DRAFT DOJ REPORT ON S. 774 THE FREEDOM OF INFORMATION REFORM ACT AS PASSED BY THE SENATE 2/27/84

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP89B00236R000200200027-1
• Release Decision: RIPPUB
• Original Classification: K
• Document Page Count: 17
• Document Creation Date: December 21, 2016
• Document Release Date: December 10, 2008
• Sequence Number: 27
• Publication Date: May 15, 1984
• Content Type: MEMO

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EALt., IVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
May 15, 1984
LEGISLATIVE REFERRAL MEMORANDUM
SUBJECT: Draft DOJ report on S. 774, "The Freedom of Information
Reform Act", as passed by the Senate 2/27/84.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its.relationship
to the program of the President, in accordance with OMB Circular
A-19.
Please provide us with your views no later than
10:00 A.M. FRIDAY,-MAY 18, 1984. (NOTE: A hearing is scheduled
for 4/24/84.)
Direct your questions to Branden Blum (395-3,802), the legislative
attorney in this office.
cc: C. Wirtz
LEGISLATIVE LIAISON OFFICER
Assistant Director for
Legislative Reference
i,` K. Wilson
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DEPARTMENT OF EDUCATION
DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
FEDERAL EMERGENCY MANAGEMENT AGENCY
GENERAL SERVICES. ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
CENTRAL INTELLIGENCE AGENCY ,.?
NATIONAL SECURITY COUNCIL
OFFICE OF PERSONNEL MANAGEMENT
DEPARTMENT OF HEALTH AND HUMAN SERVICES
DEPARTMENT OF STATE.
DEPARTMENT OF THE TREASURY
NATIONAL LABOR RELATIONS BOARD
DEPARTMENT OF ENERGY
ENVIRONMENTAL PROTECTION AGENCY
DEPARTMENT OF AGRICULTURE
DEPARTMENT OF DEFENSE
SECURITIES AND EXCHANGE COMMISSION
SMALL BUSINESS ADMINISTRATION
DEPARTMENT OF THE INTERIOR
DEPARTMENT OF TRANSPORTATION
DEPARTMENT OF COMMERCE
VETERANS ADMINISTRATION.
EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
U.S. POSTAL SERVICE .
DEPARTMENT OF LABOR ..
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? U.S. Department of mice
Office of Legislative and Intergovernmental Affairs
Office of the Assistant Attorney General Washington, D.C. 20530
Honorable Jack Brooks
Chairman
Committee on Government Operations
House of Representatives
Washington, D.C. 20515
This is in response to your request for the views of the
Department of.Justice on S. 774, a bill to improve the opera-
tion of the Freedom of Information Act ("FOIA"), 5 U.S.C.
? 552. After extensive consideration by the Senate Committee
on the Judiciary during the '97th and 98th Congresses, that
Committee twice voted unanimously to approve the substance of
S. 774 and, with minor technical changes, the Senate approved
the measure without dissent on February 27, 1984. The Depart-
ment of Justice strongly endorses the compromise provisions of
S. 774, and recommends in favor of enactment. In view of the
many specific changes to the FOIA made by the bill, we discuss
the bill's provisions at some length.
I. ANALYSIS OF THE PROVISIONS OF THE BILL
Fees and Waivers
Under existing law, agencies can collect only the costs of
searching for and copying requested documents, which are only a
fraction of the true costs of responding to a FOIA request --
less than 4 percent. The expense of reviewing documents,
redacting exempt material, and performing other processing
accounts for the remaining 96% of the total cost.
Section 1 would authorize agencies to recover from
requesters fees which more nearly reflect the true costs of
processing their FOIA requests. Besides encouraging agencies
to recover a greater proportion of their costs, Section 2 would
encourage all requesters to make reasonable efforts to narrow
unduly broad requests.
The cost to the government of processing a request does
not necessarily bear any correlation to the public interest in
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disclosure. The majority of all FOIA requests are filed by or
on behalf of corporations for private, commercial reasons. In
many instances, individuals have also made excessive use of the
Act, at public expense, for reasons that are purely personal,
that serve no public interest, and that may in some cases even
be contrary to the public interest. In one case, a single
Freedom of Information Act request for voluminous CIA documents
by a renegade ex-agent, Philip Agee, cost the public nearly
$500,000 to process. See Agee v. CIA, 517 F. Supp._1335, 1342
n.5 (D.D.C. 1981).
