STATEMENT OF STEPHEN MARKMAN, ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL POLICY

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP91B00389R000500190011-5
• Release Decision: RIFPUB
• Original Classification: K
• Document Page Count: 92
• Document Creation Date: December 23, 2016
• Document Release Date: January 3, 2013
• Sequence Number: 11
• Publication Date: August 2, 1988
• Content Type: MISC

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STATEMENT
STEPHEN J. MARKMAN
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
COMMITTEE ON THE JUDICIARY
SUBCOMMITTEE ON TECHNOLOGY AND THE LAW
UNITED STATES SENATE
THE FREEDOM OF INFORMATION ACT
AUGUST 2, 1988
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Mr.-Chairman and Members of the Subcommittee:
I am pleased to be here this morning to address the
Department of Justice's administration of the Freedom of
Information Act ("FOIA"), 5 U.S.C. ? 552 (1982 & Supp. IV 1986),
the principal statute governing public access to federal
information from the Executive Branch. This Act has become an
essential part of our democratic system of government.
As you know, the Department of Justice exercises
government-wide policy responsibility to encourage agency
compliance with the Freedom of Information Act, in accordance
with 5 U.S.C. ? 552(e), and this responsibility is discharged by
the Department's Office of Legal Policy and its subordinate
Office of Information and Privacy. However, within the
Department of Justice, each component bears the responsibility of
responding in the first instance to FOIA requests for its own
records.
The Department of Justice works hard to fulfill its
responsibilities under.the FOIA. In 1987, the Department acted
on 60,610 requests. This was an increase of more than 4,000 from
1986, which itself was an increase of more than 4,000 from 1985.
In 1987, the Department also acted on over 2,100 administrative
appeals. The processing of last year's requests and appeals
required the dedication of over 600 employee years. This
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commitment -- just for administrative processing, not for
litigation -- amounts to almost one percent of the entire
personnel resources of the Department.
At the Department of Justice, responding to FOIA
requests is a growth industry. Not only are the numbers of
requests growing, but their complexity and magnitude seem also to
be increasing. The experience of the FBI readily illustrates the
massive nature of this activity: Last year the FBI alone
released over 3/4 of a million pages under the FOIA, and the
Bureau now has pending or is presently processing 149 "project"
requests -- each involving over 3,000 pages -- encompassing a
total of over 900,000 pages.1 Unfortunately, this is one growth
industry in which we have few economies of scale. Processing
records for FOIA disclosure is-a highly labor-intensive activity.
It begins with the search for responsive documents, often
through many sets of files. Then, after consultations with
program personnel familiar with the sensitivity of the records,
the FOIA analyst conducts a line-by-line, page-by-page review,
making excisions where necessary. It requires the utmost care,
whether the subject of the-records is national security, law
enforcement, trade secrets or personal privacy.-
1 One well-known example of an FBI "project" case is the
request by the children of atomic bomb spies Ethel and Julius
Rosenberg, which encompassed approximately 450,000 pages of
records. See Meeroool v. Meese, 790 F.2d 942, 949 (D.C. Cir.
1986).
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My prepared statement contains a detailed discussion
for the record of several aspects of the Department's activities
with respect to the FOIA, including the 1986 amendments to the
FOIA and their implementation. Part II summarizes the background
of the FOIA, the 1974 amendments to the FOIA, and the experience
of the federal government in meeting the requirements of the Act.
It then addresses the genesis of the more recent reform
proposals, which began during the Carter Administration and
culminated in the enactment of the Freedom of Information Reform
Act of 1986,2 as well as the Department's efforts to implement
the law enforcement and fee and fee waiver revisions made by the
1986 FOIA amendments.
Part III then describes the Department of Justice's
numerous activities guiding the government-wide implementation of
the Act in recent years. This discussion demonstrates the vast
increase in the quantity and quality of the Department's FOIA
guidance and training efforts since the beginning of the present
Administration, when the Office of Information and Privacy was
created.
But before getting into the discussion of the specific
amendments to the FOIA and the Department's efforts to encourage
agency compliance with its requirements, I would like to take
this opportunity today to discuss some of this Administration's
2 Pub. L. No. 99-570, 100 Stat. 3207, 3207-48, ?? 1801-
1804 (Oct. 27, 1986).
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policy perspectives on the Freedom of Information Act, to provide
some context concerning the important public policy issues that
are embodied within-it. For many years now, these basic policy
issues have undergirded the public debate over the subject of
FOIA reform, the background and legislative results of which I
subsequently review. Part I of.my testimony thus states some
general themes and considerations that I believe should be borne
in mind in considering the subject of the FOIA and its
implementation.
I. POLICY PERSPECTIVES
When President Lyndon Johnson signed the Freedom of
Information Act into law on July 4, 1966, his bill-signing
statement articulated the delicate public policy balance that
the FOIA was intended to strike for our Federal Government:
A democracy works best when the people have all
the information that the security of the Nation
permits. No one should be able to pull the
curtains of secrecy around decisions which can be
revealed without injury to the public interest.
Since then, the FOIA has had a profound effect on the operation
of the Federal Government, though not always in the areas and in
the manner anticipated, and it has sometimes been seen as "out of
balance" in several respects.
When it was enacted, the FOIA rode on high hopes.
Journalists and scholars, public'interest groups and private
citizens all hailed the Act as ushering in a new era of
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accountability in government. Dissatisfaction with the original
provisions of the Act led to the 1974 amendments, and
dissatisfaction with those changes led to the 1986 revisions.
Yet, even after more than two decades of agency experience,
litigation and legislative revision, it is still difficult to
appraise the extent to which expectations for the FOIA have been
met and whether a proper balance under the Act has been realized.
First, it must be said that there can be no quarrel
with the overall goal of the Freedom of Information Act. An
informed electorate is the cornerstone of a healthy democracy,
and any mechanism that effectively serves this end is of great
societal value. Surely all would agree that the FOIA has
contributed to this end and that its worthy public policy goal
has often been achieved.
Indeed, where this goal has been achieved, the
acknowledged accomplishments of the Act have been well
publicized. The FOIA undeniably fosters a general public
perception of government openness and accountability. Certainly,
FOIA disclosures have provided the basis for numerous news
stories and books and much public discussion on a very broad
array of important topics. In addition, it is self-evident that
by making many agency records publicly available, the FOIA
facilitates a kind of public oversight, discouraging unprincipled
and arbitrary agency actions by virtue of the mere prospect of
compelled disclosure.
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At the same time, more than two decades of experience
with the Act suggest that it provides these benefits at a far
greater cost in other respects than was originally anticipated
a cost which should not be ignored and which in at least some
situations may be too high a price to pay.
Evaluation of the Freedom of Information Act's
effectiveness often is hampered by an excessive focus on only one
aspect of the "public interest" -- that is, by considering only
how many documents are disclosed, how many requests are denied,
and what the "batting average" is for various federal agencies or
requesters.3 Contrary to such a simplistic analysis, the overall
"public interest" sought to be served by the FOIA incorporates a
multiplicity of discrete, sometime conflicting, "public
interests" -- each of which figures into the mix which
constitutes the broadest "public interest" of good government.
In addition to the "public interest" in disclosing
information for government oversight, as already mentioned,
there are three other principal "public interests" that I
believe to be essential to a balanced approach to, and
understanding of, the Freedom of Information Act.
3 For the record, the Department's "batting average" is
rather high. Of its substantive determinations in 1987, the
Department made complete grants to 59% of the requests and
partial grants to 33% of the requests, while only 8% were denied
in full.
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The first and most obvious such "public interest" under
the FOIA is that some classes of sensitive records should not be
required to be disclosed to the public at all. The FOIA, of
course, provides.nine express exemptions. In the case of records
implicating the vital interests protected in these exemptions,
those interests are preserved by withholding the records from
FOIA disclosure. Thus, the FOIA expressly contemplates that a
"public interest" is sometimes served by maintaining the
confidentiality of agency records, in order to protect our
personal privacy, for example, or to preserve the effectiveness
of law enforcement investigations.
A second "public interest" is the public's interest in
a smoothly operating and efficient Federal Government. Whatever
disagreements there may be over particular functions of the
government, there presumably is a "public interest" in
maintaining the effectiveness of government operations, i.e.,
ensuring that a government agency is able to perform the public
mission for which it was created.4 Certainly, to the extent that
government agency operations and activities are affected -- or
sometimes disrupted -- by the FOIA, the "public interest" is
4 I note that the Chairman of this Subcommittee deserves
special credit for seeking to extend the coverage of certain
laws, including the FOIA, to the Congress. That would be an
admirable achievement, because I suspect that it would give the
Congress a much closer appreciation for the costs and burdens
that result from the FOIA's implementation.
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necessarily affected.5 Of course, -in many cases where the Act
requires such intrusions, the value of requested information
being made available to the public may weigh in favor of such an
accommodation. However, as I will discuss in this testimony,
there are too many situations in which that is not the case.
A third "public interest" necessarily inherent in the
Freedom of Information Act is the public interest in using scarce
taxpayer resources in a responsible and productive manner. This
means that it is proper for the taxpayer to underwrite the cost
of administering the Act only when the public directly benefits
from its use. Especially in these times of budgetary restraints,
the setting of such a priority for the expenditure of taxpayer
funds is a matter of basic fiscal responsibility.
However, several categories of FOIA users -- for
example, those who have no intent or desire to benefit the public
with the information they receive -- have been able to take
inappropriate advantage of its structure to serve their own
private interests at the taxpayer's expense and often to the
detriment of more deserving requesters who are forced to wait in
line behind them before their requests are processed. Surely,
far beyond the simple dollar numbers, the greater cost -- some
would say waste -- is in the siphoning off of the public
5 In fact, some operations and activities are affected
.insofar as officials have become reluctant to commit their ideas
to paper, fearing that these records may some time in the future
be disclosed under the FOIA.
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servant's time and attention from matters of legitimate public
interest to the service of purely private concerns. Who would
say that a prisoner seeking revenge, a company anxious to obtain
a competitor's data, or even an individual who is merely curious
about some esoteric topic should be given virtually unlimited
license to monopolize government time and resources for purely
private usages?
It is this public interest that was at the heart of
then-University of Chicago Law Professor (now-United States
Supreme Court Justice) Antonin Scalia's criticism of the Freedom
of Information Act as "the Taj Mahal of the Doctrine of
Unanticipated Consequences, the Sistine Chapel-of Cost Benefit
Analysis Ignored."6 Justice Scalia surveyed some of the Act's
more glaring inequities and weaknesses before concluding:
They are foolish extravagances only because
we do not'have an unlimited amount of federal
money to spend, an unlimited number of agency
employees to assign, an unlimited number of
judges to hear and decide cases. We must,
alas, set some priorities -- and unless the
world is mad the usual Freedom of Information
Act request should not be high on the list.?
His rather colorful rhetoric notwithstanding, Justice Scalia's
thesis, with which I agree, is actually quite simple: Though
intended to enable the public to learn more about their
government, the reality is that the FOIA too often has been
6 Scalia, The Freedom of Information Act Has No Clothes,
Regulation, Mar./Apr. 1982, at 15.
7 Id. at 17-18.
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transformed into a vehicle serving purely private interests, to
the detriment of its intended public interest.
Today, a typical FOIA scenario is not, as envisioned
by the Congress, the journalist who seeks information about the
development of public policy which he will shortly publish for
the. edification of the electorate. Rather, it is the corporate
lawyer seeking business secrets of a client's competitors; the
felon attempting to learn who it was who informed against him;
the drug trafficker trying to evade the law;8 the foreign
requester seeking a benefit that our citizens cannot obtain from
his country; or the private litigant who, constrained by
discovery limitations, turns to the FOIA to give him what a trial
court will not. And as if these uses do not diverge enough from
the Act's original purpose, it is the public the intended
beneficiary of the whole scheme -- who bears nearly the entire
financial burden of honoring those requests while often reaping
virtually none of the benefits from them.
The 1986 FOIA amendments partially accommodated this
concern by providing for the assessment of review charges for the
processing of requests made for commercial purposes, while at the
same time granting special fee consideration to journalists,
8 As the D.C. Circuit has stated, "Congress
scholar and the scoundrel e oragenc the
goal rights of access to agency
records." Durns v. Bureau of Prisons, 804 F.2d 701, 706 (D.C.
Cir. 1986), vacated on other grounds, 108 S. Ct. 2010 (1988).
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scholars and those others who seek information primarily to
inform the electorate. See pp. 45-46 infra.
Removing unintended subsidies.for commercial
requesters was manifestly a good idea. But it seems to me that
other groups just as easily identifiable -- prisoners, litigants
attempting to supplement civil or criminal discovery, and foreign
entities -- continue to receive disproportionate benefits of the
FOIA though they also are unlikely to benefit the general public
with the fruits of their requests. The benefits of the FOIA
should be more carefully tailored to prefer those whose requests
further the laudable goal of drawing the public closer to the
workings of its government for the purpose of improving its
quality.
Prisoners. At the Department of Justice, for example,
prisoners are the most persistent FOIA users. Their requests,
appeals and litigation flood the criminal law enforcement
agencies. Some individuals file hundreds of requests and dozens
of lawsuits.9 They clog the administrative system. _A Drug
Enforcement Administration study showed that approximately 60
percent of those who request DEA records were behind bars at the
time, and half of the remainder were under investigation if not
9 See, e.g., Crooker v. United States Marshals Service, 641
F. Supp. 1141, 1142-4.3 (D.D.C. 1986) (finding that prisoner's
sixty FOIA lawsuits in eight years "have been [filed] for
purposes of harassment").
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yet already indicted-10 It. is not'difficult to imagine what it
is they sought: information that would abet their efforts to
learn details of an investigation so that they may thwart it, or
that would identify government informants or agents. All too
often in such criminal enforcement contexts, there is the related
cost that valuable investigators in the field will have to be
pulled off the case temporarily to advise on the FOIA response.
