REPORT OF THE COMMITTEE ON TH JUDICIARY UNITED STATES SENATE ON S. 774

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP92B01283R000100070006-3
• Release Decision: RIFPUB
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• Document Page Count: 51
• Document Creation Date: December 23, 2016
• Document Release Date: August 16, 2013
• Sequence Number: 6
• Publication Date: September 12, 1983
• Content Type: REPORT

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CalendaC4o. 367
98TH CONGRESS I
1st Session
SENATE
REPORT
No. 98-221
FREEDOM OF INFORMATION REFORM ACT
REPORT
OF THE
Committee on the Judiciary
United States Senate
ON
S. 774
SEPTEMBER 12, 1983.?Ordered to be printed
Printed for the use of the Committee on the Judiciary
U.S. GOVERNMENT PRINTING OFFICE
24-068 0 WASHINGTON :
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COMMII I LE ON THE JUDICIARY
STROM THURMOND,
CHARLES McC. MATHIAS, JE., Maryland
PAUL LAXALT, Nevada
ORRIN G. HATCH, Utah
ROBERT DOLE, Kansas
ALAN K. SIMPSON, Wyoming
JOHN I': EAST, North Carolina
CHARLES E. GRASSLEY, Iowa
JEREMIAH DENTON, Alabama
ARLEN SPECTER, Pennsylvania
South Carolina, Chairman
JOSEPH R. BIDEN, JR., Delaware
EDWARD M. KENNEDY, Massachusetts
ROBERT C. BYRD, West Virginia
HOWARD M. METZENBAUM, Ohio
DENNIS DECONCINI, Arizona
PATRICK J. LEAHY, Vermont
MAX BAUCUS, Montana
HOWELL HEFLIN, Alabama
VtDrrox DEVANE LIDE, Chief Counsel and Staff Director
DEBORAH K. OWEN, General Counsel
SHIRLEY J. FANNING, Chief Clerk
MARK H. GrrExersix, Minority Chief Counsel
SUBCOMMITTEE ON THE CONSTITUTION
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina DENNIS DECONCINI, Arizona
CHARLES E. GRASSLEY, Iowa PATRICK J. LEAHY, Vermont
STEPHEN MARKMAN, Chief Counsel and Staff Director
RANDALL RADER, General Counsel
BOB FEIDLER, Minority Counsel
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CONTENTS
Page
Introduction 1
History of committee action 3
97th Congress 3
98th Congress 5
Section-by-section analysis 6
Regulatory impact 34
Cost estimate 34
Changes in existing law 35
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Calendar No. 367
98TH CONGRESS 1 SENATE r REPORT
1st Session No. 98-221
FREEDOM OF INFORMATION REFORM ACT
SEPTEMBER 12, 1983.?Ordered to be printed
Mr. THURMOND, from the Committee on the Judiciary,
submitted the following
REPORT
[To accompany S. 774, as amended]
The Committee on the Judiciary, to which was referred the bill
(S. 774) to amend title V, United States Code, section 552, common-
ly called the Freedom of Information Act, to provide protective con-
fidentiality for certain law enforcement, private business, and sen-
sitive personal records and for other purposes, having considered
the same, reports favorably thereon and recommends that the bill
as amended do pass.
INTRODUCTION
Two years ago the Senate Judiciary Committee undertook the
most exhaustive examination of the Freedom of Information Act
(FOIA) in its history. In the intervening period, now spanning two
Congresses, the Committee has held nine hearings and entertained
over sixty expert witnesses with the goal of drafting a bill that will
improve the Act without compromising its mission of providing our
citizenry with a tool to learn about federal government activities.
S. 774 and its predecessor, S. 1730 in the 97th Congress, each re-
ceived the unanimous approval of this Committee as an indication
of the success of the bill in amending FOIA's most glaring weak-
nesses without compromising its vital strengths. In short, this bill
will serve to fine-tune the most important component of our na-
tion's information policy, a policy which distinguishes the United
States among other nations.
During the Committee's comprehensive oversight of FOIA, the
witnesses expressed a warm appreciation for the policy of open gov-
ernment conveyed by FOIA. The witnesses also produced evidence,
(1)
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however, that FOIA has not always operated to produce a more ef-
fective government. In many of those areas, the Committee has at-
tempted to correct the weakness while maintaining the beneficial
policy.
A major aspect of these hearings was the Committee's concern
that the confidentiality of informants and sensitive law enforce-
ment investigations is jeopardized by FOIA disclosures. The Attor-
ney General's 1981 Task Force on Violent Crime found that FOIA
should be amended because it is used by lawbreakers "to evade
criminal investigation or to retaliate against informants." In addi-
tion, five different studies 1 concluded that the Act has harmed the
ability of law enforcement officers to enlist informants and carry
out confidential investigations. The Committee is also concerned
about evidence that the Act has slowed the flow of confidential in-
formation to the law enforcement community for that reason.
It is also clear that some submitters of confidential information
are fearful of losing valuable trade secrets as a result of FOIA re-
leases to competitors. Statutory procedures to protect submitters
are designed to alleviate this problem.
In addition, the extensive Committee hearings revealed other as-
pects of FOIA in need of fine-tuning. As mentioned earlier, the
costs of the Act to the taxpayer suggest that those who directly
benefit by requesting information should readily accept the respon-
sibility of paying the cost of producing the information, subject, of
course, to an adequate waiver policy for requests made in the
public interest. The government agencies' inability to comply with
the Act's short time limits recommends a more workable time
schedule for complying with requests in the event of a backlog of
requests or other 'unusual circumstances." On the other hand,
agencies should have appropriate incentives to comply with the
time limits for the bulk of all requests.
Revising the Act's second exemption to provide adequate protec-
tion for law enforcement manuals and instructions to investigators,
auditors, or negotiators, was another aspect of the testimony. Re-
moving important limitations on the exemption designed to guar-
antee personal privacy also emerged as an aspect of FOIA reform.
New exemptions to protect "technical data" (predominantly nation-
al security information) that may not be lawfully exported without
a license and to protect Secret Service records were featured as
subjects worthy of the protection currently given other information
covered under the current exemptions.
The hearings also noted the need to reconsider the factors gov-
erning current determinations of types of information that may be
released because they are "reasonably segregable" from classified
or exempt portions of certain sensitive records.
'General Accounting Office, Impact of the Freedom of Information Act on Law Enforcement
Agencies (1978); Report of the Attorney General's Task Force on Violent Crime (1981); Depart-
ment of Treasury, Management Review on the Performance of the U.S. Department of Treasury
in Connection with the March 30, 1981, Assassination Attempt on President Ronald Reagan
(1981); Department of Justice, Drug Enforcement Administration, Effect of the Freedom of Infor-
mation Act on DEA Investigations (1982); Statements of Director William Webster, Hearings on
Freedom of Information; The Erosion of Law Enforcement Intelligence and the Impact on the
Public Security," Subcommittee on Criminal Laws, Senate Judiciary Committee, 95th Congress,
2nd Sess. (1978).
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CT
Another item covered was the appropriateness of requests from
certain classes of requesters, including aliens, imprisoned felons, or
parties in litigation with the government who have access to infor-
mation via the alternative route of discovery under the Federal
Rules of Civil Procedure. Finally compiling a list of statutes which
trigger withholding under Exemption 3 also emerged as an impor-
tant aspect of FOIA reform. These matters each became an ele-
ment of the bill approved by the Judiciary Committee unanimous-
ly.
This bill enjoys broad bipartisan support and reflects the accu-
mulated wisdom of many diverse interests, including media repre-
sentatives, public interest groups, the Reagan Administration,
members of the business community, and law enforcement agen-
cies. The FOIA Reform Act has been widely hailed as a reasonable
and worthwhile compromise by these diverse and often divergent
interests because it achieves the dual goals we set when embarking
upon improving the Act.