Section 1 would allow agencies to collect "all costs
reasonably and directly attributable to responding to the
request, which shall include reasonable standard charges for
the costs of services by agency personnel in search, duplica-
tion, and other processing of the request." The bill includes
several provisions constraining an agency's authority to
collect fees. First, no charge may be made in connection with
any request that requires no more than two hours of agency
processing time and for which no more than twenty pages are,
released. Second, any processing charges must be reasonable,
standard charges and must be limited to services directly
attributable to responding to the request. Third, the term
"processing" is defined to exclude services. of agency personnel
in resolving issues of law or policy of general. applicability
in responding to a request. Thus, a requester would not be
charged for an agency's costs in establishing or rethinking a
policy of general applicability, even if the request triggers
such agency action. However, a requester could be charged the
costs of review and redaction of documents pursuant to estab-
lished agency policy.
Fee waivers. The bill retains essentially the same
standard made for as in noncommercial. current law requests for by (1) waivers of individual search s or and copying
fees. An automatic waiver of the new processing fees would be
institu-
tions conducting scholarly or scientific research, (2) journal-
ists, and (3) non-profit groups intending to make information
publicly available. The bill would not affect the ability of
individuals to obtain records about themselves under the
Privacy Act of 1974 for only the cost of copying the record.
See 5 U.S.C. ? 552a(f) (5) .
Commercially valuable information. Section 1 also permits
an agency to charge additional fees for information that has a
commercial market value and has been compiled by the government
at substantial expense to the taxpayer. This provision carries
out the existing federal policy enunciated in 31 U.S.C. ? 3302
(a1982), requester and to would reap personal avoid the anomaly profit in from current valuable law that permits
technological
information that all taxpayers paid to develop, and which he
obtained at fees reflecting little more than the cost of
duplication. The term "royalty" was deleted from this pro-
vision by the Senate.
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Partial retention of fees. Finally, section 1 permits
each agency to retain one-half of the fees collected under the
FOIA to defray in part the agency's expenses in complying with
the Act. This provision would not apply if the agency was
found by the General Accounting Office not to be in "substan-
tial compliance" with the time limits of the FOIA.
Time Limits
Section 2 of the bill, while retaining the existing 10-day
requirement for an initial response to a request, also provides
more realistic time limits for processi?hg burdensome FOIA
requests and provides for expedited processing of requests that
are made in the public interest.
The complexity and sheer volume of the requests received
by many agencies often prevent compliance with the current time
limits. Recognizing the inherent inability of many agencies to
process requests within the specified time.limits, many courts
have freed agencies of the -need to comply with-time limits by
resorting to use of the "exceptional circumstances" and "due
diligence" provisions in section 552(a)(6)(C). In the leading
case, Open America v. Watergate Special Prosecution Force, 547,
F.2d 605, 616 (D.C. Cir. 1976), the court ruled that an agency
exercising due diligence in processing a great volume of FOIA
requests is not strictly bound by the ten-day provision; the
agency may process them on a "first-in, first-out" basis,
unless the requester can demonstrate to a, court "exceptional
need or urgency" for preferential treatment.
The present, very short time limits in the FOIA may cause
agencies to process requests hurriedly, thereby increasing the
likelihood of premature denials, unnecessary litigation, and
serious errors. The inevitable delays at many agencies have
led many requesters to a general dissatisfaction with the Act's
operation, as well as to some needless litigation. Finally,
the present "first-in, first-out" system prevents agencies that
have a backlog of requests from responding promptly to many
requests from the public and the news media, unless the
requester can demonstrate "exceptional need or urgency."
Accordingly, Section 2 of the bill would allow an agency,
in the case of "unusual circumstances," to extend its deadline
from ten to thirty days. It would also specifically recognize
an extension of the time limits on account of a substantial
backlog of requests. Section 2 also would require each agency
to promulgate regulations to provide that requesters who
demonstrate a compelling need for expedited processing and
whose request will primarily benefit the general public should
be given processing priority over other requesters.
Business Confidentiality Procedures
Section 3 of the bill establishes a procedural route. for
the protection of confidential business information, requiing
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agencies to provide notice, an opportunity to object, and an
opportunity to bring suit to oppose disclosure. However, the
bill would not alter the substantive standard of Exemption 4.
