JUSTICE DEPARTMENT SUGGESTIONS FOR REVISIONS IN PROPOSED AMENDMENTS TO FREEDOM OF INFORMATION ACT IN S. 2543 (COMMITTEE PRINT OF MARCH 25, 1974) WITH REFERENCES TO PROVISIONS OF H.R. 12471.

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000600190061-3
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 23
• Document Creation Date: December 9, 2016
• Document Release Date: April 24, 2001
• Sequence Number: 61
• Content Type: OUTLINE

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Justice Department Suggestions for Revisions in Proposed
Amendments to Freedom of Information Act in S. 2543
(Committee Print of March
25,
1974),
with references to provisions
of
H.R. 12471.
I. Summary: We have tentatively grouped-the various
features of the above bills under 3 main headings, as
follows:
-- features as to which some degree of revision is
considered vital for the proper administration of the
Freedom of Information Act and/or of other federal programs.
-- features as to which some degree of revision is
considered desirable, either for the above purposes or
for fiscal reasons.
features as to which we perceive no substantial
objection.
II. Revisions Considered Vital:
A. Rigid Administrative Time Limits (a feature of both
bills). See suggested amendment to S. 2543
captioned "Administrative Time Limits" attached hereto.
B. Authorization of In Camera judicial inspections of
all documents, including those under 1st exemption,
with a re-wording of the 1st exemption (a feature
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of both bills). See suggested amendment to
S. 2543 captioned "In Camera Inspection and
First Exemption" attached hereto.
C. Reducing Government's Time to Answer in
Court from 60 to 20 days (a feature of both
bills). See suggested amendment to S. 2543
captioned "Time to Answer in Court" attached
hereto.
D. Providing Punishments for Employees and officials
who, prior to court order, Improperly Withhold
Records (feature of Senate bill only). See
suggested amendment to S. 2543, captioned
"Personnel Sanctions" attached hereto.
E. Prohibiting User Charges for Extensive Screening
Work (feature of Senate bill only). See suggested
amendment to .S.-,2543 captioned "Services for
Which Fees May Be Charged" attached hereto.
F. Chan -Lag "Files" to "Records" in the 7th
Exemption for Investigatory Files (feature of
Senate bill only). See attached amendments to
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S. 2543 captioned "Investigatory Files"
attached-`hereto.
G. The Continued Omission of Authorization of
Special Funds for Administering the Act
(feature of both bills). See suggested
amendment to S. 2543 captioned "Funding"
attached hereto.
III. Revisions Considered Desirable:
A. Publication of Indexes of 5 U.S.C. 552(a)(2)
types of Documents (feature of both bills).
A revision of this feature is considered
desirable if funding for special activities
under the Act is provided (see II,G, above),
but would be considered vital if funding
is not provided, since the cost of this
feature in its present form has been esti-
mated by records management experts as between
$3 million and $1.3 billion a year with a mean
figure of $648.5 million. See suggested amend-
ment to S. 2543 captioned "Indexing"attached
hereto.
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B. Attorneys Fees ('feature of both bills,
but in significantly different versions).
A revision of this feature is considered
desirable with respect to the Senate bill ver-
sion, but would be considered vital with
respect to the House `Jill version. See
suggested amendment to S. 2543 captioned
C:P
"Attorneys Fees'"' attached hereto.
C. Annual Reports to Congress (feature of both
bills). The principal problem here is the
Seii,te bill requirement to report all who
"P i artic ipated" in denials, and the bill
contains a similar requirement with respect
to letters of denial., at pages 6-7. See
suggested amendment to S. 2543 captioned
"Annual Reports and Related Matters" attached
hereto.
D. Changing "Files" to "Records" in the 6th
or Privacy Exemption (Senate bill only).
This change will, probably tend to encourage
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invasions of privacy through use of the
Act. No suggested amendment is attached,
since the form would parallel that suggested
in II, F, above for Investigatory Files.
