AMENDING SECTION 552 OF TITLE 5, UNITED STATES CODE, KNOWN AS THE FREEDOM OF INFORMATION ACT

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• Document Number (FOIA) /ESDN (CREST): CIA-RDP75B00380R000600190006-4
• Release Decision: RIFPUB
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• Document Creation Date: December 9, 2016
• Document Release Date: August 24, 2001
• Sequence Number: 6
• Publication Date: March 5, 1974
• Content Type: REPORT

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93D CONGRESS t HOUSE OF REPRESENT
2d Session j
AMENDING SECTION 552 OF TITLE 5, UNITED STATES
CODE, KNOWN AS THE FREEDOM OF INFORMATION ACT
MARCH 5, 1974.-Committed to the Committee of the Whole House on the State
of the Union and ordered to be printed
Mr. HOLIFIELD, from the Committee on Government Operations,
submitted the following
REPORT
[To accompany H.R. 12471]
The Committee on Government Operations, to whom was referred
the bill (H.R. 12471) to amend section 552 of title 5, United States
Code, known as the Freedom of Information Act, having considered
the same, reports favorably thereon without amendment and recom-
mends that the bill do pass.
DIVISIONS OF THE REPORT
Introduction.
Committee vote.
Summary and background.
Discussion :
Indexes.
Identifiable records.
Time limits.
Attorney fees and court costs.
Court review :
In camera review.
National defense and foreign policy exemption.
Reports to Congress.
Definition of "agency."
Information to Congress.
Cost estimate:
Agency views.
Section-by-section analysis.
Changes in existing law made by the bill, as reported.
Appendixes:
Appendix 1.-Agency views.
Appendix 2.-Text of bill.
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INTRODUCTION
H. R. 12471 seeks to strengthen the procedural aspects of the Free-
dom of Information Act by several amendments which clarify certain
provisions of the Act, improve its administration, and expedite the
handling of requests for information from Federal agencies in order to
contribute to the fulter and faster release of information, which is the
basic objective of the Act.
The amendments to section 552(a), title 5, United States Code
contained in H.R. 12471 seek to overcome certain major deficiencies in
the administration of the Freedom of Information Act as disclosed by
investigative hearings held in 1972 by the Foreign Operations and
Government Information Subcommittee. These amendments deal
with the inadequacy of agency indexes of pertinent information,
difficulties in procedures required for the requisite identification of
records, Federal agency delays in responses to requests for information
by the public, and the cost burden of litigation in Federal courts to
persons requesting information.
An additional amendment to section 552(a) clarifies language in the
Freedom of Information Act, regarding the authority of the courts, as
part of their de novo determination of the matter, to examine the
content of records alleged to be exempt from disclosure under any of
the exemptions in section 552(b) of the Act.
An amendment is made to section 552(b) (1)-pertaining to national
defense and foreign policy matters-in order to bring that exemption
within the scope of matters subject to in camera review as provided
under the amended language of section 552 (a) (2). The language o:F the
other eight exemptions would not be amended by this bill.
H.R. 12471 adds a new subsection (d) to the Act which provides
a mechanism for strengthening Congressional oversight in the adanin-
istration of the Act by requiring annual reports to House and Senate
committees. Such reports, required from every agency, would include
several types of statistical data and other information necessary for
Congressional oversight. Included, for instance, are data on denials
of requests under the Act, administrative appeals of denials, rules
made, and fee schedules and funds collected for searches and reproduc-
tion of requested information.
H.R. 12471 also adds a new subsection (e) to the Act which broadens
the definition of "agency" for the purposes of the Act.
COMMITTEE VOTE
The committee considered H.R. 12471 on February 21, 1974, and
ordered the bill reported by a unanimous voice vote.
SUMMARY AND BACKGROUND
This committee's concern with information policies and practices of
the executive branch of the Federal Government has a long history.
On June 9, 1955, the Special Subcommittee on Government Informa-
tion was created by the late chairman of the Government Operations
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Committee, Representative William L. Dawson. In his letter appoint-
ing Representative John E. Moss as chairman of this subcommittee,'
he observed :
An informed public makes the difference between mob
rule and democratic government. If the pertinent and neces-
sary information on government activities is denied the
public, the result is a weakening of the democratic process
and the ultimate atrophy of our form of government.'
The chartering letter requested the subcommittee:
* * * to study the operation of the agencies and officials
in the executive branch of the Government at all levels with
a. view to determining the efficiency and economy of such
operation in the field of information both intragovernmental
and extragovernmental.
With this guiding purpose your Subcommittee will as-
certain} the trend in the availability of Government infor-
mation and will scrutinize the information practices of
executive agencies and officials in the light of their propri-
ety, fitness, and legality.
You will seek practicable solutions for such shortcomings,
and remedies for such derelictions, as you may find and re-
port your findings to the full Committee with recommen-
dations for action.
Over the next decade, the Special Subcommittee on Government
Information and its successor standing subcommittees s conducted
extensive investigative hearings into all aspects of Government in-
formation activities; investigated numerous complaints of information
withholding; compiled vast amounts of data; and prepared periodic
progress reports, numerous substantive reports proposing adminis-
trative and legislative actions to improve the efficiency and economy
of Government information activities, and other publications. In
addition, it carried out other related types of oversight functions in this
field.
In 1958, the Congress enacted the first legislative proposal reported
by this committee aimed at reducing the authority of executive agen-
cies to withhold information (H.R. 2767-P.L. 85--619).. This amend-
ment to the 1789 "housekeeping" statute, which gave Federal agencies
the authority to regulate their. business, set up filing systems, and keep
records, provided that this authority "does not authorize withholding
information from the public or limiting the availability of records to
the public." 4
Extensive investigative and legislative hearings by the subcom-
miittsiAver t11,e next eight years resulted in the enactment of P.L.
89-487-the Freedom of Information Act of 1966-which became
I The other two charter members were Representatives Dante B. Fascell and Clare F. Hoffman.
s Hearings, "Availability of Information from. Federal Departments and Agencies," Special Subcommittee
on Government Information; House Government Operations Committee; November 7, 1955, part 1, p; 2.
3 84th-87th Congress-1955-62-Special Government information Subcommittee: Mr. Moss (chairman);
88th Congress-1983-84-Foreign Operations and Government lmformation Subcommittee: Mr. Mess
(chairman). The subcommittee was formed from the jurisdiction of the former Special Government Informs-
tion Subcommittee and part of the jurisdiction of the former Foreign Operations and Monetary Affairs Sub-
committee. (Representative William S. Moorhead became subcommittee chairman at the beginning of the
92d Congress.)
+ Previously, 5 U.S. Code, Sec. 22; now codified as section 301, title 5, U.S. Code.
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effective on July 4, 1967. As originally enacted, it was in the form Of
an amendment to section 3 ("Public Information") of the Administra-
tive Procedure Act of 1946.5 This milestone law guarantees the right
of persons to know about the business of their government. Subje,t
to nine categories of exemptions, whose invocation in most cases is
optional, the law provides that anyone may obtain reasonably identili-
able records or other information from Federal agencies. Decisions
by Governnr.en t officials to withhold may be challenged in Federal
court, and in such cases the, burden of proof for withholding is placed
On the Government. Also, the 1966 Act broadened the scope of the
types of materials previously required to be available under the
original language of section 3 of the Administrative Procedure Act.