Under these procedures, the submitter must designate, at
the time of submission or thereafter, the information that is
exempt under Exemption 4. The agency, upon receiving a request
for the disclosure of such information, shall notify the
submitter of the request, describe the nature and scope of the
request, and inform the submitter of his right to object to
disclosure. Notice to submitters is not required in five
specified circumstances. Whenever the agency determines to
disclose such information, notwithstanding the objections of a
submitter, the agency must give the submitter at least ten
working days notice of intent to disclose and of the submit-
ter's right to file suit seeking to enjoin the disclosure.
Nothing in these procedures alters other rights established by
law protecting the confidentiality of private information --
such as the Trade Secrets Act, 18 U.S.C. 15 1905, the Census
Act, 13 U.S.C. ? 301, or -the Internal Revenue Code, 26 U.S.C."
? 6103.
These provisions would permit a submitter, who is fre-
quently more aware of the commercial value-of information than
is the government, to inform the government why the submitter
believes the information should not be released. For these
reasons, these proposed provisions should be beneficial not
only to the submitter, but also to the government.
Judicial Review
Section 4 of the bill would amend section 552 (a) (4) (B) of
the Act to include a limitations period of 180 days for judi-
cial review of an agency's denial of a request for disclosure.
This is for administrative efficiency, to allow the closing of
old request files, but would not prejudice requesters. The
180 day period is the same as that set forth in a number of
other administrative enforcement provisions. See, e.g., 42
U.S.C. ??.2000e-5(e) and 2000e-16(c) (Title VII employment
discrimination); 42 U.S.C. ? 3612(a) (housing discrimination);
and 29 U.S.C. ? 633a(d) (age discrimination).
Section 4 also would amend the FOIA to provide district
court jurisdiction over suits to enjoin disclosure of trade
secrets or other commercially valuable information provided to
the government by a submitter. Currently, submitters have no
direct right of action but must resort to an action under the
Administrative Procedure Act, 5 U.S.C. ? 706, to enjoin
violations of the Trade Secrets Act, 18 U.S.C. ? 1905. See
Chrysler Corp. v. Brown, 441 U.S. 281, 285, 317-18 (1979). The
bill would also provide for notice to both submitters and
requesters that a suit to enjoin the withholding or disclosure
of records has been filed, and for the district courts to have
personal jurisdiction, in any suit filed under the Act, over
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 all requesters and submitters of particular information. These
proposed provisions would ensure that an adverse party, whether
submitter or requester, would receive notice of the complaint,
have the right to intervene, and be bound by the court's
decision.
Section 4 would also amend the provision of the Act
authorizing the award of attorney fees in favor of a requester
who "substantially prevails" in the litigation to authorize the
award of attorney fees against submitters, as well as against
the government. Thus, in disputes between a submitter and a
requester, where the government's position-is essentially that
of a stakeholder of the disputed information, this provision
would allow the court to charge the costs and attorney fees of
.a requester who substantially prevails against a submitter
rather than against the United States. As under present law,
the provision would authorize the award of attorney fees only
in favor of requesters"who substantially prevail, and even then
the award would be discretionary.
cretionary.
Re cord Requests
Section 5 of S. 774 would amend the FOIA to eliminate the
need for federal agencies to retrieve, duplicate, and mail
records that are already publicly available. Requests that
agencies disclose such documents often require employees to
duplicate hundreds of pages of newspaper and magazine articles
that a requester, with no greater effort, could locate and copy
at the nearest public library. As Professor (now Circuit
Judge) Antonin Scalia observed, there is no reason why federal
agencies should be compelled to act as "the world's largest
library reference system." 1/ In the case of public record
items such as newspaper clippings and court records, Section 5
would implement that recommendation by allowing agencies the
choice of providing an index identifying the date and source of
public records (but only if the index already is in existence)
or producing copies of the documents.
Clarify Exemptions
Section 6 of the bill merely clarifies the fact that the
compulsory disclosure requirements of the Act do not apply to
the exemptions listed in the paragraphs of section 552(b).
1/
Freedom of Information Act: Hearings on S. 587, S. 1235,
Scalia, Professor of Law, Univ. of Chicago Law School).
