In other situations, however, various types of agency conduct and circumstances can reasonably be held to result in exemption waiver.Īs a general rule, an agency's ability to make a discretionary disclosure of exempt information, as recognized in Attorney General Ashcroft's FOIA Memorandum, (9) will vary according to the nature of the FOIA exemption and the underlying interests involved. When agencies make discretionary disclosures of exempt information upon such 'full and deliberate' consideration of all of the interests involved, in accordance with Attorney General Ashcroft's FOIA Memorandum, (8) they should not be held to have 'waived' their ability to invoke applicable FOIA exemptions for similar or related information in the future. (6) It reminds agencies 'to carefully consider the protection of all values and interests when making disclosure determinations under the FOIA.' (7) (5) The Ashcroft FOIA Memorandum recognizes the continued agency practice of considering whether to make 'discretionary disclosures' of information that is exempt under the Act, while at the same time emphasizing that agencies should do so only upon 'full and deliberate consideration' of all interests involved. In October 2001, a statement of governmentwide FOIA policy was is-sued by Attorney General John Ashcroft. The Freedom of Information Act is an information disclosure statute which, through its exemption structure, strikes a balance between information disclosure and nondisclosure, (1) with an emphasis on the 'fullest responsible disclosure.' (2) Inasmuch as the FOIA's exemptions are discretionary, not mandatory, (3) agencies may make 'discretionary disclosures' of exempt information, as a matter of their administrative discretion, where they are not otherwise prohibited from doing so. Freedom of Information Act Guide, May 2004

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