Namely, the bill eliminates many of the current problems of the
Act without weakening its effectiveness as a valuable means of
keeping the public informed about government activities. As The
Washington Post accurately noted:
It is quintessentially American to believe that the people
control the government and that they have a right to
know what the government is doing. The Judiciary Com-
mittee Bill preserves that right (Washington Post, May 25,
1982, page A16).
Indeed, this right is preserved, and concomitantly the public is
better served by the enhancements to the Act which are included
in this bill.
No one questions the obvious virtues of an open government; nor
should anyone question the government's obligation to protect the
identities of confidential informants. No one questions the value of
an informed citizenry; nor should anyone question the govern-
ment's obligation to respect the privacy of those same citizens. No
one questions the merits of a free information policy; nor should
anyone question the need to protect business trade secrets.
S. 774 is a substantial step toward restoring the balance between
public access to government information and efficient execution of
necessary, and occasionally confidential, government functions.
This bill achieves this balance in a manner that preserves both
goals of the Act: a more informed citizenry and a responsible and
effective government.
HISTORY OF COMMITTEE ACTION
97TH CONGRESS
The Subcommittee on the Constitution of the Senate Committee
on the Judiciary had referred to it during the 97th Congress six
bills to amend the Freedom of Information Act: S. 586 and S. 587
(introduced by Senator Hatch), S. 1235 (introduced by Senator
D'Amato), S. 1247 (introduced by Senator Dole), S. 1730 (introduced
by Senator Hatch), and S. 1751 (introduced by Senator Hatch).
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During the first session of the 97th Congress, the Subcommittee
held seven days of hearings on the Freedom of Information Act
from July 15, 1981 through December 9, 1981. Appearing before the
Subcommittee were the following witnesses: On July 15, the Sub-
committee took testimony from Robert L. Saloschin, of Lerch,
Early & Roseman; William Taft, General Counsel, Department of
Defense; Steven R. Dornfeld, Washington Correspondent for
Knight-Ridder Newspapers and National Secretary, representing
the Society of Professional Journalists, Sigma Delta Chi, accompa-
nied by Ted Capener, Vice President of News & Public Affairs,
Bonneville Broadcasting Corporation, and Bruce Sanford, of Baker
Hostetler; and Jonathan C. Rose, Assistant Attorney General of the
Office of Legal Policy, Department of Justice, accompanied by
Judge Charles B. Renfrew, former Deputy Attorney General.
On July 22, the Subcommittee heard James T. O'Reilly, Senior
Counsel for Procter & Gamble Company; Burt A. Braverman, of
Cole, Raywid & Braverman; Jack I. Pulley, Senior Attorney for
Dow Corning Corporation; Nancy Duff Campbell, National
Women's Law Center; David C. Vladeck, Staff Attorney, Public
Citizen Litigation Group; Arthur R. Whale, General Patent Counsel
and Assistant Secretary, Eli Lilly and Company; Prospere S.
Virden, Jr., Senior Counsel, Honeywell, Inc.; and Dr. Stuart Bon-
durant, Dean, School of Medicine, University of North Carolina, ac-
companied by Joseph A. Keyes, Staff Counsel, Association of
American Medical Colleges.
On July 31, the subcommittee heard Robert R. Burke, Assistant
Director of the U.S. Secret Service; James Wieghart, American So-
ciety of Newspaper Editors; Katherine A. Meyer, Director, Freedom
of Information Clearinghouse; Robert Nesoff, national representa-
tive for Federal Criminal Investigators Association; and Vince
McGolderick, chairman of the National Legislative Committee of
the Fraternal Order of Police, accompanied by Anthony J. Morris,
lieutenant of the Investigative Services Division, Metropolitan
Police Department, Washington, D.C.
On September 24, the Subcommittee took testimony from U.S.
Senator Alfonse M. D'Amato of New York; William J. Casey, Direc-
tor of the Central Intelligence Agency, accompanied by Ernest
Mayerfeld, Deputy General Counsel of the CIA; Morton H. Hal-
perin and Allan Robert Adler, Center for National Security Stud-
ies; and Ann Caracristi, Deputy Director of the National Security
Agency, accompanied by James Hudel, Legislative Counsel, Nation-
al Security Agency.
On October 15, the Subcommittee heard Jonathan C. Rose, As-
sistant Attorney General of the Office of Legal Policy, Department
of Justice; Roger Milgrim of Milgrim, Thornajan, Jacobs & Lee,
Paul L. Perito, representing Advanced Health Systems, Inc., and
Raleigh Hills Hospitals; David M. Worthen, M.D., Assistant Chief
Medical Director for Academic Affairs of the Veterans Administra-
tion; Jerald Jacobs, representing the American Intra-Ocular Im-
plant Society and Intra-Ocular Lens Manufacturers Association;
Jack Landau, Director of the Reporters Committee for Freedom of
the Press, accompanied by Tonda Rush, Director of the Freedom of
Information Service Center; Bruce Rich, General Counsel of the As-
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sociation of American Publishers; and Joan Hoff-Wilson, Director
of the Organization of American Historians.
On November 12, the Subcommittee took testimony from Jean
Otto representing the Society of Professional Journalists, Sigma
Delta Chi; Charles Rowe, representing the American Newspaper
Publishers Association; Edward Cony, representing the American
Society of Newspaper Editors; Ernie Ford, representing the Society
of Professional Journalists, Sigma Delta Chi; William H. Webster,
Director of the Federal Bureau of Investigation; Morton H. Hal-
perin, representing the American Civil Liberties Union, and Cor-
nish F. Hitchcock, of the Freedom of Information Clearinghouse;
Professor Anna K. Nelson of the Organization of American Histori-
ans; and Professor Antonin Scalia, School of Law, University of
Chicago.
On December 9, the Subcommittee invited the members of the
Judiciary Committee to join them for a hearing. Director William
Casey of the CIA and Director William H. Webster of the FBI testi-
fied at this hearing.
In addition, the Subcommittee received a large number of writ-
ten statements from other interested individuals and organizations
that will become part of the permanent record of these hearings.
Senator Orrin G. Hatch of Utah, Chairman of the Subcommittee on
the Constitution, chaired the hearings of the Subcommittee.
On December 14, 1981, the Subcommittee on the Constitution
met in executive session to consider legislation to amend the Free-
dom of Information Act. S. 1730, introduced by Senator Hatch, was
reported out of Subcommittee by a 3-2 vote.
On May 20, 1982, the full Judiciary Committee took up S. 1730.
Senator Orrin G. Hatch offered a substitute amendment for S. 1730
consisting of 17 sections. This substitute was the product of discus-
sions between Senators Hatch, Leahy, DeConcini, and other Sena-
tors. This amendment, containing major substantive changes in
many of the sections, was cosponsored by Senators Grassley, De-
Concini, and Leahy. After opening statements by each of these
principals, the Committee accepted the substitute amendment. The
motion to favorably report the bill carried unanimously, 17-0, on a
rollcall vote.
98TH CONGRESS
During the 98th Congress, the subcommittee has held hearings
on three bills to amend the Freedom of Information Act: S. 774 (in-
troduced by Senator Hatch), S. 409 (introduced by Senator Nunn),
and S. 1034 (introduced by Senator Leahy).
During the first session of the 98th Congress, the Subcommittee
held two days of hearings, April 18, 1983 and April 21, 1983, on the
Freedom of Information Act. Appearing before the Subcommittee
were the following witnesses: On April 18, the subcommittee took
testimony from Jonathan Rose, Assistant Attorney General from
the Department of Justice; Charles Rowe, editor and co-publisher,
Free Lance-Star, Fredricksburg, Va.; William Taft, General Coun-
sel, for the Department of Defense; Joan Claybrook, president,
Public Citizen, Inc.; and James O'Reilly representing Procter and
Gamble.
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(Th
On April 21, the Subcommittee heard from William Webster, Di-
rector of the Federal Bureau of Investigation; Bob Lewis, Treasur-
er, representing the Society of Professional Journalists, Sigma
Delta Chi; Professor David O'Brien, School of Law, University of
Virginia; Allan Adler, legislative counsel for the American Civil
Liberties Union; and Dr. Page Putnam Miller, director of the Na-
tional Coordinating Committee for Promotion of History.