In 1967, the Foreign Operations and Government Information
Subcommittee undertook, as part of its general oversight responsi-
bility, review of the Act's implementation and administration. In
May 1968, a committee print was issued, compiling and analyzing
the implementing regulations issued by the various Federal agencies
pursuant to the new law. 6
During the summer of 1971, the subcommittee began the first com-
prehensive study of Federal agencies' administration of the Actin prep-
aration for public investigatory hearings which took place in March
and April of 1972.1 Fourteen days of hearings were held and testimony
was received from more than 50 witnesses. Included were spokesmen
for the Federal agencies and the media, attorneys having direct exper-
ience in ]Freedom of Information cases, academicians, spokesmen for
interested organizations, and other informed persons. Government
witnesses included representatives from the Departments of Justice,
Defense, State, Transportation, Health, Education, and Welfare,
Agriculture, Treasury, Interior, Labor, and Housing and Urban
)eveloprlaent. Also, there were witnesses from the Internal Revenue
Service, Environmental Protection Agency, Civil Service Commission,
Selective Service System, Federal Power Commission, Federal Corn-
inunications Commission, Federal Trade Commission, Navy, Air
Force, and Army, and the Administrative Conference of the United
States.
On September 20, 1972, this committee issued a unanimously ap-
proved investigative report based on these hearings.8 It contained
findings, conclusions, and recommendations to strengthen the opera-
tion of the Freedom of Information Act. A series of administrative
recommendations to Federal agencies urged correction of certain de-
ficiencies in their day-to-day operation. The report also set forth a
list of specific legislative objectives to improve the administration of
the Act. They deal with problem areas that could not be adequately
remedied by administrative action.
The administrative recommendations were subsequently trans-
initted to each Federal department and agency head. Formal re-
sponses to the subcommittee indicate that many of them have been
implemented. --Bills to carry out the legislative objectives were sub-
.Codified as section 552, title 5, United States Code by the subsequent enactment of Y.L. 90-23.
Freedom of Information Act (Compilation and Analysis of Departmental Regulations Implementing
t-9 C 552) C'omn ttee Print, House Government Operations Committee, November. 1968. 314 pp.
7 1 ie armgs, f) 5. Govermnent Information Policies and Practices-Adminimtration and Operation ofthe
IPreedom of Information Act," Foreign Operations and Government Information Subcommittee, House
tiovarnmeut Operations Committee, March and April, 1972, parts 4, 5, and 6.
R 11. B.ept. 9z 1419, "Administration of the Freedom of Information Act," House Government Operati ins
- - - - -
Commit Lee,
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sequently..introduced by Subcommittee Chairman. Moorhead, with.
47 co-sponsors. Similar measures were introduced by the ranking
Republican members of the full committee and the subcommittee,
Mr. Horton and Mr. Erlenborn, respectively, with 27 additional
co-sponsors.
Legislative hearings were held by the Foreign Operations and
Government Information Subcommittee on II.R. 5425. and -I.R. 4960
on May 2, 7, 8, 10, and 16, 1973. The administration's . position on
the legislation was presented by the Justice and Defense Depart-
ments. Other executive branch witnesses invited to testify declined
and deferred to the Justice Department. Testimony and written state-
ments on the bills were presented by Members of Congress, represen-
tatives of the news media, the Chairman of the. Administrative Con-
ference of the United States, the chairman of the Administrative Law
Section, American Bar Association, and other witnesses.
The Foreign Operations and Government Information Subcom-.
mittee adopted a number of amendments to H.R. 5425. Several were
suggested by Government and outside witnesses during.the hearings..
The resulting measure was reintroduced as H.R. 12471.
DISCUSSION
This bill seeks to reach the goal of more efficient, prompt, and full
disclosure of information by effecting changes in major areas dis-
cussed below: Indexes, identifiable records, time limits, attorney fees,
court costs, court review, reports to Congress, and the definition of
"agency."
The first area of change deals with the relationship of the agencies
to the public. The amendment is designed to produce wider avail-
ability of Federal agency indexes which list specific types of informa-
tion available such as: Final opinions and orders made in the adjudi-
cation of cases, statements of policy not published in the Federal
Register, and administrative staff manuals.
This amendment does not envision the necessity for bound and
printed indexes by every agency, recognizing that there has been
little public demand for the indexes of many agencies. However, it
would require that such indexes be readily available for public access
in a usable and concise form suitable for distribution to requestors.
Any agency index in brochure form available for distribution would
be an appropriate way to meet this requirement.
The Committee recognizes that some agency indexes are now
published by commercial firms. Such publications would also be able
to satisfy the requirement of this proposed amendment.
Concurrent with the additional obligation to publish and distribute
such indexes is a series of amendments requiring expedited considera-
tion of requests for information by the public.
IDENTIFIABLE RECORDS
Section (1) (b) of the bill is designed to insure that a requirement
for a specific title or file number cannot be the only requirement of an
agency for the identification of documents. A "description" of a
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requested document would be sufficient if it enabled a professional
employee of the, agency who was familiar with the subject area or the
request to locate the record with a reasonable amount of effort.
TIME LIMITS
As the subcommittee's hearings clearly demonstrated, information
is often useful only if it is timely. Thus, excessive delay by the agency
in its response is often tantamount to denial. It is the intent of this
bill that the affected agencies be required to respond to inquiries and
administrative appeals within specific time limits. The testimony also
indicated the ability of some Federal agencies to respond to'inquiries
within the time specified in the bill--ten days for original requests
and twenty days for administrative appeals of denials.
It is recognized, however, that there may be exceptional circum-
stances where the requested information is stored in a remote location
outside the country and cannot be retrieved by the agency for exami-
nation within the 10-day time period even with the most diligent
effort. In such unusual cases, the committee expects that the requestor
will accept the good faith assurances of the agency that the informa-
tion requested will be retrieved and the request itself acted upon in
the most expeditious manner possible.
It is thus the intent of this provision that the agency have it s-iffi-
cient flexibility which will enable it to meet its requirement in an
orderly and efficient manner.
Though the subcommittee heard reports of efforts by district courts
to docket freedom of information complaints in an expeditious manner,
it was found that the defendant Federal agencies as it general rule
were slow in filing responses to complaints, thus inhibiting the rapid
disposition of freedom of information suits.
Under the amendments in this bill, the defendant agency would be
required to respond to complaints within 20 days-the same time
limits specified for private litigants under the Federal Rules of Civil
Procedure, rather than the present 60-day time period for Federal
agency response specified in the Federal Rules of Civil Procedure.
Failure to meet the new mandatorv time limits would constitute
exhaustion of remedies, permitting court review.
The committee believes that shorter mandatory response time need
not, be a, burden on the agencies. Under procedures established by the
Justice Department, all agencies presently are to consult with the
Department's Office of Legal Counsel prior to a final denial of a
request which might result in litigation." This consultation takes the
form of an analysis of the legal and policy implications involved in a
prospective denial. Accordingly, should a denial result in litigation,
the defendant agency and the ]department of Justice should already
know the basis of their defene, and the necessity for a 60-day response
period is lessened thereby.
ATTORNEY FEES AND COURT COSTS
Together with expedition of litigation, the bill provides for a
recovery of attorney fees and costs at the discretion of the courts. 'Ihe
allowance of a reasonable attorney's fee out of Government funds to
P See 38 F.11. 19123 (July 18, 1973); codified as 28 CFR 50.9.
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prevailing parties in litigation has been considered desirable when the
suit advances a strong congressional policy. Similar provisions have
been recognized in legislation in the past."
