EPIC logo

 Contact: The White House, Office of the Press Secretary, 
 Oct. 4, 1993 
 SUBJECT: The Freedom of Information Act 
   I am writing to call your attention to a subject that is of great 
importance to the American public and to all Federal departments and 
agencies -- the administration of the Freedom of Information Act, as 
amended (the "Act").  The Act is a vital part of the participatory 
system of government.  I am committed to enhancing its effectiveness 
in my Administration. 
   For more than a quarter century now, the Freedom of Information 
Act has played a unique role in strengthening our democratic form of 
government.  The statute was enacted based upon the fundamental 
principle that an informed citizenry is essential to the democratic 
process and that the more the American people know about their 
government the better they will be governed.  Openness in government 
is essential to accountability and the Act has become an integral 
part of that process. 
   The Freedom of Information Act, moreover, has been one of the 
primary means by which members of the public inform themselves about 
their government.  As Vice President Gore made clear in the National 
Performance Review, the American people are the Federal Government's 
customers.  Federal departments and agencies should handle requests 
for information in a customer-friendly manner.  The use of the Act by 
ordinary citizens is not complicated, nor should it be.  The 
existence of unnecessary bureaucratic hurdles has no place in its 
   I therefore call upon all Federal departments and agencies to 
renew their commitment to the Freedom of Information Act, to its 
underlying principles of government openness, and to its sound 
administration.  This is an appropriate time for all agencies to take 
a fresh look at their administration of the Act, to reduce backlogs 
of Freedom of Information Act requests, and to conform agency 
practice to the new litigation guidance issued by the Attorney 
General, which is attached. 
   Further, I remind agencies that our commitment to openness 
requires more than merely responding to requests from the public. 
Each agency has a responsibility to distribute information on its own 
initiative, and to enhance public access through the use of 
electronic information systems.  Taking these steps will ensure 
compliance with both the letter and spirit of the Act. 
 (s) William J. Clinton 
 Oct. 4, 1993 
 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 

Return to the EPIC Open Government Page