In addition, the Subcommittee received a large number of writ-
ten statements from other interested individuals and organizations
that will become part of the permanent record of these hearings.
Senator Orrin G. Hatch of Utah, Chairman of the Subcommittee on
the Constitution chaired the hearing of the Subcommittee.
At the conclusion of these hearings, the Subcommittee on the
Constitution unanimously approved S. '774, which is virtually iden-
tical to S. 1730 from the 97th Congress, with three noncontroversial
amendments. The first amendment changed the provision permit-
ting an agency to retain one-half of any fees it collects under the
Act to provide some incentive for agencies to comply with the time
limits of S. 774. Accordingly, an agency may not retain collected
fees (but must remit them to the Treasury) if the General Account-
ing Office or the Office of Management and Budget finds that the
agency is not in substantial compliance with the time limits. This
amendment was the recommendation of Senator Leahy.
Another subcommittee amendment brought the standard for pri-
vacy protection in the Seventh Exemption into conformance with
the other amended standards in the exemption. The language
"would constitute an unwarranted invasion of personal privacy"
was changed to "could reasonably be expected to constitute an un-
warranted invasion of personal privacy."
Finally, a new provision was added requiring an agency to list in
the Federal Register any statute relied upon to withhold informa-
tion under the Third Exemption. This will, for the first time, facili-
tate an authoritative listing of all statutes triggering withholding
under the Third Exemption. With these three alterations, the Sub-
committee approved the bill unanimously.
On June 16, the full Judiciary Committee, chaired by Senator
Strom Thurmond of South Carolina, considered the Subcommittee
version of S. 774. Without objection, the bill, as amended by the
Subcommittee, was ordered favorably reported.
SECTION-BY-SECTION ANALYSIS
SECTION 2: FEES AND WAIVERS
Uniform schedule of fees
One problem identified by witnesses before the Committee is the
current lack of uniformity of fee schedules at the various agencies.
These variations can lead to confusion among members of the
public who deal with different agencies. Although some of the vari-
ations in fees do appear to reflect real differences in the costs to
the agencies, in most cases greater uniformity of fee schedules
would be possible and desirable.
The bill accordingly authorizes the Office of Management and
Budget to promulgate, pursuant to notice and receipt of public
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comment, guidelines to all agencies to promote a uniform schedule
of fees. Each agency would be subject to these guidelines in estab-
lishing its schedule of fees. This provision would promote uniform-
ity of fee schedules throughout the government while preserving
the flexibility of particular agencies to take account of peculiar fee
considerations.
Review costs
Section 2 of S. 774 would amend subsection (a)(4)(A) of the FOIA
to require that fee schedules provide for the payment of "all costs
reasonably and directly attributable to responding to the request,
which shall include reasonable standard charges for the costs of
services by agency personnel in search, duplication, and other proc-
essing of the request." Section 2 also provides that the term "proc-
essing," as used in the amendment, "does not include services of
agency personnel in resolving issues of law and policy of general
applicability which may be raised by a request, but does include
services involved in examining records for possible withholding or
deletions to carry out determinations of law or policy."
Current law, as established in the 1974 amendments to the
FOIA, requires that fee schedules provide for payment limited to
the "recovery of only the direct costs" of search and duplication.
As specifically noted in the 1974 Conference Report, costs to the
agency for "examination or review" of records cannot be included
in fees charged to requesters.
The Committee now proposes to authorize recovery of such
review costs because testimony presented at Committee hearings
established that the number of FOIA requests handled annually by
agency personnel?and the consequent processing costs now borne
by the Government?far exceed those anticipated by Congress
when it determined not to permit recovery of review costs in 1974.
Moreover, recovery of such processing costs is consistent with the
policy of the Federal user fee statute. 31 U.S.C. ? 9701.
S. 774 would permit agency fee schedules to provide for recovery
of the costs of reviewing responsive records to determine what ma-
terial should be released to the requester and what material should
be withheld pursuant to one or more of the exemptions in the
FOIA. "Processing"?the term used to describe such reviewing?is
expressly defined to include "services involved in examining
records for possible withholding or deletions to carry out determi-
nations of law or policy," and to exclude "services of agency per-
sonnel in resolving issues of law and policy of general applicability
which may be raised by a request." Thus, apart from search and
duplication, those "processing" services for which fees may be as-
sessed must involve implementation of established disclosure law
and policy through review and redaction of documents. Such "proc-
essing" services would not include any legal consultations within
an agency for purposes of resolving a disclosure policy of general
application.
Recoverable "processing" costs do not include costs expended in
processing administrative appeals. Administrative "overhead" costs
cannot be considered as "processing" costs and cannot be assessed
in charges to a requester at any time.
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An exception from the normal cost recovery principle is provided
for situations in which members of the public request documents
and the costs of collection of fees for the request would exceed or
equal the amount of the fee. Where routine collection and process-
ing of the fee would cumulatively cost the government more than
the sums which the individual requester would pay, the agency
should not charge a fee. Many agencies currently operate under
such a policy on a formal or an informal basis. For example, a
recent report by the General Accounting Office found that some
units within the Department of Justice do not charge a fee unless
search and duplication costs exceed $25. This section adopts this
approach and requires the agency, consistent with the OMB guide-
lines, to set a threshold figure, below which the agency will not
charge for disclosure requests.
Commercially valuable technological information
Section 2 of S. 774 would amend subsection (a)(4)(A) of the FOIA
to permit agencies to charge a "fair value fee" or royalties, in addi-
tion to other processing fees, in the case of a request for records
containing "commercially valuable technological information
which was generated or procured by the Government at substantial
cost to the public, is likely to be used for a commercial purpose,
and will deprive the government of its commercial value."
The Committee heard testimony from the Department of Defense
and others complaining that present FOIA fee provisions now re-
quire valuable technological information to be released to private
parties for fees that reflect little more than the cost of copying.
Commercial use of such information by FOIA requesters results in
an unjustifiable windfall to a few people, who personally obtain fi-
nancial gains from information that all taxpayers paid to develop.
In one case, for example, the current law permitted a Japanese
company to acquire at a pittance sophisticated water desalinization
technology that American taxpayers paid large sums to develop.
The Committee proposes to amend the FOIA to carry out federal
policy set forth in the Federal User Fee statute, 31 U.S.C. 9701, to
allow agencies to be "self-sustaining to the full extent possible"
through authority to "recoup costs from identifiable 'special
beneficiaries' where the services rendered inured to the benefit of
special recipients not the general public." New England Power Co.
v. Federal Power Commission, 467 F.2d 425, 428 (D.C. Cir. 1972).
Disclosure under such policy would not require the government to
be deprived of the income it might otherwise receive in the form of
licenses and royalties for licensable technological data.
The Committee intends "commercially valuable technological in-
formation" to mean only such technical information as was gener-
ated or procured by the Government at substantial cost to the
public, is likely to be used for commercial purpose, and will deprive
the Government of its commercial value. This is not intended to
cover statistical data, such as that gathered by the Census Bureau
or the Bureau of Labor Statistics. Only requesters who are likely to
receive a commercial benefit from "commercially valuable techno-
logical information" obtained through the FOIA may be assessed a
fair value fee or royalty. This means, for example, that a requester
who seeks such information for the purpose of examining and eval-
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uating a particular Government activity to which the information
is relevant, and the information is not likely to be used for com-
mercial purpose, may not be assessed any fair value fee or royal-
ties. The regulations should make provision to spread the cost of
the technical data amongst all requesters. Recouping governmental
research and development costs when a requester makes an FOIA
request for commercially valuable technological data is warranted
when limited to circumstances such as those mentioned above.
Thus, the Committee intends to limit "commercially valuable tech-
nological data" to any blueprints, drawings, plans, instructions,
computer software and documentation, or similar technological in-
formation that can be used or adapted for use to design, engineer,
produce, manufacture, operate, repair, overhaul, or reproduce any
valuable equipment or technology.