Although the present Freedom of Information Act requires de novo
determination of agency actions by the Federal courts, the language is
ambiguous as to the extent to which courts may engage in in camera
insppection of withheld records.
A recent Supreme Court decision held that under the present
language of the Act, the content of documents withheld under section
552(b)(1)-pertaining to national defense or foreign policy informa-
tion-is not reviewable by the courts under the de novo requirement in
section 552(a) (3).11 The Court decided that the limit of judicial
inquiry is the determination whether or not the information was, in
fact, marked with a classification under specific requirements of an
Executive order, and that this determination was satisfied by an
affidavit from the agency controlling the information. In camera inspec-
tion of the documents by the Court to determine if the information
actually falls within the criteria of 'the Executive order was specifically
rejected by the Court in its interpretation of section 552(b)(1) of the
Act. However, in his concurring opinion in the.Mink case, Mr. Justice
Stewart invited Congress to clarify its intent in this regard.l2
Two amendments to the Act included in this bill are aimed at in-
creasing the authority of the courts to engage in a full review of agency
action with respect to information classified by the Department of
Defense and other agencies under Executive order authority.
In camera review
The first of these amendments would insert an additional clause
in section 552(a) (3) to make it clear that court review may include
examination of the contents of any agency records in camera to
determine if such records or any part thereof shall be withheld under
any of the exemptions set forth in section C552(b). This language
authorizes the court to go behind the official notice of classification
and examine the contents of the records themselves.
National defense and foreign policy exemption
The second amendment aimed at court review is a rewording of
section 552(b)(1) to provide that the exemption for information in-
volving national defense or foreign policy will pertain to records which
are "authorized under the criteria established by an Executive order
to be kept secret in the interest of the national defense or foreign
policy." The change from the language pertaining to information"re-
quired" to be classified by Executive order to information which is
"authorized" to be classified under the "criteria" of an Executive order
means that the court, 'if it chooses to undertake review of a classifica-
tion determination, including examination of the records in camera,
may look at the reasonableness or propriety of the determination to
classify the records under the terms of the Executive order.
10 See Civil Rights Act of 1964, title II: 42 U.S.C. sec. 2000a-3(b); Civil Rights Act of 1964, title VII: 42
U.S.C. sec. 2000e-5(k); Education Amendments of 1972, P.L. 93-318, title VII, "Emergency School Aid
Act," see. 718 (20 U.S.C. see. 1617).
11 Environmental Protection Agency et at. v. Palsy T. Mink et al., 410 U.S. 73 (1973).
Ibid., at p. 94.
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Even with. the broader language of these amendments as they apply
to exemption (b) (1), information may still be protected under the
exemption of 552(b) (3) : "specifically exempted from disclosure by
statute." This would be the case, for example, with the Atomic
Energy Act of 1954, as amended. It features the "born classified"
concept. This means that there is no administrative discretion to
classify, if information is defined as "restricted data" under that Act,
but only to declassify such data.
The in camera provision. is permissive and not mandatory. It is the
intent of the committee that each court be free to employ whatever
means it finds necessary to discharge its responsibilities.
A new provision is added to the Freedom of Information Act,
setting forth, requirements for annual reports by the affected agencies
to the, Committees on Government Operations of the House and
Senate, and to the Senate Judiciary Committee, which has jurisdiction
over the Freedom of Information Act.
These annual reports should detail the information necessary
for adequate Congressional. oversight of freedom of information
activities. They would also include the number of each agency's
determinations to deny information, the number of appeals, the action
on appeals with the reasons for each determination, and a copy of all
rules and regulations affecting this section. Also to be included is a
statement of fees collected under this section, phis other matte:- re-
ga:rding information activities indicative of the agency's efforts under
this Act.
DEFINITION OF "AGENCY"
For the purposes of this section, the definition of "agency" has been
expanded to include those entities which may not be considered
agencies under section 551(1) of title 5, U.S. Code, but which perform
governmental functions and control information of interest to the
public. The bill expands the definition of "agency" for purposes of
section. 552, title 5, United States Code. Its effect is to insure inclusion
under the Act of Government corporations, Government controlled
corporations, or other establishments within the executive branch,
such as the U.S. Postal Service.
The term "establishment in the Executive Office of the President,"
as used in. this amendment, means such functional entities as the Office
of Telecommunications Policy, the Office of Management and Budget,
the Council of Economic Advisers, the National Security Council,
the Federal Property Council, and other similar establishments which
have been or may in the future be created by Congress through
statute or by Executive order.
The term. "Government corporation," as used in this subsection,
would include a corporation that is a wholly Government-owned enter-
prise, established by Congress through statute, such as the St. Law-
rence Seaway Development Corporation, the Federal Crop Insurance
Corporation (FCIC), the Tennessee Valley Authority (TVA), and
the Inter-American Foundation.
The term "Government controlled corporation," as used in this
subsection, would include a corporation which is not owned by the
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Federal Government, such as the National Railroad Passenger Cor-
poration (Amtrak) and the Corporation for Public Broadcasting
(CPB).
INFORMATION TO CONGRESS
As stated above, the purpose of these amendments to section 552 is
to facilitate increased availability of information to the public. In no
sense should any of the amendments be interpreted as affecting the
availability of information to Congress under section 552(c), since
H.R. 12471 makes no change in that subsection.
That this bill amends subsections (a) and (b), but not (c), of section
552 should in no way be construed as approval by this committee of
the Justice Department's or any other agency's regulations or practices
of withholding information from Congress. (See, for example, H. Rept.
92-1333, pp. 30-42.)
COST ESTIMATE
In accordance with rule XIII, clause 7 of the Rules of the House
of Representatives, the committee finds with respect to fiscal year
1974 and each of the five fiscal years following that potential costs
directly attributable to this bill should, for the most part, be absorbed
within the operating budgets of the agencies.
This legislation merely revises information procedures under the
Freedom of Information Act but does not create costly new adminis-
trative functions. Thus, activities required by this bill should be
carried out by Federal agencies with existing staff, so that significant
amounts of additional funds will not be required. It may be necessary,
however, for some agencies to reassign personnel, shift administrative
responsibilities, or otherwise restructure certain offices to achieve a
higher level of efficiency.
In accordance with section 483a of title 31, U.S. 'Code and Office of
Management and Budget Circular A-25, user fees are applicable to
requests for information and may be assessed for production of copies
and time spent by agency employees in search of requested informa-
tion. Agency regulations currently provide for such fees, and this
legislation does not change the status of those existing provisions.
The possible assessment of attorney fees and court costs authorized
under section (1) (c) of this bill is at the discretion of the court. The
cost to the Government of such assessments must depend upon the
amount of litigation, the character of the litigants, the issues in-
volved, and action of the-courts. While 'no precise estimate of such
possible ?issessments can be made in view of these variables, a subcom-
mittee staff investigation has indicated that a typical freedom of
information case requires about 40 hours of billable time, including
initial conference, preparation of pleadings and briefs, and court
arguments. At an average rate of $35 per hour, it is estimated that
fees in the amount of $1,400 per case would not be unreasonable.
The provision added by this bill to subsection 552(a) of the Act,
requiring that such agency indexes be published and distributed
should not represent an appreciable added cost to the Government.
Present commercial publications will be able to meet this requirement
for some agencies, and those agencies having to develop in-house
publications can, by the provisions of the bill, sell the indexes at prices
consistent with cost recovery.
H.R. 876--2
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Although expenditures for these purposes may be minimal, the
committee estimates that additional costs that may be required by
this legislation should not exceed $50,000 in fiscal year 1974 and
$100.000 for each of the succeeding five fiscal years.
