EXECUTIVE COMMITTEE MEETING, 21 OCTOBER 1980 LONG RANGE PLANNING: 1, COVERT ACTION 2. FOIA/PRIVACY ACT (S)

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP86B00269R001200150003-9
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 41
• Document Creation Date: December 14, 2016
• Document Release Date: April 1, 2003
• Sequence Number: 3
• Publication Date: October 14, 1980
• Content Type: MF

EXCOM 9126-80
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MEMORANDUM FOR: Executive Committee Members
FROM :
SA DDCI
14 OCT 1980
SUBJECT Executive Committee Meeting, 21 October 1980
Long Range Planning: 1. Covert Action
. FOIA/Privacy Act (S)
1. The Executive Committee will meet on Tuesday, 21 October
1980, from 1500 to 1630 hours in the DCI Conference Room. At this
meeting we will consider the first long-range planning issues --
Covert Action and FOIA/Privacy Act Review. You should review
the attached issue papers for this session, particularly the
Assumptions and Alternatives sections. (S)
2. The Chairman of each interdirectorate issue group will
make a short opening presentation covering primarily the critical
assumptions, identified problems, and alternative courses of action.
Approximately 45 minutes is allocated for each issue; however,
EXCOM members can use whatever time is necessary for discussion.
All members of the issue working groups and selected other specialists
will be available to participate in the discussions. Covert Action
will be presented first. The second issue team will await completion
of the first issue discussion. (S)
3. Substantial effort has been exerted in the derivation
and definition of the issues by your line staffs at the working-
group level. Most of the issue problem areas and courses of action
reflect that working-level perspective. In many cases it will
require your insights to deduce the more general policy issues.
Some suggested policy level issues are being furnished as a preface
to each issue paper. These policy issues have been suggested by
EXCOM Staff and the CIA Planning Group. (AIUO)
4. The next session on long-range planning issues will be
held 23 October 1980, from 1500 to 1630 hours. The Communications
issue will be presented at that session. The paper for this session
will be distributed by 17 October. (AIUO)
Attachments:
as stated
cc: IC
C/IAD/CA
C/IAD/OSG
CA Issue Chief (w/Policy Issue attment only)
FOIA/Privacy/Records Issue Team Chief (Policy Issue attmt. only)
OGC/C/FOIA Law Division (Records attmt. on7 1
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RECORDS CONTROL, REVIEW, AND PUBLIC DISCLOSURE
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FOIA/PRIVACY ACT/RECORDS REVIEW
1. In FOIA/Privacy response, CIA is "currently the slowest
responding federal agency and the situation is expected
to worsen" (Page 9). This is expected to lead to confront-
ation with the judiciary. What are we/can we do about this?
2. In terms of the FOI/PA problems, is there an adequate record
(in terms of budget requests, legislative relief requests,
and actual responses) to show we exerted due diligence in
attempting to satisfy the requests? Can we improve the internal
FOI/PA process by centralizing responsibility or by adopting
uniform procedures/guidelines?
3. It appears that with respect to systematic declassification,
rigorous compliance with the law is not practical. In addition,
the paper notes that the short-term risk of not fully complying
is low. Should we therefore work toward seeking exemption, even
though this could take some time, as opposed to attempting to
seek more resources?
4. Long-term trends should be discussed. Projections of records
review show a large backlog in 1989; we may be in worse shape
than now despite the additional staff work. What can we do about
it?
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Management Issue #6: What must CIA do to adequately comply
with statutory requirements concerning records control, review,
and public disclosure without significantly impeding perform-
ance of its primary missions?
1. SUMMARY STATEMENT:
To date, the manpower allocated to the systematic
classification review of 20-year-old records and to the
processing of requests for access to records has been
insufficient to permit the Agency to comply with legal
requirements of Executive Order 12065. We estimate that,
at the current rate, less than one-third of the systematic
review workload will be accomplished by 1 December 1988,
the date on which, according to the Order, federal agen-
cies are to catch up to the 20-year review timetable. It
is more difficult to predict the FOI/PA request-processing
workload through the next 5-7 years because of the many
unknowns; however, our best estimate is that the already
sizable processing backlogs, particularly the one for
initial requests, will inevitably grow and the time re-
quired for response will lengthen unless additional man-
power is committed or the operation can be made more effi-
cient.
Prospects for solution of the systematic classifica-
tion review problem may be good. We understand that in
October 1980 the General Accounting Office will issue a
study recommending that the National Security Council
amend the order to eliminate the systematic review re-
quirement. This recommendation will meet with strong
opposition, of course, but, when the National Security
Council takes up the matter, a persuasive case can be made
for at least exempting intelligence records.
The other aspect of this issue, handling FOI/PA re-
quests from members of the public, does not lend itself to
easy solutions. The rational answer, total exemption from
the Freedom of Information Act, is not politically feasi-
ble, and the Justice Department amendments which have yet
to be formally proposed, while helpful, would not fully
solve our resource problem. Sufficient positions should
be included in the CIA budget to provide slots, at the
minimum, for the personnel currently employed in the pro-
gram, and consideration should be given to augmenting
their number, taking into account the availability of
qualified personnel and the effect on other Agency activi-
ties. At the same time, the processing procedures cur-
rently utilized by the Agency should be thoroughly studied
to determine whether the system could be made more effi-
cient without undue risk to intelligence sources and meth-
ods.
Although these two problems are closely related, for
ease of presentation they have been treated separately in
this paper.
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A. Systematic Classification Review
II. BACKGROUND
Executive Order 11652, which took effect 1 June 1972,
stipulated that all classified records must be systemati-
cally reviewed for declassification by the time that they
attain 30 years of age, and, unless the head of the de-
partment or agency personally determines in writing the
need for them to retain their classification, that the
records be declassified. It was superseded on 1 December
1978 by Executive Order 12065, which limited systematic
review to permanent records but required that these re-
cords be reviewed for declassification by the time that
they became 20 years old. Foreign government information,
however, did not have to be reviewed until 30 years from
its date of origin. Agencies were directed to complete
the transition from 30-year review to 20-year review with-
in 10 years from the effective date of the order (i.e., by
1 December 1988). The heads of agencies could extend the
classification of records for no more than 10 years, un-
less exceptions were granted by the Director of the Infor-
mation Security Oversight Office (ISOO), at which time the
records would have to be reviewed for declassification
once again. (The Director of ISOO, in October 1979,
waived the 10-year review requirement for six categories
of intelligence data. Records covered by this waiver need
not be re-reviewed until 30 years after the initial re-
view.)
The then Special Assistant to the Executive Director
for Information Control (SAIC) was assigned responsibility
for coordinating the Agency's initial systematic review
program. A three-man team of CIA annuitants, independent
contractors employed by the DDO, was assembled in December
1972 and commenced the review of certain OSS records held
by the National Archives and Records Service (NARS), prin-
cipally the approximately 1,000 cubic feet of Research and
Analysis Branch records (Record Group 226) deposited at
NARS by the Department of State This task was essentially
completed by September 1974, and the OSS review team,
which eventually expanded to include as many as 15 review-
ers, turned its attention to the OSS records in CIA's
custody. During 1973-74, arrangements were also made for
the review by staff personnel of OSS motion picture films
and maps held by the Agency, and, upon the completion of
these projects, the declassified records were offered to
the National Archives for accessioning.