The Committee would provide that fee determinations take into
account the estimated value of the information in the commercial
marketplace; government costs of generating or procuring such in-
formation; the commercial use intended, on the one hand; as well
as any public interest in encouraging the utilization of that infor-
mation. Moreover, this provision does not affect an agency's discre-
tion to release technological information free of charge when the
public interest, the mission of the agency, and budgetary considera-
tion would be best served.
The Committee would also provide that this provision not over-
ride fees chargeable under user cost recovery statutes, or other
statutes setting levels of fees for particular types of records. See
SDC Development Corp. v. Mathews, 542 F.2d 116 (9th Cir. 1976).
Fee waiver issues
The debate about the effectiveness of the FOIA often concerns in-
terpretations of the exceptions, but access to information can be
scuttled as effectively by the barriers of cost as by overly broad ex-
ceptions. As a result of an extensive report by the House Govern-
ment Operations Committee in 1972, Congress was well aware of
the use of excessive charges to deny access when the FOIA was
amended in 1974. In that year the fee waiver provision was en-
acted, and the Senate Report made it clear that the section was to
be liberally construed by the agencies to promote access.
The liberal construction principle is an important factor in the
interpretation of the fee waiver provision, and it has been cited
with approval by the courts. See, e.g., Eudey v. Central Intelligence
Agency, 478 F. Supp. 1175 (1979); Rizzo v. Tyler, 438 F. Supp. 895
(1977).
Congress and the courts notwithstanding, evidence on agency fee
practices supports oversight findings that "[m]ost agencies have
been too restrictive with regard to granting fee waivers for the in-
digent, news media, scholars, and nonprofit public interest groups."
Report on Oversight Hearings by the Staff of the Subcommittee on
Administrative Practice and Procedure of the Senate Committee on
the Judiciary, "Agency Implementation of the 1974 Amendments
to the Freedom of Information Act, 95th Congress, 2d Session 90
(March 1980) (Committee Print).
These problems were still evident on January 7, 1983 when the
Department of Justice issued new guidelines on the administration
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of the fee waiver provisons of the FOIA, which do not mention the
principle of liberal construction and which instead emphasize the
agency's view of the pubic's need for the requested information.
When applying any administrative guidelines, agencies should
remember the language of the 1974 conferees that "Fees should not
be used for the purpose of discouraging requests for information or
as obstacles to disclosure of requested information."
Fee waiver provisions in S. 774
S. 774 proposes changes in current law which are intended to ef-
fectuate the Congressional intent contained in the 1974 Amend-
ments to the FOIA by describing more clearly the circumstances in
which Congress intends fees to be waived or reduced.
In the present law, Sec. (a)(4)(A) requires documents to be fur-
nished to the requester without charge or at a reduced charge
where the agency determines that such action is in the public in-
terest "because furnishing the information can be considered as
primarily benefiting the general public." Sec. 2 of S. 774 makes it
absolutely clear that the "general public" is to be distinguished
from the "commercial or other private interests of the requester."
Sec. 2 goes on to state that "With respect to all other charges,
where the agency determines that the information is not requested
for a commercial use and the request is being made by or on behalf
of (a) an individual, or educational or noncommercial scientific in-
stitution, whose purpose is scholarly or scientific research; (b) a
representative of the news media, or (c) a nonprofit group that in-
tends to make the information available to the general public," a
complete waiver is required.
With respect to recoverable search and duplication fees, S. 774
retains the current language for waiver or reduction of fees where
disclosure "can be considered as primarily benefiting the general
public," and adds the clarifying phrase "and not the commercial or
other private interests of the Requester." This addition expressly
states what was previously implied, i.e., that benefit to the general
public is to be distinguished from personal benefit to the requester.
The existing standard for fee waivers or reductions, thus, will
continue to require a balancing of "benefit to the general public"
against "commercial or other private interests of the requester."
Where news media organizations?a television station, for exam-
ple?are making the request, the enormous "benefit to the general
public" of news dissemination, will ordinarily prevail to make
them eligible for waiver or reduction of search and duplication
fees. An unduly large or unfocused request, however, even in these
instances may affect the fee assessment decision. Other interests
that, in a similar fashion, are likely to warrant waiver or reduction
would be nonprofit organizations and researchers whose work will
be made available to the general public.
With respect to all other charges, S. 774 would require a manda-
tory waiver of all new processing fees where the agency determines
that the request does not have a commerical purpose and the re-
quester seeks the information in the course of research or news-
gathering, or is a nonprofit group intending to make the informa-
tion available to the public. The "other charges" specified are those
assessed to recover "processing" costs.
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The Committee wishes to make it clear that for purposes of this
section, the phrase "requested for a commerical use" does not in-
clude requests by representatives of the news media which operate
on a for-profit basis.
The fee waiver language of S. 774 makes it clear that agency offi-
cials should look to see if the information is truly going to the
public but should not ask whether it is something the public really
wants and needs. The difference is crucial, for once government be-
comes the deciders of what is, and is not, important to know, the
freedom in Freedom of Information departs and individual preju-
dices come to dominate.
In this sense the January fee waiver guidelines of the Depart-
ment of Justice take a different view of fee waiver procedures from
that of the Committee and would not accord with the intent of S.
774. The first two of five criteria in the DOJ guidelines ask if there
is (1) genuine public interest in the subject matter of the docu-
ments and (2) value to the public of the records themselves. The
guidelines are correct that there is an agency determination to be
made under the fee waiver language in sec. (a)(4)(A), but that deter-
mination should be directed at the issue of whether the informa-
tion will primarily benefit the general public, as opposed to private
interests. The agency will still be left with a determination of
whether the chain of transmission from the agency file, to the re-
quester, and finally to the public is one that will exist in fact or is
merely one suggested by the requester without substantiation. In
addition, the agency retains its discretion to consider whether a
particular request is unusually large or vague when considering a
fee waiver request. But if a reporter or a scholar seeks information,
an agency should not seek to decide whether the news story or re-
search project should be undertaken or whether the public will
really benefit from the requester's undertaking, once they have
seen it.
The Committee recognizes that commercial requesters, rather
than those falling within the categories above, are responsible for
the bulk of such costs. Therefore, the language of the bill excluding
requesters in the three enumerated categories from assessment of
such "processing" charges should not add any substantial financial
burden to the government.
Ultimately, the Committee believes that a strong and effective
fee waiver policy will prove to be a cost-effective way to expose
wasteful or corrupt government and to provide valuable new in-
sights into government practices and policies.
The amendments contained in S. 774 do not affect fee policy with
respect to requests from individuals under the Privacy Act.
Disposition of fee collections
A well-articulated comment was made by several of those ap-
pearing before the Committee that agencies have no source of
funds to compensate for the additional processing costs of FOIA re-
quests and that cost can sometimes strain the agency budget.
While the Committee acknowledged this problem, it wished to
strongly link its solution to the concomitant problem of excessive
delays in responding to FOIA requests.
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Where an agency is in substantial compliance with its time
limits, this subsection permits the retention of one-half of its com-
pliance costs revenues, which the agency shall apply to offsetting
its own costs of complying with FOIA disclosure requirements. But
if the General Accounting Office or the Office of Management and
Budget conducts an investigation and concludes in a report that
any agency has not been in substantial compliance with the time
limits contained in Sec. 552(a)(6), the agency may not retain fees
collected after the date of the report and may not resume retaining
such fees until the agency making the finding determines that the
substantial noncompliance has ended.
This provision reflects a strong Committee view that a sense of
fairness is an inherent element in any government response to a
citizen's request under the FOIA. An agency that is fair will gener-
ally meet FOIA time limits and will want to do so because adher-
ence to time limits is the only rule that will guarantee the effec-
tiveness of the Act, given the limited means of most requesters and
the size and power of most agencies. But an agency that is consist-
ently fair should have some financial reward, and up to now that
reward has not been given. This provision stresses fairness to both
the requester and the agency and should result in greater coopera-
tion between the two.