AGENCY VIEWS
j itnesscs representing the Departments of Defense and Justice
who testified at the subcommittee's hearings on Freedom of Informa-
tion Act amendments contained in the original bills (H.R. 5425 and
H.R. 4960) uniformly opposed virtually every proposal to strengthen
and clarify the present law, just as Federal agency witnesses had
opposed the legislation which created the Freedom of Information
Act during subcommittee hearings almost a decade earlier.
The views of those departments on H.R. 12471 are set forth in
letters to the committee included in appendix 1.
SECTION-BY-SECTION ANALYSIS
Section (1)(a) amends section 552(a) (2) of the Freedom of Informa-
tion Act by adding a provision that the presently required indexes be
promptly published and distributed by sale or otherwise.
Section (1) (b) substitutes for the term "identifiable records" a
new require-merit that a request be one which "reasonably describes"
the records requested.
Section (1) (c) sets definitive time limits for agency action on
original requests and on appeals. A limit of 10 working days is set; for
a determination on original requests, and a limit of 20 clays is set for it
determination on appeals. In the case of a determination to deny an
original request, the denial must include the reasons therefor and
notice of the right of appeal.
This section also states that failure to meet the specified time
limitations constitutes an exhaustion of administrative remedies by
the requester.
Section (1) (d) clarifies the requirement for de novo court determina-
tion under the Freedom of Information Act by stating that the court
may conduct an in camera investigation of any record withheld from
disclosure h'c an agency under any of the exemptions in section 552(b).
Section (1)(e) provides that the United States agency or officer
against whom a Freedom of Information Act complaint is filed must
respond within 20 days. This response need not necessarily be affirma-
tive in nature; it may be a motion other than. an answer.
This is in furtherance of the policy in the original Act for expediting
action. by giving cases under the Act precedence on the court docket.
Section. (1) (e) also allows the assessment of attorney fees and costs
against the agency on behalf of a litigant. The assessment of fees and
costs .is at the option of the court.
Section 2 amends section 5,52(b)(1) to provide that the exemption
for information involving national defense or foreign policy will pper-
tain to records which are "authorized under the criteria established
by an Executive order to be kept secret in the interest of the national
defense: or foreign policy." The intent is that the court may look at the
reasonableness or propriety of the determination to classify the records
under the terms of the Executive order.
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Section 3 adds a new provision to the Act requiring a range of in-
formation in annual reports to specified committees of Congress.
Another provision in section 3 of the bill expands the definition of
"agency" for purposes of section 552, title 5, United States Code, to
insure inclusion of Government corporations, Government controlled
corporations, or other establishments within the executive branch.
Section 4 provides that these amendments will become effective
90 days after enactment of the bill.
CHANGES IN EXISTING LAw MADE BY THE BILL, AS REPORTED
In compliance with clause 3 of rule XIII of the Rules of the House
of Representatives, changes in existing law made by the bill, as re-
ported, are shown as follows (existing law proposed to be omitted is
enclosed in black brackets, new matter is printed in italics, existing
law in which no change is proposed is shown in roman):-
CHAPTER 5-ADMINISTRATIVE PROCEDURE
TITLE 5, UNITED STATES CODE
? 552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public information as
follows :
(1) Each agency shall 'separately state and currently publish in
the Federal Register for the guidance of the public-
(A) descriptions of its central and field organization and
the established places at which, the employees (and in the
case of a, uniformed service, the members) from whom, and
the methods whereby, the public may obtain information,
make submittals or requests, or obtain decisions;
(B) statements of the general course and method by which
its functions are channeled and determined, including the
nature and requirements of all formal and informal proce-
dures available;
(C) rules of procedure, descriptions of forms available or
the places at which forms may be obtained, and instructions
as to the scope and contents of all papers, reports, or exami-
nations;
(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or inter-
pretations of general applicability formulated and adopted
by the agency; and
(E) each. amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice of
the terms thereof, a person may not in any manner be required to
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resort to, or be adversely affected by, a matter required to be pub-
lished in the Federal Register and not so published. For the pur-
pose of this paragraph, matter reasonably available to the class of
persons affected thereby is deemed published in the Federal Regis-
ter when incorporated by reference therein with the approval of
the Director of the Federal Register.
(2) Each agency, in accordance with published rules, shall make
available for public inspection and copying-
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of eases;
(B) those statements of policy and interpretations which
have been adopted by the agency and are not published in the
Federal Register; and
(C) administrative staff manuals and instructions to staff
that affect a member of the public;
unless the materials are promptly published and copies offered for
sale. To the extent required to prevent a clearly unwarranted in-
vasion of personal privacy, an agency may delete identifying de-
tails when it makes available or publishes an opinion, statement of
policy, interpretation, or staff manual or instruction. However, in
each case the justification for the deletion shall be explained fully
in writing. Each agency also shall maintain [and make available
for public inspection and copying], promptly publish, and dis-
tribute (by sale or otherwise) copies of a current index providing
identifying information for the public as to any matter issued,
adopted, or promulgated after July 4, 1967, and required by this
paragraph to be made available or published. A final order, opin-
ion, statement of policy, interpretation, or staff manual or instruc-
Lion that affects a member of the public may be relied on, used,
or cited as precedent by an agency against a party other than
an agency only if-
(i) it has been indexed and either made available or pub-
lished as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms
thereof.
(3) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, [on
request for identifiable records made in accordance with published
rules stating the time, place, fees to the extent authorized by
Htatute, and procedure to be followed,] upon any request for
records which (A) reasonably describes such records, and (B) is
made in accordance with published rules stating the time, place, fees
to the extent authorized by statute, and procedure to be followed,
lh.dl make the records promptly available to any person. On
complaint, the district court of the United States in the district
in which the complainant resides, or has his principal place of
business, or in which the agency records are situated, has juris-
diction to enjoin the agency from withholding agency records
and to order the production of any agency records improperly
withheld from the complainant. In such a case the court shall
determine the matter de novo, and may examine the contents of
any agency records in camera to determine whether such records or
any part thereof shall be withheld under any of the exemptions set
forth in subsection (b), and the burden is on the agency to sustain
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its action. In the event of noncompliance with the order of the
court, the district court may punish. for contempt the responsible
employee, and in the case of a uniformed service, the responsible
member. Except as to causes the court considers of greater
importance, proceedings before the district court, as authorized
by this paragraph, take precedence on the docket over all other
causes and sha11 be assigned for hearing and trial at the earliest
practicable date and expedited in every way. Notwithstanding
any other provision. of law, the United States or the officer or agency
thereof against whom the complaint was filed shall serve a responsive
pleading to any complaint made under this paragraph within
twenty days after the service upon the United States attorney of the
pleading in which such complaint is made, unless the court otherwise
directs for good cause shown. The court may assess against the
United States reasonable attorney fees and other litigation costs
reasonably incurred in any case under this section in which the
United States or an officer or agency thereof, as litigant, has not
prevailed.
(4) Each agency having more than. one member shall maintain
and make available for public inspection a record of the final votes
of each member in every agency proceeding.
(5) Each agency, upon receipt of any request for records made
under this subsection, shall-
(A) determine within ten days (excepting Saturdays, Sundays,
and legal public holidays) after the date of such receipt whether
to comply with the request and shall immediately notify the
person making the request of such determination and the
reasons therefor, and of the right of such person to appeal to
the head of the agency any adverse determination; and
(B) make a determination with respect to such appeal within
twenty days (excepting Saturdays, Sundays, and legal public
holidays) after the date of receipt of such appeal.
