency responses to FOIA requests, the maintenance of reading rooms, and other procedural matters. (Attached is a copy of the amended statute with an accompanying amendment description.) The most significant of these Electronic FOIA amendments are:

Provisions that confirm that the Act applies to information maintained in electronic formats and establish a "reasonable efforts" standard governing the search for and production of information in electronic form, effective as of March 31, 1997.
A provision requiring "reading room" treatment for FOIA-processed records that an agency considers likely to be the subject of subsequent FOIA requests, also effective as of March 31, 1997.
An "electronic reading room" provision that requires agencies to provide electronic availability for their newly created reading room records (i.e., created by the agency on or after November 1, 1996), as of November 1, 1997.
Provisions that lengthen the Act's time limits for responding to requests, establish procedures for circumstances which agencies cannot meet those time limits, and establish standards under which FOIA requesters can seek "expedited processing" of their requests. These provisions become effective on October 2, 1997.
A provision limiting the circumstances under which an agency's backlog may be used to justify a delay in responding to a FOIA request, also effective as of October 2, 1997.
A provision requiring agencies to prepare reference material or a guide for requesting records from the agency, effective as of March 31, 1997. The Office of Management and Budget has issued guidance to agencies on this subject (copy attached).
Amendments to the Act's requirements for the filing of annual FOIA reports, effective as of fiscal year 1998, beginning on October 1, 1997.

As provided for in the Electronic FOIA amendments, the Department of Justice will develop annual report guidelines, in consultation with the Office of Management and Budget, for use by all agencies in their compilation of annual report statistics beginning on October 1, 1997. The Department of Justice is preparing to issue implementing regulations and a FOIA reference guide to which agencies can look in their own implementation of the amendments. The Department also will continue to address agency questions concerning the amendments through its publications, training activities, and its FOIA Counselor service.

As your department or agency implements the Electronic FOIA amendments, I urge you to be sure to continue our strong commitment to the openness-in-government principles that President Clinton and I established on October 4, 1993. These principles include applying customer-service attitudes toward FOIA requesters, following the spirit as well as the letter of the Act, and applying a presumption of disclosure in FOIA decisions making. Most significant is that an agency should make a discretionary disclosure of exempt information whenever it is possible to do so without foreseeable harm to any interest that is protected by a FOIA exemption; an agency should withhold information under the FOIA only when it is necessary to do so.

These principles remain vital to the continued success of our FOIA policy. They also require that each department and agency place a sustained priority on its FOIA administration responsibilities, including through the elimination or reduction of any backlog of pending FOIA requests. The reduction of existing agency FOIA backlogs will take on heightened significance under the provisions of the Electronic FOIA amendments.

Copies of the statements of FOIA policy that President Clinton and I issued on October 4, 1993, are attached. In furtherance of the President's directives, I ask that you promote our continued commitment to open government by redistributing these policy statements, together with this memorandum and its attachments, throughout your department or agency, with particular attention to your agency's recent appointees.

Attachments (5)