THE WHITE HOUSE
Office of the Press Secretary
For Immediate Release December 14, 2005
EXECUTIVE ORDER
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IMPROVING AGENCY DISCLOSURE OF INFORMATION
By the authority vested in me as President by the Constitution
and the laws of the United States of America, and to ensure
appropriate agency disclosure of information, and consistent with
the goals of section 552 of title 5, United States Code, it is
hereby ordered as follows:
Section 1. Policy.
(a) The effective functioning of our constitutional democracy
depends upon the participation in public life of a citizenry that
is well informed. For nearly four decades, the Freedom of
Information Act (FOIA) has provided an important means through
which the public can obtain information regarding the activities
of Federal agencies. Under the FOIA, the public can obtain
records from any Federal agency, subject to the exemptions
enacted by the Congress to protect information that must be held
in confidence for the Government to function effectively or for
other purposes.
(b) FOIA requesters are seeking a service from the Federal
Government and should be treated as such. Accordingly, in
responding to a FOIA request, agencies shall respond courteously
and appropriately. Moreover, agencies shall provide FOIA
requesters, and the public in general, with citizen-centered ways
to learn about the FOIA process, about agency records that are
publicly available (e.g., on the agency's website), and about the
status of a person's FOIA request and appropriate information
about the agency's response.
(c) Agency FOIA operations shall be both results-oriented and
produce results. Accordingly, agencies shall process requests
under the FOIA in an efficient and appropriate manner
and achieve tangible, measurable improvements in FOIA processing.
When an agency's FOIA program does not produce such results, it
should be reformed, consistent with available resources
appropriated by the Congress and applicable law, to increase
efficiency and better reflect the policy goals and objectives of
this order.
(d) A citizen-centered and results-oriented approach will improve
service and performance, thereby strengthening compliance with
the FOIA, and will help avoid disputes and related litigation.
Sec. 2. Agency Chief FOIA Officers.
(a) Designation. The head of each agency shall designate within
30 days of the date of this order a senior official of such
agency (at the Assistant Secretary or equivalent level), to serve
as the Chief FOIA Officer of that agency. The head of the agency
shall promptly notify the Director of the Office of Management
and Budget (OMB Director) and the Attorney General of such
designation and of any changes thereafter in such designation.
(b) General Duties. The Chief FOIA Officer of each agency shall,
subject to the authority of the head of the agency:
(i) have agency-wide responsibility for efficient and appropriate
compliance with the FOIA;
(ii) monitor FOIA implementation throughout the agency, including
through the use of meetings with the public to the extent deemed
appropriate by the agency's Chief FOIA Officer, and keep the head
of the agency, the chief legal officer of the agency, and the
Attorney General appropriately informed of the agency's
performance in implementing the FOIA, including the
extent to which the agency meets the milestones in the agency's
plan under section 3(b) of this order and training and reporting
standards established consistent with applicable law and this
order;
(iii) recommend to the head of the agency such adjustments to
agency practices, policies, personnel, and funding as may be
necessary to carry out the policy set forth in section 1 of this
order;
(iv) review and report, through the head of the agency, at such
times and in such formats as the Attorney General may direct, on
the agency's performance in implementing the FOIA; and
(v) facilitate public understanding of the purposes of the FOIA's
statutory exemptions by including concise descriptions of the
exemptions in both the agency's FOIA handbook issued under
section 552(g) of title 5, United States Code, and the agency's
annual FOIA report, and by providing an overview, where
appropriate, of certain general categories of agency records to
which those exemptions apply.
(c) FOIA Requester Service Center and FOIA Public Liaisons. In
order to ensure appropriate communication with FOIA requesters:
(i) Each agency shall establish one or more FOIA Requester
Service Centers (Center), as appropriate, which shall serve as
the first place that a FOIA requester can contact to seek
information concerning the status of the person's FOIA request
and appropriate information about the agency's FOIA response. The
Center shall include appropriate staff to receive and respond to
inquiries from FOIA requesters;
(ii) The agency Chief FOIA Officer shall designate one or more
agency officials, as appropriate, as FOIA Public Liaisons, who
may serve in the Center or who may serve in a separate office.
FOIA Public Liaisons
shall serve as supervisory officials to whom a FOIA requester can
raise concerns about the service the FOIA requester has received
from the Center, following an initial response from the Center
staff. FOIA Public Liaisons shall seek to ensure a
service-oriented response to FOIA requests and FOIA-related
inquiries. For example, the FOIA Public Liaison shall assist, as
appropriate, in reducing delays, increasing transparency and
understanding of the status of requests, and resolving disputes.
FOIA Public Liaisons shall report to the agency Chief FOIA
Officer on their activities and shall perform their duties
consistent with applicable law and agency regulations;
(iii) In addition to the services to FOIA requesters provided by
the Center and FOIA Public Liaisons, the agency Chief FOIA
Officer shall also consider what other FOIA-related assistance to
the public should appropriately be provided by the agency;
(iv) In establishing the Centers and designating FOIA Public
Liaisons, the agency shall use, as appropriate, existing agency
staff and resources. A Center shall have appropriate staff to
receive and respond to inquiries from FOIA requesters;
(v) As determined by the agency Chief FOIA Officer, in
consultation with the FOIA Public Liaisons, each agency shall
post appropriate information about its
Center or Centers on the agency's website, including contact
information for its FOIA Public Liaisons. In the case of an
agency without a website, the agency shall publish the
information on the Firstgov.gov website or, in the case of any
agency with neither a
website nor the capability to post on the Firstgov.gov website,
in the Federal Register; and
(vi) The agency Chief FOIA Officer shall ensure that the agency
has in place a method (or methods), including through the use of
the Center, to receive and respond promptly and appropriately to
inquiries from FOIA requesters about the status of their
requests. The Chief FOIA Officer shall also consider, in
consultation with the FOIA Public Liaisons, as appropriate,
whether the agency's implementation of other means (such as
tracking numbers for requests, or an agency telephone or Internet
hotline) would be appropriate for responding to status inquiries.
Sec. 3. Review, Plan, and Report.
(a) Review. Each agency's Chief FOIA Officer shall conduct a
review of the agency's FOIA operations to determine whether
agency practices are consistent with the policies set forth in
section 1 of this order. In conducting this review, the Chief
FOIA Officer shall:
(i) evaluate, with reference to numerical and statistical
benchmarks where appropriate, the agency's administration of the
FOIA, including the agency's expenditure of resources on FOIA
compliance and the
extent to which, if any, requests for records have not been
responded to within the statutory time limit (backlog);
(ii) review the processes and practices by which the agency
assists and informs the public regarding the FOIA process;
(iii) examine the agency's:
(A) use of information technology in responding
to FOIA requests, including without limitation the tracking of
FOIA requests and communication with requesters;
(B) practices with respect to requests for expedited processing;
and
(C) implementation of multi-track processing if used by such
agency;
(iv) review the agency's policies and practices relating to the
availability of public information through websites and other
means, including the use of websites to make available the
records described in section 552(a)(2) of title 5, United States
Code; and
(v) identify ways to eliminate or reduce its FOIA backlog,
consistent with available resources and taking into consideration
the volume and complexity of the FOIA requests pending with the
agency.