Any person making a request to an agency for records under this
subsection shall be deemed to have exhausted his administrative
remedies with respect to such request if the agency .fails to comply
with subparagraph (A) or (B) of this paragraph. Upon any deter-
mination by an agency to comply with a request for records, the
records shall be made promptly available to the person making such
request.
(b) This section does not apply to matters that are-
(1) [specifically required by] authorized under criteria estab-
lished by an Executive order to be kept secret in the interest of
the national defense or foreign policy;
(2) related solely to the internal personnel rules and practices
of an agency;
(3) specifically exempted from disclosure by statute;
(4) trade secrets and commercial or financial information ob-
tained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters which
would not be available by law to a party other than an agency in
litigation with the agency;
(6) personnel and medical files and similar files the disclosure
of which would constitute a clearly unwarranted invasion of
personal privacy;
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(7) investigatory files compiled for law enforcement purposes
except to the extent available by law to a party other than an
agency;
(8) contained in or related to examination, operating, or con-
dition reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of financial
institutions; or
(9) geological and geophysical information and data, includ-
ing maps, concerning wells.
(c) This section does not authorize withholding of information or
limit. the availability of records to the public, except as specifically
stated in this section. This section is not authority to withhold i.nfor-
matioa from Congress.
(d) On. or before, March 1 of each calendar year, each agency steal! sub-
mit it report covering the preceding calendar year to the Committee on Gov-
ernment Operations of the House of Representatives and the Commit?,,ee on
Government Operations and the Committee on the Judiciary of the Senate.
The report shall include--
(1) the number of determinations made by such, agency not to
cmraply with requests for records made to such agency under sub-
oil (a) and the reasons for each such determination;
(2) the number of appeals made by persons under subsection
(z) (5) (B), the result of such appeals, and the reason for the action
~epon each appeal that results in a denial of information;
(7) it copy of every rule made by such agency regarding this
.SefteO~i;
a copy of the fee schedule and the total amount of fees collected
by the agency, for malting records available under this section; and
(5) such ot,her? information as indicates efforts to administer fully
this section.
(e) Not,nithstan:ding section 551 (1) of this title, for. purposes of this
section, the terrn "agency" means any executive department, military
department, Government corporation, Government controlled corporation,
or other establishment in the executive branch of the Government (including
the Executive Office of the President), or any independent regulatory
agency.
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APPENDIXES
APPENDIX 1.-AGENCY VIEWS
DEPARTMENT OF JUSTICE,
Washington, D.C., February 20, 1974.
Hon? CHET HOLIFIELD,
Chairman, Committee on Government Operations,
House of Representatives, Washington, D.C.
DEAR MR. CHAIRMAN: This is in response to your request for the
views of the Department of Justice on H.R. 12471, a bill "To amend
section 552 of title 5, United States Code, known as the Freedom of
Information Act."
H.R. 12471 is designed to improve the administrative procedures
for handling requests by the public under the Freedom of Information
Act for access to government documents, sets rigid time limits upon
the agencies for responding to information requests, shortens substan-
tially the time for the government to file its pleadings in Information
Act suits, and authorizes the award of attorneys' fees to successful
plaintiffs in such suits. In addition, each agency is required to submit
an annual report to Congress evaluating its performance in adminis-
tering the Act and "agency" is defined to include the Executive Office
of the President.
Department spokesmen have repeatedly agreed that administrative
compliance with the Act's present provisions needs improvement. It is
our view, however, that H.R. 12471 as now drafted is far too inflexible
in application to be of significant use in solving many of these admin-
istrative problems. Equally important, certain aspects of the bill
present serious questions of constitutionality. Before turning to our
specific objections, detailed below, we believe it is also important to
note that our Department has recently initiated a, comprehensive study
of ways to improve administrative compliance With the Act. One of the
principal purposes of the study is to analyze the costs of implementing
the various methods suggested for improving administration. At the
present time, concrete cost evaluations do not exist and only the
roughest estimates of the varying cost factors can be made.
Since results of the study, from which constructive and concrete
proposals can be developed, are expected next year, the Department
of Justice suggests delay of extensive amendment of the Act until that
evaluation is completed. At that time, we would be in a better position
to advise Congress on the feasibility, cost, and desirability of proposals
to amend the Act.
Apart from these general observations on the utility of enacting
legislation such as H.R. 12471 at this time, the Department has the
following specific comments and recommendations concerning the
provisions of the bill.
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It
1. `'.ection. 1(a) of H.R. 12471 would amend the indexing provisions
in subsection (a) (2) of the Act. This provision now requires every
agency to maintain and make available for public inspection and copy-
ing; indexes of those documents having precedential significance. The
proposed amendment would go further and compel all agencies to
publish and distribute such indexes. We believe that imposition of this
requirement on a government-wide basis would be unduly expensive
and essentially unnecessary. _
Under the existing, indexing scheme, persons who ask to use the
indexes are permitted to do so.. However, a large segment of the public
may never have the interest or the need to use them. Thus, the
considerable expense of preparing for publication, publishing, and
keeping current indexes that are not oriented to a demonstrated public
need would be unjustified. Even where, an index does meet a need, such
as a caird catalogue in a library, it does not appear that the expense of
publishing would be warranted.
In these cases, it is generally more practical, economical, and saatis-
faa,ctory to the outside Person seeking information to give him direct
personal assistance that fits his existing knowledge and information,
rather than referring him to some index which may be largely incom-
prehensible because it was compiled by specialists for their own use,
or to tell him to buy a. published index. Moreover, private concerns
publish agency materials and indexes in substantial quantities. For
example, Commerce Clearing House and Prentice-Hall publish fully
indexed tax services. To require the government to index and publish
the same material would be an inefficient and expensive duplication of
function.
In this respect, two additional points warrant discussion. First,
compliance with. this provision will in all likelihood require agencies
to hire indexing specialists not only to index the voluminous existing
records, but also to establish indexing systems for future use. Al. .of
this will cost, the taxpayers money. Second, before the indexing
process can begin it is essential that agencies know exactly the types
of records the Act requires to be indexed. A number of recent court
decisions have thrown this whole area of indexing into great confusion.
We recommend that this amendment not be adopted until all
affected agencies have had an opportunity to determine its probable
impact on their staffs and budgets in relation to estimated public
benefits, or until possible alternative devices which may be more
effective, simpler to use, more easily kept up-to-date and less costly
have been considered.
2. Section 1(h) of the bill would amend Subsection a(3) of the Act
so that requests for records would no longer have to be "for identifiable
records," reovdiring instead that a request for records "reasonably
describes such records." We view this change to be essentially a
matter of semantics and thus unnecessary. The Senate Report in
explaining the use of the term "identifiable" in the present Act, stated:
"records mast he identifiable by the person requesting them, i.e., area-
;onable description enabling the Government employee to locate 6e
.requested records."
Because it doe" :alter the wording of the statute, this amendment
might lead to confusion as well as to unwarranted withholding of
requested records. An unsympathetic official might reject a request
Which would have to be processed today, on the new ground that the
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request is.not reasonably descriptive. Also, this amendment could
subject agencies to severe harassment, as where a requester adequately
described the Patent Office records he sought, but his request was for
about 5 million records scattered through over 3 million files. A court,
presumably unable to accept anything so unreasonable, held that the
request was not for "identifiable records." Irons v. Schuyler, 465 F. 2d
608 (D.C._ Cir. 1972). Accordingly, we conclude that this change
would not be desirable at this time.