The Committee intends that any agency which, by virtue of its
current statutory mandate, e.g., the Tennessee Valley Authority,
maintain fee collections shall be unaffected by this provision.
SECTION 3: TIME LIMITS
In 1974, Congress established time deadlines for the handling of
FOIA requests, in response to evidence that agency delay was the
major obstacle to use of the Act by the press and other members of
the public. Hearings in 1977 before the Subcommittee on Admin-
strative Practice and Procedure and in 1981 before the Subcommit-
tee on the Constitution have revealed that most agencies are com-
plying with the administrative response times enacted in 1974.
However, some agencies, including the Department of Justice and
the CIA have been unable to meet these deadlines.
In view of the Committee's recognition that delay in processing
requests is often tantamout to denial of the public's right of access
to government information, the bill retains the essential structure
of the Act's time deadlines-10 working days for a response to an
initial request and 20 working days for response to an appeal. How-
ever, the Committee also recognizes that the unexpectedly large
number of FOIA requests filed since the enactment of the 1974
Amendments warrants some additional time for agency response in
specified unusual circumstances. Accordingly, the bill amends ex-
isting law in certain respects.
Under the 1974 Amendments, an agency was allowed a limited
extension of time for processing a request or appeal. This extension
was not to exceed 10 working days. Section (a)(6)(C) is amended to
provide for extensions of the 10- or 20-day time limits for a period
not to exceed an aggregate of 30 working days. Thus, for example,
where a full 30-day extension is sought for the initial response to a
request, no further extension will be available on appeal. Accord-
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ingly, under the time limits as amended, the total period for proc-
essing should not exceed 60 working days, except under "exception-
al circumstances."
Furthermore, as the Act now provides, extensions will be allowed
only in specifically defined "unusual circumstances." The bill adds
three new definitions of unusual circumstances to those specified in
1974. For example, the bill permits an extension where the head of
an agency specifies in writing that a request "cannot be processed
within the limits stated in paragraph (6)(A) without significantly
obstructing or impairing the timely performance of a statutory
agency function." This provision is to be invoked where compliance
with the 10- and 20-day time limits of the Act would significantly
obstruct or impair the agency's ability to perform its other statu-
tory responsibilities in a timely fashion.
The need for notification of submitters of information and for
consideration of any objections to disclosure is intended to accom-
modate the new business confidentiality procedures added in sec-
tion 4 of the bill. These procedures have been specifically tailored
to allow agencies to meet the requirements for notice and the sub-
mission of objections within a sixty working day time frame.
The existence of "an unusually large volume of requests or ap-
peals by an agency, creating a substantial backlog," is another cir-
cumstance justifying the new 30-working day extension. In order to
invoke this provision, the number of requests an agency receives
must be unusually large. Absent this condition, this section may
not be used to invoke the 30-day extension, nor is it intended to
perpetuate the substantial backlogs which currently persist at such
agencies as the FBI and CIA. Under these provisions, the Commit-
tee intends that these agencies will, as soon as possible, eliminate
the delays which in the past have forced requesters to wait up to
six months or more for a response.
If an agency fails to comply with these deadlines, a requester
shall be deemed to have exhausted administrative remedies and
may file suit in Court. The bill retains the language, interpreted in
Open America v. Watergate Special Prosecution Force, 547 F.2d 605
(D.0 Cir. 1976), which permits a court to determine that "excep-
tional circumstances" justify additional time for processing, where
an agency is otherwise exercising due diligence in responding to a
request. However, the bill adds the following sentence: "An agency
shall not be considered to have violated the otherwise applicable
time limits until a court rules on the issue."
This sentence is added only for the purpose of ensuring that
agencies will not be perceived to be in violation of law in cases
where a court ultimately determines that it has properly invoked
the "exceptional circumstances" provision. It is not intended in any
way to affect the first sentence of subsection (C), which clearly
states that a requester shall be deemed to have exhausted adminis-
trative remedies, and is thus eligible to file suit, whenever the
agency fails to comply with the time limits provisions of this sec-
tion. Nor is it intended to in any way affect a court's ability to
retain jurisdiction over a FOIA case even after it concludes that
"exceptional circumstances" warrant additional time for process-
ing. The Committee recognizes that it may be appropriate for the
court to impose a deadline for completion of the administrative
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process and then proceed to consider the requester's claims if any
documents are withheld. Moreover, this sentence is not intended to
in any way affect the operation of the attorneys fees provision of
section (a)(4)(E).
Finally, the bill adds a provision which recognizes that, in com-
pelling circumstances, a FOIA request should be processed on an
expedited basis. The Committee intends that such relief be afforded
all requesters who can demonstrate a genuine need and reason for
urgency in gaining earlier access to Government records. For ex-
ample, where the request is from a journalist seeking information
about a newsworthy event, a timely response may require process-
ing in less than the 10- and 20-day time frames established in the
Act.
With the relief afforded by these amendments, and the addition-
al resources which will be recouped by the agency through the new
formula for the disposition of collected fees, the Committee intends
that all agencies thereafter will come into substantial compliance
with the time limits here specified.
SECTION 4: BUSINESS CONFIDENTIALITY PROCEDURES
Section 4 of S. 774 would amend subsection 552(a) of the FOIA to
require agencies to promulgate regulations specifying procedures
that would permit submitters of trade secrets or confidential com-
mercial or financial information to present claims of confidential-
ity to an agency before submitted information is released in re-
sponse to an FOIA request.
When Congress enacted the FOIA in 1966, it expressly sought to
protect legitimate confidentiality interests of the private business
sector by exempting trade secrets and confidential commercial or
financial information from the mandatory disclosure requirements
of the Act. Unfortunately, however, Congress did not provide sub-
mitters of such information with any procedural rights that would
enable them to ensure that their confidentiality interests would be
adequately comprehended and considered by an agency confronted
with the task of determining whether submitted information
should be disclosed or withheld in response to an FOIA request.
The absence of any statutory requirements for an agency to give
submitters notice and an opportunity to oppose disclosure with re-
spect to FOIA requests for submitted information left the protec-
tion of business confidentiality interests entirely in the hands of
agency personnel, who may not possess sufficient knowledge to
fully appreciate such interests in the context of particular records.
This situation is in large part responsible for the doubts that have
been voiced within the business community about the government's
ability to protect business confidentiality interests.
In response to this concern, the Committee proposes to amend
the FOIA to require agencies to create specific procedures that
would permit any business submitter to make an agency aware of
his particular confidentiality concerns with respect to submitted in-
formation that is sought by a third-party under the FOIA. The
Committee believes that it is both important for submitters to
enjoy procedural rights before records are released and also impor-
tant to balance those rights against the public interest in obtaining
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nonexempt material promptly, and these procedural reforms
should not result in undue delays.
Under section 4 of S. 774, agencies are directed to use informal
rulemaking under ? 553 of title 5 to specify their procedures for the
handling of exempt private business information. Many agencies
already have such rules in place. The agency has the option to
specify in its rules that the submitter must designate information
which is within several classes.
The agency may choose to require designation of trade secrets,
commercial, research, financial or business information. The infor-
mation designated must, however, be alleged to qualify for protec-
tion under Exemption 4 of the Act.
Timing of the designation will necessarily vary. The designation
should be made in the submission of forms to the agency if the
agency provides notice of the need for and opportunity for designa-
tion. The requirement that designation occur must, in fairness, be
communicated adequately to those who would incur the financial
consequences of a failure to designate. Where the agency inspects
or audits the private firm and removes records, notes, photographs,
etc., the agency has an obligation thereafter to provide fair oppor-
tunity for designation of the material which the submitter believes
to be exempt. And the designation is intended to be as administra-
tively simple as possible. The agency can require identification of
portions which are confidential. Some agencies now make the sub-
mission of information the equivalent of an adjudicated examina-
tion of its exempt status (see, e.g., 40 C.F.R. ? 2.204, EPA). Such a
burden is not intended to be part of this designation requirement.