97th Cong., 1st Sess. 953 (1981) (statement of Antonin
the Constitution of the Senate Committee on Judiciary,
S. 1247, S. 1730, and S. 1751 Before the Subcommittee on
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Manuals and Examination Materials
Section 7 of S. 774 would make clear that materials whose
confidentiality is necessary to effective law enforcement and
other vital government functions are exempt from disclosure.
Such materials include manuals and instructions to investiga-
tors, inspectors, auditors, and negotiators. Although mater-
ials of this nature are arguably protected under present law,
the courts are divided over the application of Exemption 2 to
law enforcement manuals 2/ and to audit guidelines. 3/
This confusion reflects the conflicting legislative
history of Exemption 2. According to the Senate committee
report, it was intended to relate only to internal personnel
.rules and practices of an agency, such as the agency's rules
about its employees' use of parking facilities or its policies
concerning sick leave. 4/ The House committee report, on the
2/
3/
4/
One court granted a pro se Freedom of Information Act
litigant access to all portions of the Drug Enforcement
Administration Agents Manual other than those pertaining
solely to internal housekeeping matters, Cox v. Department
of Justice, 576 F.2d 1302 (8th Cir. 1978), .only later to
deny to that same pro se litigant the portions of the
Federal Bureau of Investigation's Manual of Instruction
relating to investigative techniques and procedures. Cox
v. Levi, 592 F.2d 460 (8th Cir. 1979). See also Cox v.
Department of Justice, 601 F.2d 1 (D.C. Cir. 1979) same
pro se litigant denied access to portions of United States
Marshals Service Manual describing procedures for
transporting prisoners in custody); Sladek v. Bensinger,
605 F.2d 899 (5th Cir. 1979) (portions of Drug Enforcement
Administration Agents Manual concerning DEA's handling of
confidential informants and search warrant procedures
ordered disclosed); Caplan v. Bureau of Alcohol, Tobacco &
Firearms, 587 F.2d 544 (2d Cir. 1978) (entire BATF
pamphlet concerning raids and searches withheld from
disclosure).
Compare Hawkes v. IRS, 507 F.2d 481 (6th Cir. 1974)
(Internal Revenue Service audit guidelines ordered
disclosed), with Ginsburg, Feldman & Bress v. Federal
Energy Admini tration, 591 F.2d 717 D.C. Cir.), vacated,
reheard en banc, aff'd by an equally divided court, 591
F.2d 752 (D.C. Cir. 1978) (per curiam), cert. denied, 441
U.S. 906 (1979) (Federal Energy Administration guidelines
for audits of refiners' reports withheld from disclosure).
Senate Committee on the Judiciary, Clarifying & Protecting
the Right of the Public to Information and for Other
Purposes, S. Rep. No. 813, 89th Cong., 1st Sess. 8 (1965).
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other hand, stated that the exemption should protect from
disclosure the operating rules, guidelines, and manuals of
procedure for government investigators or examiners. 5/ More-
over, a related provision of the Act, subsection (a) (2) (C)
(which requires an agency to make available to the public
"administrative" staff manuals and instructions to staff that
affect a member of the public) implies a distinction for law
enforcement manuals or guidelines for auditing and inspection
procedures.
The bill would resolve this confusion by expressly pro-
tecting confidential information in manuals-and instructions to
investigators, inspectors, auditors, and negotiators from
disclosure. This change complements the amendment to Exemp-
tion 7(E) relating to guidelines for law enforcement investiga-
tions or prosecutions. See generally, Crooker v. Bureau of
Alcohol, Tobacco & Firearms, 670 F.2d 1051 (D.C. Cir. 1981).
The inclusion of negotiators in this list reflects the govern-
ment's legitimate need to maintain the confidentiality of its
instructions to staff in 'contexts other than law enforcement,
such as government procurement programs. The term "negotia-
tors" should include not only law enforcement personnel who are
called upon to negotiate the settlement of pending and impend-
ing litigation, but also agency staff who conduct negotiations
for the procurement of goods and services, the acquisition of
lands, the resolution of labor-management disputes, the release
of hostages, or any other negotiations conducted in the course
of carrying out a legitimate governmental function where the
release of such instructions or manuals may jeopardize the
success of the negotiations.