Each time this is done, a promising lead may vanish, an
additional drug shipment may be delivered undetected or at very
least, an agent's attention to a case will be diverted. It takes
little imagination to realize how this dissipation of limited law
enforcement resources can be accomplished on a systematic basis
by particularly sophisticated. requesters, such as those in
organized crime, or by particularly persistent requesters.11
Foreign requesters. The FOIA gives the same rights to
foreigners as to United States citizens -- even permitting
lawsuits in our courts. For example, a Canadian news service
which reports to its Canadian readership has not only been held
10 Freedom of Information Act: Hearings before the
Subcomm. on the Constitution, Senate Comm. on the Judiciary, on
S. 587, S. 1235 S. 1247 S. 1730. and S.--17511 97th Cong., 1st
Sess. [hereinafter "1981 Senate Hearings"], Vol. 1, at 1052
(1981),(DEA report entitled "The Effect of the Freedom of
Information Act on DEA Investigations").
it As expressed by a rather exasperated Circuit Court Judge
Richard A. Posner of the Seventh Circuit Court of Appeals, in the
context of a $39.20 FOIA fee waiver suit, "How much more money
shall the taxpayer be forced to spend to relieve the monotony of
[the plaintiff's] incarceration?" Savage v. CIA, 826 F.2d.561,
563 (7th Cir. 1987).
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to qualify as a "media representative," but also to qualify for
a fee waiver for the dissemination of the requested information
in Canada.12 Yet Canada, as well as other countries, provides no
such reciprocal access to our citizens -- let alone at any
discount -- under their public information laws. Even the
Ayatollah Khomeini can invoke the benefits of the FOIA; his
government filed a FOIA request in 1981 seeking access to CIA
information on the then-exiled Shah of Iran. And as if that were
not enough, even under the 1986 FOIA amendments the CIA would not
have been able to charge processing costs for the time required
to review the responsive records.
Civil Discovery. Another large and troublesome group
of requesters consists of those who use the Act to short-circuit
the rules. of civil discovery, often in cases involving the
government. Indeed, for the knowledgeable attorney the FOIA can
be a gold mine which yields access to a variety of types of
information essential to the litigant's efforts. Agencies
uniformly acknowledge that a substantial percentage of the
requests they receive are directly related to ongoing litigation
discovery. The Defense Department has reported that half of the
FOIA requests it receives come from business interests wishing to
supplement formal discovery in defense contract litigation.13
12
1987).
Southam News v. INS, 674 F. Supp. 881, 892-93 (D.D.C.
13 Ehlke & Relyea, Congress' Look at FOIA Changes Stirs
Controversy, Legal Times, Jan..3, 1983, at 11.
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The Food and Drug Administration, Securities Exchange Commission
and Federal Communications Commission have reported similar
experiences.14 The Department's Land and Natural Resources
Division advises that requests this year are being filed at rate
almost twice that of last year; the vast majority are from
targets of the government's environmental investigations or from
those preparing to litigate with those targets.
Despite the United States Supreme Court's repeated
admonitions that "[t]he primary purpose of the FOIA was not to
benefit private litigants or to serve as a substitute for civil
discovery,"15 private litigants can and all too frequently do
avail themselves of the Act to pursue their own economic
interests.16
14 Koch & Rubin, A Proposal for a Comprehensive Restruc-
turing of the Public Information System, 1979 Duke L.J. 1, 17-19.
15 Baldrige v. Sha iro, 455 U.S. 345, 360 n.14 (1982); see
also United States v. Weber Aircraft Corp., 465 U.S. 792, 801-02
(1984) ("We do not think that Congress could have intended that
the weighty policies underlying discovery privileges could be so
easily circumvented [by a FOIA request]."); NLRB v. Robbins Tire
& Rubber Co., 437 U.S. 214, 242 (1978) (the FOIA was "not
intended to function as a private discovery tool"); NLRB v.
Sears. Roebuck& Co., 421 U.S. 132, 143 n.10 (1975) ("The
[Freedom of Information) Act is fundamentally designed to inform
the public about agency action and not to benefit private
litigants."); Renegotiation Bd. v. Bannercraft Clothing Co., 415
U.S. 1, 24 (1974) ("Discovery for litigation purposes is not an
expressly indicated purpose of the [FOIA]."). Similarly, it has
been noted that the FOIA was not "intended to serve as a
substitute for criminal discovery." United States v. United
States Dist. Court, 717 F.2d 478, 481 (9th Cir. 1983).
16 However, the mere fact that a.party is in litigation
will have no effect on the merits of the party's FOIA request.
See NLRB v. Sears. Roebuck & Co., 421 U.S. at 143 n.10
(continued...)
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Increasingly, legal newspapers, newsletters and
looseleaf services which report on the FOIA offer matter-of-fact
advice on how lawyers can manipulate the Act for the commercial
benefit of their private clients. For example, one author
recently-published very specific instructions and advice
encouraging readers to use the FOIA to secure government
documents to facilitate private litigation against both
competitors and,the government alike, maintaining that it will
"increase your and your clients's chances in litigation.i17 That
advice included a comprehensive review of the advantages of using
the FOIA as a supplement to civil discovery and counseled
attorneys to file administrative appeals from agency denials of
all FOIA requests and, "If still denied, file suit."
From the requester's viewpoint, whether litigation has
been initiated or is only contemplated, there are distinct
advantages to using the FOIA to supplement formal discovery.
First and foremost is that the FOIA provides a mechanism for
obtaining the release of agency records prior to the filing of a
16(...continued)
(requesting party's rights under FOIA "are neither increased nor
decreased by reason of the fact that it claims an interest in
[requested information] greater than that shared by the average
member of the public"); see also Columbia Packing Co. v.
Department of Agriculture, 563 F.2d 495, 500 (1st Cir. 1977);
Deering Milliken Inc. v Irving, 548 F.2d 1131, 1134-35 (4th
Cir. 1977).
17 Gay, Litigator's Guide to Using Governmental Sources and
the Freedom of Information Act, The Brief 52, 55 (Fall 1985).
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lawsuit. Thus, law firms and potential litigants can maintain
their own files. of agency records and have a head start on the
agency if litigation does occur. That one-way transfer of
information also may give the requester a substantial advantage
in any settlement negotiations which might occur prior to..
litigation. The agency's attorneys are required to lay their
cards face-up on the table while their opponents may play their
hands close to the vest. There is also the risk that over-broad
FOIA requests can be used to distract and disrupt preparation of
the government's case by forcing the government to "divert its
attention from trial preparation in order to prevent a FOIA
release to an opposing party of sensitive, nondisclosable
Business requesters. Unfortunately,,agencies all too
often are required to devote substantial FOIA staff resources to
the processing of requests from business entities which seek
information solely for the purpose of gaining a commercial
advantage over a competitor. These requesters, usually with no
pretext of benefiting the public whatsoever, often vigorously
18 Tomlinson, Use of the Freedom of Information Act for
Discovery Purposes, 43 Md. L. Rev. 119, 128 .(1984). As examples
of the type of burden that'may be placed upon an agency as a
party seeks to use the FOIA to circumvent civil discovery, see,
e.g., Carter v. Department of Commerce, Civil No. 85-0975, slip
op. at 2 (D.D.C. July 23, 1986) (FOIA request regarding agency
disciplinary proceeding resulted in release of 15,000 pages of
records covering all such proceedings for past 15 years);
Brinderson Constructors Inc. v. Corps of Engineers, Civil No.
85-0905, slip op. at 5 (D.D.C. June 11, 1986) (FOIA request
stemming from contract litigation resulted-in over 100,000 pages
of records being made available).
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pursue the "potential windfall for competitors to whom valuable
information is released under the FOIA."19 Two rather typical
recent examples include an aircraft spare parts manufacturer
seeking its competitor's "commercially'valuable" technical design
drawings "without having to pay for them"20 and the attorney for
a hydraulic turbine manufacturer seeking its competitor's
technical and pricing proposals which would permit it to "easily
estimate and undercut [its competitor's) bids, thereby causing
harm to the corporation's competitive position.i21 In addition
to the drain on scarce FOIA personnel resources caused by the
processing of such requests, such potential windfalls "could
easily have competitive consequences not contemplated as part of
FOIA's principal aim of promoting openness in government."22
Another example of a commercial use of the FOIA for
purposes not in the public interest is the recently decided case
of Tax Analysts, Inc. V. Department of Justice.23 There, a
commercial tax reporting service requested copies, on a weekly
basis, of all federal district court tax opinions from the
19 Worthington Compressors Inc. v. Cottle, 662 F.2d 45, 51
(D.C. Cir. 1981).
20 Pacific Sky Supply, Inc. v. Department of the Air Force,
Civil No. 86-2044, slip op. at 9-10 (D.D.C. Sept. 29, 1987).
21 Landfair v. Department of the Army, 645 F. Supp. 325,
329 (D.D.C. 1986).
22 Worthington Compressors Inc. v. Costle, 662 F.2d at 51.
23 845 F.2d 1060 (D.C. Cir. 1988), reh'g en banc denied,
No. 86-5625 (D.C. Cir. July 15, 1988).
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Department's Tax Division, because the company did not want to
expend the resources to go to the various district courts around
the country to acquire a copy of the opinions, as did its
competitor tax services. The District of Columbia Circuit
rejected the Department's defenses, though it did admit that
securing "already publicly available material for a commercial
publication is certainly not a commonly perceived purpose of the
FOIA.i24 While the Court acknowledged that the Department could
charge its statutory fees for search and duplication (which for-
search fees alone were estimated to be nearly $75,000 per year),
it suggested that the agency could minimize this cost by creating
a special file whereby a copy of each tax opinion would be
deposited and held for the company as it arrived at the Justice
Department's Tax Division.
In this case, the FOIA serves only to save one company
the expense required of its competitors to-compile publicly
available sources for inclusion in its publication, with much of
its direct costs being shouldered by the American taxpayers.
This case, further, has disturbing implications for all
federal agencies, with the potential for imposing massive
financial and administrative burdens on federal agencies to serve
as public "storehouses" of information. For example, the
Department of Justice could be required to establish:a "national
24 845 F.2d at 1066.
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court library" whose holdings would be subject to the FOIA.25
Similarly, the Environmental Protection Agency could be required
to establish a specialized library of all court cases relating to
our natural resources. Mr. Chairman, the Congress created the
National Archives, the Library of Congress, and the federal
depository library system for such purposes. Other federal
agencies should not be pressed into service as libraries for
materials publicly available elsewhere.
These kinds of experiences show the FOIA to be
imposing significant costs, both in budgetary outlays and in its
dysfunctional impact upon agency effectiveness. The direct costs
of federal agency compliance with the FOIA to process the nearly
350,000 requests for records received each year through the
administrative appeal stage now exceed $70 million.26 Some
25 In 1987, a total of 797,648 cases were terminated in the
federal circuit, district and bankruptcy courts, and the United
States was a party to 115,314 cases begun in the district courts.
Annual Report of the Director of the Administrative Office of
the United States Courts, 1987, pp. 1-9.
26 The-most recent authoritative analysis of the costs of
the Freedom of Information Act was conducted in 1983. Using even
the admittedly incomplete data collected in 1981, the General
Accounting Office counted up more than $61 million in annual FOIA
costs. Government Accounting Office Report GAO/GGD-83-71 (June
22, 1983). Surely, the study would have reflected far greater
costs to the government if it would have been able to accurately
capture figures understated or not at all included. Such items
would include realistic litigation costs from the agency General
Counsels, from the United States Attorneys, from the Justice
Department's Civil and Tax Divisions, and from the agencies with
their own litigation authority. They would also include the
costs to the district and appellate courts. And, most
significantly, they would have to include the cost of
consultations with and reviews by non-FOIA program staff
personnel.
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commentators have even estimated that the real cost of the FOIA
may be as high as $250 million annually.27 The demands of FOIA
processing also siphon valuable personnel resources away from the
agencies' primary missions. Litigation of cases arising from the
denial of FOIA requests further burdens the agencies as well as
the federal courts, prompting this incredulous reaction from one
district court judge:
It is amazing that a rational society tolerates
the expense, the waste of resources, the potential
injury to its own security which [the Freedom of
Information Act] process necessarily entails.28
Unfortunately, specific figures are impossible to
establish because of disparate agency accounting and statistical
methods. Time and resources spent on FOIA matters by agency
staff who are not part of an agency FOIA unit often are not
identified specifically as a FOIA expense. In many cases the
professional FOIA staff must consult with non-FOIA staff
personnel, i.e., senior agency executives, contracting officers,
program or area specialists, in order to determine the
applicability of various exemptions. Thus, agency personnel who
either created or worked on a document may have to review that
document during both the initial request and administrative
appeal stages, as well as possibly during any subsequent
litigation. Similarly, agency personnel may be required to
27 See Grunewald, Freedom of Information Dispute.
Resolution, 40 Admin. L. Rev. 1, 21 (1988).
28 Agee v. CIA, 517 F. Su
(Gesell, J.). pp. 1335, 1341-42 (D.D.C. 1981)
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review documents created by predecessors. These review efforts
require intensive professional staff time, all at the expense of
the staffers' primary duties. Most agencies have no means of
allocating these costs to the FOIA portions of their budgets,
assuming that such a portion even exists. Nor is there a way to
quantify the loss of efficiency of agency staff distracted by
FOIA duties from accomplishing primary agency functions.29
While the Department does not routinely compile data by
requester category, the requests from those who do not benefit
the public with the fruits of their requests -- the prisoners,
the foreign parties, the commercial requesters and those seeking
to shortcut established civil and criminal discovery procedures
-- constitute a large proportion, probably approaching one half,
of our total requests.- These requesters threaten the balance of
interests at the heart of the Freedom of Information Act. The
public subsidizes the processing of their requests, but itself
reaps no gain from their disclosures and, indeed, may suffer
significant detriment from such disclosures. Equally as
important, those requesters who are likely to benefit the public
with the information disclosed -- the journalists, historians,
public interest groups and concerned citizens -- have to wait in
29 Likewise, there are no empirical analyses
purporting to
quantify the costs of FOIA litigation to the judiciary. However,
based on a rough figure of $7,200 per case, which seems
unrealistically low, it has be that FOIA litigation
costs the federal courts approximately $3.6 million per year in
adjudicative and administrative costs. Grunewald, supra, at
24-25.
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line while the requests of the unintended beneficiaries, which
have overloaded the administrative system, are satisfied.
For these reasons, Mr. Chairman, our policy perspective
is that'the Act's proper balance of interests in some respects is
askew. The FOIA's original purpose -- that of informing the
public about the activities of the Federal Government in order to
better inform the electorate -- is increasingly being crowded out
by other uses that do not serve the public interest. With the
single recent exception of commercial requesters, the taxpayers
are required to shoulder the bulk of the costs expended in
providing these individualized user services. These
considerations, of which federal agencies on a daily basis are
only too painfully aware, necessarily shape this Administration's
perspective on the Freedom of Information Act.' Such
considerations ought to be taken into account, Mr. Chairman, in
any assessment of the Act's overall cost and effectiveness. A
balanced consideration of the Freedom of Information Act requires
that the multiplicity of "public interests" be considered. The
undeniable public interest in the disclosure of records for
government oversight must be balanced against the equally
legitimate public interests in preserving the confidentiality of
certain records, in maintaining the efficient operation of
government, in promoting.fiscal responsibility, in protecting the
integrity of the law enforcement process, and in minimizing the
employment of.the FOIA in a way which serves only private
interests.