Notification that an agency is planning to take an adverse action
is one of the most basic of administrative procedural rights, yet
until this amendment it had by inadvertence been omitted from
the procedures required under the Freedom of Information Act.
Since notifications will not be required where the information will
be either withheld or clearly must be disclosed. The number of no-
tifications is not expected to be excessive. Enactment of this section
carries through on the Supreme Court's statement concerning the
Administrative Procedure Act, where the court applied APA reme-
dies in the FOIA context: "Congress made a judgment that notions
of fairness and informed administrative decision making require
that agency decisions be made only after affording interested per-
sons notice and an opportunity to comment." Chrysler Corp. v.
Brown, 441 U.S. 281, 316 (1979). Notification is not required under
several circumstances, discussed under ? 552(a)(7)(B) below.
Written objections may be made by the submitter, upon the
agency's decision to disclose the documents. These objections
should specify all the grounds then known to the submitter upon
which the submitter contends the information should not be dis-
closed. A submitter who learns of additional factual information
relevant to the disclosure decision, e.g., from an accounting or
market study, should present that information promptly for consid-
eration by the agency.
The submitter who wishes to assert an objection to disclosure
should submit the information within 10 working days after the
postmark date of the agency notification. Where because of delays
in mail or geographical distance from the agency, the submitter
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does not have sufficient opportunity to reply within the 10-day
period, the submitter should communicate to the agency informing
the agency that the answer is being transmitted to the designated
agency official. An agency will balance the fair handling of submit-
ter communications with the need to expedite the disclosure proc-
ess. There may also be cases in which notification is not received
by the submitter, but in which the submitter learns of the pending
request for disclosure from a public log of requests or another
source. Objections under this section may be filed with the agency
prior to the receipt of a notification under the subection (a)(7)(A)(ii).
The submitter must be provided with notice of the agency's final
decision regarding release. This provision connects with the wait-
ing period described in subsection (a)(7)(C) below.
The provision for notifications to submitters may be excused
under several defined circumstances subject to any other require-
ment of law, the agency has full discretion to provide the notifica-
tion, notwithstanding the exception, if it chooses to do so.
If an agency decides that the request should be denied, notifica-
tion need not be given. It should be given later if the agency
changes its position upon a requester's administrative appeal of
the denial. If the agency makes a finding that the information in
fact has been lawfully made available to the public by the submit-
ting person, then the claim to notification would not stand. Of
course, an agency should give notification in case of doubts, for
sometimes the information which appears to be public is merely
misleading speculation about private commercial activity rather
than lawful publication. Wrongful taking of the information, e.g.,
disclosure by another commercial firm in breach of contractual ob-
ligations to the owner, does not constitute lawful availability to the
public.
If a final rule requires designation of confidential information
and the submitter fails to substantially comply with the rule,
notice may be excused. The submitter's failing will be measured
against the precision with which the agency has carried out its own
responsibility to give notice of the requirements for designation of
confidential information. Designation is optional with the agency.
Notification is also excused if a federal statute, other than 5
U.S.C. ? 552, requires disclosure by law, if the agency has notified
the submitter concerning the disclosure requirement prior to sub-
mission of the information. The term "by law" has the same con-
tent as its interpretation in Chrysler v. Brown, 441 U.S. 281 (1979).
Such notice to the submitting person must be explicit and may
take the same form as the Privacy Act statement required under 5
U.S.C. ? 552a(e)(3), or other express written notice.
The final exception from notification occurs when a criminal law
enforcement agency acquired the information in the course of a
lawful criminal investigation. This exemption provision parallels
the Privacy Act exemption for law enforcement operations. 5
U.S.C. ? 552a(j)(2). The Committee intends that the principal func-
tion of the agency be enforcement of criminal laws, including police
efforts to prevent, control or reduce crime or to apprehend crimi-
nals, such as the functions of the Federal Bureau of Investigation
and the United States Secret Service. Many agencies have some
statutory criminal sanctions in their otherwise civil enforcement
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schemes, but these are not within the narrow meaning of criminal
law enforcement agencies for purposes of this exception from notifi-
cation.
The agency should communicate to the requester on two occa-
sions, when it notifies the submitter of a receipt of a request for
information and when it notifies the submitter of its final decision.
After forwarding to a submitter who has objected to disclosure,
its final decision to disclose the agency must wait 10 working days
before making disclosure of the records.
Where either requester or submitter initiates a suit, the other
party will have no obligation to exhaust its administrative reme-
dies before interposing its defense or taking other action in the pro-
ceeding.
Section (a)(7) is purely procedural in nature. It has no effect on
existing law which covers the substance of the confidentiality deci-
sion, including specific withholding statutes under Exemption 3, 5
U.S.C. ? 552(b)(3), such as the Census Act, 13 U.S.C. ? 214, and the
Federal Trade Commission, 15 U.S.C. ? 57-2. The rights established
by law protecting these private confidentiality interests continue
unaffected by these procedural provisions.
SECTION 5: JUDICIAL REVIEW
Section 5 of the bill would make several procedural and substan-
tive revisions to the judicial review provisions of 5 U.S.C.
? 552(a)(4). First, the bill would amend subsection (a)(4)(B) to in-
clude a statute of limitations, and to provide equivalent jurisdiction
in the district courts for suits by submitters of information to
enjoin an agency's disclosure of information and requesters of in-
formation to compel disclosure.
Second, this section makes it clear that the courts have jurisdic-
tion to enforce sections of the Act other than those requiring the
disclosure of records. Thus the section permits suits for injunctive
relief against non-indexing of records covered by subsection (a)(1) or
(a)(2).
Third, the bill would amend the attorney fees provisions of redes-
ignated subsection (a)(4)(H) (currently subsection (a)(4)(E)) to allow
requesters who substantially prevail to recover attorney fees from
a submitter participating in litigation.
Statute of limitations
The present Act contains no time limit for a requester to initiate
a judicial action after an agency's final denial of a request. The bill
would amend subsection (a)(4)(B) to require that suits by requesters
must be brought within 180 days of the agency's final administra-
tive action. This is the same period as that set forth in Title VII of
the Civil Rights Act of 1964, 42 U.S.C. ?? 2000e-5(e), 2000e-16(c);
the Age Discrimination in Employment Act, 20 U.S.C. ? 633(d); and
the Fair Housing Act of 1968, 42 U.S.C. ? 3613(a). The bill would
not set a specific limitations period for actions by submitters. How-
ever, it would establish as a prerequisite to district court jurisdic-
tion, that the submitter must file a complaint before the informa-
tion is disclosed.
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This provision should promote judicial economy and ease admin-
istrative burdens without prejudice to requesters of information.
Agency personnel would be able to close files instead of holding a
requester's file indefinitely in anticipation of a lawsuit to compel
disclosure at any time in the future. Requesters could always file
an identical request to reinitiate the process which would initiate
anew the request and give them a fresh cause of action if the new
request is denied.
Subject matter jurisdiction
The bill would amend subsection (a)(4)(B) to vest the district
courts with jurisdiction to enjoin an agency from any disclosure of
information which was objected to by a submitter under subsection
(a)(7)(A)(iii) (or which would have been objected to had the submit-
ter received the required notice from the agency pursuant to sub-
section (a)(7)(ii)). Under the amended provision after an agency's
decision to disclose, the submitter may file a complaint at any time
prior to the disclosure of the information by the agency.
This provision would create a right of action for submitters
within the structure of the Freedom of Information Act. Under
present law, submitters have no such right to action under the
Freedom of Information Act, but must resort to section 10 of the
Administrative Procedure Act, 5 U.S.C. ?706, in order to safeguard
confidential business information from disclosure by the govern-
ment. Chrysler Corp. v. Brown, 441 U.S. 281, 285, 317-18 (1979).
This bill would establish procedural rights for submitters in the
Freedom of Information Act itself. This section changes the judicial
review provisions of the current Freedom of Information Act to es-
tablish equivalent causes of action for requesters and submitters.