The addition of Exemption 2(B), relating to testing or
examination materials used to determine individual qualifica-
tions for employment, promotion, and licensing, would protect
from disclosure materials that would compromise the objectivity
or fairness of the testing, examination, or licensing process
within various agencies. A similar provision exists in the
Privacy Act of 1974, 5 U.S.C. ? 552a(k)(6).
Personal Privacy
Section 8 of the bill changes the FOIA's personal privacy
exemption (Exemption 6) in three respects. The change in the
threshold language to cover all "records or information con-
cerning individuals" and to eliminate-the existing "similar
files" language is intended to reinforce the correctness of the
Supreme Court's decision in United States Department of State
House Committee on Government Operations, Clarifying &
Protecting the Right of the Public to Information,
H.R. Rep. No. 1497, 89th Cong., 2d Sess. 10 (1966).
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v. Washington Post Co., 456 U.S. 595 (1982), where the Court
repudiated a formalistic reading of "similar files" by the
U.S. Court of Appeals for the District of Columbia Circuit.
The bill also would reconcile the FOIA and the Privacy Act
on the matter of disclosure of lists of names and addresses.
The Privacy Act of 1974, 5 U.S.C. ? 552a(n), currently provides
that "[a]n individual's name and address may not be sold or
rented by an agency unless such action is specifically author-
ized by law," and the accompanying Senate Committee Report
stated that the disclosure of mailing lists by the government
is "totally inconsistent with the purposes of the bill." 6/
Although one court has held that the disclosure of mailing
lists is "wholly unrelated to the purposes behind the Freedom
of Information Act and was never contemplated by Congress in
enacting the Act," 7/ other courts have required such disclo-
sure. 8/ This provision should provide somewhat greater
protection against this abuse by making agencies' disclosure of
such lists expressly subject to FOIA Exemption 6.
Section 8 also modifies the standard of proof by allowing
agencies to withhold records when disclosure "could reasonably
be expected to" result in a clearly unwarranted invasion of
personal privacy. Despite the importance of the right to
individual privacy, which Congress has sought to protect in the
Privacy Act of 1974, 5 U.S.C. ? 552a, and the Right to Finan-
cial Privacy Act of 1978, 12 U.S.C. S 3401, et seq., many
credit bureaus, employment agencies, and other third parties
routinely attempt to use the FOIA to acquire financial and
personal information about individuals. The current law, which
has been construed as "an imposing barrier to nondisclosure"
that weighs "heavily in favor of disclosure," 9/ hinders the
government's ability to protect individuals legitimate privacy
6/
Senate Committee on Government Operations, Protecting
Individual Privacy in Federal Gathering, Use and
Disclosure of Information, S. Rep. No. 93-1183, 93d Cong.,
2d Sess. 31 (1974).
7/ Wine Hobby USA, Inc. v. IRS, 502 F.2d 133, 137 (3d Cir.
197 .
8/
9/
National Western Ins. Co. v. United States, 512 F. Supp.
454 (N.D. Tex. 1980); Disabled Officer's Ass'n v.
Rumsfeld, 428 F. Supp. 454 (D.D.C. 1977); Minnis v. United
States De 't of Agriculture, 3 Gov't Discl. Serv. (P-H)
$ 83,232 D. Or. 1983) appeal pending).
Kurzon v. Department of Health and Human Services, 649
F.2d 65, 67 (1st Cir. 1981). See also Washington Post Co.
v. Department of Health & Human Services, 690 F.2d 252
D.C. Cir. 1982).
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interests. Although it retains the "clearly unwarranted"
language, the language of Section 8 allows greater leeway to
protect the rights of individuals against inquiring third
parties by permitting agencies to withhold information whenever
disclosure "could reasonably be expected" to cause an invasion
of personal privacy.
Law- Enforcement
Section 9 of the bill makes several significant improve-
ments in the language of Exemption 7, which protect law en-
forcement files from mandatory disclosure. -Exemption 7 author-
izes the withholding of law enforcement investigatory records
only to the extent the government can demonstrate that one or
more of six specific categories of harm will be caused by the
release. While this exemption is intended to protect the
government's important law enforcement interests, it has proved
to be inadequate in practice.