E. Providing for the Availability of "Segregable
Portions" of a Document, regardless of which
Exemption is'Involved (feature of Senate bill
only). While to a large.extent this feature
restates the present law, some change is de-
sirable and perhaps vital to protect in-
vestigatory files (in the same manner as the
feature discussed in II, F., above), and also
to avoid an undue tendency toward invasions
.of privacy; in addition any such feature should
allow for the standards suggested herein with
respect to judicial review of withholding of
classified documents (see II, B above), and
for some degree of flexibility and common
sense in the screening of documents both by
courts and agencies. See suggested amendment
to S. 2543 captioned "Segregable Portions"
attached hereto.
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IV. Features Where No Revision Sub-sted:
A. "Identifiable Records" Changed to Reason-
able Description of Records (feature of
both bills). This is satisfactory in its
Ares? form.
B. Definition of Agency (feature of both bills,
but in significantly different versions).
The version in S. 2543 is satisfactory, but that
in H.R. 12471 would require revision.
C. Uniform Fee Schedules to be Established by
0:1IB (feature of Senatea bill only). This
is satisfactory in its present form, subject
however to the views of OMB.
D. Expedite Appellate. Court Proceedings (feature
of Senate bill only). This is satisfactory
in its present form.
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(Suggested A-nendment to S. 2543)
Administrative Time Limits (II,A)
On page 6, line 1, change "fifteen days" to "ten
days" and on line 9 change "fifteen days" to "twenty
days". On page 6, lines 6 and 7, insert after "the
right of such person to appeal to the head of the
agency" the additional words "from and to obtain judicial
review of", and delete in lines 11 through 15 the sentence
beginning with "If" and ending with "subsection." On
page 6, delete the word "and" in line 7, substitute a
semicolon for the period in line 15, and between lines
15 and 16 insert the following:
"( L0) Upon the written certification of
the head of an agency setting forth in detail the
reasons therefor and his personal finding of the
necessity thereof-, and with the approval in writing
of the Attorney General, the time limit prescribed
in subparagraph (A) for initial determinations may by
regulation be extended with respect to specified types of
records of specified components of such agency
so as not to exceed thirty days: Provided, that
any such certifications s' all only be effective
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for periods of fifteen months following publication
thereof in the Federal Register, and Provided, further
that a copy of atiy such certification shall be attached
to the agency's annual report to Congress under this
section;
"(D) In unusual circumstances as defined herein,
the time limits prescribed in subparagraphs (A) and
(B), but not those prescribed pursuant to subparagraph
(C), may be extended by written notice to the requester
setting forth the reasons for such extension and the
date on which a determination is expected to be dis-
patched. No such notice shall specify a date that
would result in an extension for more than the time
prescribed. in subparagra-2hs (A.) or (B), whichever is
applicable: Provided, that where the agency finds that
its determination is likely to be controlled by an ex-
pected decision in a court case identified in such
notice, the extension may be until twenty working
days after such court decision. As used herein
''unusual circumstances" means, but only to the
extent reasonably necessary to the proper pro-
cessing of the requests, (a) the need to search for
and collect the requested records from several loca-
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tions or a distant location other than the office pro-
cessing the request; (b) the need to assign pro-
fessional or managerial personnel with sufficient
experience to assist in efforts to locate records
that have been requested in categorical terms, or
with sufficient competence and discretion to aid
in determining by examination of large numbers
of records whether they are exempt from compulsory
disclosure under this section and if so, whether
they should nevertheless be made available as
a matter of sound policy with or without appropriate
deletions; (c) the need for consultation,which shall
be conducted with all practicable speed, with another
agency having a substantial interest in the deter-
mination of the request, or among two or more compo-
nents of the agency having substantial interests
therein, in order to resolve novel and difficult
questions of law or policy; and (d) the death,
resignation, illness,.or unavailability due to
circumstances that the agency could not reasonably
foresee and control, of key personnel whose assistance
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is required in processing t.ie reques an w o would
ordinarily be readily available for such duties.