(b) Plan.
(i) Each agency's Chief FOIA Officer shall develop, in
consultation as appropriate with the staff of the agency
(including the FOIA Public Liaisons), the
Attorney General, and the OMB Director, an agency-specific plan
to ensure that the agency's administration of the FOIA is in
accordance with applicable law and the policies set forth in
section 1 of this order. The plan, which shall be submitted to
the head of the agency for approval, shall address the agency's
implementation of the FOIA during fiscal years 2006 and 2007.
(ii) The plan shall include specific activities that the agency
will implement to eliminate or reduce the agency's FOIA backlog,
including (as applicable)
changes that will make the processing of FOIA requests more
streamlined and effective, as well as increased
reliance on the dissemination of records that can be made
available to the public through a website or other means that do
not require the public to make a request for the records under
the FOIA.
(iii) The plan shall also include activities to increase public
awareness of FOIA processing, including as appropriate, expanded
use of the agency's Center and its FOIA Public Liaisons.
(iv) The plan shall also include, taking appropriate account of
the resources available to the agency and the mission of the
agency, concrete milestones, with specific timetables and
outcomes to be achieved, by which the head of the agency, after
consultation with the OMB Director, shall measure and evaluate
the agency's success in the implementation of the plan.
(c) Agency Reports to the Attorney General and OMB Director.
(i) The head of each agency shall submit a report, no later than
6 months from the date of this order, to the Attorney General and
the OMB Director that summarizes the results of the review under
section 3(a) of this order and encloses a copy of the agency's
plan under section 3(b) of this order. The agency shall publish a
copy of the agency's report on the agency's website or, in the
case of an agency without a website, on the Firstgov.gov website,
or, in the case of any agency with neither a website nor the
capability to publish on the Firstgov.gov website, in the Federal
Register.
(ii) The head of each agency shall include in the agency's annual
FOIA reports for fiscal years 2006 and 2007 a report on the
agency's development and
implementation of its plan under section 3(b) of this order and
on the agency's performance in meeting the milestones set forth
in that plan, consistent with any related guidelines the Attorney
General may issue under section 552(e) of title 5, United States
Code.
(iii) If the agency does not meet a milestone in its plan, the
head of the agency shall:
(A) identify this deficiency in the annual FOIA report to the
Attorney General;
(B) explain in the annual report the reasons for the agency's
failure to meet the milestone;
(C) outline in the annual report the steps that the agency has
already taken, and will be taking, to address the deficiency; and
(D) report this deficiency to the President's Management Council.
Sec. 4. Attorney General.
(a) Report. The Attorney General, using the reports submitted by
the agencies under subsection 3(c)(i) of this order and the
information submitted by agencies in their annual FOIA reports
for fiscal year 2005, shall submit to the President,
no later than 10 months from the date of this order, a report on
agency FOIA implementation. The Attorney General shall consult
the OMB Director in the preparation of the report and shall
include in the report appropriate recommendations on
administrative or other agency actions for continued agency
dissemination and release of public information. The Attorney
General shall thereafter submit two further annual reports, by
June 1, 2007, and June 1, 2008, that provide the President with
an update on the agencies' implementation of the FOIA and of
their plans under section 3(b) of this order.
(b) Guidance. The Attorney General shall issue such instructions
and guidance to the heads of departments and agencies as may be
appropriate to implement sections 3(b) and 3(c) of this order.
Sec. 5. OMB Director. The OMB Director may issue such
instructions to the heads of agencies as are necessary to
implement this order, other than sections 3(b) and 3(c) of this
order.
Sec. 6. Definitions. As used in this order:
(a) the term "agency" has the same meaning as the term
"agency" under section 552(f)(1) of title 5, United
States Code; and
(b) the term "record" has the same meaning as the term
"record" under section 552(f)(2) of title 5, United
States Code.
Sec. 7. General Provisions.
(a) The agency reviews under section 3(a) of this order and
agency plans under section 3(b) of this order shall be conducted
and developed in accordance with applicable law and applicable
guidance issued by the President, the Attorney General, and the
OMB Director, including the laws and guidance regarding
information technology and the dissemination of information.
(b) This order:
(i) shall be implemented in a manner consistent with applicable
law and subject to the availability of appropriations;
(ii) shall not be construed to impair or otherwise affect the
functions of the OMB Director relating to budget, legislative, or
administrative proposals; and
(iii) is intended only to improve the internal management of the
executive branch and is not
intended to, and does not, create any right or benefit,
substantive or procedural, enforceable at law or in equity by a
party against the United States, its departments, agencies,
instrumentalities, or entities, its officers or employees, or any
other person.
GEORGE W. BUSH
THE WHITE HOUSE,
December 14, 2005.
When Exemptions Become the Rule
New CJOG Study Shows How Federal Agencies Use
FOIA Exemptions to Step Up the Withholding of Information
Less information was released through the Freedom of Information Act in 2004 than in
2000, a new analysis shows. Even as requests processed by the agencies fell by 13
percent, the overall use of exemptions to screen information rose by 22 percent. In
refusing to release information far more often, agencies relied on three exemptions
pushed by the Bush administration.
The study of FOIA requests and denials in 2000 and 2004 by the Coalition of Journalists
for Open Government shows how departments and agencies responded to Bush
administration guidelines on withholding records issued in 2001 and 2002. It reveals
agencies making far greater use of several FOIA exemptions that many open government
advocates believe are widely abused.
The exemptions allow withholding of information regarding intra- and interagency
memos, internal personnel rules and practices, and proprietary information or trade
secrets.
Surprisingly, the analysis found a marked decline in the use of the exemption for
information classified in the interest of national security, even though national security
has been regularly cited since September 11, 2001 as justification for the increased
safeguarding of records.
The findings make clear that the controversial 2001 memorandum from then-Attorney
General John Ashcroft did in fact alter agency response to requests for public records.
Ashcroft’s memo reshaped the guidelines agencies use when considering FOIA requests.
His predecessor, Janet Reno, had advised federal departments that unclassified
government information should be presumed public and released if disclosure of the
information did “no foreseeable harm,” even though the data might fall within one of the
FOIA exemptions. In his October 2001 memo, Ashcroft said the administration was
committed to the “fundamental values” expressed in the nine exemptions and that his
department would support any agency offering a “sound legal basis” in denying a
citizen’s request. (See Attachment 1.)
Ashcroft specifically cited Exemption 5, covering interagency and intra-agency
memoranda. Six months later, White House Chief of Staff Andrew Card sent all
executive branch departments and agencies a memorandum on the handling of homeland
security information. An attachment prepared by the Justice Department and the
Information Security Oversight Office recommended use of Exemption 2, covering
agency personnel rules and practices, and Exemption 4, covering proprietary interests, to
protect “sensitive but unclassified” information.
The Coalition analysis focused on the use of FOIA exemptions to withhold information
by the 22 of the 25 departments and agencies that handle the greatest number of thirdparty
requests. We examined agency reports for the year 2000, the last complete fiscal
year before the current administration, and for 2004, the last complete year for which
records are currently available.