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Systematic Classification Review (cont.)
The task of systematically reviewing 30-year-old CIG
and CIA records was not addressed until late-1976. The
question of whether the program should be centralized or
decentralized was decided on 1 March 1977 by the Agency's
Executive Advisory Group, which opted for the former ap-
proach. An action plan was signed by the DDCI on 2 May
1977 establishing the Records Review Branch within the
Information Systems and Analysis Staff of the DDA (the
predecessor of today's Classification Review Division,
Office of Information Services--CRD/OIS). By the end of
1977, the new unit was staffed, guidelines had been devel-
oped, and the review of CIG/CIA records commenced, with
the first records formally declassified on 18 November
1977.
III. CURRENT SITUATION
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By 31 August 1980, the OSS review team had completed
the review of 1,437 cubic feet (2,874,000 pages, based
upon an average of 2,000 pages per cubic foot) of the
remaining OSS records held by the Agency. The team has
been able to declassify approximately 90 percent of these
records. Some 1,871 cubic feet (3,742,000 pages) remain,
but the production rate has improved to the point that it
is now expected that the project will be completed in
late-1982.
CRD, as of 31 August 1980, had completed the review
of 1,200 cubic feet (2,400,000 pages) of permanent CIG/CIA
records and the classification determinations have been
recorded in DARE, an automated index. Of the material
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Systematic Classification Review (cont.)
reviewed to date, approximately 15 percent overall has
been declassified. It is difficult to determine precisely
the remaining workload because of several unknowns--e.g.,
some boxes at the Records Center may not be full and some
records now categorized as "permanent" may later be reap-
praised as "temporary"--but the best estimate is that
another 22,080 cubic feet (44,160,000 pages) exist of
permanent records which will be 20 years old by 1988, the
year in which we are to catch up to the 20-year review
cycle. The current rate of production in CRD is 5,120
pages per work-day, or, given the present staff, 1,280,000
pages per year. Projecting this through CY 1988, it ap-
pears that CRD will manage to complete less than 30 per-
cent of the anticipated workload unless the staff is aug-
mented.
There is one promising note, however. The Government
Accounting Office (GAO), at the direction of the Congress,
has made a study of the systematic classification review
program and has concluded that it is not cost-effective.
Not only, as in the case of the CIA, are significant num-
bers of records retaining their classification, but even
when records can be declassified they are apt to be of
little interest to researchers. A GAO report is scheduled
for distribution in October 1980 which will recommend that
the National Security Council (NSC) modify Executive Order
12065 to eliminate the requirement for systematic classi-
fication review. Researchers' needs, according to the
GAO, can be met at less cost through mandatory classifi-
cation review requests for specific documents.
IV. STATEMENT OF TRENDS AND FUTURE DEVELOPMENT OF THE ISSUE
The discussion that follows is based upon the assump-
tions listed below:
Assumption No. 1. That the OSS review team will complete
the review of the remaining OSS records by late-1982, and
that this portion of the systematic review workload can be
disregarded in the remainder of this paper.
Assumption No. 2. That records reviews and revisions of
records control schedules over the next 5-7 years will not
substantially reduce the quantity of permanent CIG/t:IA
records (22,080 cubic feet/44,160,000 pages) that it is
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Systematic Classification Review (cont.)
estimated must be reviewed by 1 December 1988 to be in
full compliance with Executive Order 12065.
Assumption No. 3. That the current production rate of CRD
(5,120 pages per day) cannot be significantly increased
without an increase in staff.
Assumption No. 4. That no additional tasks will be as-
signed to CRD. (In addition to the systematic review, CRD
is now responsible for such matters as reviewing manu-
scripts submitted to the Publication Review Board and
galleys proposed for publication in the Department of
State's Foreign Relations of the United States.)
It is estimated that to comply fully with Executive
Order 12065, 44,057,600 pages of CIG/CIA material will
have to be systematically reviewed during the period
FY 1981 through 1 December 1988. If assumptions 2, 3, and
4 are valid, the equivalent of 32 full-time reviewers will
be able to complete the review of only 1,280,000 pages
each
year. At this rate, only
27.4
percent of
the records
will
have been reviewed by the
end
of FY
1988,
and less
than
30.2 percent by the end of
FY
1989.
End of
Fiscal Year
Cumulative Total
of Pages Reviewed
Remaining Workload
1981
3,782,400
42,777,600
1982
5,062,400
41,497,600
1983
6,342,400
40,217,600
1984
7,622,400
38,937,600
1985
8,902,400
37,657,600
1986
10,182,400
36,377,600
1987
11,462,400
35,097,600
1988
12,742,400
33,817 600
1989
14,022,400
32,537,600
CRD has been authorized four new staff positions for
FY 1981. If these positions are filled and retained
throughout the period 1981-88, approximately 1,300,000
more pages of material can be reviewed, or an additional 3
percent of the total workload, during this time frame.
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Systematic Classification Review (cont.)
Beginning in FY 1988, the backlog would be exacer-
bated by the requirement that we perform the 10-year re-
review of records initially reviewed in FY 1978, unless
the records meet the criteria of ISOO's waiver letter of
October 1979 and thus need not be re-reviewed until 30
years have elapsed. Additionally, in FY 1989 and the
years following, many other classified CIA records will
attain 20 years of age and be subject to systematic re-
view. The volume of these records has not been estimated
to date, but it is likely, because of the re-review re-
quirement, that the total new workload will be consider-
ably larger than now. Lacking more resources or some form
of relief/exemption, the Agency will inevitably fall fur-
ther and further behind the schedule established by the
Order.
The impact upon the Agency during this period would
depend upon future developments. Assuming that things
continue as they are, the Agency will be unable to comply
with the systematic review timetable of Executive
Order 12065. Sooner or later, this would be pointed out
by ISOO in its annual report. Criticism could be expected
from both the private sector (ACLU, AHA, etc.) and public
sector (ISOO, GAO, etc.) and, if the CIA is the only
agency not in substantial compliance with the Order (which
is improbable), the media might treat this as additional
evidence of the CIA's disregard of the law. It seers
unlikely, however, that legal sanctions against the Agency
would ensue. The most undesirable consequence that might
occur would be if the Congress, reacting to pressure from
interested parties, enacted legislation governing classi-
fication/declassification.
If the Agency diverted the additional manpower to
this program sufficient to meet the classification review
schedule, and this manpower had to be taken from other
activities, the Agency's ability to perform its basic
intelligence mission would certainly be impaired.
On the other hand, if the NSC could be persuaded to
amend the order to eliminate the requirement of systematic
review, the problem would disappear and the resources
currently committed to this program could be used for
other purposes.
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Systematic Classification Review (cont.)
V. PROBLEM STATEMENT:
Executive Order 12065 requires that all classified
permanent records be reviewed for declassification by the
time that they attain 20 years of age, with the exception
of foreign government information, which need not be re-
viewed until it becomes 30 years old. Federal agencies
were given 10 years, i.e., until 1 December 1988, to com-
ply with this schedule. It appears, however, that at the
present rate the Agency will have completed the review of
no more than 30 percent of its permanent, classified, 20-
year-old records for the period 1946-68 by 1 December
1988. The problem is to determine whether it is possible
for the CIA to meet the systematic review requirement of
Executive Order 12065 without unduly taxing its manpower
resources or impairing the Agency's ability to perform its
foreign intelligence mission.