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II. LEGISLATIVE REFORM EFFORTS
Indeed, since the outset, the major challenge presented
under the Freedom of Information Act has been to achieve a proper
balance between the important public policy interests that are
counterpoised within it -- to best accommodate and reconcile
these necessarily conflicting interests in both statutory terms
and sound implementation policy.
A. Historical Background
The effort to strive for this balance began with the
Freedom of Information Act's enactment in 1966. In enacting the
FOIA, the Congress established an unprecedented mechanism for
public access to the records of the Federal Executive Branch,
completely reversing the pre-existing legal presumption under
Section 2 of the Administrative Procedure Act that federal
agency records would not be made publicly available unless good
cause for their disclosure was shown.30 Under the FOIA, for the
first time, any member of the public -- "any person" -- could
30 Section 2 of the APA, 5 U.S.C. ? 1002 (1964), the public
disclosure section, afforded federal agencies such broad
discretion to deny access requests that it had come to be looked
upon by many as more a withholding statute than a disclosure
mechanism. See S. Rep. No. 813, 89th Cong., 1st Sess. 5 (1965).
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request access to any federal agency record, without having to
state a reason for seeking such disclosure.31
In establishing this unprecedented disclosure
mechanism, the Congress specifically provided nine exemptions
designed to preserve legitimate governmental interests in the
face of this new general disclosure policy, to introduce some
measure of balance into the Act as it were. For example,
Exemption 7 as originally enacted categorically protected all
"investigatory files" from compelled FOIA disclosure -- largely
exempting federal law enforcement agencies from the ambit of the
Act. The 1966 Act also afforded agencies much of the broad
procedural latitude that they had enjoyed previously. Thus,
during the early years of the FOIA's existence, as federal
agencies adapted to its basic new public policy of compelled
information disclosure, the impact of the Act was relatively
limited by its design.
With the passage of time, though, perhaps inevitably,
members of the public and groups most interested in information
disclosure began to voice the view that the FOIA, in the form in
which it was enacted, was too heavily weighted against disclosure
in some substantive and procedural respects. It was suggested
that the balance sought to be achieved through the FOIA had not
31 As discussed at pp. 12-13 su ra, the Act grants
foreigners the same rights as American citizens, so that even the
Ayatollah Khomeini was able to make a FOIA request for CIA
records in 1981 pertaining to the exiled Shah of Iran.
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been achieved under its original enactment and that the Act
required major adjustments in order to make it a more viable
mechanism of government information disclosure.
Consequently, and with the added strong impetus of the
extraordinary public policy concerns arising from the "Watergate
affair," the Congress in 1974 substantially broadened the
disclosure obligations of the Act through a series of statutory
modifications, both substantive and procedural. Generally
speaking, the 1974 amendments made it easier for FOIA requesters
to make requests and to challenge agency nondisclosure decisions
in court. They also greatly increased the burden to be met by
the government in properly withholding. sensitive records or
record portions, particularly as to information relating to law
enforcement and national security matters. Most significantly,
the protection for law enforcement files in Exemption 7 was
drastically cut back by restructuring that exemption to require
the determination that disclosure would cause one of six
enumerated harms (subparts (A) through (F)) before an item of law
enforcement information could properly be withheld.
As a result of the 1974 FOIA amendments -- which became
effective in 1975 and were widely publicized as "opening up" many
agency files -- the volume of activity under the Act increased
enormously, at both the administrative and the litigation levels.
During the ensuing years, federal agencies struggled with the
ever-increasing demands that were placed upon them to process
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voluminous amounts.of their records, both old and new, for
requested public disclosure. This was particularly so at
agencies holding law enforcement responsibilities, where the
volume of FOIA requests literally skyrocketed overnight; at the
FBI, for example, the-annual number of FOIA requests received
jumped from 447 to 13,875 within one year, an increase of more
than 3,000,percent.32 Most requests required the laborious
making of specific harm determinations -- page by page and line
by line -- under Exemption 7's demanding new structure.
Much significant information from law enforcement files
and other agency files was publicly disclosed for the first time
as a result of this greatly increased'FOIA activity beginning in
the mid-1970x.. But it.was not'long before those most closely
familiar with FOIA operations at federal agencies had a firm
basis for concluding that the 1974 FOIA amendments, in some very
critical respects, had actually overcorrected the course of our
national disclosure policy and that the FOIA was, once again, out
.of balance. For example, both foreign and local law enforcement
agencies repeatedly expressed great concern over our ability to
protect the sensitive information that they had provided to
federal law enforcement agencies, as well as to protect the very
fact of~their cooperation. 'Similarly, our law enforcement
agencies found that many of their individual confidential sources
had become reluctant or unwilling to continue to cooperate.
32 See Open America v. Wateraate Special Prosecution Force,
547 F.2d 605, 617 n.3 (D.C. Cir. 1976).
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Another problem resulting from the 1974 amendments was that in
some cases the mere invocation of a law enforcement exemption --
particularly Exemption 7(A) -- served to "tip of f" the requester
to the fact of an ongoing investigation of him.
Corrective legislative reform of the Freedom of
Information Act -- especially regarding the critical need to
ensure adequate protection of the federal government's most
sensitive law enforcement information -- was soon viewed as
necessary by many observers. In fact, the FOIA reform movement
to counterbalance certain aspects of the 1974 FOIA amendments
began in the late 1970's, as agency FOIA officers developed a
depth of experience in dealing with the amended Act and began to
formulate specific reform proposals that could address their
increasing concerns.. These FOIA reform proposals were, in turn,
carefully compiled by the Department of Justice in its capacity
as the "lead" federal agency for FOIA matters and as the agency
most heavily concerned with the critical law enforcement
interests that were threatened by the FOIA in its amended form.
Based upon this active consultation with other federal
agencies during 1979 and 1980, the Department put together a
wide-ranging legislative package of FOIA reform proposals -- one
which included strong new protections for law enforcement
information among many other major substantive and procedural
reforms. The final, comprehensive package of FOIA reform
amendments was assembled during mid-1980 and then received
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approval at the highest levels within the Justice Department for
submission as a formal legislative proposal. This proposal was
not introduced during the Carter Administration only because
there was a change of administrations.
However, the very fact that the Carter Administration
undertook such extensive FOIA reform efforts illustrates well
that the subject of FOIA reform -- of striving for the best
possible balance in the Act -- is fundamentally a matter of sound
public policy that transcends partisan political bounds.
In 1981, at the beginning of this Administration, under
the leadership of former Assistant Attorney General for Legal
Policy Jonathan C. Rose, the Department made it a high priority
to continue these FOIA reform efforts and to bring them to
fruition. The 1980 package of FOIA amendment proposals served as
a firm foundation for these renewed efforts. The Department also
again surveyed'a wide range of other agencies to ensure that its
amendment proposals would reflect their most recent experience in
administering the 1974 amendments.
These efforts all led to the Department's formal
submission of a FOIA reform legislative proposal in October 1981
(S. 1751, 97th Cong.), which soon was merged with a similar
proposal (S. 1730, 97th Cong.) that originated within the
subcommittee then having jurisdiction, the Subcommittee on the
Constitution, chaired by Senator Orrin Hatch. This merged bill,
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S. 1730, was quickly marked up for full Senate Judiciary
Committee consideration. The keystone of this FOIA amendment
package was its law enforcement provisions, which were based upon
the demonstrated concerns that the 1974 FOIA amendments had
dangerously weakened the ability of federal law enforcement
agencies to perform their vital missions.
In particular, former Federal Bureau of Investigation
Director William H. Webster testified to the vulnerability of law
enforcement agencies such as the FBI to use of the FOIA by
sophisticated requesters-who could analyze investigatory records
released in expurgated form under the 1974 FOIA amendments for
the purposes of gleaning sensitive law enforcement information.33
Indeed, such FOIA requesters were widely known to scrutinize
such records in intense efforts to discern the identities of
informants; this very fact alone threatened to dry up the FBI's
vital confidential source system, as increasing numbers of
sources began to doubt the government's ability to protect them
in the face of FOIA requests.34
It is noteworthy, Mr. Chairman, that the full Senate
Judiciary Committee, in carefully considering the subject of FOIA
reform during the early months of 1982, did so in a strongly
33 See 1981 Senate Hearings, Vol. 1, at 847-65, 973-88
(testimony of FBI Director Webster). See also id. at 1041-1147
(testimony regarding impact upon Drug Enforcement Administra-
tion).
34 Id.
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bipartisan spirit that unified the entire Committee behind a
comprehensive set of compromise amendment proposals. As Chief
Counsel of the Subcommittee at the time,'I recall well that it
was through your leadership, together with that of Senators
Hatch and DeConcini, that the Senate Judiciary Committee
unanimously approved a broad, yet carefully tailored, FOIA reform
bill in May 1982. That compromise FOIA reform bill,-which passed
the Senate unanimously in the following Congress (S. 774, 98th
Cong.), became the basis for all further consideration of FOIA
reform legislation to date.
Regrettably, these FOIA reform efforts -- which enjoyed
such a strong start in the Senate,-consistent with their
bipartisan origins -- then became stalled during the following
sessions of the Congress, primarily due to the markedly different
reception accorded the subject in the House of Representatives.35
It was not until almost the'end of the 99th Congress,
during congressional consideration of the Anti-Drug Abuse Act of
1986,'that it became possible to achieve any measure of
legislative FOIA reform. And then, because these FOIA reform
amendments were adopted by the Congress as a floor amendment to
the omnibus anti-drug legislation near the close of a
legislative session, they were enacted without the
35 See FOIA Update, Winter 1984, at 1, 6; FOIA Update,
Summer 1984, at 1, 4; FOIA Update, Fall 1984, at 1; FOIA Update,
Spring 1986, at 1.
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contemporaneous preparation of committee reports or equivalent
statements of legislative consensus that ordinarily would
accompany such legislation.
B. Enactment of the 1986 FOIA Amendments
The Freedom of Information Reform Act of 1986, enacted
as ?? 1801-1804 of the Anti-Drug Abuse Act of 1986, Pub. L. No.
99-570, 100'Stat. 3207, 3207-48 (Oct. 27, 1986), was the
culmination of these longstanding FOIA reform efforts. While it
was not possible to achieve the complete breadth of FOIA reform
that had earlier been unanimously approved by the Senate, the
1986 FOIA amendments nevertheless constituted a major reform of
the Act, counterbalancing much of the troubling effects of the
1974 FOIA amendments, particularly regarding the protection of
law enforcement information.36
The 1986 FOIA amendments consist of two distinct parts:
the law enforcement amendments, contained in ? 1802, which took
effect immediately upon enactment on October 27, 1986; and the
fee and fee waiver amendments, contained in ? 1803, which took
36 One particular aspect of the
previous FOIA reform bills
ultimately was accomplished, in part, through an executive order
issued in 1987 rather than by legislation. Executive Order No.
12600, issued on June 23, 1987, required agencies to implement
most of the "business submitter notification procedures"
contained in S. 774 to the extent permitted by law. However,
that Order could not institute the "de novo" standard of judicial
review that had been sought for "reverse" FOIA lawsuits brought
to enjoin disclosure of such information. See FOIA Update,
Summer 1987, at 1-3.
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effect only after a 180-day waiting period (ending April 25,
1987) and which required the issuance of implementing regulations
to be fully effective. See Pub. L. No. 99-570, ? 1804(a)-(b)
(1986) (not codified).
1. The Law Enforcement Provisions of the 1986 Act
The law enforcement part of the 1986 FOIA amendments
provided comprehensive new protection for the records of federal
law enforcement agencies. These amendments consist of a series
of statutory language modifications made throughout, the Act's
major law enforcement exemption, Exemption 7, plus three entirely
new provisions in a new subsection (c) that establish special
exclusions for the records of particularly sensitive law
enforcement files.
The revisions to Exemption 7 made by the 1986 FOIA
amendments are virtually identical to the law enforcement
amendments first approved in the Senate several years earlier.37
While preserving the basic structure of Exemption 7 established
in 1974, these amendments addressed the concerns of law
enforcement agencies by correcting its evident shortcomings.
Both individually and collectively, they strengthen this critical
37 The only difference between the two is the immaterial
substitution of the word "individual" in place of the words
"natural person" at the end of Exemption 7(F). Compare 5 U.S.C.
? 552(b)(7.), as amended y Pub. L. No. 99-570, ? 1802 (1986),
with S. Rep. No. 221, 98th Cong., 1st Sess. 45-46 (1983)
(containing pertinent portion of S. 774)..
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exemption by broadening its applicability to law enforcement
information.
First, the 1986 FOIA amendments substantially eased the
threshold requirement of Exemption 7, which previously required
that the records in question must be "investigatory records
compiled for law enforcement purposes" in order for any of the
six subparts of Exemption' 7 even to apply. For example, law
enforcement manuals formerly were held ineligible for Exemption 7
protection merely because they were not "investigatory" in
character.38 The 1986 amendments deleted the word "investiga-
tory," and also made the exemption applicable to "information" as
well as "records." As now formulated, the Exemption 7 threshold
of "records or information compiled for law enforcement purposes"
no longer would disqualify sensitive law enforcement information
from receiving otherwise-applicable protection.
Second, the 1986 amendments made a fundamental change
in Exemption 7 by reducing the agency's burden in establishing
the risk of harm threatened by a requested disclosure.
Previously, in order to withhold information under any of the
exemption's six subparts, an agency was required to determine
(and to show in court, if sued) that the disclosure "would" cause
the particular law enforcement harm in question.
38 See, e.a., Sladek v. Bensinger, 605 F.2d 899, 903 (5th
Cir. 1979) (holding Exemption 7 inapplicable to DEA manual
because it "was not compiled in the course.of a specific
investigation").