Submitter actions to enjoin disclosure must be brought prior to
release of the documents, and usually will be commenced within 10
days after the final agency decision. If the submitter has not been
given notification but learns of the pending disclosure, suit may be
brought in the same manner as if such notice had been given.
This subsection also clarifies that the courts may order injunc-
tive relief against non-publication or non-indexing of records cov-
ered by subsection (a)(1) or (a)(2) of this section. See, e.g., American
Mail Line, Ltd. v. Gulick, 411 F.2d 696, 701 (D.C. Civ. 1969); Epstein
v. Resor, 421 F.2d 930, 932 (9th Cir). cert. denied, 398 U.S. 965
(1970). The Committee intends that agencies may be required to
index records within a reasonable time if they have not done so al-
ready under existing requirements.
Personal jurisdiction
Proposed subsection (a)(4)(C) would provide the district courts
with personal jurisdiction, in any suit filed under the Act, over all
requesters and submitters of information. If a requester filed a
complaint to compel disclosure of certain information, the district
court in which the complaint was filed on its own motion would
have jurisdiction over any submitter of the information. Similarly,
in a suit by a submitter, the court would have jurisdiction over any
requester of the information. These proposed provisions would
ensure that an adverse party receives notice of the complaint, has
the right to intervene, and will be bound by the court's decision.
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o
While this provision allows a district court to consolidate submit-
ter and requester causes of action into a single suit, it does not
alter current law with regard to venue. In a consolidated suit,
venue would be determined in accordance with the current statu-
tory standards.
Notice of litigation
When the agency is served with a copy of the complaint filed by
either requester or submitter, it must promptly give notice of the
action to the opposite party or to multiple submitters or requesters,
as the situation may warrant. This is already the better agency
practice, and it is endorsed.
Proposed subsection (a)(4)(D) would require agencies to notify re-
questers and submitters whenever a suit is brought concerning a
particular request or submission. If a person who requested confi-
dential business information exempt under Exemption 4 filed a
complaint to compel disclosure, the agency would be required to
notify each submitter of that information that the complaint had
been filed. Similarly, if a submitter filed a complaint to enjoin dis-
closure of such information, the agency would be required to notify
each requester.
Subsection (a)(4)(E) provides equal treatment for requesters and
submitters in the action, by requiring that cases brought by each
party shall be determined de novo by the court. The judicial deter-
minations made de novo under the current law have operated to
enhance the credibility of the decisions made about disclosure by
agencies, since an impartial judge will consider the full merits of
the case for disclosure unconfined by the agency's record. The same
impartiality and thus the same credibility will be brought to cases
seeking the nondisclosure of private information upon complaint of
the private submitter.
Burdens of proof rest with the agency in a withholding case and
with the submitter in a case seeking to enjoin disclosure.
Attorney fees
Subsection (3) of section 5 of the bill provides that the court may
in its discretion award attorney's fees and costs against a submitter
who is a party to the litigation, in favor of the requester who has
substantially prevailed in the litigation. This does not change the
existing case law which permits such recoveries against the agen-
cies themselves, in order both to encourage private enforcement of,
and agency compliance with the Act. For the same reasons, the
Committee bill would allow a requester who substantially prevails
in litigation to recover attorney's fees against a submitter who has
sought to enjoin the disclosure of requested records. The discretion-
ary standards articulated in current case law interpreting the 1974
attorney's fees provision should apply. See, e.g., Nationwide Build-
ing Maintenance Inc. v. Sampson, 559 F.2d 704, (D.C. Cir. 1977);
Cuneo v. Rumsfeld, 553 F.2d 1360 (D.C. Cir. 1977). Under these
standards, a court retains discretion to award no fees or to award
such fees only against agency.
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SECTION 6: PUBLIC RECORD REQUESTS
Section 6 of S. 774 would amend subsection 552(a) of the FOIA so
that in cases where a potion of the records requested "consists of
newspaper clippings, magazine articles, or any other item which is
a public record or otherwise available in public records" the agency
may offer the requester a choice of (A) furnishing the requester
with an index identifying such clippings, articles, or other items by
date and source, provided that such index is already in existence,
or (B) notwithstanding the waiver requirements contained in this
section, furnishing the requester with copies of such clippings, arti-
cles, or other items at the reasonable standard charge for duplica-
tion established in the agency's fee schedule."
The Committee believes that the administrative burden of com-
pliance with FOIA could be alleviated to a significant degree, with-
out any consequent loss of public accountability, if agencies were
not required to provide requesters with copies of records in agency
files that are also readily available in the public domain. Public li-
braries, for example, have a wealth of newspapers and magazines
on file which are easily retrievable and available to the public. Yet,
requests under FOIA often require agency employees to duplicate
hundreds of pages of materials that are public records or are other-
wise available in public records.
The proposed amendment intends to accommodate this concern?
as well as the concern that some public records (e.g. court records
and even some newspapers and magazines) are not readily accessi-
ble except through the government due to the manner, place, and
time in which they are created, used and stored?by specifically
permitting the agency to offer the requester a choice between an
index identifying requested items that are public records by date
and source (if such an index exists), or copies of the documents for
ordinary duplication costs. The first option, where it is available
and appropriate, should contribute to reduction of the processing
burden. In no event, however, should an agency be compelled to
produce an index not already in existence at the time of the re-
quest. If no index exists, and the agency is unwilling to create one,
the requester must be afforded access to copies of the records.
While the agency may charge search and copying fees notwith-
standing the waiver requirements of the Act, the agency may, in
its discretion, provide the requester with copies of the records at no
charge.
SECTION 7: CLARIFY EXEMPTIONS
Section 7 of the bill is intended merely to clarify the effect of the
exemptions listed in the paragraphs of section 552(b). In place of
the current language stating that "This section (552) does not
apply" to matters covered by the enumerated exemptions, the bill
would make clear that "The compulsory disclosure requirements of
this section (552) do not apply" to matters so exempted.
SECTION 8: MANUALS AND EXAMINATION MATERIALS
Section 8 of S. 774 would amend subsection (b)(2) of the FOIA to
make it clear that certain materials are protected from disclosure
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as matters that are "related solely to the internal personnel rules
and practices of an agency." Materials included under subpara-
graph (A) are "manuals and instructions to investigators, inspec-
tors, auditors, or negotiators to the extent that disclosure of such
manuals and instructions could reasonably be expected to jeopard-
ize investigations, inspections, audits, or negotiations". This provi-
sion is intended to establish a uniform standard for withholding in-
ternal law enforcement manuals and instructions.
Since exemption 2 was first enacted in 1966, the case law has
generally evolved to hold that such materials are protected under
the exemption if disclosure would harm law enforcement efforts.
See discussion of caselaw in Crooker v. Bureau of Alcohol, Tobacco
& Firearms, 670 F.2d 1051 (D.C. Cir. 1981) (en banc). However, the
decisions have not been uniform as to the degree of harm an
agency must demonstrate to justify its withholding.
Under subparagraph (A), to withhold internal law enforcement
manuals and instructions an agency must demonstrate that disclo-
sure "could reasonably be expected to jeopardize" the investiga-
tions, inspections, or audits of the agency. The use of the word
"jeopardize" is intended to require the agency to show that the ef-
fectiveness of investigations, inspections, or audits is likely to be
imperiled if the document is disclosed. Likewise, instructions to ne-
gotiators are exempt if disclosure could reasonably be expected to
jeopardize an agency's negotiations with a private party. Although
the Committee believes that such internal deliberative communica-
tions among agency personnel are already protected under exemp-
tion 5 of the Act as inter-agency memorandums, these materials
are included here to make it clear that they are protected as mat-
ters related solely to internal personnel practices. Subparagraph
(A) is not intended to exempt internal agency guidelines which
allow members of the public to conform their actions to an agen-
cy's understanding of the law, or "secret law", which the Commit-
tee emphasizes is antithetical to the act's fundamental principle of
open government.