In assessing how agencies use exemptions to withhold information, we excluded the
Department of Veterans Affairs, the Social Security Administration and the Department
Health and Human Services. The three receive the greatest number of FOIA requests, and
they also grant almost all of those requests. VA and SSA granted 99 percent of the
requests in 2004, HHS 92 percent. In 2004, nearly 3.5 million requests were processed
by those three agencies, compared to 522,000 by the 22 examined in detail in this report.
The requests to the VA, SSA and HHS are primarily from individuals routinely seeking
data in government files about themselves – so called first-party records. By comparison,
the overall FOIA request approval rate for the 22 agencies studied was 67 percent.
Here’s what the study showed:
• There was a 10 percent decrease in FOIA requests overall from 2000 to 2004
and a 13 percent decrease in requests processed, the number used for
comparative purposes throughout the study.
• The agencies responded with a flat “no” less frequently – on 3.4 percent of
requests in 2000 but only 2.7 percent in 2004. However, requesters still
wound up with significantly less information. That’s because full grants,
where the requester gets all information sought, fell dramatically, from 55
percent of requests in 2000 to 45 percent in 2004. In real numbers, that’s
6,439 fewer denials and 96,021 fewer full grants. (Table 1)
• There was also an increase in what the government calls partial grants, in
which the requester gets some but not all of the information sought. There
were 44,464 more partial grants in 2004 than four years earlier. Or looked at
another way, the government made partial grants in 12 percent of the cases in
2000 and in 22 percent of the 2004 cases. The government does not report the
completeness of the partial grant by indicating what portion of the information
sought was released and how much was withheld. But it is possible to make a
qualitative inference from the agencies’ use of exemptions.
• The agencies called on one of the nine FOIA exemptions 22 percent more
often to withhold information in 2004 than in 2000, despite handling fewer
requests and issuing fewer full denials. Even that figure is only partially
indicative of the increased withholding of information, because agencies
report the use of an exemption a single time no matter how many times it is
cited to seal information within any single request. (Table 2)
• Exemption 2, which exempts information about internal agency procedures,
was cited three times more often in 2004 than in 2000. (Table 4)
• Exemption 5, which exempts interagency or intra-agency memos or letters,
was applied almost twice as frequently. (Table 7)
• Exemption 4, protecting trade secrets and commercial and financial
information, was used 68 percent more often. (Table 6)
• Even as national security was being cited after 9/11 as a reason for increased
government secrecy, federal agencies used the national security exemption far
less frequently in rejecting FOIA requests. The CIA cited the national security
exemption 55 percent less frequently in 2004 than in 2000. The overall use of
Exemption 1 fell 26 percent. (Table 3)
• The departments of Agriculture, Justice and State were twice as likely to deny
a FOIA request in full in 2004.
• Use of Exemption 7, which covers six different categories of law enforcement
related information, was down overall but increased in several significant
areas (Table 9). Use of the sources and methods exemption, 7(e), nearly
doubled. Exemption 7(c) protects information held by law enforcement that
could intrude upon someone’s privacy. Its use went up 29 percent. (Table 10)
• The 22 departments and agencies improved their efficiency in handling
requests, but reported costs nonetheless soared. The average cost of handling a
request in 2000, based on costs reported by the agencies, was $300. In 2004, it
was $465, a 57 percent increase. (Table 11) Six agencies spent over $1,000
per request and two, the State Department and CIA, spent over $2,500. It cost
the Small Business Administration almost four times more to process a
request in 2004 and the Justice Department three times more.
This report was prepared by Coalition of Journalists for Open Government researcher
Lacey Phillabaum. The Coalition of Journalists for Open Government is an alliance of
more than 30 journalism-related organizations concerned about secrecy in government
and the increasing closure of public records and meetings at all levels of government.
The coalition has released two other FOIA reports that are available on its website:
www.cjog.net.
The coalition’s coordinator is Pete Weitzel. For more information, contact CJOG, 1101
Wilson Blvd., Suite 1100, Arlington, VA 22209; pweitzel@rcfp.org,
(703) 807-2100, ext. 105.
Table 1: FOIA Grants 2000 and 2004
Total Requests Processed Requests Denied Partial Grants Full Grants
Agency
2000 2004 Change 2000 Percent
of Total 2004 Percent
of Total 2000 Percent
of Total 2004 Percent
of Total 2000 Percent
of Total 2004 Percent
of Total
Agriculture 139,503 61,209 -56% 1,686 1.2% 1,774 2.9% 2,043 1.5% 1,953 3.2% 111,263 80% 55,475 91%
Commerce 2,026 2,035 0% 215 10.6% 214 10.5% 200 9.9% 277 13.6% 1,189 59% 950 47%
Defense 96,479 77,256 -20% 2,367 2.5% 2,340 3.0% 11,551 12.0% 11,779 15.2% 56,836 59% 37,914 49%
DHS — 152,027 — — — 955 0.6% — — 60,612 39.9% — — 49,835 33%
Education 1,695 2,082 23% 34 2.0% 61 2.9% 331 19.5% 659 31.7% 1,034 61% 1,007 48%
Energy 2,649 2,440 -8% 34 1.3% 59 2.4% 328 12.4% 258 10.6% 1,546 58% 1,590 65%
HUD 2,878 3,978 38% 473* — 237 6.0% — — 587 14.8% 1,412 49% 1,824 46%
Interior 4,966 4,219 -15% 177 3.6% 183 4.3% 761 15.3% 854 20.2% 2,937 59% 1,809 43%
Justice 235,090 56,865 -76% 3,024 1.3% 2,136 3.8% 32,010 13.6% 8,495 14.9% 92,134 39% 19,186 34%
Labor 22,505 21,860 -3% 8,381 37.2% 1,931 8.8% 5,591 24.8% 7,551 34.5% 8,533 38% 7,378 34%
State 3,070 4,963 62% 93 3.0% 345 7.0% 822 26.8% 1,370 27.6% 850 28% 837 17%
Transport. 19,280 10,905 -43% 477 2.5% 292 2.7% 2,303 11.9% 2,170 19.9% 10,670 55% 4,345 40%
Treasury 1,597 64,570 3943% 73 4.6% 551 0.9% 234 14.7% 3,413 5.3% 696 44% 30,114 47%
CIA 4,490 3,336 -26% 769 17.1% 517 15.5% 1,287 28.7% 1,242 37.2% 1,084 24% 427 13%
CPSC 13,157 6,397 -51% 73 0.6% 53 0.8% 704 5.4% 385 6.0% 11,682 89% 5,755 90%
EEOC 16,060 17,485 9% 1,782 11.1% 1,427 8.2% 10,830 67.4% 12,385 70.8% 1,936 12% 1,109 6%
EPA 14,837 13,352 -10% 77 0.5% 120 0.9% 628 4.2% 635 4.8% 10,178 69% 7,540 56%
Archives 9,311 5,219 -44% 185 2.0% 22 0.4% 285 3.1% 110 2.1% 8,386 90% 476 9%
NASA 1,652 1,567 -5% 102 6.2% 27 1.7% 457 27.7% 390 24.9% 676 41% 579 37%
NLRB 5,418 5,295 -2% 382 7.1% 136 2.6% 551 10.2% 523 9.9% 4,418 82% 3,980 75%
SEC 2,854 3,830 34% 247 8.7% 499 13.0% 407 14.3% 209 5.5% 893 31% 1,080 28%
SBA 3,088 1,927 -38% 213 6.9% 73 3.8% 238 7.7% 168 8.7% 2,294 74% 1,416 73%
Total 602,605 522,817 -13% 20,391 3.4% 13,952 2.7% 71,561 11.9% 116,025 22.2% 330,647 55% 234,626 45%
The totals shown for the Requests Denied, Partial Grants and Full Grants do not add up to 100 percent of Requests Processed because the government lists a fourth
category in reporting on the disposition of FOIA requests: “Other Reasons for Non-Disclosure.” This includes “not an agency record,” “duplicate request,” “referral,” “not a
proper FOIA request” and several other explanations that do not go to the substance of the request.