VI. ALTERNATIVE COURSES OF ACTION:
Resource Assumption No. 1. That there will be no resource
growth for the next 5-7 years.
Option No. 1. Make a concerted effort to persuade the
NSC to amend Executive Order 12065, eliminating the
provision for systematic review of permanent records.
It would be to our advantage if consideration of the
GAO's recommendation could be deferred until after the
November election inasmuch as the administration would
then be less concerned with the predictable opposition
of such interested groups as the various associations of
historians. If the NSC proves to be unwilling to dis-
continue the government-wide systematic review program,
we should then press for the exemption of intelligence
records, pointing out that it is unlikely that we will
be declassifying more than 15-20 percent of our records
overall and not more than 5 percent of our sensitive
operational records. Obviously, there would be no sys-
tematic review problem if the legal requirement were to
be eliminated, and the Agency could then utilize the
manpower currently committed to this work for other pur-
poses. It is not anticipated that the FOI/PA request
workload of the Agency would increase significantly as a
consequence.
Option No. 2. Attempt to reduce the workload through
the revision of records control schedules and the
streamlining of systematic review procedures. Working
closely with officials at NARS, we could try to reduce
the volume of records appraised as permanent, thereby
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Systematic Classification Review (cont.)
lessening the systematic review workload. (This process
is currently underway.) Moreover, with the approval of
ISOO and the Archivist, arrangements might be made
whereby the DCI could certify the need for specified
categories of records to retain their classification be-
yond 20 years, as opposed to ruling on individual docu-
ments. (This has been successfully negotiated in the
case of DDO raw intelligence information reports and
cables.) To the degree that we were successful in these
efforts, the number of records to be reviewed would be
reduced. Whether the workload can be lightened to the
point that the current work force could complete the
review on schedule is problematical.
Option No. 3. Make no substantial change in Agency
practice. This would mean that the Agency would com-
plete less than 30 percent of the projected systematic
review workload by 1 December 1988, and, in the ensuing
years, would fall further and further behind. While the
Agency might be subjected to criticism, our inability to
comply with the Order would probably not lead to legal
sanctions in the short run.
Resource Assumption No. 2. That additional resources will
be available for allocation to the systematic review pro-
gram over the next 5-7 years.
An increase of 10 percent in resources, i.e., the
addition of four more positions already authorized for FY
1981, would have little impact on the problem. We would
still have a significant shortfall. The only benefit to
the Agency would be that the attempt to augment the work
force would provide further evidence that we had made a
sincere effort to comply with the Order's schedule.
Assuming once again that we have accurately projected
the volume of records which must be reviewed and that the
rate of production cannot be significantly improved, it
would require approximately 135 reviewers (i.e., 103 addi-
tional personnel) to complete the review of 44,057,600
pages of material by 1 December 1988. Even if the posi-
tions were available and sufficient work space could be
located, however, it would undoubtedly be impossible to
find 103 persons with the requisite experience without
severely impairing other, more essential, Agency activi-
ties.
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B. FOI/PA Backlogs
II. BACKGROUND
The legal requirements for responding to requests
from members of the public for access to records are set
forth in the Freedom of Information Act (5 USC 552), the
Privacy Act (5 USC 552a), section 3-5 of Executive Order
12065, and the Agency's implementing rules and regula-
tions. Privacy Act (PA) requests can be either for access
to records pertaining to the requester or for the amend-
ment or expungement of information contained in those
records. To be eligible for the benefits of the PA, the
requester must be a U.S. citizen or a permanent resident
alien. Freedom of Information Act (FOIA) requests may be
submitted by any person, regardless of nationality, and
can concern any topic. Executive Order 12065 (E0)
authorizes any person, or another federal agency, to
request the mandatory classification review of classified
records. The laws specify categories of information that
are exempted from disclosure, but, when feasible,
nonexempt portions of documents must be released. Failure
on the part of an agency to release requested records, or
to act upon requests within the time limits specified by
law, can lead to administrative appeals or, in the case of
FOIA and PA requests, litigation.
In the past, management's attention has been primar-
ily focused on the "perception" problem that has arisen in
connection with FOI/PA requests--i.e., the mistaken belief
held by others that the CIA can no longer protect
secrets. This paper addresses the administrative burden
and the likely consequences of our growing processing
backlogs.
The FOIA had little impact upon the Agency until
sweeping amendments were enacted in December 1974, which
became effective 19 February 1975. (The PA was also
enacted in December 1974, taking effect on 27 September
1975.) The only appreciable pre-1975 request activity
affecting the Agency arose from the mandatory
classification review provisions of Executive Order
11652. Even that was insignificant in terms of today's
request volume. Between 1 June 1972 (when Executive Order
11652 was implemented) and the start of 1975, only 331 EO
requests were received. Requests did not arrive in great
volume until mid-1975. Around that time, the media began
devoting attention to allegations of improper domestic
activities by the CIA.
Before long, organized campaigns resulted in the
Agency being inundated with form letter requests for
personal records, and, by the end of 1975, the Agency had
logged a total of 7,393 requests, the majority of them
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FOI/PA Backlogs (cont.)
being requests for personal records. We succeeded in
closing out 5,859 of these requests during 1975--a high
percentage resulted in "no record" responses--but we
carried a backlog of over 1,500 requests into 1976. With
the single exception of 1976, that backlog of initial
requests has grown each ensuing year. (See Part VII, Tab
B, for workload/production statistics on initial requests,
appeals, and litigation.)
The manpower resources allocated to FOI/PA processing
has steadily increased through the years. The figures
reported to the Congress were as follows:
Year Man-Years*
Salaries
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1975
1976
1977
1978
1979
Although the manpower devoted to FOI/PA processing
has increased over the years, whereas the number of new
requests/appeals/litigations received has either leveled
off or declined, the total workload facing the Agency has
grown and the time required for responses has length-
ened. A lack of efficiency may be part of the answe_~r, but
other factors are present, such as:
a. Simple requests (e.g., "no record" replies,
copies of previously released records, etc.) are
answered relatively promptly, whereas the more
difficult cases tend to be carried over from year
to year in the backlog.
*The above figures are based upon weekly reports sub-
mitted to IPD by the components and they are known, in
some instances, to be incomplete. The totals for 1975,
for example, did not include work on PA requests and did
not take into account nonwork days, i.e., holidays and
leave. The apparent drop in 1979 resulted from a
misunderstanding which caused a major Agency component to
discontinue the reporting of man-hours expended by persons
who did not work full time on FOI/PA. (We will cover this
in our report to the Congress for CY 1980.) Moreover,
such costs as supplies, equipment rentals, computer
support, etc., have never been calculated.
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FOI/PA Backlogs (cont.)
b. Many of our recent requesters (e.g., lawyers for
corporations) are more sophisticated than earlier
requesters, and the requests they submit are
often complex and time-consuming to process.
c. The backlog "mix" has changed, with a greater
proportion of appeals and litigation cases.
