Recent Policy Developments Affecting FOIA

A number of recent government policies and rules significantly alter how information is handled under FOIA. Many of these policies were established after the 9/11 terrorist attacks. Attorney General John Ashcroft issued a memorandum October 12, 2001 instructing agencies to withhold documents whenever legally possible under the Freedom of Information Act. The memo specifically states the exemptions that agencies should use to shield information. The General Accounting Office (GAO) released a report that shows a significant percentage of FOIA officers have reduced the amount of information available to the public because of the Ashcroft memo. The Federal Energy Regulatory Commission (FERC) issued a Critical Energy Infrastructure Information (CEII) rule in March 2003, establishing new procedures outside of FOIA for requesting information. Companies holding CEII can submit the information to FERC and it will be protected from disclosure under FOIA. These procedures provide corporations with undue influence and opportunity to manipulate a process that is supposed to ensure the public?s right to know. Additional rules and policies from the Department of Homeland Security have eroded FOIA protections. The Critical Infrastructure Information (CII) rule provides protections similar to CEII; the private sector can submit information on critical infrastructure with the assurance that is cannot be disclosed under FOIA. The Sensitive But Unclassified (SBU) rule has yet to be written by DHS but could provide an even larger shield for corporations. See the Homeland Security Policies page for more information on these policies.
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