"(E) Whenever practicable, requests and
appeals shall be processed more rapidly than re=
quired by the time limits prescribed in or speci-_
fied under (A), (B), (C) and (D). Upon receipt
of a request for specially expedited processing
accompanied by a substantial showing of a public
interest in a priority determination, including
requests with such a showing made for the use of
an individual or other person regularly engaged
in the collection and public. dissemination of news,
an agency may by regulation or otherwise provide
for special procedures, or the waiver of regular
procedures, and shall waive any additional fees
attributable to the added costs of more expeditious
rendition of its _services . Whenever practicable
.provision shall be made by agencies for the use
of oral communications, with or without written
confirmation, to assist in processing requests of
the nature described in the preceding sentence."
on page 6, line 20, delete "subparagraph (A) or sub-
paragraph (B) of" and substitute "the applicable time.
=Limit provisions prescribe' in or pursuant o .
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(Suggested Amer'idment to S. 2543)
In Camera Inspection and First Exemption (II ..B)
On page 3, line 9, insert after "(B)" the designation
"(i)", and in line 19, after the word "exemptions" add the
following: "except exemptions (1) 3
On page 3, between lines 21 and 22, add the following
provision:
"(ii) In de 'ding whether a document is covered-
by exemption,(I), n subsection (b) of this section,
a court may request affidavits and other information
other thantheccassified document itVlf to be sub-
mitted on this issue. If the court is unable to
resolve the issue on this basis, it may review the
contested document in camera. Upon completion of
that review, the court, if it tentatively determines,
the classification of s;.a.ch document to cle rly
A
erroneous or arbitrary and capricious, shall order
the agency to explain p r e either by oral testimony,
further affidavits, or other means, the basis for such
vv 8eel'1c-n
cassificationA If the court then determines the
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under the criteria established by a statute or order
referred to in exemption (l),x it may order the
document released to theplaintiff. If such a dis-
closure order is appealed by the agency, the appellate
court shall consider the matter de novo, following the
procedures set forth above for district court de-
terminations. During the pendency of any such appeal
the agency is entitled to a protective order sealing
all documents and supporting evidence. A decision
by the trial court that such a document is not subject
to compulsory disclosure is appealable by the plaintiff
only for error of law, and upon such a decision,. all
such documents and copies thereof and any material sub-
mitted ex parse including transcripts thereof shall
be returned by the court to the agency. In performing
functions under this. paragraph, functions. of the court
involving the review of classified documents and of
explanatory material submitted ex parse shall be
performed only by the judges to whom the case is assigned."
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Suggested Amendment to S. 2543
Time to,-Answer in Court (II, C)
Substitute for the language appearing on page 3, line
22 through page 4, line 3 the following:
"(C) In any suit under this section, the plaintiff
may file with his complaint a motion to reduce the time
prescribed for the government to answer complaints in
civil actions to a period of not less than 20 days.
Actual notice of any such motion, which shall be con-
spicuously entitled to indicate its nature and urgency;
shall be given by the plaintiff within two days after
it has been filed by personal service of copies of such
motion and complaint upon the official of the agency
who signed the final denial complained of or upon such
other agency official as may be acting upon such matters
in his stead and upon counsel to such agency. The court
shall dispose of any such motion as soon as possible,
conferring with counsel for each party in court or by
telephone as it deems appropriate, and it shall order
such reduction in the time to answer as may appear
warranted in the light of the plaintiff's showing that
reduction will serve the public interest or avoid undue
hardship and as may appear consistent with the orderly
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Suggested Amendment to S. 2543
Personnel Sanctions (II, D)
On page 5, delete lines 3 through 15, and on line 16
redesignate "(G)" as "(F)".
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Services for Which Fees may be Charged (II, E)
On page 2, lines 17 through 19, delete the phrases
"document search and duplication" and "such search and
duplication" and substitute respectively the phrases
"the services performed" and "such services".
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SuggeF,-ted Amendment to S. 2543
Investigatory Files (II, F)
On page 7, line 18, strike the words "clauses (6)
and (7)" and substitute therefor the words "clause (6)".
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Suggested Amendment to S. 2543
Funding (II, G)
On page 9, line 18, redesignate "Sec. 4" as "Sec.
and insert between lines 17 and 18 the following:
"Sec. 4. There is hereby authorized to be
appropriated such sums as may be necessary to
assist in carrying out the purposes of this Act
and of 5 U.S.C. 552."