Cases that get into court are particularly
demanding because of the need to answer
interrogatories, prepare indexes, etc., and, when
court-imposed deadlines must be met, work on
initial requests and appeals suffers.
d. The first-in, first-out policy dictated by the
Open America case results in relatively uncompli-
cated requests being stalled in heavily back-
logged components (viz., the DDO) while
voluminous requests received at an earlier date
are being processed. (To partially counteract
this, the DDO recently established a separate
queue for document referrals from other
agencies. This procedural change has not been in
effect long enough to have a significant impact
on the backlog, however.)
e. In the DDO, where the FOI/PA staff has been
recently enlarged, experienced FOI/PA personnel
have been diverted from processing chores to
train new personnel and to check their work.
Productivity suffers until the new personnel gain
experience.
f. Concern over the possibility of inadvertently
disclosing sensitive information, particularly in
the DDO, has lead to the establishment of
multiple reviews of the same record, slowing up
the process.
As a result of the developments enumerated above,
plus the decentralized nature of our files and the sensi-
tivity of the information we hold, the CIA has gained the
reputation of being the slowest agency in the government
in responding to requests. The reputation is probably
deserved. A recent study of 9,308 cases revealed that our
response times ranged from the same day to as much as
1,568 days from receipt of request (over 4 years).
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FOI/PA Backlogs (cont.)
The Agency currently has 69 full-time staff employees
who work exclusively on FOI/PA matters. In addition,
there are four part-time staff personnel and 40 part-time
contract employees, each of whom works on FOI/PA 30 hours
per week. This would equate to 102 full-time employees.
Taking into account other personnel who are involved in
FOI/PA processing but have other duties as well, the
Agency thus far in CY 1980 has been devoting the equiva-
lent of 143 full-time employees to the processing of
FOI/PA requests, appeals, and litigation. The Agency's
budgets for FY 1980 and FY 1981 contained no provision for
FOI/PA slots. The Congress restored 63 positions to the
FY 1980 budget, however, and is expected to do so for the
FY 1981 budget. The FY 1982 budget, which will soon be
submitted, will provide for 63 FOI/PA positions. It is
also tentatively planned to ask the Congress for a supple-
mental appropriation for 68 additional FOI/PA positions
for FY 1981, although it is anticipated that this initia-
tive may be killed by the Office of Management and Budget
(OMB).
As of 10 September 1980, the Agency was faced with
backlogs of 2,949 initial requests, 393 administrative
appeals, and 89 court cases. The average number of ini-
tial requests closed out per week by the Agency has de-
clined each year, from a high of 112.7 requests per week
in 1975 to a low of 51.5 for the current year. The compo-
nent with the largest backlogs, the DDO, is contributing
over 50 percent of the manpower Agency-wide. Some of the
factors responsible for slowing down DDO processing have
been discussed in the preceding section. Since all Agency
processing must be completed before a case can be closed,
and the DDO is involved in the majority of all requests
(at least 70 percent), response times are more often than
not keyed to the DDO's FOI/PA operation. The DDO is also
involved in a high percentage of all appeals and litiga-
tions, although it appears that the OGC has been a major
bottleneck on appeals. (Some 90 appeal cases, at last
report, were awaiting OGC action. Inasmuch as OGC must
give priority treatment to litigation, appeals suffer.)
Increasing litigation demands, in particular, have
had a definite impact on the processin of both appeals
and initial requests within the DDO. 25X1
mz per-
1 -1 During the First eig montns ,
cent of the manpower available in the DDO's Appeals and
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FOI/PA Backlogs (cont.)
Litigation Branch (8 man-years) was allocated to litiga-
tion. Moreover, in order to meet court deadlines, it was
necessary to divert the equivalent of 6.1 man-years from
the DDO Initial Review Branch to help out on litigation,
thereby slowing down initial processing.
It should also be noted that initial processing of
cases in the DDO is now more thorough than formerly.
Essentially, initial cases are being processed in the same
manner as appeals. While this practice will eventually
pay dividends in coping with appeals and litigation, it
does tend to slow up the completion of action on initial
requests.
The Agency processes on a first-in, first-out basis.
This does not mean, however, that every request is answered
before those received at a later date. Each component proc-
esses requests in the order in which they are received, and,
if no backlog exists, a request will receive immediate at-
tention. Some requests can therefore be answered quickly.
The first-in, first-out policy is followed to enable the
Agency to seek, via an Open America motion, a stay from the
trial court to allow the administrative processing to con-
tinue in those cases where suit is brought over our failure
to respond within the statutory deadline. In order to pre-
vail, the Agency must establish that it is proceeding with
its FOI/PA workload with due diligence and that the inabil-
ity to respond within the statutorily established time
period is not the result of neglect or unjustified failure
to allocate sufficient manpower. It is noteworthy that, in
a recent case, the plaintiff, Justin Simon, is directly
challenging our due diligence argument on the grounds that
the Agency has failed to request appropriations from the
Congress sufficient to enable the CIA to cope with its
FOI/PA workload.
We are advised by OLC that the prospects for obtaining
legislative relief from the FOIA are nil as far as the 96th
Congress is concerned. Our best hope rests with the amend-
ments to be put forward by the Department of Justice. It is
difficult at this time to assess the impact of these amend-
ments, if enacted, upon our FOI/PA workload. It is doubt-
ful, however whether the work would be lessened by more than
10 percent. (The amendments, of course, would not affect PA
or EO requests, which together comprise almost 60 percent of
the total requests received.)
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FOI/PA Backlogs (cont.)
IV. STATEMENT OF TRENDS AND FUTURE DEVELOPMENT OF THE ISSUE
The discussion of trends and future developments is
based upon the following assumptions:
Assumption No. 1. That the Agency's FOI/PA program will
continue to be decentralized.
Assumption No. 2. That the manpower resources available
today will remain constant throughout the next 5-7 years.
Assumption No. 3. That the productivity of the DDO's
FOI/PA unit will increase as new employees acquire experi-
ence.
Assumption No. 4. That the number of new requests over
the next few years will approximate that experience.
during the past two years, i.e., 3100-3200 requests per
year.
Assumption No. 5. That government-wide fee waiver crite-
ria, more liberal than those applied by the Agency, will
not be imposed.
It is difficult, perhaps even impossible, to predict
accurately the Agency's FOI/PA workload through FY 1981,
let alone FY 1988. We have no control over the number of
requests submitted or the number of requesters who will
eventually file administrative appeals or resort to the
courts. A quick perusal of the statistical tables at Part
VII, Tab B, reveals no long-range trends. Moreover, in a
sense, these numbers are meaningless since not all re-
quests require the same amount of manpower to process. A
request could involve just the review of a single document
referred to us by another agency, or, at the other ex-
treme, tens of thousands of documents. (For example, a
pending request for access to records on MIAs in Southeast
Asia will require the review of approximately 30,000 DDO
reports.)
An earlier attempt was made by the Management and
Assessment Staff of the DDA to model the FOI/PA process.
In a report published in December 1978, it was projected
that the initial request backlog would increase at the
rate of 91 cases a month (1,092 per year) and the appeals
backlog by 12 cases a month (144 per year). Further, it
was projected that by September 1981 the system would be
so glutted that the available manpower would only be able
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FOI/PA Backlogs (cont.)
to respond to "no record" cases. Fortunately, the volume
of new requests has been lower than was foreseen, and it
appears that the gloomy prognostications of this study
will not totally come to pass.