In 2000, HUD listed only Requests Denied and Full Grants. Partial Denials were counted as Requests Denied.
The Department of Homeland Security (DHS) was created in 2002 by combining 22 agencies, including Immigration and Naturalization Services. That transfer resulted in a
noticeable reduction of FOIA requests to the Department of Justice, and in a lesser reduction of requests to several other agencies.
The Department of Agriculture settled a class action suit brought by African-American farmers in April 1999. FOIA officers said this resulted in a several-year spike FOIA
requests that explains the 78,000 difference in 2000 and 2004 requests processed.
The Treasury Department could offer no explanation for the dramatic increase in requests processed.
Table 2: FOIA Exemptions 2000 and 2004
Total Requests Processed Full or Partial Denials Total Exemptions Cited
in Denying RequestAgency s
2000 2004 Change 2000 Percent of
Total 2004 Percent of
Total 2000 2004 Change
Agriculture 139,503 61,209 -56% 3,729 3% 3,727 6% 2,637 4,066 54%
Commerce 2,026 2,035 0% 415 20% 491 24% 482 575 19%
Defense 96,479 77,256 -20% 13,918 14% 14,119 18% 18,812 22,139 18%
DHS — 152,027 — — — 61,567 40% — 138,134 —
Education 1,695 2,082 23% 365 22% 720 35% 475 1,059 123%
Energy 2,649 2,440 -8% 362 14% 317 13% 393 348 -11%
HUD 2,878 3,978 38% 473* 16% 824 21% 649 601 -7%
Interior 4,966 4,219 -15% 938 19% 1,037 25% 1,047 1,385 32%
Justice 235,090 56,865 -76% 35,034 15% 10,631 19% 130,474 23,399 -82%
Labor 22,505 21,860 -3% 13,972 62% 9,482 43% 25,554 25,634 0%
State 3,070 4,963 62% 915 30% 1,715 35% 914 2,759 202%
Transport. 19,280 10,905 -43% 2,780 14% 2,462 23% 2,982 3,064 3%
Treasury 1,597 64,570 3943% 307 19% 3,964 6% 359 3,813 962%
CIA 4,490 3,336 -26% 2,056 46% 1,759 53% 3,791 2,554 -33%
CPSC 13,157 6,397 -51% 777 6% 438 7% 1,469 780 -47%
EEOC 16,060 17,485 9% 12,612 79% 13,812 79% 13,688 18,324 34%
EPA 14,837 13,352 -10% 705 5% 755 6% 1,064 1,306 23%
Archives 9,311 5,219 -44% 470 5% 132 3% 300 165 -45%
NASA 1,652 1,567 -5% 559 34% 417 27% 556 429 -23%
NLRB 5,418 5,295 -2% 933 17% 659 12% 1,397 1,701 22%
SEC 2,854 3,830 34% 654 23% 708 18% 955 778 -19%
SBA 3,088 1,927 -38% 451 15% 241 13% 382 274 -28%
Total 602,605 522,817 -13% 91,952 15% 129,977 25% 208,376 253,287 22%
The category, “Full or Partial Denials,” is the sum of what the government agencies report as “Denials” and as “Partial Grants.” Partial grants are, logically, also partial
denials, and the government agencies combine the two categories in reporting on their use of exemptions to deny all or portions of FOIA requests.
We have done the same here.
Table 3: Exemption 1, National Defense and Foreign Policy
Total Requests Processed Exemption 1
Agency
2000 2004 Change 2000 Percent of Total 2004 Percent of Total
Agriculture 139,503 61,209 -56% 0 0.0% 9 0.0%
Commerce 2,026 2,035 0% 10 0.5% 6 0.3%
Defense 96,479 77,256 -20% 1,251 1.3% 1,132 1.5%
DHS — 152,027 — — — 19 0.0%
Education 1,695 2,082 23% 0 0.0% 0 0.0%
Energy 2,649 2,440 -8% 6 0.2% 10 0.4%
HUD 2,878 3,978 38% 0 0.0% 0 0.0%
Interior 4,966 4,219 -15% 0 0.0% 0 0.0%
Justice 235,090 56,865 -76% 1,098 0.5% 580 1.0%
Labor 22,505 21,860 -3% 0 0.0% 0 0.0%
State 3,070 4,963 62% 349 11.4% 762 15.4%
Transportation 19,280 10,905 -43% 28 0.1% 3 0.0%
Treasury 1,597 64,570 3943% 3 0.2% 17 0.0%
CIA 4,490 3,336 -26% 1,771 39.4% 845 25.3%
CPSC 13,157 6,397 -51% 0 0.0% 0 0.0%
EEOC 16,060 17,485 9% 0 0.0% 0 0.0%
EPA 14,837 13,352 -10% 0 0.0% 3 0.0%
Archives 9,311 5,219 -44% 80 0.9% 24 0.5%
NASA 1,652 1,567 -5% 1 0.1% 0 0.0%
NLRB 5,418 5,295 -2% 0 0.0% 0 0.0%
SEC 2,854 3,830 34% 0 0.0% 0 0.0%
SBA 3,088 1,927 -38% 0 0.0% 0 0.0%
Total 602,605 522,817 -13% 4,597 0.8% 3,410 0.7%
Exemption 1 covers information "specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign
policy…" DHS cited the national security exemption only 19 times in withholding requested information. The department cited non-security exemptions 61,567 times.