3. Section 1(c) of the bill would amend the Act by imposing time
limits of 10 working days for an agency to determine whether to com-
ply with any request for records, and 20 working days to decide an
appeal from any denial. Th% purpose of imposing these deadlines is
to expedite agency action on requests for information. The time limits
are exact and no extensions are permitted. Certainly, agencies should
respond to such requests as expeditiously as possible; however, this
amendment is too rigid for permanent and government-wide applica-
tion and is likely to be counter-productive to the ultimate goal of
optimizing disclosure by discouraging the careful and sympathetic
processing of requests. Accordingly, we strongly oppose enactment of
this amendment.
Often files cannot be obtained within ten days either because the
filing systems are impervious to the description of the information
requested or because the files are located in centers distantly located
from the office receiving the request. Occasionally it is even necessary
for an agency to consult other agencies, organizations, or foreign
governments in order to determine the propriety of releasing or with-
holding information. Also, many requests are complex and unique.
Inflexible deadlines encourage, indeed compel, hasty denials in such
cases. No agency should be required to adhere to a rigid 10 to 20 day /
limit at the cost of denying requests, in a spirit of caution, that might
with more study and time be granted in whole or part. Finally, there
is the very real problem of spreading available resources too thin. For
example, to meet the deadlines imposed by this amendment, it may
frequently be necessary to pull personnel off matters within the pri-
mary mission of the agency to handle an Information Act request.
Strict time limits ignore considerations of priority. For example, FBI
personnel should not be required to process every request within the
prescribed time limits when their attention is urgently needed for such
things as investigating hi-jackings or bombings of public buildings or
other emergencies.
To avoid these and other problems inherent in rigid time constraints,
yet provide for expeditious treatment of information requests, we
suggest that our revised departmental regulations, which follow the
recommendations of the Administrative Conference, serve as a more
practical working model. Our regulations provide for 10 and 20 day
deadlines but permit extension of time under prescribed circumstances.
We use the term "working model" advisedly, for even within our own
Department an exception from these regulations was created for the
Immigration and Naturalization Service because of the voluminous
nature of its records, and we are rarely able to process an appeal within
20 days. Similar exceptions may need to be created, or some may be
eliminated as more experience in administering the Act is gained. In
any event, rigid time limits for all agencies would be impracticable
and would serve only to frustrate the purposes of the Act.
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4. Section 1(d) of H. R. 12471 deals with in camera, inspection by the
courts of agency records. It provides that a court "may examine in
camera the contents of any agency records to determine whether
such records should be withheld in whole or in part under any of the
exemptions set forth in the Act." With respect to exemptions 2
through 9 of the Act, this amendment appears only to codify the rule
relating to in camera inspections announced by the Supreme Court in
Environmental Protection Agency v. Mink, 93 S.Ct. 827 (1973). There,
the Court construed the Act as vesting in the courts, in cases other
than those in which the documents are classified, the discretion to
determine whether an in camera inspection is necessary to the resolu-
tion of the ~-,ase. Accordingly, we have nd objection to the enactment
of this measure as it relates to cases where one or more of exemptions
2 through 9 are involved. However, we oppose any legislative attempt
to overrule the Supreme Court's decision in Mink with respect to
classified (exemption 1) documents.
In Mink, the Supreme Court found that judicial review did not
extend to "Executive security classifications . at the insistence of
anyone who might seek to question them." 93 S.Ct. at 833. We oppose
this overruling attempt simply because the courts, as they themselves
have recognized, are not equipped to subject to judicial scrutiny
Executive determinations that certain documents if disclosed would
injure our foreign relations or national defense. As the Court of
Appeals said it,, Epstein v. Resor, 421 F.2d 930 (9th Cir. 1970), cert.
denied, 398 U.S. 965 (1970), "the question of what is desirable in the
interest of national defense and foreign policy is not the sort of question
that courts are designed to deal with." In C. cf/ S. Air Lines v. Water-
man Corp., 333 U.S. 103 (1948), the Supreme Court was more explicit:
"['l'Jhe very nature of executive decisions as to foreign policy is
political, not judicial. Such decisions are wholly confided by our Con-
stitution to the political departments of the government, Executive
and Legislative. They are delicate, complex, and involve large ele-
ments of prophecy. They are and should be undertaken only by those
directly responsible to the people whose welfare they advance or im-
peril. They are decisions of a kind for which the Judiciary has neither
aptitude, facilities nor responsibility and which has long been held to
belong in the domain of political power not subject to judicial intru-
sion or inquiry."
5. Section 1(e) would reduce the present 60-d.ay period which the
Government normally has to answer complaints against it in federal
court to 20 days for all suits under the Act. It would also provide for
an award of attorneys' fees to the plaintiff in any such suit in which
the government "has not prevailed," leaving it unclear what might
happen in cases where the government prevails on part of the records
in issue but does not prevajl on the rest.
We oppose both features of this section. When. a suit is filed under
the Act, the local. U.S. Attorney ordinarily consults the Department
of Justice. The Department in turn must consult the agencies whose
records are involved, and frequently that agency must coordinate
internally among its headquarters components or its field offices, and
sometimes externally with other agencies. Because the federal govern-
menic is larger and more complex, and bears more crucial public
interest responsibilities than any other litigant, it needs more time
to develop and evaluate its positions, especially if they may affect
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agencies other than the one sued. A 20-day rule would require that
decisions be made without ample time for inquiry, consultation, and
study, and consequently the incidence of positions that would later
be reformulated would increase, causing unnecessary work for the
parties on both sides and for the courts.
Furthermore, in a type of litigation which can be initiated by any-
one without the customary legal requirements of standing or interest
or injury, the award of attorneys' fees is particularly inappropriate. It
is difficult to understand why there should be departure in this area of
law from the traditional rule, applied in virtually every other field of
Government litigation that attorneys' fees may not be recovered
against the Government.
Although the Act has been used successfully by public interest
groups to vindicate the public's right to know; not all litigants fit that
category. Instead., the plaintiff may well be a businessman using the
Act to gain information about a competitor's plans or operations. Or
he may be someone seeking a list of names for a commercial mailing
list venture. In all such cases, the obvious end result if attorneys'
fees were awarded would be that the taxpayers would pay for litigating
both. sides of the dispute. This expense could become quite substan-
tial considering that well over 200 suits have been filed to date and
that number is ever increasing.
6. Section 2 of the bill would amend section 552 (b) (1) of the Act
to exempt from disclosure material "authorized under criteria estab-
lished by an Executive Order to be kept secret in the interest of na-
tional defense or foreign policy". Section (b) (1) presently excepts
material specifically required b,yr Executive Order to be kept secret
in the interest of national defense or foreign policy. This provision is
intended to be read in conjunction with the in camera provisions of
section 1(d). It would, in e ect, transfer the decision as to whether a
document should be protected in the interests of foreign policy or
national defense from the Executive Branch to the courts. While we
firmly share the view that classification abuses cannot be tolerated,
and in this respect it is important to note that the existing classifica-
tion order provides for sanctions in such cases, we are constrained to
oppose this amendment for the same reasons noted in our comments
on section 1(d).
7. Section 3 of H.R. 12471 is divided into two parts. The first part
would. require each agency to submit an annual report to Congress
containing a statistical evaluation of the duties executed in adminis-
tering the Act. Congress certainly has an interest and responsibility
to keep informed on how the Act is being administered. Accordingly,
we support the general objectives of this amendment. Nevertheless,
we do not believe that legislation is necessary to accomplish this end.