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As amended, Exemption 7 now requires a finding only
that disclosure "could reasonably be expected to" cause the harm
in question under its major subsections: Exemption 7(A)
(ongoing investigations and enforcement proceedings); Exemption
7(C) (personal privacy); Exemption 7(D) (confidential sources);
and Exemption 7(F) (life and physical safety).39 Law enforcement
agencies thus have greater latitude in safeguarding against the
harms implicated in these exemptions,' consistent with the
"mosaic" principle of information analysis and protection.40
Third, the 1986 FOIA amendments also specifically
broadened the protective scopes of several of Exemption 7's
subparts. Exemption 7(D), as amended, now specifically protects
nonfederal governmental entities and private institutions that
confidentially share law enforcement information with federal
agencies, thus ensuring that this vital system of confidentiality
can be preserved. Similarly, the language of Exemption 7(D) was
reworded to make clear that it protects all information furnished
39 5 U.S.C. ? 552 (b) (7) (A) , (C), (D), (F), as amended by
Pub. L. No. 99-570, ? 1802 (1986).
40 The "mosaic" principle recognizes that, as one court has
phrased it, a seemingly innocuous bit of information, "much like
a piece of a jigsaw puzzle, may aid in piecing together other
bits of information even when the individual piece is not of
obvious importance in itself." Halperin v. CIA, 629 F.2d 144,
150 (D.C. Cir. 1980).
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by a confidential source in connection with a criminal or lawful
national security investigation.41
Fourth, the 1986 FOIA amendments completely revised
Exemption 7(E), which previously protected only certain
investigative law enforcement techniques and procedures.
revised, it now encompasses all law enforcement information the
release of which "would disclose techniques and procedures for
law enforcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if
such disclosure could reasonably be expected to risk
circumvention of the law."42 Finally, Exemption.7(F) was
broadened to permit the withholding of any law enforcement
information the disclosure of which could threaten the life or
physical safety of anyone, not just law enforcement officials as
under previous law.43
41 Such complete protection under Exemption 7(D) is
particularly important because any seemingly innocuous
information provided by an informant could, potentially, identify
him as such to a knowledgeable FOIA requester. FBI Director
Webster described a classic example in which the mere mention of
the phrase "green sedan" held such significance because, when
released in context of a particular record and analyzed by a
requester knowledgeable about the surrounding circumstances, it
could identify an informant. See 1981 Senate Hearings, Vol. 1,
at 856-57.
42 5 U.S.C. ? 552(b)(7)(E), as amended by Pub. L. No.
99-570, ? 1802 (1986).
43 See 5 U.S.C.* ? 552(b)(7)(F), as amended y Pub. L. No.
99-570, ? 1802 (1986).
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Beyond these measures strengthening Exemption 7, the
1986 FOIA amendments also established an entirely new form of
protection -- the record "exclusion" -- for the records of
certain especially sensitive law enforcement matters. The
Congress took this special step recognizing the fact that in
some situations an agency simply cannot adequately protect its
law enforcement interests through the use of mere exemption
protection, because the very invocation of a particular exemption
tells a requester the sometimes sensitive fact that a certain law
enforcement activity exists. New subsection (c) of the Act
permits law-enforcement agencies to "exclude" three categories of
law enforcement records -- that is, to treat them, under narrowly
specified circumstances, as simply not subject to the Act's
requirements at all.
Under the "(c)(1) exclusion," federal law enforcement
agencies now may exclude entirely from the Act's reach the
records of its ongoing criminal investigations -- records that
ordinarily would be withheld in their entireties under Exemption
7(A) anyway -- whenever an investigation's subject is unaware of
its pendency and would receive a harmful "tipoff" to that fact
if the agency were to specify Exemption 7(A) as the basis for its
withholding of records. FBI Director Webster had testified that
organized crime groups, for example, have been known to use the
FOIA in attempts to learn whether certain of their activities
have yet come under investigation.44 Through this new exclusion,
44 See 1981 Senate Hearings, Vol. 1, at 853-54, 977-80.
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agencies conducting sensitive criminal investigations, when
pressed with carefully targeted FOIA requests, can avoid having
to "tip off" investigative subjects to whether or not they are
under investigation.
The "(c)(2) exclusion" is designed to cover the less
common, but extremely perilous, situation'in which a criminal
organization attempts to use the FOIA to ferret out the identity
of a confidential source or informant. It permits a criminal law
enforcement agency to protect the identities of its informants
and to preserve the integrity of Exemption 7(D) -- just as the
(c)(1) exclusion preserves the integrity of Exemption 7(A) -- in
those circumstances where the very invocation of Exemption 7(D)
to withhold records on a named individual would be tantamount to
identifying the individual as a confidential source.45
Finally, the "(c)(3) exclusion" provides special
protection for certain national security-related records of the
Federal Bureau of Investigation. Recognizing the exceptional
sensitivity of the FBI's activities in the areas of foreign
intelligence, counterintelligence and the battle against
international terrorism -- as well as the fact that the
classified records of these activities can be particularly
45 See 1981 Senate Hearings, Vol. 1, at 978.
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vulnerable to targeted FOIA requests46 -- this exclusion
authorizes the FBI to treat such records as not subject to the
Act whenever the very existence of the records itself (and not
just the information contained in them) is a classified fact.
2. Implementation of the 1986 Law Enforcement Amendments
The Department of Justice has taken a number of steps
to implement these law enforcement amendments. As noted above,
these amendments became effective on the date of their enactment
(October 27, 1986), and also applied to any FOIA request or FOIA
lawsuit pending on that date. See Pub. L. No. 99-570, ? 1804(a)
(not codified.).
The Department's Office of Information and Privacy
("OIP") immediately notified all FOIA personnel in the federal
government of this legislative development through its
government-wide FOIA policy publication, FOIA Update, which
described all of the FOIA reform amendments. See FOIA Update,
Fall 1986, at 1-2. That issue also included a copy of the Act in
its amended form, showing the exact changes made by the 1986 FOIA
amendments. See id.,at 3-6.
46 FBI Director Webster specifically testified to this
vulnerability and to the fact that, in some such situations,
"even acknowledging the absence of information in our files can
be damaging." See 1981 Senate Hearings, Vol. 1, at 848. See
also id. at 973 (referring to such testimony taken in executive
session).
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Additionally, OIP specifically contacted the various
law enforcement components of the Department of Justice, as well
as those of the other major law federal agencies holding law
enforcement responsibilities, to ensure that they were alert to
the Act's new law enforcement provisions and understood their
current applicability. Such contacts were also made through the
Justice Department's Civil Division and Executive Office for
United States Attorneys -- and with the few major federal
regulatory agencies (the SEC, the NLRB, and the EEOC) that
defend their own FOIA actions in court -- to ensure that the
amendments would properly be taken into consideration in all
pending FOIA litigation. In all such contacts, agency personnel
were encouraged to bring to the Department's attention any
question that might arise about the law enforcement amendments.
The Department also immediately began preparations to
hold a special training session for federal law enforcement
agencies, which would focus exclusively on the new law
enforcement amendments. See FOIA Update, Fall 1986, at 8. The
"Special FOIA Seminar for Law Enforcement Agencies" was
conducted on February 4, 1987, and was attended by more than 300
representatives from virtually all federal agencies holding law
enforcement responsibilities. This unprecedented, full-day
session covered all aspects of the law enforcement provisions of
the 1986 FOIA amendments, and it also served as a forum for the
discussion of law enforcement issues arising under.the Act.
Particular attention was paid to the Act's new exclusion
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provisions and to the need for especially careful handling of any
possible exclusion situation; all agencies were advised not to
apply these new provisions without first consulting the
Department's Office of Information and Privacy.
Subsequently, the Justice Department issued the
"Attorney General's Memorandum on the 1986 Amendments to the
Freedom of Information Act" (December 1987), its most significant
step to guide the implementation of the Act's new law enforcement
provisions.47 This publication is designed to serve as the
principal reference guide to the 1986 FOIA amendments, containing
all pertinent implementation guidance under a single cover.48
It continues the longstanding tradition of issuing such Attorney
General's memoranda to guide the implementation of the Act and
its major amendments. The Attorney General issued such a
47 Much of this implementation guidance previously was
provided in a. more abbreviated form in the "Justice Department
Guide to the Freedom of Information Act," which was published as
part of the 1987 Freedom of Information Case List. The revised
1987 "Guide" included discussions of the Exemption 7 amendments
and a new section addressing the exclusion provisions. See id.
at 386-413, 414-20.
48 Copies of this publication have been widely distributed
by the Department to FOIA personnel throughout the Federal
Government -- including through JURIS, the Department's
automated legal research system -- as well as to interested
congressional offices. Additionally, the Government Printing
Office printed several thousand copies for sale to the public at
the nominal price of $2.00 per copy and has disseminated copies
to federal depository libraries nationwide. .
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memorandum upon the FOIA's original enactment49 and again to
guide the implementation of the 1974 FOIA amendments.50
This publication contains a detailed, 30-page analysis
of the various law enforcement amendments made in 1986,
including an introductory discussion of the history of the 1986
FOIA amendments overall.51 The memorandum notes that there is
only limited and conflicting legislative history underlying the
1986 amendments, but observes that the earlier committee report
prepared by the Senate Judiciary Committee on virtually the
identical Exemption 7 amendments can be consulted
authoritatively as to those amendments.52 Beyond that, the
memorandum analyzes the amendments according to their clear
statutory terms and evident plain meaning.
Parts B through F of the memorandum discuss each of
the Exemption 7 language modifications made by the 1986 FOIA
49 Attorney General's Memorandum on the Public Information
Section of the Administrative Procedure Act (June 1967).
50 Attorney General's Memorandum on the 1974 Amendments to
the Freedom of Information Act (Feb. 1975).
51 See Attorney General's Memorandum on the.1986 Amendments
to the Freedom of Information Act (Dec. 1987), Part A.
52 This committee report, Senate Report No. 98-221, was
formally issued by the Senate Judiciary Committee during the 98th
Congress when the Senate unanimously passed S. 774, the major
predecessor FOIA reform bill to the Freedom of Information
Reform Act of 1986.. In addition to containing Exemption 7
amendments virtually identical to those ultimately enacted, that
predecessor bill also contained a provision substantially the
same as the enacted (c)(2) exclusion. See S. Rep. No. 221, 98th
Cong., 1st Sess. 44 (1983); see also id. at 25.
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amendments, with reference made wherever applicable to the early
court decisions that consider the effects of the modifications.
The memorandum thus gives federal agencies the best available
guidance on the meaning and proper implementation of these
amendments.
Of particularly great importance is the guidance given
regarding the Act's new exclusion provisions, whereby certain law
enforcement records can be treated as not subject to the Act at
all. Each of these three new exclusions is discussed in detail
in Parts G.1, G.2 and G.3 of the memorandum, with special
emphasis on the specific circumstances that must be found to
currently exist before each exclusion can properly be employed.
Where the statute's special exclusion requirements and temporal
limitations are not fully met, the memorandum stresses, the use
or continued use of an exclusion simply is not warranted.53
The memorandum also explicitly recognizes the novelty
of these new exclusions; a sound understanding of the
fundamental nature of a record exclusion -- as opposed to the
more familiar FOIA exemption -- is absolutely essential to its
proper implementation. Thus, Part G.4 of the memorandum
addresses the exact nature and operation of the exclusion
mechanism, carefully distinguishing its use from the invocation
53 See, e.g, Attorney General's Memorandum on the 1986
Amendments to the Freedom of Information Act (Dec. 1987), at
21-22, 24 n.43, 25 n.46.
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of a FOIA exemption -- and especially from the application of
what is known as the "Glomarization" principle, by which an
agency may simply refuse to confirm or deny the existence of any
record responsive to a FOIA request on the basis of a specified
FOIA exemption.54 The exclusion technique affords a higher level
of protection than even "Glomarization" -- because when properly
employed in exceptional situations, it leaves the requester
without any signal whatsoever as to the possible existence of
records responsive to a specially targeted FOIA request.
Likewise, because of the extraordinary and unfamiliar
nature of the new exclusion mechanism, the memorandum further
addresses the foreseeable procedural considerations surrounding
its implementation, including the special procedural aspects of
handling exclusion matters both administratively and in court.55
54 The courts first recognized this p
v. CIA, 546 F.2d 1009, 1013 (D.C. Cir. 1976)e thhe CIA, oni
), where the on
national security grounds under FOIA Exemption 1, refused to
confirm or deny the existence of certain records pertaining to
the Glomar Explorer submarine-retrieval ship. Consequently, this
"neither confirm nor deny" defense under the FOIA has come to be
known colloquially by the term "Glomarization," see FOIA Update,
Spring 1983, at 5, and it has been applied in connection with
other specified exemptions as well, see FOIA Update, Spring 1986,
at 2 (Exemption 6); FOIA Update, Winter 1986, at 3-4 (Exemption
7(C))-
55 See Attorney General's Memorandum on the 1986
Amendments to the Freedom of Information Act (Dec. 1987), Part
G.5. For example, special care is required at every stage of the
administrative process to ensure that the agency's actions do not
undermine the integrity of an exclusion action being taken
(e.g., by inadvertently signalling to a requester that records
are being excluded). See,.e.a., id. at 28 n.49, 29 n.52. By the
same token, agencies must ensure the proper maintenance of all
excluded records, against the possibility that they will at some
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The memorandum sets forth a comprehensive litigation policy for
the handling of possible cases in which exclusion issues arise,
including those in which the requester alleges that records have
been excluded but that is not in fact the case.56 The
Department's policy is to do everything it reasonably can to
handle this special exclusion authority in the most responsible
manner possible.57
Finally, the memorandum specifically cautions all
federal law enforcement agencies to treat these special new
exclusions with the utmost care and to consider'their possible
applicability only in close consultation with the Justice
Department, on a case-by-case basis.58
Appended to the "Attorney General's Memorandum on the
1986 Amendments to the Freedom of Information Act" are copies of
the policy guidance statements of the Office of Management and
Budget and the Department of Justice on the new fee and fee
waiver provisions of the 1986 FOIA amendments, respectively,
which are discussed below. Also included was a copy of the Act
55( ...continued)
point be required to be processed under the usual standards
should the exclusion cease to apply. See id. at 28 n.51.
See id. at 29-30.
See, e. cr. , id. at 30 n.53.
See id. at 27 n.48.
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in its amended form,. with interlineations showing the exact
statutory modifications made.
3. The Fee and Fee Waiver Provisions of the 1986 Act
The second part of the.1986 FOIA amendments completely
revised the statutory provisions governing the charging of fees
to requesters for the expenses incurred by agencies in the
handling of their FOIA requests, and the granting of fee waivers
for requests found to be made in the public interest.
First, the amendments established an entirely new
statutory fee structure, in subsection (a)(4)(A) of the Act,
which now governs the making of fee determinations. Under this
new fee structure, agencies not only can charge requesters for
the costs of searching for and duplicating requested records, as
under previous law, they also can charge certain requesters for
the costs of reviewing the records for purposes of making
disclosure determinations.59 This new structure, however,
distinguishes among three basic classes of FOIA requesters and
limits the fees that can be assessed against them accordingly.