Table 4: Exemption 2, Internal Personnel Rules & Practices
Total Requests Processed Exemption 2
Agency
2000 2004 Change 2000 Percent of Total 2004 Percent of Total
Agriculture 139,503 61,209 -56% 41 0.0% 198 0.3%
Commerce 2,026 2,035 0% 8 0.4% 21 1.0%
Defense 96,479 77,256 -20% 1,196 1.2% 1,944 2.5%
DHS — 152,027 — — — 23,162 15.2%
Education 1,695 2,082 23% 5 0.3% 133 6.4%
Energy 2,649 2,440 -8% 2 0.1% 30 1.2%
HUD 2,878 3,978 38% 14 0.5% 25 0.6%
Interior 4,966 4,219 -15% 23 0.5% 46 1.1%
Justice 235,090 56,865 -76% 7,067 3.0% 3,577 6.3%
Labor 22,505 21,860 -3% 517 2.3% 403 1.8%
State 3,070 4,963 62% 23 0.7% 138 2.8%
Transportation 19,280 10,905 -43% 33 0.2% 85 0.8%
Treasury 1,597 64,570 3943% 11 0.7% 57 0.1%
CIA 4,490 3,336 -26% 8 0.2% 101 3.0%
CPSC 13,157 6,397 -51% 0 0.0% 0 0.0%
EEOC 16,060 17,485 9% 43 0.3% 17 0.1%
EPA 14,837 13,352 -10% 6 0.0% 44 0.3%
Archives 9,311 5,219 -44% 6 0.1% 6 0.1%
NASA 1,652 1,567 -5% 12 0.7% 29 1.9%
NLRB 5,418 5,295 -2% 71 1.3% 72 1.4%
SEC 2,854 3,830 34% 94 3.3% 29 0.8%
SBA 3,088 1,927 -38% 5 0.2% 3 0.2%
Total 602,605 522,817 -13% 9,185 1.5% 30,120 5.8%
Exemption 2 covers information "related solely to the internal personnel rules and practices of an agency." Both Homeland Security and Justice cited this exemption more
than a third of the time in denying requested information in 2004.
Table 5: Exemption 4, Trade Secrets/Commercial Financial Info.
Total Requests Processed Exemption 4
Agency
2000 2004 Change 2000 Percent of Total 2004 Percent of Total
Agriculture 139,503 61,209 -56% 314 0.2% 364 0.6%
Commerce 2,026 2,035 0% 80 3.9% 111 5.5%
Defense 96,479 77,256 -20% 1,075 1.1% 1,268 1.6%
DHS — 152,027 — — — 285 0.2%
Education 1,695 2,082 23% 69 4.1% 351 16.9%
Energy 2,649 2,440 -8% 86 3.2% 75 3.1%
HUD 2,878 3,978 38% 135 4.7% 164 4.1%
Interior 4,966 4,219 -15% 149 3.0% 122 2.9%
Justice 235,090 56,865 -76% 405 0.2% 227 0.4%
Labor 22,505 21,860 -3% 2,055 9.1% 4,503 20.6%
State 3,070 4,963 62% 30 1.0% 126 2.5%
Transportation 19,280 10,905 -43% 232 1.2% 230 2.1%
Treasury 1,597 64,570 3943% 60 3.8% 354 0.5%
CIA 4,490 3,336 -26% 6 0.1% 22 0.7%
CPSC 13,157 6,397 -51% 414 3.1% 123 1.9%
EEOC 16,060 17,485 9% 21 0.1% 26 0.1%
EPA 14,837 13,352 -10% 381 2.6% 323 2.4%
Archives 9,311 5,219 -44% 5 0.1% 2 0.0%
NASA 1,652 1,567 -5% 452 27.4% 267 17.0%
NLRB 5,418 5,295 -2% 21 0.4% 24 0.5%
SEC 2,854 3,830 34% 142 5.0% 67 1.7%
SBA 3,088 1,927 -38% 132 4.3% 113 5.9%
Total 602,605 522,817 -13% 6,264 1.0% 9,147 1.7%
Exemption 4 protects "trade secrets and commercial or financial information obtained from a person and privileged or confidential."
Table 6: Exemption 5, Inter/Intra-agency memos or letters
Total Requests Processed Exemption 5
Agency
2000 2004 Change 2000 Percent of Total 2004 Percent of Total
Agriculture 139,503 61,209 -56% 273 0.2% 363 0.6%
Commerce 2,026 2,035 0% 100 4.9% 131 6.4%
Defense 96,479 77,256 -20% 1,933 2.0% 1,411 1.8%
DHS — 152,027 — — — 29,233 19.2%
Education 1,695 2,082 23% 47 2.8% 55 2.6%
Energy 2,649 2,440 -8% 96 3.6% 57 2.3%
HUD 2,878 3,978 38% 179 6.2% 93 2.3%
Interior 4,966 4,219 -15% 299 6.0% 318 7.5%
Justice 235,090 56,865 -76% 13,625 5.8% 1,718 3.0%
Labor 22,505 21,860 -3% 5,083 22.6% 5,049 23.1%
State 3,070 4,963 62% 111 3.6% 377 7.6%
Transportation 19,280 10,905 -43% 495 2.6% 504 4.6%
Treasury 1,597 64,570 3943% 79 4.9% 203 0.3%
CIA 4,490 3,336 -26% 38 0.8% 65 1.9%
CPSC 13,157 6,397 -51% 186 1.4% 175 2.7%
EEOC 16,060 17,485 9% 9,501 59.2% 12,054 68.9%
EPA 14,837 13,352 -10% 288 1.9% 394 3.0%
Archives 9,311 5,219 -44% 5 0.1% 14 0.3%
NASA 1,652 1,567 -5% 22 1.3% 29 1.9%
NLRB 5,418 5,295 -2% 266 4.9% 292 5.5%
SEC 2,854 3,830 34% 107 3.7% 56 1.5%
SBA 3,088 1,927 -38% 121 3.9% 73 3.8%
Total 602,605 522,817 -13% 32,854 5.5% 52,664 10.1%
Exemption 5 covers information in "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation
with the agency." The overall totals reflect a 98 percent increase in the relative use of this exemption to withhold.
DHS cited this exemption in 40 percent of its full and partial denials.
Table 7: Exemption 6, Privacy
Total Requests Processed Exemption 6
Agency
2000 2004 Change 2000 Percent of Total 2004 Percent of Total
Agriculture 139,503 61,209 -56% 1,501 1.1% 1,790 2.9%
Commerce 2,026 2,035 0% 165 8.1% 154 7.6%
Defense 96,479 77,256 -20% 7,265 7.5% 8,990 11.6%
DHS — 152,027 — — — 38,439 25.3%
Education 1,695 2,082 23% 185 10.9% 252 12.1%
Energy 2,649 2,440 -8% 120 4.5% 112 4.6%
HUD 2,878 3,978 38% 211 7.3% 238 6.0%
Interior 4,966 4,219 -15% 419 8.4% 478 11.3%
Justice 235,090 56,865 -76% 45,383 19.3% 2,791 4.9%
Labor 22,505 21,860 -3% 2,729 12.1% 2,062 9.4%
State 3,070 4,963 62% 196 6.4% 624 12.6%
Transportation 19,280 10,905 -43% 1,193 6.2% 1,407 12.9%
Treasury 1,597 64,570 3943% 62 3.9% 354 0.5%
CIA 4,490 3,336 -26% 95 2.1% 170 5.1%
CPSC 13,157 6,397 -51% 8 0.1% 30 0.5%
EEOC 16,060 17,485 9% 458 2.9% 1,406 8.0%
EPA 14,837 13,352 -10% 93 0.6% 210 1.6%
Archives 9,311 5,219 -44% 98 1.1% 56 1.1%
NASA 1,652 1,567 -5% 34 2.1% 42 2.7%
NLRB 5,418 5,295 -2% 97 1.8% 294 5.6%
SEC 2,854 3,830 34% 157 5.5% 53 1.4%
SBA 3,088 1,927 -38% 103 3.3% 74 3.8%
Total 602,605 522,817 -13% 60,572 10.1% 60,026 11.5%
Exemption 6 covers "personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy."