In the past, agencies have appeared before committees of both houses
of Congress on numerous occasions and discussed their administrative
operations. Statements, complete with statistical information, have
been submitted on those occasions for congressional review. Similar
information as that proposed to be included in the annual reports was
obtained by the House Committee on Government Operations in 1971
by means of a questionnaire. These methods have the obvious advan-
tage of flexibility and enable Congress to receive the information it
needs without being locked into a fixed system of reporting require-
ments. For this reason, this provision seems undesirable.
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20
The second part of section 3 redefines an agency for purposes of the
Act to include executive and military departments, Government
owned or controlled corporations, any independent regulatory agency,
or other establishment in the Executive Branch including the Execu-
tive Office of the President. We cannot determine from this language
whether or not the Act would be extended to include groups such as:
the American National Red Cross, the Girl Scouts of America, Na-
tional Academy of Sciences, the Veterans of Foreign Wars, or the
Daughters of the American Revolution. Some clarification would
seem appropriate.
Moreover, in, our opinion, the last:, provision involves a direct attack
on the separation of powers system established by the Constitution
and is therefore unconstitutional. The.Executive Office of the President
has traditionally included elements that are a mere extension of the
President himself. Persons performing such functions are among a
President's most trusted advisors and the need for those persons
to speak candidly on highly confidential matters is obvious. Of course,
the principle of separation of powers does not preclude the promulga-
tion of freedom of information regulations applicable to particular
units within. the Executive Office. But, just as Congress has seen fit
not to extend the Freedom of information Act to itself or its staff
on the ground that to do so would violate its constitutional preroga-
tives, neither can it be imposed on the President's staff.
In view of the foregoing, the Department of Justice recommends
against the enactment of this legislation in its present form.
The office of Management and Budget has advised that there is no
objection to the submission of this report from the standpoint of the
Ad minist'ration's program.
Sincerely,
MALCOLM D. HAW K,
Acting Assistant, Attorney General.
(iENI 1 r COUNSEL OF THE DEPARTMENT OF DEFENSE,
Washington, D.C., February 20, 1974.
Ron. CHET FloLIFTELD,
Chairman, Committee on Government Operations, House of Represtnta-
tires, Washington, D.C.
DEAR MR. CHAIRMAN : Reference is made to your recent request, for
the views of the Department of Defense on R.R. 12471, 93d Congress,
a bill "To amend section 552 of title 5, United States Code, known as
the, Freedom of Information Act (FOIA)."
The purpose of the bill is to require Federal agencies to adhere to
several new administrative requirements devised to enhance respon-
siveness, io FOIA requests. More specifically, the bill provides for the
following :
1. That the current index of opinions, statements of policy, and
administrative staff manuals be published and distributed, rather than
simply made available for public inspection and copying.
2. That the requirement for "identifiable records" be modified to
a requirement for a reasonable description of the records requested.
3.. That agencies determine the availability of a record within 10
days after receipt of an initial request, and make determinations for
initially denied records within 20 (lays after receipt of an appeal.
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4. That courts be given authority to examine in camera any records
which the agencies have denied a requester who has brought legal
action to force their release.
5. That the United States file a responsive pleading in litigation
initiated by the requester of a record within 20 days after service upon
the United States Attorney of the pleading in which the complaint
is made, rather than the current 60-day period for responding to such
pleadings.
6. That the Court may assess against the United States reasonable
attorney fees and other litigation costs where the Court has found
against the United States in its efforts to withhold the record.
7. That the exemption of classified information shall be evaluated
on the basis of the criteria established by the Executive Order.
8. That each agency shall file with the Committee on Government
Operations of the House of Representatives and the Committees on
Government Operations and on the Judiciary in the Senate, a detailed
annual report concerning denials of requests for agency records,
appeals of those denials, regulations governing -FOIA requests, fee
schedules imposed when requesters are charged for records provided,
and other information concerning administration of the FOIA.
9. That the term "agency" be specifically defined in section 552 of
title 5, United States Code, by indicating the kinds of organizations
that come within its scope.
First, it should be noted that H.R. 12471 is a vast improvement
over some of the earlier bills to amend the FOIA considered by the
Subcommittee on Foreign Operations and Government Information
of the Committee on Government Operations. On May 8, 1973, the
former General Counsel of the Department of Defense, Mr. J. Fred
Buzhardt, testified on H.R. 5425 and H.R. 4960, both of which con-
tained a number of provisions which he found highly objectionable
to the Department of Defense. We are pleased that a number of these
problems have been overcome in H.R. 12471. Although there are
other provisions of H.R. 12471 that we do not consider particularly
desirable, these comments are confined to those aspects of the bill
which we believe will create serious difficulties for the Department of
Defense.
Our single greatest problem in implementing this bill, if it should
pass, would relate to the time limitations imposed for responding to
requests for records and in providing the necessary information for
responding to complaints filed in court as a result of the denial of
records. Although it may be possible in the vast majority of cases to
respond within 10 days to an initial request for a simple record that
can be easily located and readily evaluated, it will not be possible in
the case of so-called "categorical requests" for voluminous records,
or for individual records which cannot be located and evaluated
readily. In an agency the size of the Department of Defense, records
are located all over the world, and old records are stored in warehouses
where their exact location is often difficult to determine in a short
time. Until a requested record is located, no determination can be
made of its availability to the requester, or whether it comes within
an exemption that should be invoked to serve a legitimate public
interest.
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Although 20 working days may seem an adequate time for evaluating
appeals of denied records, this may not be true in cases in which volu-
minous or complicated records must be forwarded for evaluation by
high-level or technically specialized officials whose time must be
divided between a multitude of competing priorities. If additional
staff must be added for the purpose of creating a capability to respond
within the time limit, the cost of this provision alone may go into the
millions of dollars. Even additional staff, however, cannot eliminate
demands upon the time of expert officials who must respond to other
priori ties.
Even more important, however, is our view that such rigid time
limitations may prove counterproductive from the standpoint of
public access. It is often true that records which technically fall within
one of the exemptions of the Act are released after careful evaluation
by responsible officials who find that no substantial legitimate purpose
will he served by their withholding. If there is inadequate time for
these evaluations, denials are likely to be more frequent and requesters
will be forced to resort to judicial action at great expense to themselves
and to the United States. Moreover, it should be noted that the
court's role in evaluating a complaint based on the denial of a record is
to determine whether an exemption applies. If so, the record is properly
denied. Thus, records that might otherwise be released on a discretion-
ary basis may be denied to the public because of artificial time con-
straints that make careful agency evaluation impossible.
In this regard, we would commend to the Committee's attention the
views of the Administrative Conference of the United States with
respect to time limitations as they are found in Recommendation 71-2
(forrnurly designated Recommendation Number 24), dated Xlrt3- 7,
1971. After painstaking study and evaluation by the distinguished
members of the Administrative Conference, guidelines were prepared
for agency implementation to set forth several carefully circumscribed
bases for delaying the response to requests for agency records beyond
the normal. l0 days for the initial determination and 20 days for an
appeal. Such delays are authorized for the following reasons:
a. The requested records are stored in whole or part at other loca-
tions than the office having charge of the records requested.
b. The regriest requires the ebllection of a substantial number of
specified records.
c. The request, is couched in categorical terms and requires an
extensive search for the records responsive to it.
d. The requested records have not been located in the, course of a,
routine search and additional efforts are being made to locate them.
e. The requested records require examination and evaluation by
personnel having the necessary competence and discretion to deter-
mine if they are: (a) exempt from disclosure under the Freedom of j`n-
formation Act and (b) should be withheld as a matter of sound policy,
or revealed only with appropriate deletions.