Under these provisions, all- requesters who seek
information for a"commercial use" now can be assessed the new
record review fees as well as the usual costs of record search
59 See 5 U.S.C. ? 552(a) (4) (A) (ii), (iv), L. No. 99-570, ? 1803 (1986). )~ as enacted
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and duplication.60 The ordinary FOIA requester, on the other
hand, cannot be assessed such review fees but continues to be
assessed fees for record search and duplication, as under prior
law, except that certain minimum fee amounts may no longer be
assessed.61
The fee provisions also,created a third class of FOIA
requesters: those requesters who seek information not for a
"commercial use" and who are determined to be an "educational
institution," a "noncommercial scientific institution," or a
"representative of the news media.i62 Such requesters have the
benefit of a specific fee limitation under the amended Act
excluding them from the assessment of-search fees. This is a
categorical entitlement, one based solely upon the identity and
nature of the requester, not upon the contents of the particular
records sought.
In addition to these basic fee and fee-limitation
provisions, the 1986 FOIA amendments also revised the Act's
60 5 U.S.C. ? 552(a)(4)(A)(ii)(I), as enacted by Pub. L.
No. 99-570, ? 1803 (1986).
61 Noncommercial requesters no longer may be assessed fees
"for the first two hours of search time or for the first one
hundred-pages of duplication," and a requester cannot be
required to pay any fee that does not exceed an agency's "costs
of routine collection and processing" of it. 5 U.S.C.
? 552(a)(4)(A)(iv)(I), (II), as enacted hy Pub. L. No. 99-570,
? 1803 (1986).
62 5 U.S.C. ? 552(a) (4) (A) (ii).(II) , as enacted y Pub. L.
No. 99-570, ? 1803 (1986).
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47
statutory standard-governing the general waiver or reduction of
fees on the basis of the "public interest" -- commonly referred
to by the term "fee waiver."63 All FOIA requesters are entitled
to seek such a-general waiver of the fees applicable to them, on
the basis that the agency's disclosure of the particular records
sought, to that requester, would be "in the public interest."64
This revised statutory "public interest" standard now
more specifically defines that term than did the previous law:
It provides for the waiver or reduction of fees wherever it is
determined that disclosure "is likely to contribute
significantly to public understanding of the operations or
activities of the government and is not primarily in the
commercial interest of the requester."65
Finally, as a procedural matter, the 1986 FOIA
amendments for the first time required that all federal agencies
promulgate individual agency regulations setting "forth both
63 It is important to distinguish between such "public
interest" FOIA fee waivers, on the one hand, and the new FOIA fee
limitations that are provided for educational, scientific and
news media requesters under the amended Act, on the other.. The
latter fee limitation is applicable categorically to such types
of requesters but pertains only to search fees.
64 5 U.S.C. ? 552(a)(4)(A)(iii), as enacted~b Pub. L. No.
99-570_ s 1803 11986) -Y
65 Id. The 1986 FOIA amendments also altered the standard
of judicial review for the adjudication of fee waiver issues in
court, specifying that such issues shall be reviewed de novo,
but that the scope of review is limited to the administrative
record prepared before the agency. 5 U.S.C. ? 552(a)(4)(A)(vii),
as enacted hy Pub. L. No. 99-570, ? 1803 (1986).
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specific schedules of FOIA fees and also their procedures and
standards for making fee waiver determinations.66 Each agency's
fee schedule must conform to uniform fee guidelines promulgated
by the office of Management and Budget ("OMB"). Thus, the
amendments shifted to OMB the government-wide FOIA guidance
responsibility regarding matters of FOIA fees, without affecting
the Department of Justice's policy responsibility regarding FOIA
fee waivers as well as all other issues arising under the FOIA.
4. Implementation of the Revised Fee Provisions
The implementation of the new fee provisions of the
1986 FOIA amendments proceeded in multiple steps, first at OMB
and then at the individual agencies. Before long, the 180-day
implementation period for these amendments proved to be highly
unrealistic. Under the amendments, the preparation of each
agency's implementing regulations had,to await the issuance of
the uniform fee guidelines by OMB. OMB's Office of Information
and Regulatory Affairs moved as expeditiously as possible to
prepare such government-wide fee guidelines and publish them for
the required public notice and comment but, because of the
complexity of this process, and that of the subject matter
involved, OMB's Uniform Freedom of Information Act Fee Schedule
and Guidelines were not published until March 27, 1987 (52 Fed.
Reg. 10011). That was only 30 days before the end of the
66 gee 5 U.S.C. ? 552(a)(4)(A).(i), as enacted by . Pub. L.
No. 99-570, ? 1803 (1986).
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statutory 180-day implementation period, so federal agencies were
unable to prepare their new fee regulations and have them in
place in time. Each set of individual agency regulations had to
proceed through the same not.ice-and-comment process, which
required that they could not take effect until 30 days after
publication in final form.67
This process took most federal agencies well beyond the
effective date of the fee amendments, leaving them in an
extraordinary "interim period" between that date and the date
upon which their regulations took final effect,68 and the
Department of Justice assisted OMB and other agencies regarding
the novel concerns that were presented. Consistent with the
Act'-s specific implementation provision for fee matters,69 the
Department afforded all FOIA requesters the maximum benefits of
both the old and the new fee provisions during this "interim
period." Further, on behalf of OMB, the Department formally
communicated this same implementation policy to all federal
agencies through FOIA Update (Winter/Spring 1987, at 1-2),
67 OMB specifically determined that this 30-day waiting
period under 5 U.S.C.. ? 553(d) would be applicable to all
implementing fee regulations issued by individual agencies.
68 For example, the Department of Justice's implementing
fee regulations were published in final form on September 2,
1987, 52 Fed. Reg. 33229, and took effect on October 2, 1987.
69 See Pub. L. No. 99-570,
? 1804(b)(2) (not codified)
(specifying that the new review charges may not be imposed before
final issuance of implementing regulations).
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together with a descriptive discussion of other implementation
issues.
5. Implementation of the New Fee Waiver Standard
At the same time, the Department of Justice also issued
a revised fee waiver policy guidance concerning the standards for
the granting of fee waivers under the 1986 FOIA amendments.
Those amendments specifically required federal agencies for the
first time to adopt provisions addressing the subject of fee
waivers, both substantively and procedurally, in their individual
FOIA fee regulations-70 As with all of its policy guidance in
other areas (see pp. 68-89 infra) the Department prepared its
revised fee waiver guidance in furtherance of its statutory
responsibility to provide government-wide policy guidance and to
assist all federal agencies in their implementation of the
FOIA.71
70 See 5 U.S.C. ? 552(a)(4)(A)(i), as enacted by Pub. L.
No. 99-570, ? 1803 (1986).
71 There occasionally has been some
Y question about whether
the Department's fee waiver policy guidance is "binding" on other
federal agencies. The simple answer is that it is not, because
the Department of Justice has no direct authority to compel
another federal agency to follow its FOIA policy guidance. This
is equally as true for fee waiver policy matters as for any other
FOIA matter in which the Department encourages uniform agency
compliance with the Act in accordance with 5 U.S.C. ? 552(e).
However, where an agency has violated the requirements of the
FOIA and is sued, the Department can decline to defend the suit,
and has done so in some instances.
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51 -
This guidance memorandum, entitled "New Fee Waiver
Policy Guidance," was distributed to the heads of all federal
agencies on April 2, 1987, as well as to all federal agency FOIA
personnel through the Department's FOIA Update publication
(Winter/Spring 1987, at 3-10).
This fee waiver policy guidance provided advice to
assist the agencies in incorporating the specific terms of the
new statutory standard into their implementing regulations. and,
in turn, in applying the new standard in the often-difficult
day-to-day process of making fee waiver determinations. Like
previous such guidance issued by the Department,72 it focused
closely on the exact language of the fee waiver standard enacted
by Congress and upon how it should most appropriately be applied
by the agencies in deciding specific fee waiver requests.
The guidance identified six individual analytical
factors to be considered in making fee determinations, so that
those determinations can be made intelligently and even-handedly,
on a case-by-case basis, in accordance with the Act's
requirements. Each of the factors derives clearly and directly
72 The Department of Justice has long ~ g provided specific
'policy guidance on the subject of fee waivers, including through
formal policy statements issued at the Assistant Attorney General
level or higher. Former Assistant Attorney General for Legal
Policy Jonathan C. Rose had issued fee waiver policy guidance in
early 1983, FOIA Update, Jan. 1983, at 3-4, which I had
supplemented through a specific fee waiver policy statement
issued in 1986 regarding record-repository institutions, FOIA
Update, Summer 1986, at 3.
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from the language of the revised statutory "public interest"
standard, which establishes two basic requirements for the waiver
or reduction of fees: first, that_the'disclosure in question "is
likely to contribute significantly to public understanding of the
operations or activities of the government," and second, that it
"is not primarily in the commercial interest of the requester."73
To determine whether the first of these two basic fee
waiver requirements is met in any given case, an agency should
consider four factors, according to the statute's own terms: (1)
the subject of the request -- i.e., whether the subject of the
requested records concerns "the operations or activities of the
government"; (2) the informative value of the information to be
disclosed -- i.e., whether the disclosure is "likely to'
contribute" to an understanding of that subject; (3) the
contribution likely to result from disclosure -- i.e., whether
the requested disclosure will contribute to "public
understanding"; and (4) the significance of the contribution to
public understanding -- i.e., whether that contribution will be,
as the statute requires, "significant."
To determine whether the second basic statutory
requirement is met, an agency should consider two additional
factors: (5) the existence and magnitude of a commercial
interest -- i.e., whether the requester has a "commercial
73 5 U.S.C. ? 552(a)(4)(A)(iii), as enacted y Pub. L. No.
99-570, ? 1803 (1986).
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interest" that would be furthered by the requested disclosure
and, if so, the extent of such interest; and (6) the primary
interest in disclosure -- i.e., whether the magnitude of any
commercial interest is sufficiently large, in comparison with
the public interest in disclosure, that disclosure is "primarily
in the commercial interest of the requester."
Where it is determined that a public interest would be
served by the requested disclosure, and is not outweighed by any
commercial interest of the requester, a fee waiver or reduction
"is compelled by the statute and should be granted freely and
promptly by the agency."74
Consideration of these six analytical factors is
plainly required by the terms of the specific statutory standard
enacted to govern fee waiver decisionmaking. In setting them
forth succinctly in this guidance memorandum -- with elaborated
analysis and discussion of relevant case law under each -- the
Department has provided sound, detailed guidance that adheres
closely to the revised statutory terms and greatly assists all
federal agencies in their implementation of this new
provision.75
74 New Fee Waiver Policy Guidance (Apr. 2, 1987) at 3-4
(footnote omitted), reprinted in FOIA Update, Winter/Spring
1987, at 4-5.
75 The guidance memorandum additionally addressed certain
procedural matters pertaining to fee waiver determinations,
expressly reaffirming the Department's 1983 guidance on such
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I am aware that this guidance memorandum has been the
subject of no small amount of dispute, Mr. Chairman, just as the
predecessor fee waiver policy guidance issued by the Justice
Department under the prior statutory fee waiver standard was
likewise controversial in many quarters. To a certain extent, I
recognize, this is inevitable: In such a policy area as
government information disclosure -- particularly on issues of
fees and fee policy, it seems -- there always will exist strongly
conflicting interests which yield sharply differing points of
view. Yet the controversy that has arisen on this particular
subject has sometimes been misplaced.
For example, almost immediately.after this guidance
memorandum was issued, there were assertions that the Department
somehow had improperly "ignored" the "legislative history" of the
new fee waiver provision.76 That simply is not true. While the
available legislative history of the 1986 FOIA amendments is
limited -- essentially consisting of floor statements placed in
the record by individual Members of Congress without any
75(...continued)
procedural matters (FOIA Update, Jan. 1983, at 4), and urged all
agencies to contact the Department's Office of Information and
Privacy regarding any fee waiver question that might arise. See
New Fee Waiver Policy Guidance (Apr. 2, 1987) at 12, reprinted in
FOIA Update, Winter/Spring 1987, at 10.
.76 This was the position taken by the Chairman of the House
Subcommittee on Government Information, Justice and Agriculture.
However, the agencies overwhelmingly declined his suggestion
that they not follow the Department's fee waiver guidance in
their implementing regulations and fee waiver decisionmaking.
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committee deliberation it was fully evaluated and taken into
consideration by the Department in the preparation of all of its
implementation guidance.
However, just as with the law enforcement amendments
already discussed,77 the individual legislative statements made
regarding the fee waiver revision were found to be quite
conflicting, both among themselves and also, in some cases, with
the plain language of the new statutory provision itself. For
example, though one such. legislative statement suggested that fee
waivers should be granted where disclosure could contribute to
public understanding in "any meaningful way,"78 the specific
language of the statute requires the contribution,to be a
"significant" one.79 On this very point, a different legislative
statement asserted that the word "significant" should "be given
its common force and weight.i80
77 See Attorney General's Memorandum on the 1986 Amendments
to the Freedom of Information Act (Dec. 1987) at 3-4 & n.5.
78 132 Cong. Rec. S14298 (daily ed. Sept. 30, 1986).
79 The Department's fee waiver guidance memorandum does
specifically admonish agencies to apply the "significant"
requirement in as objective a fashion as possible: "This
[requirement] does not permit a separate value judgment by the
agency as to whether the information, even though it in fact
would contribute significantly to public understanding of the
operations or activities of the government, is 'important'
enough to be made public." New Fee Waiver Policy Guidance (Apr.
2, 1987) at 9, reprinted in FOIA Update, Winter/Spring 1987, at
8.
80 132 Cong. Rec. S16505 (daily ed. Oct. 15, 1986).
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Similarly, one legislative statement asserted that
"public understanding" would be "enhanced every time that a
single citizen uses the FOIA,"81 thereby suggesting that a fee
waiver should be granted under the revised standard every time
even a single individual gains an understanding of the operations
and activities of government through the disclosure sought. This
suggestion for blanket fee waivers, however, is at odds with the
express terms of the statutory standard, which provides for a fee
waiver if the, disclosure contributes significantly to the "public
interest" in promoting "public" understanding. A conflicting
legislative statement urged "that the qualifying word 'public' be
applied so as to require a breadth of benefit beyond any
particularly narrow interests that might be presented."82
In fact, on this particular point it should be noted
that the Department of Justice receives numerous FOIA requests
that are made by individuals, many of them prisoners, seeking
access to records that pertain solely to themselves.83. Many
other federal agencies regularly receive numerous such requests
as well. We see no basis in the language of the statutory
standard enacted by the Congress that would require a public
interest fee waiver for such an individual requester merely
81 132 Cong. Rec. 514298 (daily ed. Sept. 30, 1986).