Table 8: Exemption 7, Law Enforcement
Total Requests Processed Exemption 7, Total Use
Agency
2000 2004 Change 2000 Percent of Total 2004 Percent of Total
Agriculture 139,503 61,209 -56% 441 0.3% 775 1%
Commerce 2,026 2,035 0% 42 2% 0 0%
Defense 96,479 77,256 -20% 4,750 5% 281 0%
DHS — 152,027 — — — 46,543 31%
Education 1,695 2,082 23% 166 10% 14 1%
Energy 2,649 2,440 -8% 42 2% 11 0%
HUD 2,878 3,978 38% 79 3% 4 0%
Interior 4,966 4,219 -15% 134 3% 29 1%
Justice 235,090 56,865 -76% 62,144 26% 13,433 24%
Labor 22,505 21,860 -3% 14,578 65% 13,587 62%
State 3,070 4,963 62% 98 3% 37 1%
Transportation 19,280 10,905 -43% 856 4% 102 1%
Treasury 1,597 64,570 3943% 103 6% 115 0%
CIA 4,490 3,336 -26% 45 1% 50 1%
CPSC 13,157 6,397 -51% 170 1% 7 0%
EEOC 16,060 17,485 9% 2,298 14% 119 1%
EPA 14,837 13,352 -10% 280 2% 33 0%
Archives 9,311 5,219 -44% 67 1% 12 0%
NASA 1,652 1,567 -5% 20 1% 41* 3%
NLRB 5,418 5,295 -2% 942* 17% 268 5%
SEC 2,854 3,830 34% 400 14% 0 0%
SBA 3,088 1,927 -38% 17 1% 4 0%
Total 602,605 522,817 -13% 87,672 15% 75,425 14%
Although there is an overall decrease in the relative use of this exemption, there were significant shifts within the subcategories. (See Table 9.)
Table 9: Exemption 7, Law Enforcement
7(a)
Interferes with Law
Enforcement
7(b)
Fair Trial
7(c)
Privacy
7(d)
Confidential
Sources
7(e)
Techniques and Procedures
7(f)
Life/Agency fe/Safety
2000 % of
Total 2004 %of
Total 2000 2004 2000 % of
Total 2004 % of
Total 2000 2004 2000 %of
Total 2004 % of
Total 2000 2004
Agriculture 129 0.1% 173 0.3% 3 750 224 0.2% 298 0.5% 64 24 11 0.0% 23 0.0% 10 1
Commerce 7 0.3% 11 0.5% 1 0 28 1.4% 17 0.8% 2 0 4 0.2% 4 0.2% 0 0
Defense 229 0.2% 458 0.6% 20 14 3,638 3.8% 4,738 6.1% 583 245 248 0.3% 107 0.1% 32 22
DHS — — 4,828 3.2% — 42 — — 31,178 20.5% — 982 — — 9,415 6.2% — 98
Education 49 2.9% 66 3.2% 6 11 100 5.9% 181 8.7% 5 3 6 0.4% 5 0.2% 0 0
Energy 12 0.5% 20 0.8% 0 8 25 0.9% 9 0.4% 4 2 1 0.0% 2 0.1% 0 1
HUD 39 1.4% 22 0.6% 4 1 29 1.0% 29 0.7% 3 3 3 0.1% 4 0.1% 1 0
Interior 31 0.6% 82 1.9% 6 5 83 1.7% 256 6.1% 0 13 13 0.3% 14 0.3% 1 11
Justice 10,173 4.3% 587 1.0% 76 24 37,122 15.8% 7,432 13.1% 6,378 2,519 6,314 2.7% 1,021 1.8% 2,081 1,850
Labor 2,670 11.9% 1,833 8.4% 0 9 5,885 26.1% 7,123 32.6% 5,419 3,857 601 2.7% 764 3.5% 3 1
State 15 0.5% 39 0.8% 1 2 35 1.1% 121 2.4% 16 27 20 0.7% 50 1.0% 11 8
Transport. 210 1.1% 170 1.6% 15 11 517 2.7% 481 4.4% 105 90 8 0.0% 8 0.1% 1 1
Treasury 7 0.4% 16 0.0% 0 3 77 4.8% 1,140 1.8% 3 99 14 0.9% 1,225 1.9% 2 13
CIA 2 0.0% 1 0.0% 0 0 13 0.3% 57 1.7% 10 46 20 0.4% 58 1.7% 0 4
CPSC 61 0.5% 65 1.0% 0 0 0 0.0% - 0.0% 1 7 108 0.8% 18 0.3% 0 0
EEOC 899 5.6% 716 4.1% 0 0 1,295 8.1% 1,777 10.2% 90 119 14 0.1% 27 0.2% 0 0
EPA 180 1.2% 161 1.2% 1 3 57 0.4% 82 0.6% 26 28 14 0.1% 25 0.2% 2 2
NARA 10 0.1% 3 0.1% 0 0 23 0.2% 16 0.3% 6 12 16 0.2% 2 0.0% 12 0
NASA 5 0.3% 41* — 0 — 13 0.8% — — 1 — 1 0.1% — — 0
NLRB 362 6.7% 350 6.6% 0 0 296 5.5% 345 6.5% 257 268 27 0.5% 56 1.1% 0 0
SEC 257 9.0% 496 13% 0 0 105 3.7% 29 0.8% 0 0 38 1.3% 6 0.2% 0 0
SBA 4 0.1% 1 0.1% 3 0 7 0.2% 5 0.3% 1 4 2 0.1% 0 0.0% 0 0
Total 15,351 2.5% 10,098 1.9% 136 883 49,572 8.2% 55,314 10.6% 12,974 8,348 7,483 1.2% 12,834 2.5% 2,156 2,012
Exemption 7 protects "records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or
information (A) could reasonably be expected to interfere with enforcement proceedings, (B) would deprive a person of a right to a fair trial or an impartial adjudication, (C)
could reasonably be expected to constitute an unwarranted invasion of personal privacy, (D) could reasonably be expected to disclose the identity of a confidential source,
including a State, local, or foreign agency or authority or any private institution which furnished information on a confidential basis, and, in the case of a record or information
compiled by a criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation,
information furnished by a confidential source, (E) would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines
for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law, or (F) could reasonably be expected to
endanger the life or physical safety of any individual."
*Although NASA reported Exemption 7 use by subcategory in 2000, NASA reported all Exemption 7 citations in a single category in 2004, shown here as 7(a).