The Department of Justice has extensive experience with'
the problems caused by the application of FOIA to criminal law
enforcement agencies. Of the more than 61,000 requests for
access to records of the Department received in 1982, a signif-
icant portion were directed specifically to the Department's
criminal investigatory agencies, the Federal Bureau of Investi-
gation (which received over 19,000 such requests) and the Drug
Enforcement Administration. Significantly, a large number of
these requests -- over 80 percent-at the DEA --. were from
convicted felons or from individuals whom the FBI and DEA
believe to be connected with criminal activities. Such
requesters have made extensive use of FOIA to obtain investiga-
tory records about themselves or to learn the scope of ongoing
investigations, identify government informants, and uncover
government law enforcement techniques. One suspected organized
crime "hit man" has filed over 137 FOIA requests for this
purpose, and others have boasted that they have used the FOIA
for the purpose of identifying informants.
A mainstay of law enforcement today is the volunteered
statements and background information provided to federal
agencies by confidential sources, particularly for key criminal
enterprises relating to narcotics, organized crime, and extrem-
ist violence. However, because of the large volume of FOIA
requests from known or suspected criminals, many sources --
private citizens and "street" informants alike -- have become
reluctant to assist the FBI or DEA because of fears that the
government cannot protect their identities. Moreover, this
perception exists not only among individual informants, but
also state and local law enforcement agencies, who fear losing
their own sources of information when the federal government
discloses the information they have.
S. 774 would close gaps in the coverage of Exemption 7,
helping to give better protection to law enforcement files and
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to dispel perceptions that the government cannot protect the
identities of its confidential sources. The current threshold
language of Exemption 7 means that records are eligible for
protection only if they are "investigatory records" compiled
for law enforcement purposes. See FBI v. Abramson, 456 U.S.
615 (1982). The bill would eliminate this "investigatory"
requirement and would apply Exemption 7 generally to all
"records or information" compiled for law enforcement purposes.
This language would expand the categories of documents eligible
for protection under Exemption 7 to include certain types of
background information, law enforcement manuals, procedures,
and guidelines.
Pending investigations. Section 9 also amends the lan-
guage of Exemption 7(A) to ensure ette that ongoing law
enforcement investigations will no be compromised by the FOIA.
The standard of harm would be changed from the present test --
whether or not disclosure "would" interfere with a pending
proceeding -- to exempt all records or information the disclo-
sure of which "could reasonably be expected to".interfere with"
enforcement proceedings. Even so, this change in the standard
of harm, as welcome as it is, would not protect law enforcement
agencies against the burden of responding to FOIA requests by
the targets of law enforcement, investigations -- a practice
that can significantly hinder the agency's *conduct of ongoing
investigations. 10/
Confidential sources. Similarly, Exemption 7(D) would be
amended from its current language protecting against disclosure
of information that "would" disclose the identity of a confi-
dential source. Under S. 774, an agency could withhold infor-
mation that "could reasonably be expected to disclose the
identity of a confidential source" -- including information
that may not itself identify an informant but that, when viewed
in context with other information known to a requester, could
enable a requester to piece together facts that reveal the
identity of a informant.
Law enforcement guidelines. The bill would amend Exemp-
tion 7(E) to grant broader protection to records containing
statements of law enforcement or prosecutorial guidelines.
This would fill the gaps in the current language of Exemption
7(E), whose limitation to "investigative techniques and
10/ See, e.g., Kanter v. IRS, 433 F. Supp. 812 (N.D. Ill.
1977) , dismissed, 478 F. Supp. 552.(N.D. Ill. 1979) (IRS
required to file 13,000-page affidavit to support
withholding of investigatory records).
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procedures" has proven insufficient to protect many sensitive
law enforcement materials from disclosure. ll/
Personal safety. The current language in Exemption 7(F)
exempts records only if their disclosure would endanger the
life of a law enforcement officer. However, the exemption does
not give similar protection to the life of any other person.
S. 774 expands Exemption 7(F) to include such persons as
witnesses, potential witnesses, and family members whose
personal safety is of central importance 'to the law enforcement
process.