82 132 Cong. Rec. S16505 (daily ed. Oct. 15, 1986).
83 Because many kinds of criminal law enforcement records,
for example, are categorically exempt from access under the
Privacy Act of 1974, 5 U.S.C. ? 552a(j)(2), the subjects of those
records could have access to those records only under the FOIA.
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because his own understanding of the operations or activities of
the government would be "enhanced" by a.FOIA disclosure of
information to him -- without any showing of benefit to the
public.84 Some of the other legislative statements on the fee
waiver issue similarly suggest results that cannot be squared
with the plain language of the statutory standard enacted by the
Congress.
Therefore, as with the law enforcement provisions of
the 1986 FOIA amendments, the Department's policy guidance on
the new fee waiver provision is based upon and quite faithfully
adheres to the clear statutory language of the provision itself.
This fully conforms with the well-established rule of statutory
construction that the meaning of a statutory provision should
ordinarily be determined according to the language.of the statute
itself and its plain meaning should be applied.85
Indeed, the Department's identification of the six fee
waiver criteria as the proper ones to be considered under the
revised standard has been supported by recent fee waiver case
84 A recent appellate court decision, in its
preliminary
consideration of the new statutory standard, emphasized that, for
a waiver to be appropriate, it must be shown that "the primary
benefit of turning over the documents sought would be to the
general public rather than to the applicant." Savage v. CIA, 826
F.2d 561, 563 (7th Cir. 1987) (citation omitted).
85 See, e.g., United States v. Weber Aircraft Corn., 465
U.S. 792, 798 (1984); Consumer Product Safety Comm'n v GTE
Sylvania, Inc., 447 U.S. 102, 108 (1980); Martin v. Office of
Special Counsel, 819 F.2d 1181, 1185 (D.C. Cir. 1987).
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law as well. While judicial interpretation of the new fee waiver
standard has as yet been somewhat sparse, it is significant that
the government's fee waiver position has been upheld by both
appellate decisions to apply the new standard and the Department
of Justice's fee waiver criteria thus far.
The Ninth Circuit Court of Appeals in McClellan
Ecological Seepage Situation v. Carlucci, 835 F.2d 1282, 1284
(9th Cir. 1987), ruled that public interest group requesters are
not presumptively entitled to fee waivers under the new standard
and that, just like any other requester, they must satisfy the
requisite statutory standard in each case in order to obtain
documents without charge. The court specifically approved the
defendant agency's implementing fee waiver criteria, which were
essentially identical to those set forth in the Department's fee
waiver guidance; based upon those criteria, it concluded that the
disclosure in question would not make the significant
contribution to public understanding required by the statutory
standard. See 835 F.2d at 1286-87.
More recently, the D.C. Circuit, in Larson v. CIA, 843
F.2d 1481, 1483 (D.C. Cir. 1988), held that, even where the
subject matter of a FOIA request is clearly of interest to the
general public, the revised statutory standard demands more than
just "establishing a public interest in [that] subject matter."
Specifically, it concluded that a requester must be able to
demonstrate an ability "to disseminate the information to the
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public" before a fee waiver can be considered warranted; a
requester's failure to demonstrate such an ability "alone is
sufficient basis for denying (a] fee waiver request." Id. This
construction of the terms of the statutory standard itself'`
comports precisely with the Department's specific fee waiver
guidance that a requester must show.. both an intention and an
ability to disseminate the requested information to the general
public, because absent such dissemination there can be no
"significant contribution to public understanding" as required by
the statute.86
6. The Question of Cate orica Entitlement to Fee Waivers
The most controversial issue that has arisen since the
issuance of the Department's new fee waiver guidance is whether
certain types of FOIA requesters should be regarded as
"categorically" entitled to a fee waiver simply on the basis of
their status as a particular requester type. Some groups
(certain media entities, public interest groups, and other
organizations) have contended that they should have the benefit
of an across-the-board legal presumption in their favor under the
fee waiver standard -- in effect, that they should always receive
a complete waiver of fees, regardless of what information is
requested or actually disclosed, just because it is they who are
doing the asking.
86 See New Fee Waiver Policy Guidance (Apr. 2, 1987) at 8,
reprinted in FOIA Update, Winter/Spring 1987, at 7-8.
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The acceptance of such a position,.of course, would
forever relieve such requesters from any obligation to
specifically identify a "public interest" to be served by the
particular disclosure sought in their FOIA requests.-- or, for
that matter, to necessarily be careful to make only true "public
interest" requests.
The Department of Justice firmly resists such claims of
categorical entitlement to fee waivers as contrary to the
statutory fee waiver standard, as well as sound public policy.
First of all, such claims of categorical entitlement for any
particular group of FOIA requesters cannot be squared with the
Act's revised fee structure, which already provides a categorical
limitation on fees for certain categories of requesters. Under
this structure, educational and scientific institutions and bona
fide representatives of the news media may be charged only
duplication fees and-are categorically entitled not to be charged
search fees.87 In light of this specific treatment for these
categories of requesters, it would make no sense to conclude that
they are also categorically entitled to a waiver of all
duplication fees associated with their requests under the public
interest fee waiver standard,.88 that-interpretation would render
87 See 5 U.S.C. ? 552(a) (4) (A) (ii) (II
L. No. 99-570, ? 1803 (1986). ), as enacted Pub.
88 However, it is reasonable to presume that established
media-requesters, when engaged in traditional newsgathering
(continued...)
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entirely superfluous the particular fee-limitation provision
specifically crafted by the Congress for` such requesters.
Thus, the decision.by the Congress not to specify any
category of FOIA requester that would be entitled to special
.treatment under the fee waiver provision compels the conclusion
that no particular type of requester is categorically entitled
to a fee waiver, automatically, in all cases.89
Moreover, establishing any such categorical entitlement
to fee waivers would violate sound public policy, not to mention
simple common sense, because not all requests from a certain
category of requester will necessarily involve information the
disclosure of which would significantly increase public
.understanding of government operations or activities.90 Although
88(...continued)
activities, should not be considered to be acting primarily in
their commercial interest, notwithstanding the fundamentally
commercial nature of their business. In almost all such
instances, if any substantial public interest is found to exist,
the connection between a FOIA disclosure and the commercial
return realized by a news organization will be so attenuated and
small as to presumptively be outweighed. The Department's fee
waiver guidance memorandum explicitly articulates this
presumption. See New Fee Waiver Policy Guidance (Apr.-2, 1987)
at 11, reprinted in FOIA Update, Winter/Spring 1987, at 10.
89 Cf. Ely v. United States Postal Service, 753 F.2d 163,
165 (D.C. Cir.) (rejecting such categorical interpretation for
indigents under previous fee waiver standard because Congress
did not choose to create such favored category), cert. denied,
471 U.S. 1106 (1985).
90 The Ninth Circuit in the McClellan decision, 835 F.2d at
1285-86, specifically rejected an attempt by the plaintiffs to
establish such a presumption that all FOIA fees should be waived
(continued...)
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certainly a representative of the news media or an established
"public interest" group is more likely than most requesters to
make a request that would readily satisfy the statutory
standard,91 this likelihood alone should not give rise to a
categorical entitlement to a waiver for all such requesters in
all cases. Providing such favored treatment could result in
wide-ranging requests from such requesters running far afield of
the requisites of the actual statutory standard. Surely that
would not be within anyone's reasonable definition of the "public
interest."92 Rather, all fee waiver requests should be decided
in an individual fashion, on their demonstrated merits, in
90(...continued)
whenever a request is made by a "public interest" group. This
decision comports with the remarks on this point in even the
broadest of the individual legislative statements made on the
subject of fee waivers, which observed that "public interest
groups . . . will be able to qualify for fee waivers and thereby
obtain documents without charge if their requests meet the
standard for waivers." 132 Cong. Rec. H9463 (daily ed. Oct. 8,
1986) (emphasis added).
91 Indeed, the Department's fee waiver guidance memorandum
specifically recognizes that media representatives and other
groups with established dissemination-capabilities should readily
be able to make a showing sufficient to satisfy the statutory
standard in this critical respect. See New Fee Waiver Policy
Guidance (Apr. 2,' 1987) at 8, reprinted in FOIA Update, Winter/
Spring 1987, at 8. The Department has long encouraged agencies
to give such requesters the benefit of this recognition. See
FOIA Update, Fall 1983, at 14 (specifically including this point
under previous fee waiver guidance).
92 One court considering a broad "public g interest" fee
waiver claim was moved to observe: "[T]he meaning of 'public
interest' cannot become so broad and far-reaching that the public
interest fee waiver is converted into the rule and not the
exception." Conklin v. United States, 654 F. Supp. 1104, 1106
(D. Colo. 1987).
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proper satisfaction of the plain requirements of the specific
"public interest" standard chosen by the Congress.
This issue of categorical fee waiver entitlement has
been raised most pointedly under the new fee waiver standard by
the National Security Archive. As the Subcommittee perhaps is
aware, that organization's stated objective is to acquire,
package and sell FOIA-requested government records, pursuant to a
predetermined sales schedule, to subscribing libraries and other
customers.93 Essentially, it has set itself up as a broker of
government information -- information that could be obtained by
any requester directly from the government -- and it now claims a
categorical entitlement to public interest fee waivers in
connection with any type of FOIA request it chooses to make,
deeming itself always to be acting in the "public interest" when
making FOIA requests regardless of what kind of information
it seeks.94
93 See "A Development Grant Proposal For The National
Security Archive" (revised Mar. 1, 1986), at 1-2 & n.l In
addition to its "archival" function, the Archive apparently plans
to sell microform copies of specialized segments of its
collections to its subscribing customers. See id.; see also FOIA
Update, Winter 1986, at 1-2. In its efforts to establish its
initial collection, the Archive has pursued enormous numbers of
FOIA requests, many massive in scope, on a wide variety of
subjects at many national security-related agencies.
94 See National Security Archive v. De artment of Defense,
Civil No. 86-3454 (D.D.C.), Complaint, filed Dec. 17, 1986, at
? 41. In its own words, the Archive asserts that it "is
.therefore institutionally qualified for and presumptively
entitled to fee waivers in all of its FOIA'requests pending
before [the agency]." Id.
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This very concern about potential misuse of the fee
waiver provision by such record repositories is what prompted the
issuance of my supplemental fee waiver policy guidance regarding
such institutions in November 1986.95. I was then, and continue
to be, greatly concerned about the prospect of large-scale FOIA
requests being filed by record-repository institutions who
categorically seek fee waivers merely.on the basis of their
status as such. It is contrary to sound public policy to ask the
taxpayers to unconditionally support such institutions, without
regard to the specifics of what is being requested and how it
will be used to benefit the general public., Unlike documents
provided to individuals who satisfy the fee waiver standard
because they are disseminated directly.to the public in a way
that serves the "public interest," a large proportion of
documents provided to such record repositories may, for all that
is known, never be used to serve the "public interest" in any
way. The Department's policy guidance on this point therefore
clearly. specifies that their fee waiver requests, like those of
any other requester, should be decided on a case-by-case basis.96
95 See Supplemental Fee, Waiver Guidance (Nov. 12, 1986),.
reprinted in FOIA Update, Summer 1986,.at 3.
96 My 1986 guidance emphasized that fee waiver requests from
such record-repository institutions should be analyzed in each
case to determine whether any particular person will use and
disseminate the requested information to the benefit of the
public. See id. This guidance later was incorporated into the
Department's revised, comprehensive fee waiver guidance. See New
Fee Waiver Policy Guidance (Apr. 2, 1987) at 8-9, reprinted in
FOIA Update, Winter/Spring 1987, at 8.
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No one should have illusions, though, that the price of
such "categorical" folly would be borne only by the taxpayers
(indirectly) and government administrators (more directly). It
would be borne also by every other FOIA requester, each of whom
necessarily would be disadvantaged by such an organizational
requester's preferential treatment.- All FOIA requesters, like it
or not, unavoidably compete for a finite supply of agency time
and taxpayer resources. The realization of a single FOIA
requester's self-interest, to the degree contemplated here, can
easily work to all other FOIA requesters' detriment.
Indeed, it seems that all the dispute and controversy
over the Department's fee waiver policy guidance -- when stripped
of its rhetoric and analyzed for what it really is -- essentially
boils down to the objections of certain groups to what is for
them the unacceptable idea that they are not categorically
entitled to a fee waiver or taxpayer subsidy just by virtue of
their asking. But there is no room for anything other than firm
disagreement with such claims of entitlement -- that particular
requesters should not be required to show their satisfaction of
the statutory standard. The clear statutory command requires no
less. As I have made plain, the Department simply cannot agree
with the notion of categorical fee waiver entitlement and it has
opposed it wherever it has been raised, including before the
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courts in pending litigation.97 I suspect that this controversy
will ultimately be put to rest only in that forum.
7. Other Issues Concerning-the-Fee Provisions
A related controversy in the general fee area merits a
brief discussion concerning the amended Act's new fee limitation
provisions --.which provide complete exemption from search fees
for the three favored categories of requesters -- and their
proper implementation by OMB and, in turn, by individual
agencies. This particular controversy concerns the proper
definitions of the terms "educational institution,"
"noncommercial'scientific institution," and "representative of
the news media" under these provisions. OMB holds policy
responsibility under the 1986 amendments for all FOIA fee and
fee-limitation matters. Because I understand that OMB is not
being requested by the Subcommittee to testify as to the
implementation of these amendments, or as to current FOIA fee
practices, I have included a discussion of this issue in.order to
present a comprehensive overview of the government's
implementation activities.
97 See, e.g., National Security Archive v. Department of
Defense, Civil No. 86-3454 (D.D.C.), Answer, filed Jan. 30, 1987,
at ? 41. This issue has been raised in another pending case, in
which the Department has opposed a claim that historical
researchers are presumptively entitled to public interest fee
waivers. See Fitzgibbon v Agency for Intl Development, Civil
No. 87-1548 (D.D.C.), Defendants' Memorandum In Opposition to
Plaintiff's Cross-Motion For Summary Judgment, filed Feb. 5,
1988, at 3-4.