Table 10: The Costs of FOIA
Total Requests Processed Employees Days Per Request Total Processing Cost Cost Per RequesAgency t
2000 2004 Change 2000 2004 2000 2004 2000 2004 2000 2004
Agriculture 139,503 61,209 -56% 533.00 585.33 1.0 2.5 8,165,912 11,590,217 58.54 189.35
Commerce 2,026 2,035 0% 27.00 17.75 3.5 2.3 2,279,662 1,769,635 1,125.20 869.60
Defense 96,479 77,256 -20% 890.21 720.96 2.4 2.4 36,526,671 47,211,794 378.60 611.11
DHS — 152,027 — — 468.50 — 0.8 — 21,148,318 — 139.11
Education 1,695 2,082 23% 9.10 10.70 1.4 1.3 454,379 809,158 268.07 388.64
Energy 2,649 2,440 -8% 58.50 71.00 5.8 7.6 2,442,974 3,486,504 922.23 1,428.90
HUD 2,878 3,978 38% 40.00 41.00 3.6 2.7 2,191,000 2,017,600 761.29 507.19
Interior 4,966 4,219 -15% 131.00 114.00 6.9 7.1 5,190,926 7,610,439 1,045.29 1,803.85
Justice 235,090 56,865 -76% 1,069.10 562.52 1.2 2.6 69,269,121 66,926,196 294.65 1,176.93
Labor 22,505 21,860 -3% 229.00 190.84 2.7 2.3 5,700,000 14,805,397 253.28 677.28
State 3,070 4,963 62% 136.00 182.00 11.6 9.6 11,692,372 12,779,845 3,808.59 2,575.02
DOT 19,280 10,905 -43% 110.70 56.53 1.5 1.4 7,942,682 7,719,691 411.96 707.90
Treasury 1,597 64,570 3943% 15.58 145.89 2.5 0.6 328,662 13,985,612 205.80 216.60
CIA 4,490 3,336 -26% 77.80 75.70 4.5 5.9 9,800,000 8,880,000 2,182.63 2,661.87
CPSC 13,157 6,397 -51% 169.00 15.20 3.4 0.6 1,407,044 1,629,309 106.94 254.70
EEOC 16,060 17,485 9% 43.79 51.95 0.7 0.8 1,674,183 2,189,259 104.25 125.21
EPA 14,837 13,352 -10% 630.00 175.46 11.1 3.4 7,628,076 11,505,500 514.13 861.71
Archives 9,311 5,219 -44% 32.50 26.00 0.9 1.3 1,339,336 1,425,774 143.84 273.19
NASA 1,652 1,567 -5% 18.00 19.65 2.8 3.3 672,237 1,659,840 406.92 1,059.25
NLRB 5,418 5,295 -2% 10.50 8.88 0.5 0.4 443,340 753,008 81.83 142.21
SEC 2,854 3,830 34% 26.20 63.50 2.4 4.3 3,058,293 2,565,389 1,071.58 669.81
SBA 3,088 1,927 -38% 31.20 12.55 2.6 1.7 338,812 755,550 109.72 392.09
Total 602,605 522,817 -13% 4,288.18 3,615.91 1.9 1.8 178,545,681 243,224,035 296.29 465.22
*Days Per Request is calculated by multiplying the number of employees (reported by government agencies as Work Years) by the number of annual working days (261),
then dividing by the number of requests processed.
Table 11: Exemptions 3 (Statutory), 8 (Finance) and 9 (Wells)
Total Requests Processed Exemption 3 Exemption 8 Agency Exemption 9
2000 2004 Change 2000 2004 2000 2004 2000 2004
Agriculture 139,503 61,209 -56% 58 73 0 0 0 0
Commerce 2,026 2,035 0% 77 120 0 0
Defense 96,479 77,256 -20% 1,342 1,627 0 3 0 180
DHS — 152,027 — — 453 — 0 — 0
Education 1,695 2,082 23% 3 2 0 0 0 0
Energy 2,649 2,440 -8% 41 22 0 0 0 0
HUD 2,878 3,978 38% 27 22 4 0 0
Interior 4,966 4,219 -15% 16 38 0 0 7 2
Justice 235,090 56,865 -76% 751 1,073 1 0 0 0
Labor 22,505 21,860 -3% 592 30 0 0 0 0
State 3,070 4,963 62% 107 485 0 0 0 0
DOT 19,280 10,905 -43% 145 74 0 0
Treasury 1,597 64,570 3943% 41 263 0 69 0 0
CIA 4,490 3,336 -26% 1,828 1,185 0 0 0 0
CPSC 13,157 6,397 -51% 691 362 0 0 0 0
EEOC 16,060 17,485 9% 1,367 2,182 0 0 0 0
EPA 14,837 13,352 -10% 15 26 0 1 1 4
NARA 9,311 5,219 -44% 39 28 0 2 0 0
Archives 1,652 1,567 -5% 15 21 0 0 0 0
NLRB 5,418 5,295 -2% 0 0 0 0 0 0
SEC 2,854 3,830 34% 1 9 54 33 0 0
SBA 3,088 1,927 -38% 4 1 0 0 0 0
Total 602,605 522,817 -13% 7,156 8,096 59 108 8 186
Exemption 3 covers information "specifically exempted from disclosure by statute, provided that such statute (A) requires that the matters be withheld from the public in such
a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld."
Exemption 8 covers information "contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for
the regulation or supervision of financial institutions."
Exemption 9 covers "geological and geophysical information and data, including maps, concerning wells."
Attachment 1: The Ashcroft Memo
Memorandum for Heads of all Federal Departments and Agencies
From: John Ashcroft, Attorney General
Subject: The Freedom of Information Act
As you know, the Department of Justice and this Administration are committed to full compliance with the
Freedom of Information Act (FOIA), 5 U.S.C. § 552 (2000). It is only through a well-informed citizenry that the
leaders of our nation remain accountable to the governed and the American people can be assured that neither fraud
nor government waste is concealed.
The Department of Justice and this Administration are equally committed to protecting other fundamental
values that are held by our society. Among them are safeguarding our national security, enhancing the effectiveness
of our law enforcement agencies, protecting sensitive business information and, not least, preserving personal
privacy.
Our citizens have a strong interest as well in a government that is fully functional and efficient. Congress
and the courts have long recognized that certain legal privileges ensure candid and complete agency deliberations
without fear that they will be made public. Other privileges ensure that lawyers' deliberations and communications
are kept private. No leader can operate effectively without confidential advice and counsel. Exemption 5 of the
FOIA, 5 U.S.C. § 552(b)(5), incorporates these privileges and the sound policies underlying them.
I encourage your agency to carefully consider the protection of all such values and interests when making
disclosure determinations under the FOIA. 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.
In making these decisions, you should consult with the Department of Justice's Office of Information and
Privacy when significant FOIA issues arise, as well as with our Civil Division on FOIA litigation matters. 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 or present an unwarranted risk
of adverse impact on the ability of other agencies to protect other important records.
This memorandum supersedes the Department of Justice's FOIA Memorandum of October 4, 1993, and it
likewise creates no substantive or procedural right enforceable at law.
(Posted Oct. 15, 2001.)
Attachment 2: The Andrew Card Memo
White House Chief of Staff Andrew Card issued this memorandum on Mar. 21, 2002. It forwards
a memorandum from the Information Security Oversight Office and the Office of Information
Privacy.