Informant files. Under current law, criminal organiza-
tions can use the Act to attempt to uncover suspected inform-
ants in their midsts simply by asking for the records of indi-
viduals whom they suspect of being informants. In such cases,
it is not sufficient that the FBI could respond that it is
withholding the informant's file under Exemption 7(D), because
the very step of specifying that exemption identifies the
person as a confidential- source. The bill would add a new
subsection (a) (9) to the FOIA that would solve this problem by
excluding the informant files of law enforcement agencies from
the scope of the Act whenever those records are requested
according to the informant's name or personal identifier by a
third party. Under this amendment, the agency could properly
limit its response to any collateral records or, if no such
other records exist, properly respond that it has no records
responsive to the FOIA request.
Organized Crime
Law enforcement agencies have found that organized
criminal elements have attempted to use the Freedom of Informa-
tion Act to uncover government informants in their midsts or to
discover information concerning government investigations.
Organized crime has the incentive and the resources, to use the
Act systematically to gather, analyze, and piece together
disparate, often apparently innocuous pieces of information
obtained from government files into a "mosaic" that reveals the
full scope of the government's investigations and, perhaps, the
identities of the government's informants. Application of the
Act to such files thus presents a significant risk of inadver-
tent disclosure of harmful information. Indeed, in some cases,
acknowledgement of the very existence or non-existence of
records relating to particular investigatory activities or
designated individuals provides valuable. information to crimi-
nal organizations.
11/ See, e.g., Jordan v. Dep't of Justice, 591 F.2d 753 (D.C.
Cir. 1978) (U.S. Attorney manuals and guidelines).
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Section 13 of the bill would rectify some of these
problems. The Attorney General would be authorized to desig-
nate lawful investigations of organized crime conducted for
criminal law enforcement purposes for protection under a new
subsection (c) of the, FOIA. Any document compiled in tle
course of those special investigations would not be subject to
disclosure under the FOIA for five years after they were
generated or acquired. (The subsection also provides for the
Attorney General to promulgate regulations for an earlier
disclosure, or a longer exclusion. up to three more years, in
cases of overriding public interest.) Notwithstanding any
other provision of law, such documents must remain available
for disclosure of non-exempt portions for ten years after the
expiration of this exclusion.
Reasonably Segregable
Section 11 would clarify the current requirement that
agencies disclose information that is reasonably segregable
from exempt portions of documents. The bill authorizes
agencies to take into account the potentially harmful effect of
disclosing parts of sensitive law enforcement or national
security records that can supply the "pieces" to complete a
mosaic picture.
The purpose of the "reasonably segregable" requirement in
the 1974 amendments to the Act was to require government
agencies to release any meaningful portion of a requested
record that could be separated from portions that were specif-
ically exempt from disclosure. The courts have often strictly
enforced this policy. While much useful and nonconfidential
information has been released under this clause, both the
courts and the agencies have expressed concern that some
"reasonably segregable" information may actually prove
threatening to national security and law enforcement interests
when pieced together with other non-exempt or publicly avail-
able information.
Exemption for Secret Service Records
The bill would add a new Exemption (b)(10), intended to
assist the Secret Service in maintaining the confidentiality of
information required to carry out its important protective
functions. The 1974 amendments to the FOIA have severely
limited the amount of informant information available to the
Secret Service, thereby jeopardizing its ability to safeguard
the President and other important individuals.
Proper Requests
Section 12 of the bill would amend the provisions of
subsection (a) (3) of the Act to address three important types
of use or abuse of the Act not foreseen by Congress.
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Under current law, an agency is required to comply with
any request for records covered by the FOIA made by "any
person." The bill would amend the Act to require the agency to
make information available only to a requester who is a "United
States person." Restricting the right to make requests to
United States persons would reverse the present rule that "any
person," including foreign nationals and governments, can use
the FOIA to secure information. This proposed amendment is
consitterrt with the purpose of. the FOIA to.inform the American
public of government actions. It would'also prevent the use of
the FOIA by foreign nationals and governments for purposes
which may be contrary to our national interest.
Section 12 would also amend the Act to limit the ability
.of a party to a pending judicial proceeding or administrative
adjudication, or any requester acting for such a party, to use
the Freedom of Information Act for any records which may be
sought through discovery in the proceeding. Many government
agencies report significant numbers .of such requests, whose
purpose is often to avoid applicable rules of discovery and
sometimes -- where the government is a party -- to harass and
burden government agencies. The bill would toll the FOIA time
limits for response whenever a party files a request relating
to the subject matter of a pending judicial or administrative
adjudication in which the government is a party and may be
requested to produce the records sought. This would allow the
request for records to be supervised by the judicial or
administrative tribunal in conjunction with the entire
proceeding.