During CY 1979, the Agency was able to complete
action on an average of 59.3 requests per week. Thus far
in CY 1980, however, despite a significant increase in the
manpower employed on FOI/PA processing in the DDO, the
average weekly completion rate dropped to 51.5. We are
assuming that productivity in the DDO will improve in the
near future, and that, as a consequence, the Agency's
weekly average for completed cases in the coming years
will equal or at least approach that of CY 1979. If this
assumption is valid, and the number of new requests each
year falls into the 3,100-3,200 range, then the initial
requests backlog should grow by no more than 100 cases
each year. At this rate, the backlog of unanswered ini-
tial requests would be in the neighborhood of 3,750 cases
by the end of FY 1988. The average time required for
response, however, will gradually lengthen.
The number of appeals filed in CY 1980 seems to be
declining significantly (56 percent) from CY 1979. The
appeals backlog has decreased slightly, and we understand
that action on numerous cases is close to completion. Our
educated guess is that the processing backlog will be no
larger than 400 cases by the end of FY 1988. Litigation
demands may preclude any substantial reduction of the
backlog.
The number of FOI/PA suits brought against the Agency
during CY 1980, on the other hand, is running 27 percent
above CY 1979, many of them based upon our failure to
respond in a timely manner. A larger proportion of the
total available manpower will probably be required for
FOI/PA litigation during the coming years. The backlog of
court cases, now 89, will undoubtedly grow. It should be
noted that, even when the court grants an Open America
motion for a stay, the judge usually requires that the
case be completed within a finite and specific time
period.
Congressional action could also affect the FOI/PA
workload. If the FOIA is eventually amended to include
the (b)(10) exemption proposed by Justice, information
certified by the DCI to be intelligence obtained from a
person or organization not employed by the U.S. govern-
ment, or which tends to identify a source or potential
source, or which concerns the design or use of scientific
15
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FOI/PA Backlogs (cont.)
or technical collection systems would be (with two excep-
tions) exempt from disclosure. The certification would
not be subject to judicial review. This would not only
reduce the amount of sanitizing that is required, but
would also simplify the handling of court cases. Indeed,
it might well deter persons in the future from bringing
suit. It would probably not apply, however, to ongoing
litigation, and whether this relief would apply to re-
quests/appeals already received is also questionable.
The Congress has also been under some pressure to
clarify and standardize the matter of fees. It has been
proposed by some quarters that agencies be required to
waive fees for requests under certain circumstances, such
as requests from nonprofit organizations. If this were
done, the Agency would undoubtedly receive more requests
than anticipated. Because of our decentralized systems of
records, search costs are high and, to date, this has been
a major restraint on requesters. From the start of CY
1980 through 10 September, for example, 264 FOIA requests
were either canceled or withdrawn, usually because the
requester was not prepared to pay the estimated charges.
The principal impact of FOI/PA on the Agency today is
the diversion of over 100 employees to activities totally
unrelated--some would say inimical--to its basic intelli-
gence mission. Despite this resource expenditure, the
CIA's inability to comply with response deadlines has
caused its public image to suffer. Not a day goes by that
IPD does not receive telephone calls or letters from
angry, frustrated requesters who fail to understand why an
intelligence agency, presumably geared to act immediately
in time of national crisis, requires two or more years to
locate records and review them for release. Some charge
that the Agency is deliberately delaying, to hide mis-
deeds, while awaiting legislative relief. Others levy
charges of inefficiency. (See Part VII, Tab C, for a
representative statement of our critics' views.)
There is a remote possibility that complaints could
lead the Congress to demand that the Agency clean up the
request backlog and get into a posture where most requests
could be answered in a timely manner, as was done with the
FBI. The FBI, in 1977, as a result of hearings before its
oversight subcommittee in the House, assigned 282 special
agents, drawn from various field divisions, to FBI Head-
quarters to work on the FOI/PA backlog. This operation,
dubbed "Project Onslaught," lasted for five months. At
the same time, the permanent FOI/PA staff was nearly
doubled in size. Although Project Onslaught resulted in
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FOI/PA Backlogs (cont.)
wiping out most of the FBI's backlog, it also resulted in
the release of a considerable amount of sensitive data
inadvertantly. If the CIA were faced with the same de-
mand, the problems involved in assembling and training a
special work force and finding suitable office space would
be enormous, not to mention the impact that this would
have on other, more important activities. Moreover, inex-
perience and haste could lead to the inadvertent disclo-
sure of sensitive data, as occurred in the FBI.
The Agency's FOI/PA problems could also lead to con-
frontations with the judiciary. The FOIA calls for judges
to refer to the Office of Personnel Management (OPM) any
instances where agency personnel are suspected of having
acted in an arbitrary or capricious manner. OPM must then
investigate the matter and, if the charges are substan-
tiated, recommend disciplinary action against the em-
ployee(s) to the administrative authority of the agency
concerned. (This was done on only one occasion, and no
disciplinary action was recommended by OPM inasmuch as it
was unable to pinpoint responsibility.) Another possibi-
lity is that, if the CIA failed to meet a court deadline
for the production of records, a judge could order the
release of the disputed records. Absent an immediate
appeal, failure to do so could result in a contempt cita-
tion for a CIA official. Indeed, a judge could conceiv-
ably order the Agency to allocate additional manpower to
FOI/PA processing, and find CIA officials in contempt if
they failed to act.
In summary, the CIA is currently the slowest agency
to respond to FOI/PA requests despite a current manpower
commitment of over 140 man-years per year. The situation
is expected to worsen somewhat in the years to come unless
remedial action is taken. In the meantime, requesters are
unhappy and taking their complaints to the Congress and
the courts.
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FOI/PA Backlogs (cont.)
V . PROBLEM STATEMENT:
Because of the volume of requests received, the com-
plexity of our systems of records, and the sensitive na-
ture of the information held by the Agency, the CIA is
rarely able to meet the response deadlines for FOIA, PA,
and EO requests. Processing backlogs for initial re-
quests, administrative appeals, and litigation have stead-
ily grown and the times required for replies have length-
ened, sometimes taking as long as 4 years. Increasingly,
requesters, understandably irritated by the delays, have
invoked their right to appeal or bring suit for nonre-
sponse. The manpower required to meet court deadlines
tends to divert resources from the processing of initial
requests and appeals, thereby further slowing our re-
sponses and creating conditions which lead to still more
court suits. Although the Agency is currently devoting
the equivalent of full-time employees to this program
and has the equivalent of full-time staff and contract 25X1
employees working exclusive y on FOI/PA matters, there
have never been provisions for more than 63 FOI/PA posi-
tions in the CIA budget. The situation, which is b.'d
today, will only worsen in the years to come unless the
operation can be made more efficient or additional man-
power can be allocated to the program. The problem is to
determine how processing can be streamlined without dimin-
ution of our ability to protect intelligence sources and
methods, or, alternatively, how additional personnel, with
the requisite experience can be allocated to FOI/PA pro-
cessing without impairment of the Agency's ability to
carry out its basic missions.
VI. ALTERNATIVE COURSE OF ACTION:
Resource Assumption No. 1. That there will be no resource
growth for the next 5-7 years.
Option No. 1. Conduct a study of the Agency's FoI/PA
procedures in an effort to determine whether request
processing could be speeded up without jeopardizing
intelligence sources and methods. The last such study
was done by the Management and Assessment Staff of the
DDA. Its report, published in December 1978, was con-
sidered by the IRC Working Group, and a few changes
were made in existing procedures and responsibilities.