MEMORANDUM FOR HEADS OF EXECUTIVE DEPARTMENTS AND AGENCIES
FROM: ANDREW H. CARD, JR.
Assistant to the President and Chief of Staff
SUBJECT: Action to Safeguard Information Regarding Weapons of Mass
Destruction and Other Sensitive Documents Related to Homeland
Security
As noted in many discussions during the past several months, you and your department or agency have an
obligation to safeguard Government records regarding weapons of mass destruction. Weapons of mass destruction
include chemical, biological, radiological, and nuclear weapons. Government information, regardless of its age, that
could reasonably be expected to assist in the development or use of weapons of mass destruction, including
information about the current locations of stockpiles of nuclear materials that could be exploited for use in such
weapons, should not be disclosed inappropriately.
I asked the Acting Director of the Information Security Oversight Office and the Co-Directors of the
Justice Department's Office of Information and Privacy to prepare guidance for reviewing Government information
in your department or agency regarding weapons of mass destruction, as well as other information that could be
misused to harm the security of our nation and the safety of our people. Their guidance is attached, and it should be
distributed to appropriate officials within your department or agency, together with this memorandum, to assist in
your undertaking an immediate reexamination of current measures for identifying and safeguarding all such
information at your department or agency.
All departments and agencies should review their records management procedures and, where appropriate,
their holdings of documents to ensure that they are acting in accordance with the attached guidance. They should
report the completion, or status, of their review to this office through the Office of Homeland Security no later than
90 days from the date of this memorandum.
If agency officials need assistance in determining the classification status of records related to the
development or use of weapons of mass destruction, they should contact the Information Security Oversight Office,
at 202-219-5250. For assistance in determining the classification of nuclear and radiological weapons classified
under the Atomic Energy Act, they should contact the Department of Energy's Office of Security, at 202-586-3345.
If they need assistance in applying exemptions of the Freedom of Information Act (FOIA) to sensitive but
unclassified information, they should contact the Justice Department's Office of Information and Privacy (OIP), at
202-514-3642, or consult OIP's FOIA Web site at www.usdoj.gov/04foia/index/html.
* * * * *
MEMORANDUM FOR DEPARTMENTS AND AGENCIES
FROM: LAURA L.S. KIMBERLY
Acting Director
Information Security Oversight Office
RICHARD L. HUFF
DANIEL J. METCALFE
Co-Directors
Office of Information and Privacy
Department of Justice
SUBJECT: Safeguarding Information Regarding Weapons of Mass Destruction
and Other Sensitive Records Related to Homeland Security
At the request of the Assistant to the President and Chief of Staff, we have prepared this memorandum to
provide guidance for reviewing Government information regarding weapons of mass destruction, as well as other
information that could be misused to harm the security of our nation or threaten public safety. It is appropriate that
all federal departments and agencies consider the need to safeguard such information on an ongoing basis and also
upon receipt of any request for records containing such information that is made under the Freedom of Information
Act (FOIA), 5 U.S.C. § 552 (2000). Consistent with existing law and policy, the appropriate steps for safeguarding
such information will vary according to the sensitivity of the information involved and whether the information
currently is classified.
I. Classified Information
• If the information currently is classified and is equal to or less than 25 years old, it should remain
classified in accordance with Executive Order 12958, Sec. 1.5 and Sec. 1.6. Although classified information
generally must be declassified within 10 years of its original classification, classification or reclassification may be
extended for up to 25 years in the case of information that could reasonably be expected to "reveal information that
would assist in the development or use of weapons of mass destruction." Id., Sec. 1.6(d)(2).
• If the information is more than 25 years old and is still classified, it should remain classified in
accordance with Executive Order 12958, Sec. 3.4(b)(2), which authorizes agency heads to exempt from automatic
declassification any "specific information, the release of which should be expected to . . . reveal information that
would assist in the development or use of weapons of mass destruction." (Agencies should note that the automatic
declassification date for any classified information over 25 years old that involves the equities of more than one
agency was extended until April 2003 by Executive Order 13142. Agencies have until then to exempt such
information from automatic declassification under any one of the pertinent exemption categories in Executive Order
12958, Sec. 3.4(b).)
In this regard, agencies should note that Department of Defense (DOD) information that involves the
equities of more than one DOD component is considered to have multi-agency equities. Information maintained by
the Defense Technical Information Center (DTIC) or the National Archives and Records Administration (NARA)
also is deemed to have multi-agency equities, i.e., those pertaining to DTIC or NARA and those pertaining to the
component agency or agencies that created the information.
II. Previously Unclassified or Declassified Information
• If the information, regardless of age, never was classified and never was disclosed to the public under
proper authority, but it could reasonably be expected to assist in the development or use of weapons of mass
destruction, it should be classified in accordance with Executive Order 12958, Part 1, subject to the provisions of
Sec. 1.8(d) if the information has been the subject of an access demand (or Sec 6.1(a) if the information concerns
nuclear or radiological weapons).
• If such sensitive information, regardless of age, was classified and subsequently was declassified, but it
never was disclosed to the public under proper authority, it should be reclassified in accordance with Executive
Order 12958, Part 1, subject to the provisions of Sec. 1.8(d) if the information has been the subject of an access
demand (or Sec 6.1(a) if the information concerns nuclear or radiological weapons).
III. Sensitive But Unclassified Information
In addition to information that could reasonably be expected to assist in the development or use of weapons
of mass destruction, which should be classified or reclassified as described in Parts I and II above, departments and
agencies maintain and control sensitive information related to America's homeland security that might not meet one
or more of the standards for classification set forth in Part 1 of Executive Order 12958. The need to protect such
sensitive information from inappropriate disclosure should be carefully considered, on a case-by-case basis, together
with the benefits that result from the open and efficient exchange of scientific, technical, and like information.
All departments and agencies should ensure that in taking necessary and appropriate actions to safeguard
sensitive but unclassified information related to America's homeland security, they process any Freedom of
Information Act request for records containing such information in accordance with the Attorney General's FOIA
Memorandum of October 12, 2001, by giving full and careful consideration to all applicable FOIA exemptions. See
FOIA Post, "New Attorney General FOIA Memorandum Issued" (posted 10/15/01) (found at
www.usdoj.gov/oip/foiapost/2001foiapost19.htm), which discusses and provides electronic links to further guidance
on the authority available under Exemption 2 of the FOIA, 5 U.S.C. § 552(b)(2), for the protection of sensitive
critical infrastructure information. In the case of information that is voluntarily submitted to the Government from
the private sector, such information may readily fall within the protection of Exemption 4 of the FOIA, 5 U.S.C. §
552(b)(4).
As the accompanying memorandum from the Assistant to the President and Chief of Staff indicates, federal
departments and agencies should not hesitate to consult with the Office of Information and Privacy, either with
general anticipatory questions or on a case-by-case basis as particular matters arise, regarding any FOIA-related
homeland security issue. Likewise, they should consult with the Information Security Oversight Office on any
matter pertaining to the classification, declassification, or reclassification of information regarding the development
or use of weapons of mass destruction, or with the Department of Energy's Office of Security if the information
concerns nuclear or radiological weapons.
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