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One of the first issues to arise in litigation
concerning the new fee structure was whether an agency's new fee
regulations -- specifically, its definitions of these categories
of favored requesters -- could*be defended on the ground that
they conformed to OMB's uniform fee guidelines. In the recent
case of National Security Archive V. Department of Defense, Civil
No. 86-3454 (D.D.C. June 16, 1988) (appeal pending), the Archive
argued that OMB's fee.guidelines were not controlling with
respect to agency definitions of these special categories of
requesters and that the Department of Defense's definitions
(identical to those set forth by OMB and deemed not to encompass
the plaintiff Archive) should be struck down as contrary to the
statutory language and underlying legislative intent.98
The district court firmly rejected this challenge.
Without deciding whether. OMB's fee guidelines are necessarily
controlling, the court observed that the 1986 FOIA amendments
expressly delegated to the agencies the responsibility of
implementing..the new fee structure. See slip op. at 3. The
court squarely upheld the Department of Defense's definitions as
a reasonable implementation-of the statutory language. See id.
at 9-13. It held, in short, that the Archive does not fall
98 See National Security Archive v. Department of Defense,
Civil No. 86-3454 (D.D.C.), Plaintiff's Second Motion For Summary
Judgment, filed Nov.-20, 1987, at 31-33.
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within the reasonable definition of-any.of the three favored
categories.
This first decision on this contentious issue carries
great government-wide significance, because virtually all federal
agencies' fee regulations contain category definitions identical
to those challenged in this case. There doubtless will be
further disputes over the precise contours of these special fee-
limitation categories. As far-as government-wide implementation
.policy in this area is concerned; the Department of Justice
leaves such matters to OMB and the individual agencies for
resolution.
III. OTHER GUIDANCE ACTIVITIES
Apart from the Department of Justice's guidance
activities regarding the implementation of the 1986 FOIIA
amendments, it has for many years engaged in numerous government-
wide activities designed to guide the proper interpretation and
implementation of the Act overall. For the past seven years,
these FOIA guidance responsibilities have been discharged
through the Office of Information and Privacy, which is part of
the Department's Office of Legal Policy.
OIP was created near the beginning of this
Administration to serve.as a central location for the handling of
the Department's major FOIA responsibilities. Two predecessor
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offices were merged: the former Office of Privacy and
Information Appeals, which primarily held responsibility for
adjudicating all administrative appeals from FOIA access denials
by Department components; and the former Office of Information
Law and Policy, which discharged the Department's government-wide
policy guidance responsibilities under the Act.
The consolidation of these two offices' functions and
resources into OIP -- which is headed by two co-directors and
has a combined attorney and paralegal staff of nearly thirty --
greatly strengthened the Department's functioning in this
important area. This has been especially so with respect to
OIP's ability to engage in government-wide FOIA policy guidance
activities, under the supervision of the Assistant Attorney
General for Legal Policy.
Over the course of the past several years, OIP has
considerably enhanced the Department's capability to provide
government-wide FOIA policy advice and guidance through its many
publication, training and advisory activities. OIP has been able
to achieve this, along with handling its other FOIA
responsibilities (including the adjudication of a growing number
of initial requests and administrative appeals), with no increase
to its staff complement. Both the breadth and depth of these
activities have far exceeded all previous such efforts, which has
been necessary to meet the increasing demands for high-quality
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FOIA advice and guidance that have been made upon the Department.
A. FOIA Policy Initiatives
Most significantly, OIP has undertaken to examine a
wide range of legal and policy issues arising under the Act,
including some critical issues never before addressed, and to
formulate cogent policy statements and initiatives for the
guidance of all federal agencies. Major policy initiatives have
been undertaken in such important areas as the protection of
business information, the proper application of the attorney
work-product privilege, the protection of sensitive settlement-
negotiation data, the interaction of the FOIA and the Copyright
Act, the protection of personal privacy interests, and the
handling of congressional requests for access to agency records.
OIP's policy guidance in these and other subject matter areas has
become firmly established in both administrative practice and
applicable FOIA case law.
In providing its detailed, written analyses on a range
of both substantive and procedural FOIA issues -- all of which
are disseminated through its FOIA Update-publication -- OIP
guides all agencies-in their understanding of these issues and
promotes their proper and uniform resolution throughout the
Federal Government. Major highlights of the subjects addressed
in FOIA Update during this Administration are:
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The disclosure and protection of information regarding
federal'employees and job performance.99
The relationship between the FOIA and access through
civil dis6overy.100
The complex interrelationship of the FOIA and the
Privacy Act with civil discovery rules and
practices.101
The procedural protections to be afforded submitters of
business information requested under the FOIA (guidance
-issued in coordination with the Presidential Task Force
on Regulatory Relief).102
The status of "personal notes" under the FOIA.103
The proper "referral" of FOIA requests for records
originating at other agencies.104
99 See FOIA Update, June 1981, at 4. See also FOIA Update,
Sept. 1982, at 3 (follow-up guidance).
100 See FOIA Update, Dec. 1981, at 10.. See also FOIA
Update, Summer 1985, at 5 (follow-up guidance).
101 See FOIA Update, Mar. 1982, at 3. See also FOIA-Update,
Summer 1984, at 2 (follow-up guidance).
102 See FOIA Update, June 1982, at 3. See also FOIA Update,
Summer 1987, at 1-3 (follow-up guidance under Exec. Order No.
12600).
103 See FOIA Update, June-1982, at 5. See also FOIA U date,
Fall 1984, at 3-4 (follow-up guidance).
104 See FOIA Update, June 1982, at 5. See also FOIA
Update, Summer 1983, at 5 (follow-up guidance).
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The application of the threshold requirement of
Exemption 5 in connection with "outside"
recommendations received by agencies.105
The delineation under Exemption 6 of sensitive from
nonsensitive personnel information and mailing-list
data.106
The disclosure of personal information pertaining to
deceased persons under the FOIA.107
The balancing of public interests against personal
privacy interests under Exemptions 6 and 7(C).108
5.110
1983
The proper handling of procedural considerations
surrounding the making of fee waiver determinations.
(procedural guidance issued together with previous fee
waiver policy guidance).109
The protection of "draft" documents under Exemption
See FOIA Update, June 1982, at 10.
See FOIA Update, Sept. 1982, at 3.
See FOIA Update, Sept. 1982, at 5.
See FOIA Update, Sept. 1982, at 6.
See FOIA Update, Jan. 1983, at 4.
110 See FOIA Update, Jan. 1983, at 6. See also FOIA
Update, Spring 1986, at 2 (follow-up guidance).
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-- The interplay.of the Privacy Act and Exemption 3.111
-- The circumstances under which an agency can be deemed
to have waived its right to invoke a FOIA exemption.112
-- The legal and policy considerations according to which
agencies should rule on requests for special expedited
FOIA processing.113
-- The use of the attorney work-product privilege under
Exemption 5.114
-- The handling of copyrighted materials.under the FOIA,
including the status of the Copyright Act under
Exemption 3 and its interplay with Exemption 4.115
-- The treatment of unit prices under Exemption 4.116
-- The use of "cut-off" dates for determining records
responsive to FOIA requests.117
-- The protection of commercial information under
Exemption 5.118
111 See FOIA Update, Spring 1983, at 3. See also FOIA
Update, Fall 1984, at 4 (follow-up guidance).
112 See FOIA Update, Spring 1983, at 6.
113 See FOIA Update, Summer 1983, at 3.
114 See FOIA Update, Summer 1983, at 6. See also FOIA
Update, Fall 1984, at 6 (follow-up guidance).
115 See FOIA Update, Fall 1983, at 3-5.
116 See FOIA Update, Fall 1983, at 10-11. See also FOIA
Update, Fall 1984, at 4 (follow-up guidance).
117 See FOIA Update, Fall 1983, at 14.
118 See FOIA Update, Fall 1983, at 14.
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The lesser-known "third test" for the protection of
sensitive commercial information under Exemption 4.119
1984
The handling of congressional requests for access to
agency records and the significance under the FOIA of
congressional disclosures.120
The unique "burden" protection afforded under Exemption
2.121
The "generic" protection available for law enforcement
records under Exemption 7(A).122
The inability to regard another federal agency as a
"confidential source" under Exemption 7(D).123
The delineation of "personal. records" from "agency
records" under the FOIA.124
The significance of the Federal Acquisition Regulation
under Exemption 4.125
The protection of factual information in accordance
See OIA Update, Fall 1983, at 15.
See FOIA Update, Winter 1984, at 3-4.
See FOIA Update, Winter 1984, at 10-11.
See FOIA Update, Spring 1984, at 3-4.
See FOIA Update, Spring 1984, at 7.
See FOIA Update, Fall 1984, at 3-4.
125 See FOIA Update, Fall 1984, at 4. See also FOIA
Update, Winter 1986, at 6 (follow-up guidance).
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with the full contours of the attorney work-product
privilege under Exemption 5.126
1985
The protection of records having "intrinsic-commercial
value" under Exemption 4.127
The proper treatment of the identities of FOIA and
Privacy Act requesters under the FOIA.128
The use of the attorney-client privilege under
Exemption 5.129
The making of "automatic" disclosures under the
Act.130
The status of "discretionary" disclosures under
Exemption 4.131
The use of the FOIA for discovery purposes.132
The applicability of "preclusion" doctrines (res
judicata and collateral estoppel) under-the FOIA.133
126 See FOIA Update, Fall 1984, at 6. See also
Update, Summer 1987, at 4-5 (follow-up guidance).
127 See FOIA U date, Winter 1985, at 3-4.
See FOIA Update, Winter
See FOIA Update, Spring
See FOIA Update,-Spring
See FOIA Update, Summer
See FOIA Update, Summer
See FOIA Update, Summer
1985_, .at 6.
1985, at 3-4.
1985, at 6.
1985, at 3.
1985, at 5.
1985, at 6.
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The necessary protection'of settlement-negotiation
records under Exemptions 4 and 5.134
1986
The application of the "Glomarization" (neither confirm
nor deny) principle to protect personal privacy
interests in law enforcement records under Exemption
7(C).135
The propriety of processing all first-party access
requests under the FOIA even if they cite the Privacy
Act and not the FOIA.-36
The protection of the identities of persons who write
letters to government officials, under Exemptions 6 and
7(C).137
The handling of a FOIA requester who breaches a
commitment to pay properly assessed fees.138
The treatment of federal personnel mailing lists under
Exemptions 2 and 6.139
134 See FOIA Update, Fall 1985, at 3-4.
135 See FOIA Update, Winter 1986, at 3-4. See also FOIA
Update, Spring 1986, at 2 (follow-up guidance).
136 See FOIA Update, Winter 1986, at 6 (declining to adopt
contrary suggestion by OMB).
See FOIA Update, Winter 1986, at 6.
See FOIA Update, Spring 1986, at 2.
See FOIA Update, Summer 1986, at 3-4.
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The status of the Trade Secrets Act, 18 U.S.C. ? 1905,
under Exemption 3.140
The treatment of factual information under the
deliberative process privilege and Exemption 5.141
1987
The proper handling of procedural considerations
surrounding the Act's new fee and fee waiver.
provisions, particularly during the "interim period"
before new agency regulations took effect.142
The procedural protections to be afforded submitters of
business information through agency regulations
implementing Executive Order No. 12600.143
The protection of witness statements in accordance with
the attorney work-product privilege under Exemption 5,
among other possible FOIA grounds.144
140 See FOIA Update, Summer 1986, at 6.
141 See FOIA Update, Summer 1986, at 6.
142 See FOIA Update, Winter /Spring 1987, at 1-2
coordination with OMB). ' (issued in
143 See FOIA Update, Summer 1987, at 1. Executive Order
No. 12600, which was prepared by the Executive Office of the
President with the assistance of OIP, formally required all
executive departments and agencies to promulgate regulations
specifically providing certain "submitter-notice" protections for
submitters of business information that could be requested under
the FOIA. See 52 Fed. Reg. 23781 (June 23, 1987), reprinted in
FOIA Update, Summer 1987,, at 2-3. See also, e.a., 53 Fed. Reg.
27161 (July 19, 1988), to be codified at 2.8 C.F.R. ? 16.7 g~
(Justice Department "submitter-notice" regulation).
144 See FOIA Update, Summer 1987, at 4-5.
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B. POIA Update
As has been noted, OIP's primary means of disseminating
its formal FOIA advice and policy guidance is through FOIA
Update, its quarterly policy publication. This publication was
initiated by the Department in late 1979 for the, general purpose
of promoting the proper administration of the Act.145 Since
1982, OIP has upgraded both the content and scope of FOIA Update
and has employed it as a high-quality vehicle for the wide
dissemination of policy guidance and FOIA-related information.146
The Department's major policy statements on FOIA issues
are presented in FOIA Update as "OIP Guidance" or "FOIA
Counselor" analyses. In 1982, OIP inaugurated an additional FOIA
Update feature, the "FOIA Counselor Q & A," through which it can
address many specific questions or policy issues in a concise and
efficient manner. Since then, OIP has answered literally dozens
of such questions through this "Q & A" format, most of which
145 See FOIA Update, Autumn 1979, at 1.
146 More than 3,000 copies of FOIA Update are distributed
to agency FOIA personnel throughout the Federal Government and to
other interested governmental recipients without charge. FOIA
Update is also sold through the Government Printing Office to
nongovernmental subscribers at the nominal cost of $5.00 per
year; in 1987, it had a paid circulation of 1,225.
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derive directly from the "FOIA Counselor" telephone inquiries
that it receives.147
OIP also has devoted some entire issues of FOIA Update
to a single theme or subject under the Act. One such issue
addressed the protection of privacy interests under the FOIA's
privacy exemptions.148 Another addressed-various issues
surrounding the Act's treatment of business information.149 A
third such theme issue dealt with law enforcement records and
the protections available for them under the Act.150
Other expanded features of FOIA Update have served to
keep agency FOIA personnel advised of various aspects of FOIA
administration and practice. Through its "On Agency Practice"
feature, FOIA Update has surveyed and addressed agency practices
in a variety of areas, such as privacy protection,151 the
assessment of fees,152 business-information processing,153 FOIA
147 As is described below, OIP's "FOIA Counselor" service
constitutes a major part of its FOIA guidance activities. Its
use has increased dramatically over the years, in no small part
due to the fact that it has been widely publicized (with its
special telephone number, 633-FOIA) through this FOIA Update
feature.
See FOIA Update, Sept. 1982.
See FOIA Update, Fall 1983.
See FOIA Update, Spring 1984.
See FOIA Update, Sept. 1982, at 1-2.
See FOIA Update, Jan. 1983, at 1-2.