However, some of the other recommendations/questions
of this report and other studies warrant further con-
sideration. For example:
- One step that would help to reduce the backlog in
initial requests would be to establish a separate
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FOI/PA Backlogs (cont.)
queue for requests involving a large quantity of
records, as is done in the FBI. The simpler.
FOI/PA cases could then be answered while earlier
requesters who had asked for large numbers of
documents were required to wait until the other
voluminous requests received before theirs had
been processed.
- The question of the number of times a document
should be reviewed should also be examined, and
perhaps the current procedures could be stream-
lined without unacceptable risk.
- With respect to appeals, increased processing time
is being occasioned by the backlog in OGC. The
services of paralegal personnel are necessarily
being diverted from appeal processing because of
significant and expanding litigation demands. A
moderate increase in personnel (2-4 full-time
positions) would significantly improve productiv-
ity and should be considered.
- It has been suggested that the workload for the
Agency might be reduced if IPD were to increase
its contacts with requesters telephonically to
assist them in narrowing the scope of their re-
quests.
The foregoing are merely illustrative of measures
that could be considered to improve efficiency and to
expedite processing.
Option No. 2. Seek a total exemption from the FOIA,
PA, and the mandatory classification review provi-
sions of Executive Order 12065. While this would
eliminate the problem, there appears to be no possi-
bility of success.
Option No. 3. Make no substantial change in current
Agency practice. This would probably result in the
further growth of our backlogs and in a gradual
lengthening of the time required for responses. When
challenged in the courts, the Agency's defense would
continue to be that it is devoting as much manpower
to FOI/PA processing as can be spared and that, to be
fair to all, requests are handled on a first-in,
first-out basis, in accordance with the principles
established in the Open America case. In order to
prevail before the courts, it is essential that the
Agency be able to establish that the backlog problem
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FOI/PA Backlogs (cont.)
has not resulted from neglect or unjustified failure
to allocate sufficient manpower. In this context, it
would probably be helpful if the CIA budget carried
provisions for at least enough positions to accommo-
date all of the personnel currently employed on a
full-time basis in FOI/PA processing.
Resource Assumption No. 2. That additional resources will
be available for allocation to FOI/PA processing over the
next 5-7 years.
We could seek a supplemental appropriation from the
Congress to enable us to eliminate, or at least sub-
stantially reduce, the initial request processing
backlog. A preliminary study indicates that we would
need positions for 68 additional staff employees,
plus sufficient funds to cover the acquisition of
office space and other overhead costs. In addition,
it is proposed that we ask for $500,000 to cover
overtime expenditures in the DDO. The additional
positions would be distributed among the DDO, IPD,
OS, and NFAC. Once the backlog has been reduced,
then it would probably be possible to respond to
requests in a timely manner with a somewhat lesser
commitment of manpower.
Even if the Congress should act favorably on this
proposal--assuming that it would be cleared by OMB--
it is questionable whether we could obtain the ser-
vices of persons with sufficient experience to en-
trust with the review of sensitive information with-
out, at the same time, adversely affecting the
ability of the Agency to carry out its basic mission.
One potential source of manpower is the annuitant
pool, which we are already tapping. Another source
would be the personnel who are currently involved in
the systematic review program, assuming that pros-
pects are good for amending Executive Order 12065 to
eliminate this requirement.
Regardless of whether a request for additional
positions and funds would be approved, or whether, if
approved, we could fill the positions with persons
having the desired background and experience, the
fact that the Agency had made a sincere effort to
expedite its FOI/PA processing through additional
manpower would place us in a more secure legal pos-
ture before the courts. While we have brought to the
attention of the Congress the workload imposed by the
FOI/PA program, we have to date neither specifically
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FOI/PA Backlogs (cont.)
requested additional appropriations in order to re-
spond to the requests nor taken action similar to the
FBI in temporarily assigning teams of professional
employees in order to accomplish the work.
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VII. ATTACHMENTS:
Tab A - Issue Team Members
Tab B - FOI/PA Workload/Production Statistics
Tab C - Statement of the Director, Freedom of Infor-
mation Clearinghouse, Before the Subcommittee
on Intergovernmental Relations, Committee
on Governmental Affairs, U.S. Senate,
19 August 1980.
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CONFIDENTIAL
LONG-RANGE PLANNING ISSUE TEAM
Lead Component DDA (with OGC)
ISSUE: Management Issue #6: What must CIA do to adequately comply with
statutory requirements concerning records control, review, and
public disclosure without signifcantly impeding performance of
its primary missions?
TEAM MEMBERS: Name Component Telephone
Chairman
Members:
25X1
25X1
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FOI/PA Workload/Production Statistics'
1975
1976
1977
1978
1979
1980
(thru 9/10)
Initial
Requests
Totals
Requests rec~ived
7393
3491
4843
4172
3122
2154
25175
Cases closed
5859
3813
3706
3617
3086
1854
21935
Administrative
Appeals
Appeals receivid
303
276
185
160
226
68
1218
Appeals closed
178
155
139
73
133
89
628
Litigation
Cases filed3
29
31
20
27
25
22
154
Cases closed
2
6
21
24
11
3
67
'These are end-of-year statistics. Inasmuch as cases may
be closed or reopened retroactively, the size of the backlog
cannot be derived by substracting cases closed from requests
received. In addition, a number of cases have shifted to the
appeal stage, or from the appeal stage to litigation, without
being accounted for in these statistics. The backlogs as of
10 September 1980 were 2,949 initial cases, 393 appeals and 89
court cases.
2Requests/appeals going into the appeal or litigation
stages owing to our failure to respond are now treated as
"closed" cases. This practice was not followed in the early
years, however, and a number of cases included as open requests
or appeals in the tables above have in fact been closed.
3Litigation "cases" do not necessarily equate to FOI/PA
"requests." For example, a recent suit brought by the Center
for National Security Studies involves 12 FOI/PA
requests/appeals. Two FOIA suits, both closed, concerning the
waiver of fees are not included in the above totals.
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Statement of
Katherine A. Meyer
Director
Freedom of Information Clearinghouse
Before the
Subcommittee on Intergovernmental Relations
Committee on Governmental Affairs
United States Senate
August 19, 1980
Mr. Chairman and Members of the Committee:
Thank you for the opportunity to testify on the need to
improve government compliance with the Freedom of Information
Act. I am the Director of the Freedom of Information Clearing-
house, which was established in 1972 as part of Ralph Nader's
Center for the Study of Responsive Law. In its eight years of
operation, the Clearinghouse has assisted the public and press
in the effective use of open government laws, including the
FOIA, the Privacy Act, the Government in the Sunshine Act and
the Federal Advisory Committee Act. It was instrumental in the
drafting of the 1974 amendments to the FOIA which strengthened
the public's right of access to government held information.
Clearinghouse attorneys have also litigated more FOIA cases
than any other organization.
Since the 1974 amendments, the FOIA has proven to be an
invaluable tool in providing the public with the means to
participate in and scrutinize the workings of our government.