When extensions are permitted under these criteria, the agency is
required to acknowledge the request in writing within a 10-day period
following initial request explaining the reasons for the delay. Further,
on appen] from an initial denial failure to make a response within 20
days can be justified only under extraordinary circumstances.
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We believe that the Administrative Conference recommendation
offers a realistic approach to dealing with the problem of undue delay
by agencies in responding to requests for records under the FOIA.
Either the adoption of this recommendation in legislative form, or
better yet, a simple amendment of section 552 requires that agencies
include time limitations in their regulations would be far preferable
to the present inflexible language of H.R. 12471. A comment in the
report on a bill that the Administrative Conference model should be
followed, would seem to be sufficient direction to the agencies if a
simple requirement for time limitations in the agency regulations was
imposed by the statute.
Under the language of H.R. 12471, failure by an agency to meet the
time limit for response to a request for a record is deemed an exhaustion
by the requester of his administrative remedies. This language can
be read as meaning that an agency's failure to answer the initial
inquiry within 10 clays lays sufficient foundation for initiating litiga-
tion even though no appeal is taken. It will, therefore, behoove an
agency to automatically respond with a letter of denial for any initial
request it has not had adequate time to evaluate and thereby preserve
its right to consider further the request at an, appellate level within
the 20 working days available. This will cause an undue escalation of
the request in many cases, and may actually delay a response to the
requester. If, on the other hand, the actual intent of the bill is simply
to permit the requester to have the option of making a final appeal
when his initial request has not been answered within 10 days, the
language of the bill requires clarification.
From the standpoint of the Department of Defense the 20-day
limit on the Justice Department for answering complaints is extremely
disturbing. Learning of the existence of litigation in the large number
of district courts in which such litigation may be initiated under the
FOIA is often a problem that consumes a good portion of the 20 days.
Present experience indicates that obtaining expert views from com-
petent sources is often difficult to achieve within the 60-day period
now available. By reducing that time by two-thirds, the task of supply-
ing necessary information to Justice Department representatives
attempting to respond intelligently to a complaint filed under the
authority of 5 United States Code 552 will. prove almost impossible.
Yet, there is no assurance that despite this inadequate time for
preparing an answer to the complaint that the plaintiff will receive
prompt consideration of that complaint by the court. We, therefore,
strongly recommend that this requirement for the filing of a responsive
pleading within 20 days be deleted from the bill.
We view with some concern the effort in section (d) of this bill to
authorize the court to examine in camera the contents of any agency
records to determine whether an exemption has been properly applied.
This could prove particularly troublesome if it is interpreted as an
encouragement to the courts to second-guess security classification
decisions made pursuant to an Executive Order. We urge that the
report on this bill make it clear that it is the intention of Congress
to simply permit the court, where it has some reason to doubt the
validity of an affidavit supporting a security classification, to examine
the classified record solely for the purpose of determining that the
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authorized official of the Executive Branch has exercised his classifica-
tion authority in aood faith and in basic conformity with the criteria
of the Executive order. No system of security classification can work
satisfactorily if judges are going to substitute their interpretations of
what should be given a security classification for those of the Govern-
ment officials responsible for the program requiring classification.
The Office of Management and Budget advised that from the stand-
point of the administrative program, there is no objection of the
presentation of this report for the consideration of the Committee.
Sincerely yours,
L. NIEDERLEHNER,
Acting General Counsel.
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APPENDIX 2.-TEXT OF BILL
93D CONGRESS
2D SESSION
H. R. 12471
IN THE HOUSE OF REPRESENTATIVES
JANUARY 31, 1974
Mr. MOORnEAD of Pennsylvania (for himself, Ms. Anzua, Mr. ALEXANDER, Mr.
ERLENRORN, Mr. Guna, Mr. I-IORTON, Mr. MCCLOSKEY, Mr. MOSS, Mr.
REGULA, Mr. JAMES V. STANTON, AIr. TIIONS, and AIr. WRIGHT) introduced
the following bill; which was referred to the Committee on Government
Operations
BILL
A
To amend section 552 of title 5, United States Code, known as
the Freedom of Information Act.
1 Be it enacted by the Senate and House of Represenia-
2 tines of the United States of America in Congress assembled,
3 SECTION 1. (a) The fourth sentence of section 522 (a)
4 (2) of title 5, United States Code, is amended by striking
5 out "and make available for public inspection and copying"
6 and inserting in lieu thereof promptly publish, and dis-
7 tribute (by sale or otherwise) copies of".
8 (b) Section 552 (a) (3) of title 5, United States Code,
9 is amended by striking out "on request for identifiable records
10 made in accordance with published rules stating the time,
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.1 place, fees to the extent aut.horved by statute, and proee-
2 (lure to be followed," and inserting in lieu thereof the
following: "upon any request for records which (A) rea-
4 sonal,ly describes such records, and (B) is made in ac-
5 cordance with published rules slating the time, place, fees to
G the extent authorized by statute, and procedure to be
7 followed,".
8 (c) Section 552 (a) of title 5, United States Code, is
9 amended by adding at the end thereof the following nc?,v
10 paragraph:
11 " (5) Each agency, upon receipt of any request for
12 records made under this subsection, shall-
1:3 "(A) determine within ten days (excepting Sat -
1?t urdays, Sundays, and legal public holidays) after the
1; date of such receipt whether to comply with the request
161 and shall immediately notify the person making the re-
quest of such determination and the reasons therefor, and
1S of the right of such person to appeal. to the head of the
19 agency any adverse determination; and
2C) " (B) make a determination with respect to such
21 appeal within twenty days (excepting Saturdays, Sun..
22 days, and legal public holidays) after the date of receipt;
,;;; of such appeal.
24 "Any person making a request to an agency for records
25 under this subsection shall be deemed to have exhausted his
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J
1 administrative remedies with respect to such request if the
2 agency fails to comply with subparagraph (A) or (B) of
3 this paragraph. Upon any determination by an agency to
4 comply with a request for records, the records shall be made
5 promptly available to the person making such request."
6 (d) The third sentence of section 552 (a) (3) of title 5,
7 United States Code, is amended by inserting immediately
8 after "the court shall determine the matter do novo" the
9 following: ", and may examine the contents- of any agency
j.0 records in camera to determine whether such record's or' any
11 part thereof shall be withheld tinder any of the exemptions
12 set forth in subsection (b) ,".
13 (e) Section 552 (a) (3) of title 5, United States Code,
14 is amended by adding at the end thereof the following new
15 sentence: "Notwithstanding any other provision of law, the
16 United States or the officer or agency thereof against whom
17 the complaint was filed shall serve a responsive pleading to
18 any complaint made under this paragraph within twenty days
19 after the service upon the United States attorney of the
20 pleading in which such complaint is made, unless the court
21 otherwise directs for good cause shown. The court may assess
22 against the United States reasonable attorney fees and other
23 litigation costs reasonably incurred in any case under this
24 section in which the United States or an officer or agency
25 thereof, as litigant, has not prevailed."
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1 Sn`C. 2. Section 552(1)) (1) of title 5, United States
2 Code, is amended to read as follows:
"(1) authorized order criteria by an
11 Executive order to be hept secret in the interest of the
5 national defen4e or foreign policy;".