Finally, the bill would authorize the Attorney General, by
regulation, to set conditions for the use of the FOIA or the
Privacy Act by imprisoned felons, to the extent that these
conditions are not in derogation of the purposes of the FOIA.
This will authorize reasonable limitations on the use of the
FOIA by prisoners to identify informers or to obtain other law
enforcement information. At present, almost 60% of the FOIA
requests to the DEA are from imprisoned drug offenders, and
some prisoners have filed literally dozens, even hundreds, of
FOIA requests.
Reporting Uniformity
Section 14 of the bill would amend the reporting require-
ments of subsection (d) of the FOIA to provide for the filing
of reports on December 1 of each year covering the preceding
fiscal, rather than calendar, year. Most agencies maintain
their records on a fiscal year basis and must convert them to
an annual year basis in order to comply with existing law. The
amendment would remedy this problem by conforming the reporting
requirement to data collection practices.
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Definitions
Section 15, provides specific definitions for six critical
terms and phrases to be utilized in the application of the
amended Freedom of Information Act. These six phrases are:
"agency," "submitter," "requester," "United States person,"
"working days," and "organized crime."
Publication of Exemption 3 Statutes
Section 16 provides for a new subsection (g) of the FOIA,
requiring each agency to publish in the Federal Register,
within 270 days of enactment of the subsection, a list of all
statutes upon which the agency proposes to rely to withhold
.information under Exemption 3 of the FOIA, and a description of
their scope. The Department of Justice shall thereupon publish
a consolidated list of all such statutes. After the 270 day
period, or 30 days after subsequently enacted statutes, no
agency may rely upon a statute not listed as a basis for
withholding information.
II. COMMENTS OF THE DEPARTMENT OF JUSTICE
The previous discussion indicates the many areas in which
S. 774 would respond to identifiable shortcomings in the
operation of the Freedom of Information Act. The bill has been
the subject of a long and careful series of compromises in the.
Senate among the various interested participants. In this
process of compromise, the bill has been made to focus on
certain specific problem areas, while leaving other areas
untouched. As in any compromise, the final product does not
always suit perfectly the initial objectives of the various
groups, and S. 774 indeed does not include some of the
provisions that the Department of Justice initially sought in
its proposed amendments to the FOIA. It is, however, a very
significant step forward, in that it does respond to many of
the shortcomings the Department has identified, and it does
represent the first time that the Congress has taken a long and
careful look at the changes necessary to avoid some of the
unintended abuses and weaknesses of the FOIA resulting from
overly broad disclosure in certain circumstances.
At the same time, however, the bill has been carefully
crafted so as not to interfere with the primary purpose of the
FOIA as enacted in 1966 and amended in 1974 -- to ensure that a
free people have the necessary means to obtain from their
government the information they need for an informed debate
over the operations of that government. S. 774 would have only
the most limited impact on the ability of the press or other
groups to obtain information bearing on the public interest in
their government. Indeed, the amended time limit provision is
intended to promote prompter response to those requests that do
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implicate the public interest. The bill would not interfere
with individuals' existing right to obtain information on
themselves under the Privacy Act of 1974. And the bill would
have virtually no impact on the many news stories that have
been written over the last decade based on disclosures obtained
under the FOIA.
Because the bill is a responsible and carefully crafted
effort to limit the shortcomings and abuses of t_he present
provisions of the FOIA, while at the same time completely
preserving the central purpose of that Act, the Department of
Justice strongly recommends enactment. A strong case has
already been made for this bill, by the Department of Justice
and by many others interested in the operation of the FOIA. We
urge this Committee to give full recognition to the voluminous
testimony presented to the Senate Committee on the Judiciary,
and to that Committee's careful evaluation of the various
legislative proposals.' We urge that action be taken on this
bill during the present Congress.
The Office of Management and Budget has advised this
Department that there is no objection to the submission of this
legislative report from the standpoint of the President's
program, and that enactment of S. 774 would be in accord with
the President's legislative program.
Sincerely,
ROBERT A. McCONNELL
Assistant Attorney General
Office of Legislative and
Intergovernmental Affairs
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