Although there has been significant improvement in the overall
administration of the Act, unfortunately too many federal agencies
have not yet embraced the Act's mandate for the fullest possible
disclosure. This recalcitrance is demonstrated by overly broad
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interpretations of the Act's substantive exemptions, and by what
,continue to be much more exasperating for the FOIA user, excessive-
delays in processing requests, arbitrary denials of fee waiver
applications, and unreasonable resistance to settling attorneys'
fees claims brought by prevailing FOIA plaintiffs. It is the
latter three administrative practices which I have chosen to focus
on today, because they present the biggest procedural problems
for FOIA requesters and are susceptible of being remedied by the
establishment of some minimum uniform government standards. With
the Subcommittee's permission, I would like to reserve the
opportunity to supplement my remarks with further examples of the
need for government reform in this area.
Delay
Agency delay in processing FOIA requests continues to be
the single greatest obstacle to effective use of the Act. This
is especially true for the news media for which timely access to
government information is absolutely crucial to keeping the
public informed on important matters of wide public concern.
Consequently, although it was hoped that the inclusion of
specific statutory time limits in the 1974 amendments would
significantly increase media use of the Act, it has been our
experience that this has not yet been the case and that it is
much more fruitful for journalists to rely on inside sources
and "leaks" of information than to resort to their statutory
right of access to information under the FOIA.
This is by no means a problem experienced across the board
with all government agencies. Some are conscientious about
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responding to initial requests and appeals within the ten and
,twenty days required by statute and in granting access to non-
exempt documents as soon as possible. However, we find that
with too many other agencies, it is not uncommon for requesters
to wait several weeks, months, and in some cases even years to
obtain information which should be readily available. What is
particularly troubling is that those agencies with which requesters
consistently have problems, the CIA FBI, Department of State,
Justice and DOE, are the repositories of information of the most
vital public interest.
For example, the Center for National Security Studies, a
project of the American Civil Liberties Union, recently filed
suit in federal district court here against the CIA to enjoin
the agency from continuing its unreasonable delay and what the
Center believes to be its discriminatory treatment in the pro-
cessing of the Center's FOIA requests. (Center For National
Security Studies v. CIA, Civ. No. 80-1235 (D.D.C. May 15, 1980).)
The Center makes extensive use of the FOIA to obtain government
documents concerning national security issues and illegal
intelligence activities. This information is made available to
scholars, historians, journalists and members of the general
public and is often relied upon as the basis for testimony before
Congress concerning our national security and the need for
intelligence reform. The Center also publishes a monthly
newsletter with a national circulation entitled "First
Principles," and its members teach classes, give speeches, and
publish numerous articles and books concerning our national
security and first amendment rights using information obtained
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under the FOIA. The complaint, a copy of which is attached for
.inclusion in the record, enumerates twelve separate instances of
unreasonable delay by the CIA in responding to the Center's
requests for information. In several cases, it has been over three
years since the initial requests were filed, yet the agency still
has neither produced the requested information nor justified its
withholding. It is unquestionable that the Center's activities
have been frustrated by such dilatory practices.
While the Justice Department has suggested that the solution
to the delay problem is to amend the time limits to allow agencies
to take up to as much as a year to respond to requests, such an
approach is entirely unjustified and would only serve to weaken
agency compliance with the Act and the public's right of access.
The Act already amply provides for flexibility in meeting
the time limits where the request is for voluminous records or
the agency must consult with other offices or agencies in order
to respond. Moreover, requesters invariably afford agencies
additional time to reach their positions with respect to what
will be released in order to avoid the costs of unnecessary liti-
gation. They are also fully aware that the courts are all too
willing to countenance a certain amount of delay where the agency
has not demonstrated that it is acting in bad faith.
In our opinion the answer to the delay problem lies primarily
in more efficient organization and use of agency resources and
*/ See Amending the Freedom of Information Act: A Sneak
Preview. Remarks by Associate Attorney General John H. Shenefield
before the Conference on Open Government, Federal Bar Association,
March 27, 1980.
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personnel. To begin with, there should be a uniform policy
.establishing priority processing for FOIA requests. The policy
should cai~ for the abandonment of the first in/first out ~_
approach currently in use, in favor of a policy/which gives first
priority to requests for information of immediate public oncern
limited requests for information should be identified and handled
For example, requests front the media should ordinarily take
precedence over requests from individuals and business entities
seeking information for their own personal use. Similarly,
quickly rather than set aside while the agency processes requests
for massive pages of documents. At the same time, requesters of
large amounts of information should be notified within the ten
day time limit of the approximate time it will take the agency to
process the request so that the requester can narrow the request
if possible or specify the information he or she needs immediately.
A substantial amount of search time could be eliminated if
the agencies were to improve their record keeping and indexing
practices. Often times a requester is told that either the request
cannot be processed at all or that it will take an indefinite
period of time simply because the information cannot be identified
in the agency's files on the basis of the description contained
in the request. This presents a particular dilemma for historians
and researchers who want information concerning a particular
subject matter but have no idea how to key their requests to
the filing system employed by the agency. The problem can best
be dealt with by maintaining a centralized indexing system with
extensive cross-referencing, so that desired records can easily
be pulled. In the alternative, the agency should at a minimum
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inform requesters of its system of indexing and assist them in
,,reforming their requests accordingly.
We agree with the recent report of the Subcommittee on
Administrative Practice and Procedure, that a major contributor
to delay in processing requests is the use of unnecessary
review levels. We have found that for many agencies, although
it takes onl ,e agency employee to deny a request for infor-
mation, it t~ . numerous employees, and often senior officials
of the agency: ? approve the release of information. Given the
overriding purase of the 1974 amendments to increase the effective
use of the FOIA, this situation should be reversed. There is
simply no reason why agencies cannot train low level personnel in
the appropriate application of the exemptions and authorize them
to release non-exempt material. As the Subcommittee report reasoned,
Ii]n short, the greater the number of agency
employees who have authority to grant an
initial information request, and the fewer
the nber who have authority to deny a
request, the less processing delay there is
likely to be. Such organizational structures
are also much more in keeping with the maximum
disclosure philosophy of the FOIA.
Agency Implementation of the 1974 Amendments to the Freedom of
Information :ct.. Report by the Staff of the Subcommittee on
Administrative Practice and Procedure, Senate Comm. on Judiciary,
95th Cong., 2d Sess. (March, 1980) at 70.
Finally, to the extent that delay is genuinely caused by
excessive backlc s of requests and understaffed FOIA offices,
rather than inefficient administration, we urge the government
to apply more resources to the administration of the FOIA. We
strongly disagr. with the argument cited by many agency officials
in seeking relies from the requirements of the Act that the burden
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of complying with the FOIA is deleterious to the public interest
,because it takes agency time and resources away from more important
activities. There is no more important function of a democratic
government than its dedication to an informed citizenry. The
answer to the problem of inadequate resources for administering
the FOIA is not to cutback on the public's right of access to
government information, but rather in the first instance to apply-
the resources appropriated for the task in an efficient manner, and
then to seek additional appropriations from Congress where needed.
-----------------------
In this regard, the Clearinghouse strongly recommends that
the monies generated through the collection of search and dupli-
cation fees be put back into the operating budget of the particular
agency rather than placed in the funds of the general Treasury as
is now the case. Since it is a well known fact that overwhelmingly
the greatest users of the FOIA are corporations, we estimate that
up to two-thirds of the annual government expenditures for
administering the Act could be recovered this way and reapplied to
assist effective use of the law by the public for whom it was
intended. However, we also firmly believe that those agencies
needing additional funding in order to comply with the dictates
and spirit of the FOIA should step forward and advocate their
needs before Congress rather than joining in the current movement
to restrict the use of the Act.
