
 Oct. 4, 1993 

 MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES 

 Subject: The Freedom of Information Act 

   President Clinton has asked each Federal department and agency to take 
steps to ensure it is in compliance with both the letter and the spirit of the 
Freedom of Information Act (FOIA), 5 U.S.C. 552.  The Department of Justice is 
fully committed to this directive and stands ready to assist all agencies as 
we implement this new policy. 

   First and foremost, we must ensure that the principle of openness in 
government is applied in each and every disclosure and nondisclosure decision 
that is required under the Act.  Therefore, I hereby rescind the Department of 
Justice's 1981 guidelines for the defense of agency action in Freedom of 
Information Act litigation. The Department will no longer defend an agency's 
withholding of information merely because there is a "substantial legal basis" 
for doing so.  Rather, in determining whether or not to defend a nondisclosure 
decision, we will apply a presumption of disclosure. 

   To be sure, the Act accommodates, through its exemption structure, the 
countervailing interests that can exist in both disclosure and nondisclosure 
of government information.  Yet while the Act's exceptions are designed to 
guard against harm to governmental and private interests, I firmly believe 
that these exemptions are best applied with specific reference to such harm, 
and only after consideration of the reasonably expected consequences of 
disclosure in each particular case. 

   In short, it shall be the policy of the U.S. Department of Justice to 
defend the assertion of a FOIA exemption only in those cases where the agency 
reasonably foresees that disclosure would be harmful to an interest protected 
by that exemption.  Where an item of information might technically or arguably 
fall within an exemption, it ought not to be withheld from a FOIA requester 
unless it need be. 

   It is my belief that this change in policy serves the public interest by 
achieving the Act's primary objective -- maximum responsible disclosure of 
government information -- while preserving essential confidentiality.  
Accordingly, I strongly encourage your FOIA officers to make "discretionary 
disclosures" whenever possible under the Act.  Such disclosures are possible 
under a number of FOIA exemptions, especially when only a governmental 
interest would be affected.  The exemptions and opportunities for 
"discretionary disclosures" are discussed in the Discretionary Disclosure and 
Waiver section of the "Justice Department Guide to the Freedom of Information 
Act." As that discussion points out, agencies can make discretionary FOIA 
disclosures as a matter of good public policy without concern for future 
"waiver consequences" for similar information.  Such disclosures can also 
readily satisfy an agency's "reasonable segregation" obligation under the Act 
in connection with marginally exempt information, see 5 U.S.C. 552(b), and can 
lessen an agency's administrative burden at all levels of the administrative 
process and in litigation.  I note that this policy is not intended to create 
any substantive or procedural rights enforceable at law. 

   In connection with the repeal of the 1981 guidelines, I am requesting that 
the Assistant Attorneys General for the Department's Civil and Tax Divisions, 
as well as the United States Attorneys, undertake a review of the merits of 
all pending FOIA cases handled by them, according to the standards set forth 
above.  The Department's litigating attorneys will strive to work closely with 
your general counsels and their litigation staffs to implement this new policy 
on a case-by-case basis.  The Department's office of Information and Privacy 
can also be called upon for assistance in this process, as well as for policy 
guidance to agency FOIA officers. 

   In addition, at the Department of Justice we are undertaking a complete 
review and revision of our regulations implementing the FOIA, all related 
regulations pertaining to the Privacy Act of 1974, 5 U.S.C. 552a, as well as 
the Department's disclosure policies generally.  We are also planning to 
conduct a Department-wide "FOIA Form Review." Envisioned is a comprehensive 
review of all standard FOIA forms and correspondence utilized by the Justice 
Department's various components.  These items will be reviewed for their 
correctness, completeness, consistency and particularly for their use of clear 
language.  As we conduct this review, we will be especially mindful that FOIA 
requesters are users of a government service, participants in an 
administrative process, and constituents of our democratic society.  I 
encourage you to do likewise at your departments and agencies. 

   Finally, I would like to take this opportunity to raise with you the 
longstanding problem of administrative backlogs under the Freedom of 
Information Act.  Many Federal departments and agencies are often unable to 
meet the Act's ten-day time limit for processing FOIA requests, and some 
agencies -- especially those dealing with high-volume demands for particularly 
sensitive records -- maintain large FOIA backlogs greatly exceeding the 
mandated time period.  The reasons for this may vary, but principally it 
appears to be a problem of too few resources in the face of too heavy a 
workload.  This is a serious problem -- one of growing concern and frustration 
to both FOIA requesters and Congress, and to agency FOIA officers as well. 

   It is my hope that we can work constructively together, with Congress and 
the FOIA-requester community, to reduce backlogs during the coming year.  To 
ensure that we have a clear and current understanding of the situation, I am 
requesting that each of you send to the Department's Office of Information and 
Privacy a copy of your agency's Annual FOIA Report to Congress for 1992.  
Please include with this report a letter describing the extent of any present 
FOIA backlog, FOIA staffing difficulties and any other observations in this 
regard that you believe would be helpful. 

   In closing, I want to reemphasize the importance of our cooperative efforts 
in this area.  The American public's understanding of the workings of its 
government is a cornerstone of our democracy.  The Department of Justice 
stands prepared to assist all federal agencies as we make government 
throughout the executive branch more open, more responsive, and more 
accountable. 

   /s/ Janet Reno 