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Suggested Amendment to S. 2543
Indexing (III,, A)
On page 1, delete on line 3 everything following the
"(a)" and delete all of lines 4 through 6 and substitute
therefor the following:
"The Attorney General shall include in his
June 20, 1975 report to the Congress on the study
of improved administration of the Freedom of In-
formation Act, information on the cost of ad-
ministering the Act and on the feasibility of
publishing indexes of materials required to be
made available under 5 U.S.C. 552(a)(2), together
with reco_innendations for administrative and legis-
lative actions pertaining thereto. In addition to
such other sums as may be available for such study,
the sum of $200,000 is hereby, authorized to be appro-
priated for the primary purposes of developing such
cost information and developing information on the
feasibility of such publications."
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Suggested Amendment to S. 2543
Attorneys Fees (III, B)
On page 4, lines 11 and 12, delete the words "reason-
able attorney fees and other litigation costs reasonably
incurred" and insert in lieu thereof the words "litigation
costs listed in section 1920 of title 28, United States
Code,".
[Note: This language permits assessment of costs allowed
against U.S. when costs are allowed at all, but does not
allow assessment. of attorney fees - see 28 USC 2412.]
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Suggested Amendment to S. 2543
Annual Reports and Related Matters (III, C)
On page 8, line 17, delete "participated in denials"
and substitute "denied or directed the denial". On lines
18 and 19, delete "participation" and substitute "such"
denials or directions to deny".
On page 7, lines 1 and 2, delete "participated sub-
stantively in" and substitute "made or directed the making
of".
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Suggested Amendment to S. 2543
Segregable Portions (III, E)
on page 7, lines 21 through 24, amend the sentence
which now reads "Any reasonably segregable portion of a
record shall be provided to any person requesting such record
after deletion of the portions which are exempt under this
subsection." to read as follows:
"Any reasonably segregable portion of a
record, except records properly contained in in-
vestigatory files compiled for law enforcement
purposes, shall be provided to any person requesting
such record after deletion of the portions which
are exempt under this subsection: Provided, that
where extensive editorial or related work would be
required to make such deletions in processing a
request for voluminous records, an agency may pro-
pose to the requester alternative methods to respond
to his request, and any such proposals or the absence
thereof may be considered by a court if there is
substantial doubt whether the records are reasonably
segregable."
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 TI
UNCLASSIFIED CONFIDENTIAL
SECRET
OFFICIAL ROUTING SLIP
TO
NAME AND ADDRESS
DATE
INITIALS
1
2
OLC
3
4
5
6
ACTION
DIRECT REPLY
PREPARE REPLY
APPROVAL
DISPATCH
RECOMMENDATION
COMMENT
FILE
RETURN
CONCURRENCE
INFORMATION
SIGNATURE
Remarks :
Lyle:
See the attached from Justice and their invi-
tation to us to comment.
IHL#
Att
FOLD HERE TO RETURN TO SENDER
FROM: NAME, ADDRESS AND PHONE NO.
DATE
Associate General Counsel, 7D07, Hdqs.
10 Apr 7
UNCLASSIFIED
CONFIDENTIAL
SECRET
FORM NO.
237 Use previous editions
1-67
0190061-3
 Form DJ-96a
.(Rev.-6-12-66.),
r~ : ISION
BUILDING
ROOM
3.
4.
O SIGNATURE O COM),IENT O PER CONVERSATION
O APPROVAL O NECESSARY ACTION AS REQUESTED
-
]NOTE AND FILE
O SEE ME 0 NOTE AHD RETURN [
ORECOMMENDATION O'CALLNE OYOUR INFORMATION
ANSWER OR ACKNOWL-
0
ORE
EDGE ON OR BEF
PREPARE REPLY FOR
M
THE SIGNATURE OF
REMARKS 4/9/74
To Distributees:
If you have any comments, questions
or suggestions on the attached, please
get them to me ASAP, and in any event
before 12 noon on April 15th.
Thank you.
RLS
DEPARTMENT OF JUSTICE
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