Fee Waivers
In keeping with the overall goal of improving the public's
right of access under the FOIA, the 1974 amendments included a
provision allowing agencies to waive or reduce the fees associated
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with processing FOIA requests when release of the information can
%be considered as primarily benefitting the public. Although many
agencies
scrupulously adhere to this standard and waive or reduce
historians,
a matter of course for public interest organizations,
with the spirit
scholars, other agencies are unwilling to comply
of the provision. Indeed it is not uncommon for
two agencies with the
opposite positions on
very same request for information to take
the question of whether a waiver is warranted.
While one will make the documents available immediately at no cost
where there is a clear showing of public interest, the other becomes
embroiled with the requester in what could be characterized as an
endurance contest as to who will agree to bear the search and
duplication costs.
Twice the government has been taken to court in cases involving
requests for CIA documents of significant public importance where
the agency refused to waive fees. In the first of these cases,
Fitzgibbon v. CIA, Civ. No. 76-700 (D.D.C. January 10, 1979), the
court held that an agency's decision not to waive fees is arbitrary
and capricious when there is nothing in the denial to indicate
how furnishing the information cannot be considered as primarily
benefittingthe general public. In the second case, Eudey v. CIA,
478 F. Supp. 1175 (D.D.C. 1979), the court held that the CIA
could not decline to waive fees simply because in its judgment a
search for the requested records would not produce documents which
could be made public.
The government did not appeal either of these two decisions
and was, of course, required to waive fees in the specific cases
involved. Nevertheless, both the CIA and other agencies,
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including the FBI, continue to refuse to waive fees even where
',materials submitted by the requester make out a clear case for a
public interest in the release of documents and where there is no
countervailing evidence or information brought to the attention
of the requester.
We believe that the Fitzgibbon and Eudey decisions are consis-
tent with the clear congressional intent that fees not be used to
discourage requests and that fees be waived so as to facilitate the
widest possible release of information not exempt under the Act.
We believe that the various agencies will not on their own
adopt the rules required by the Fitzgibbon and Eudey decisions and
that a uniform policy is sorely needed. We recommend that the
Attorney General issue a government-wide directive requiring the
waiver of fees whenever a requester demonstrates the public value
of the information and where the agency fails to present any evi-
dence to the contrary. For implementation of such a policy, per-
haps a three category system could be used. In the first category
of requesters would be those groups and individuals who seek
documents strictly for the benefit of the public and who also
lack sufficient funding to bear the costs of obtaining information.
This category, which would include non-profit public interest
organizations, researchers, historians, and free-lance journalists
should be granted automatic fee waivers. Second are those
requesters who serve a public interest but who have substantial
financial backing upon which to rely in obtaining information,
such as reporters for major newspapers and television networks.
For this category of requesters, while it would be appropriate to
waive the cost of the search, it may not be unreasonable to charge
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a portion or all of the duplication costs. Third, and the
,largest category of requesters, are those seeking information for
a purely private interest, predomi tly corporations. Again,
these costs should be recouped for the operating budget of the par-
ticular agency involved rather than funneled into the general
Treasury.
The Attorney General's directive should also make it clear
that an agency cannot refuse to grant fee waivers merely because
it believes that there is no purpose to the further release of
information on a subject or that a search of its files is unlikey
to yield documents which are in fact releasable.
Fee waiver disputes present particular problems for requesters
because they cannot even begin to limit the scope of their requests,
and hence the costs involved, until they know what documents
would be accessible. As a partial remedy to this problem, we
recommend that all agencies establish procedures to allow the
general public to review disclosable documents in a designated
reading room. This practice, recently implemented by the CIA
*
pursuant to a district court order (45 Fed. Reg. 6781 (January
30, 1980)), affords requesters the opportunity to in effect
conduct their own search and to reduce the amount of duplication
required. It can also reduce the search time involved for subse-
quent requests for information which has already been released to
another requester. In contrast to the CIA's new practice, the
FBI adamantly resists this approach to accommodating FOIA
requesters, and instead demands an advance payment against
*/ The order was-issued in Sims-v. CIA, Civ. No. 78-2251
(April 12, 1979).
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the total cost of duplicating all responsive documents before
,it will process the request any further.
Although the size of the request should have no bearing
on the merits of whether a requester is entitled to a waiver,
as a practical matter, in many cases, the narrower the request,
the more likely the agency will waive duplication costs where
there is an arguable public interest in disclosure. Therefore
the agency should do everything possible to assist the requester
in the narrowing process. In addition to making documents
available for inspection in a public reading room (and in field
offices around the country for those requesters who live out-
side the Washington area), agencies should provide requesters
with indices of all responsive files.
Finally, agencies should be required to detail the reasons
for denying a fee waiver and to provide a meaningful appeal
process for such denials. All too often, the requester receives
nothing more than a boiler plate denial stating that the agency
has determined that a waiver is unwarranted. This practice is
simply unacceptable in light of the Fitzgibbon and Eudey decisions
which clearly place a burden on the agency to demonstrate how
release of the information would not benefit the public.
Attorneys' Fees
The 1974 amendments sought to remove the substantial barrier
to private enforcement of the FOIA by authorizing the courts to
award attorneys' fees to a requester who has substantially pre-
vailed under the Act. 5 U.S.C. ? 552(a)(4)(E). In 1977, the
Clearinghouse testified before the Subcommittee on Administrative
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Practice and Procedure that in the first three years following
the enactment of the amendment, the Justice Department had acted
to impede the recovery of attorneys' fees by insisting on
litigating virtually all attorneys' fees issues and by refusing
to agree to pay FOIA attorneys the prevailing rates for comparable
legal services. At that time we were hopeful that the Justice
Department's approach to attorneys' fees was changing for the
better as it began to show an increased willingness to settle
claims out of court, and it announced its intention to issue
formal guidelines evidencing a liberal interpretation of the
attorneys' fees provision.
Now three years later, that hopeful assessment has dissolved
and we are distressed to report that the Justice Department has
taken a significant step backwards on the issue of attorneys'
fees. Attached for the record is a recent letter to the Department
detailing four examples of problems the Clearinghouse has experienced
in resolving fee settlements with the government. By far the
greatest problems we have encountered are the government's delay
in responding to our efforts to settle fee claims before resorting
to litigation, its refusal to compensate FOIA attorneys at the
prevailing rates for attorneys of comparable reputation and
experience, and its seeming arbitrariness in significantly
reducing the amount of hours deemed compensable.
What is most disturbing is that the Department has yet to
publish much needed guidelines for assessing attorney fee awards.
In an April 29, 1977 letter to the Justice Department (copy
attached), the Clearinghouse explained the importance of such
guidelines to implementing the intent of the 1974 amendments and
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in minimizing the ultimate costs incurred by the government by
`avoiding further litigation on the issue. Today, we reiterate
the need for such guidelines for determining eligibility, the
appropriateness of an award, and the amount of just compensation,
and we urge the Justice Department to adopt the specific proposals
set forth in our letter.
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