(continued...)
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training,154 national-security classification,155 litigation
procedures,156 and the mechanics of FOIA processing.157
Likewise, its expanded "Significant New Decisions" and "Supreme
Court Update" features have kept agencies fully abreast of major
FOIA judicial decisions, as have its many "Legislative Update"
articles tracked the ups and downs of FOIA.reform and. other
legislative developments as they have'occurred.158
In sum, the Department has greatly improved its
government-wide dissemination of FOIA advice and policy guidance
in recent years through OIP's development of its FOIA Update
publication. Any comparison of this publication since 1982 with
its earlier editions will reveal the full measure of that
quantitative and qualitative development.
153( See FOIA Update, Fall 1983, at 1, 12. See also FOIA
Update, June 1982, at 4-5.
154 See FOIA Update, Winter 1984, at 1, 2, 6. See also
FOIA Update, Summer 1986, at.1-2.
156
See FOIA Update, Winter 1985, at 1-2.
See FOIA Update, Summer 1985,.bat 1-2.
157 See FOIA Update, Fall 1985, at 1-2.
158 Other items of information re ularl
U date include g y provided in FOIA
P quarterly listings of FOIA training opportunities
and detailed listings (updated every two years) of the principal
FOIA legal and administrative contacts at all federal agencies.
See, e.g., FOIA Update, Winter 1988, at i-iv (current FOIA
contact list). Additionally, a. cumulative index to FOIA Update
through 1987 can be found in the Fall 1987 issue, at pp. i-viii.
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C. Case List and "Justice Department Guide to the FOIA"
A second publication by which OIP disseminates FOIA
information and policy guidance is its annual Freedom of
Information Case List, which now also includes the "Justice
Department Guide to the Freedom of Information Act."
The Case List was begun by the Department many years
ago in order to establish a useful compilation of all FOIA
decisions of precedential significance, which could be updated
annually. The September 1987 edition has grown to include more
than 2,700 such FOIA decisions -- each of which is carefully
indexed according to specific subject matter topics -- and also
contains an indexed list of Privacy Act cases, various other
specialized lists of access cases, a comprehensive list of
related law review articles, and copies of all of the major
federal access statutes. The 1988 version presently is in
preparation.
The "Justice Department Guide to the Freedom of
Information Act" has come to be perhaps the most vital part of
this Case List publication. Originally known as the "Short Guide
to the FOIA," it was originated by the Department in the late
1970's as a brief supplement to the Case List that provided a
general overview of the Act's basic provisions.
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In 1982, OIP prepared a completely new "Short Guide"
which more comprehensively discussed the issues arising under the
Act with more detailed reference to applicable FOIA case law.
Since then, as OIP has expanded and updated this document each
year, it has grown to serve as the principal government reference
guide to the Act's implementation.
Indeed, what is now known as the "Justice Department
Guide to the FOIA" -- because it no longer is at all "short" --
is a highly detailed, 143-page discussion of the Act's major
substantive and procedural aspects, presented with extensive
references to the evolving FOIA case law that governs the proper
interpretation and application of the Act's provisions.159 It is
widely used by federal agency FOIA personnel and also those
outside the Federal Government as both an introductory overview
of the Act as well as the most detailed, up-to-date analysis of
even its finest points.160 OIP's development of the former
"Short Guide" into such a comprehensive FOIA treatise has
immeasurably enhanced the understanding and proper application of
159 "Justice Department Guide to the Freedom of Information
Act" (1987 edition), published in Freedom of Information Case
List (Sept. 1987), pp. 315-457.
160 As part of the Case List, the "Guide" is disseminated
each year to thousands of recipients throughout the Federal
Government (including by electronic access through the Depart-
ment's JURIS System) and is distributed to the public directly
through the Government Printing Office and also through federal
depository libraries. Additionally, the "Guide" has also been
reproduced, almost verbatim, as the major chapter of a privately
published loose-leaf volume dealing with the FOIA. See J.
Franklin & R. Bouchard, Guidebook to the Freedom of Information
and Privacy Acts, pp. 1-9 through 1-156 (2d ed. 1986).
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the FOIA throughout the Federal Government and the entire FOIA
community.161
D. FOIA Training Activities
Similarly, OIP has greatly expanded the Department's
government-wide FOIA training activities during the past seven
years. The careful training of all FOIA personnel throughout the
federal government is essential to the Act's proper and uniform
administration. Such instruction is particularly crucial due to
the relatively high turnover of FOIA duty assignments at most
,federal agencies -- with new employees often thrust into this
area with little relevant experience or preparation -- and the
fact that many agency employees necessarily become involved in
FOIA matters on a part-time or ancillary-duty basis.
In recognition of this, OIP has instituted a number of
measures to increase both the range and depth of the FOIA
training that is made available to all agency FOIA personnel.
Prior to OIP's creation, the Department offered a single basic
FOIA training course that served as the government's primary FOIA
training program but covered the Privacy Act as well; it was
offered, through the Department's Legal Education Institute
161 One measure of this development :(and of the FOIA
industry generally) is that the current "Justice Guide" is more
than-five times greater in length than the "Short Guide" that
existed in 1980.
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("LEI"), three or four times per year and, as structured, did not
fully meet the agencies' FOIA training needs.
In 1982, OIP redesigned this course with LEI to make it
a two-day program of instruction devoted entirely to the FOIA
that could be offered five or six times annually.162 This
restructured training program, entitled "The Freedom of
Information Act for Attorneys and Access Professionals," soon
became very heavily subscribed; even with its increased number of
offerings, and with a maximum class size of nearly 100 for each
session, the demand for it far exceeded its available training
capacity.
OIP took several further steps to meet this high FOIA
training demand. In 1982, it took a survey through FOIA Update
of all federal agencies to determine the volume and range of
their FOIA training needs.163 Based upon the results of this
survey, OIP developed a new training session, its "Advanced
Seminar on the FOIA," which it inaugurated in 1983 to meet the
162 In this reconfiguration, the Privacy Act instruction
was broken out into a separate new seminar that was offered twice
per year, beginning in 1983, in coordination with OMB, which
holds government-wide policy responsibility for the Privacy Act.
Though this Privacy Act seminar subsequently was discontinued
for a period of time, it was reinstated in 1987 at OIP's urging.
163 See,FOIA Update, Mar. 1982, at 8. See also FOIA
Update, Sept. 1982, at 8.
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FOIA training needs of experienced FOIA personnel.164 Toward
this same end, it added another new FOIA course the following
year, entitled "Introduction to the FOIA for Non-Specialists,"
which-it designed to meet FOIA training needs-at the other end of
the spectrum, i.e., to provide a half-day of instruction to those
agency employees whose involvement with the Act requires no more
than introductory training.
Although OIP's presentation of each of these two new
sessions twice each year as of 1984 helped to offset the
increasing demand for FOIA training, that demand nevertheless
continued to grow. In fact, during the next two years the demand
for participation in the Department's basic, two-day FOIA course
grew to the point at which it regularly received more than 200
applications for less than 100 available spaces in each program.
This course was accordingly conducted for a record number of
participants during 1984 and 1985, including through a special
"double session" held in July 1984 to accommodate more than 200
students.
In 1986, OIP took an additional step in its efforts to
164 This special FOIA seminar, which has been conducted by.
OIP twice annually since 1983, is limited to ,a. selected group of
only the most experienced agency FOIA personnel and is designed
to cover matters not able to be addressed in the basic FOIA
course. It regularly includes, for example, a guest presentation
from a prominent member of the FOIA community on the topic of
"FOIA From the Non-Governmental Perspective."
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meet this undiminishing demand.165 Based upon the premise that
many agency FOIA employees primarily require only a periodic
training update on recent FOIA developments, OIP developed a new
FOIA training seminar designed to satisfy that exact need.
Entitled the "Annual Update Seminar on the FOIA," this new
training session was offered for the'first time in the fall of
1986 and drew nearly 250 attendees. It now is conducted by OIP
during the first week of October each year immediately upon
completion of the annual "Justice Department Guide to the FOIA,"
a special pre-publication copy of which is provided to all
seminar participants.
In addition to its integral, role in these FOIA training
programs offered directly by the Department, OIP also has drawn
extensively upon its professional staff to support other
government-sponsored FOIA training programs -- principally those
conducted by the Office of Personnel Management and the USDA
Graduate School -- as well as such training sessions held by
165 The Department's FOIA training courses have
consistently been the most heavily subscribed LEI training
programs over the past several years, with the highest attendance
rates as well. As of 1986, the Department continued to receive
between 225-275 agency applications for each offering of the
basic, two-day course. Early in that year, though, LEI suffered
severe budgetary constraints and related difficulties which
limited its ability to maintain its role in FOIA training. See
FOIA Update, Winter 1986, at 8. To ensure the uninterrupted
availability of high-quality FOIA training, however, OIP assumed
LEI's organizational role and has continued to provide the full
roster of FOIA training programs, partly under the auspices of
the Department's Office of Legal Education, since that time.
See FOIA Update, Summer 1986, at 1-2.
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nongovernmental organizations.166 Each year for the past several
years, OIP representatives have made literally scores of
presentations at a variety of FOIA training sessions, including
many that are tailored by OIP to meet the particular needs of
individual federal,agencies.167 Through its heavy devotion of
attention and resources to the training of agency FOIA personnel
throughout the Federal Government,-we believe that OIP has
considerably enhanced the Department's leadership role in"this
area.
E. FOIA Counseling
The final major component of the Department's
government-wide
function, which
FOIA guidance activities is its advice-giving
is undertaken primarily through OIP's "FOIA
Counselor" service.
Counselor" mechanism
The Department established the "FOIA
-many years ago, as a means of encouraging
agencies to raise their questions about the Act to the Department
for its attention and resolution.. Such questions can range from
basic informational queries to requests for a dispositive
166 The availability of FOIA training is made widely known
through the "FOIA Training Opportunities" feature which regularly
appears in FOIA Update.
167 See FOIA Update, Summer 1986, at 2; FOIA Update, Winter
1984, at 6. OIP's extensive training activities, as well as its
other government-wide guidance activities, are regularly
described in detail in the Department's Annual FOIA Report to
Congress. See, e.g., "Description of Department of Justice
Efforts to Encourage Agency Compliance with the Act" (contained
in the Department's 1987 Annual FOIA Report), at 148-52.
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analysis of all legal issues necessarily involved in a specific
FOIA determination.
Most such questions take the form of telephone
inquiries about pending or contemplated FOIA actions,168 but
often such matters require more extensive consultations. In all
instances, it is essential for any agency employee working on a
FOIA matter to know that an experienced Justice Department
attorney is available to address any question that might arise.
Since 1982,. OIP has placed increased emphasis upon this
vital service, which has resulted in large increases in the
volume of its usage year after year. By promoting it through
prominent mention in FOIA Update and in all of its training
programs, and through the use of a special, readily remembered
"hotline" number (633-FOIA), OIP has steadily increased agency
reliance upon its "FOIA Counselor" service. It now receives
more than 2,000 such inquiries annually -- a more than two-fold
increase over pre-1982 "FOIA Counselor" activity. This service
thus has become an integral part of the Act's government-wide
implementation.
Additionally, OIP has continued the Department's
related "ombudsman" role of responding to requests for assistance
168 The Justice Department's FOIA policy regulation
specifically encourages any agency intending to deny a FOIA
request raising a novel issue to consult with the Department
before doing so. See 28 C.F.R. ? 0.23a(b) (1987).
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89 -
received from dissatisfied FOIA requesters who believe that the
federal agencies processing their requests are operating contrary
to, or under a misunderstanding of, applicable legal
requirements. In pursuing the relative handful of such
assistance. requests received each year, OIP attempts to ensure
that there is an accurate understanding of the law and that the
agency involved achieves full and proper compliance with its FOIA
obligations-169 Last year, FOIA UAdate specially highlighted the
availability of this traditional Justice Department service to
FOIA requesters.170
IV. CONCLUSION
In conclusion, Mr. Chairman, I would like to say that I
very much appreciate this opportunity to set forth the Department
of Justice's policy perspectives and accomplishments regarding
the Freedom of Information Act. The Department is justifiably
proud of its long tradition of government-wide guidance
activities in this area -- including its most recent
implementation activities under the 1986 FOIA amendments -- and
it is particularly proud of the fact that these FOIA guidance
activities have been expanded and upgraded considerably during
169 While OIP does not interfere with an ongoing
administrative appeal process, nor does it involve itself in this
way in a matter that has proceeded to litigation, it is available
to examine any specific allegations of agency noncompliance with
the Act that are brought to its attention.
170 See FOIA U date, Fall 1987, at 2.
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the past seven years of the Administration and through the
creation of the Office of Information and Privacy.
While I recognize that there always will be differences
of opinion in so volatile a public policy area as government
information disclosure, such differences should be placed in
perspective and not be portrayed as broader than they actually
are. There certainly has been a great deal of public debate and
controversy over the particular subject of "public interest" fee
waivers under the FOIA -- and, to a somewhat lesser extent, over
the making of fee determinations generally -- but even that
derives almost entirely from inevitably conflicting public and
private interests. Moreover, the undeniable fact remains that
there has been little if any basis or occasion for dispute over
the wide range of policy initiatives and activities undertaken by
the Department in all other FOIA subject matter areas.
It is not always an easy task to achieve a proper
balance among the several "public interests" that uniquely
coincide -- and often conflict -- under the Freedom of
Information Act. Yet we all must continue to pursue that
equilibrium. The strong public interest in fostering
governmental accountability through the disclosure of records
simply cannot be considered in a vacuum. Rather, it is incumbent
upon us as government officials to recognize -- and to
accommodate -- those other legitimate public interests in
protecting sensitive records, promoting governmental efficiency
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and fiscal responsibility, and minimizing the use of taxpayer
subsidies under FOIA for purely private interests.
The administration.-of the Freedom of Information Act,
which promotes valuable citizenship participation in government,
is a very important part of our federal system. It has benefited
from your efforts, Mr. Chairman, in working towards a balanced
approach under the Act. I can assure you that as the Department
of Justice continues to work towards achieving this balance, it
remains committed to the full and faithful implementation of the
Act -- to consistently achieving, in the words of both the
Supreme Court and the Senate Judiciary Committee, "the fullest
responsible disclosure."171
I would be pleased to address any question that you or
any other Member of the Subcommittee might have on this subject.
171 Chrysler Corb v. Brown, 441 U.S. 281, 292 (1979)
(quoting S. Rep. No. 813, 89th Cong., 1st Sess. 3 (1965)).
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