Materials included under subparagraph (B) are "examination
materials used solely to determine individual qualifications for em-
ployment, promotion, or licensing to the extent that disclosure
could reasonably be expected to compromise the objectivity or fair-
ness of the examination process." This provision is included to
bring the exemption into conformity with a similar exemption for
such examination materials under the Privacy Act, 5 U.S.C.
1,
? 552a(k).
SECTION 9: PERSONAL PRIVACY
Since passage of the FOIA in 1966, Congress has recognized the
need to balance an open government philosophy against legitimate
concerns for the privacy of individuals. Exemption 6 of the Act was
designed to give weight to both interests, by providing an exemp-
tion for "personnel and medical and similar files," if disclosure
would result in a "clearly unwarranted invasion of personal priva-
cy." The Supreme Court has described this balancing standard as
"a workable compromise between individual rights 'and the preser-
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vation of public rights to Government information." Department
of the Air Force v. Rose, 425 U.S. 352, 381 (1976).
The Committee does intend to confirm in statutory form the Su-
preme Court's 1982 decision in The Washington Post Company v.
Department of State, 456 U.S. 595 (1982), reversing a line of court
decisions that interpreted the threshold "personnel, medical and
similar files" language in an overly formalistic way. See Board of
Trade v. Commodity Futures Trading Commission, 627 F. 2d 392
(D.C. Cir. 1980); Simpson v. Vance, 648 F. 2d 10 (D.C. Cir. 1980); The
Washington Post Company v. Department of State, 647 F.2d 197
(D.C. Cir. 1981), rev'd, 456 U.S. 595 (1982).
The Washington Post case confirmed that information about
"any particular individual" should not lose the protection of Ex-
emption 6 "merely because it is stored by an agency in records
other than 'personal' or 'medical' files." The bill makes it clear
that when information concerning particular individuals is sought
from government files, the protections granted under the exemp-
tion apply.
In addition, the bill makes two further changes which address
the Committee's concern that the protection of the privacy interest
be practical in its application. First, while the bill retains the
"clearly unwarranted" balancing standard, information would now
be exempt under this test if disclosure "could reasonably be expect-
ed to constitute a clearly unwarranted invasion of personal priva-
cy." The substitution of the "could reasonably be expected" lan-
guage for the word "would" in the original Act is designed to make
it clear that courts should apply a common sense approach to this
balancing test. This change will eliminate any possibility of an
overly literal interpretation of the use of the word "would" in the
Act's original language and ensure that necessary privacy protec-
tion is provided.
Finally, the amendment makes it clear that lists of names and
addresses which "could be used for solicitation purposes" are sub-
ject to the exemption, if disclosure could reasonably be expected to
constitute a clearly unwarranted invasion of personal privacy
under the balancing test. By requiring the courts to balance the in-
terest in disclosure of such lists against the interest in privacy, the
Committee recognizes that disclosure may be appropriate in some
circumstances. See Disabled Officers Association v. Rumsfeld, 428
F. Supp. 454 (D.D.C. 1977) (list of disabled retired military person-
nel disclosed to nonprofit organization established to assist mem-
bers in pursuing benefits and advocating their interest nationally).
SECTION 10: LAW ENFORCEMENT RECORDS
Section 10 of S. 774 would amend paragraph (b)(7) of the FOIA to
modify the scope of the exemption for law enforcement records,
codify certain explanatory caselaw, and clarify Congressional
intent with respect to the agency's burden in demonstrating the
probability of harm from disclosure.
Under current law, an agency may invoke the (b)(7) exemption to
withhold "investigatory records compiled for law enforcement pur-
poses" to the extent that disclosure of such records would interfere
with enforcement proceedings; deprive a person of a right to a fair
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trial or an impartial adjudication; constitute an unwarranted inva-
sion of personal privacy; disclose the identiy of a confidential
source or, in certain cases, information provided only by a confi-
dential source; disclose investigative techniques and procedures; or,
endanger the life or physical safety of law enforcement personnel.
The Committee finds, based upon testimony of the FBI and other
federal law enforcement agencies, that this exemption, in practice,
has created problems with respect to the disclosure of sensitive
non-investigative law enforcement materials, premature disclosure
of investigative activities, and the protection of confidential
sources. Although Exemption 7 currently attempts to protect confi-
dential informants and investigations, this protection can be com-
promised when small pieces of information, insignificant by them-
selves, are released and then pieced together with other previously
released information and the requester's own personal knowledge
to complete a whole and accurate picture of information that
should be confidential and protected, such as an informant's identi-
ty.
S. 774 would make the following changes in Exemption (b)(7) to
address these problems:
Substitute "records or information" for "investigatory records" as
the threshold qualification for the exemption: This amendment
would broaden the scope of the exemption to include "records or
information compiled for law enforcement purposes," regardless of
whether they may be investigatory or noninvestigatory. It is in-
tended to ensure that sensitive law enforcement information is pro-
tected under Exemption 7 regardless of the particular format or
record in which the record is maintained. Cf FBI v. Abramson, 456
U.S. 615 (1982). It should also resolve any doubt that law enforce-
ment manuals and other non-investigatory materials can be with-
held under (b)(7) if they were compiled for law enforcement pur-
poses and their disclosure would result in one of the six recognized
harms to law enforcement interests set forth in the subparagraphs
of the exemption. See contra, Sladek v. Bensinger, 605 F.2d 899 (5th
Cir. 1979) (Exemption 7 is not applicable to DEA agents Manual be-
cause manual "was not compiled in the course of a specific investi-
gation"), Cox v. Department of Justice, 576 F.2d 1302 (8th Cir. 1978)
(Exemption 7 does not apply to DEA manual that "contains no in-
formation compiled in the course of an investigation.") The Com-
mittee amendment, however, does not affect the threshold question
of whether "records or information" withheld under (b)(7) were
"compiled for law enforcement purposes." This standard would still
have to be satisfied in order to claim the protection of the (b)(7) ex-
emption. See, e.g., FBI v. Abramson, supra.
Substitute "could reasonably be expected to" for "would" as a
standard for the risk of harm with respect to (b)(7)(A) interference
with enforcement proceedings, (b)(7)(C) unwarranted invasions of
personal privacy, (b)(7)(D) disclosure of the identity of a confidential
source, and (b)(7)(F) endanger the life or physical safety of any natu-
ral person: This amendment is intended to clarify the degree of risk
of harm from disclosure which must be shown to justify withhold-
ing records under any of these subparagraphs. The FBI and other
law enforcement agencies have testified that the current "would"
language in the exemption places undue strictures on agency at-
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tempts to protect against the harms specified in Exemption 7's sub-
parts.
This burden of proof is troubling to some agencies in the context
of showing that a particular disclosure "would" interfere with an
enforcement proceeding. Moreover, as the FBI has testified, it is
particularly vexing with respect to whether production of request-
ed records "would" disclose the identity of a confidential source,
substantially contributing to the asserted "perception" problem of
sources doubting the FBI's ability to protect their identities from
disclosure through FOIA. The "could reasonably be expected to"
standard has been effectively used in the protection of national se-
curity sources under provisions of the National Security Act of
1947, 50 U.S.C. ? 403(d)(3). It recognizes the lack of certainty in at-
tempting to predict harm, but requires a standard of reasonable-
ness in that process, based on an objective test.
Including State, local, and foreign agencies or authorities and pri-
vate institutions within the meaning of "confidential source": This
amendment is intended to codify the caselaw in which the weight
of judicial interpretation has held that "confidential source" pro-
tection under (b)(7)(D) is applicable to entities, as well as natural
persons, that furnished information to an agency on a confidential
basis. See, e.g., Lesar v. Dept. of Justice, 636 F.2d 472 (D.C. Cir.
1980); Church of Scientology v. Dept. of Justice, 612 F.2d 417 (9th
Cir. 1979); Nix v. US., 572 F.2d 998 (4th Cir. 1978); Keeney v. FBI,
630 F.2d 114 (2d Cir. 1980).
Delete "only" from the second clause of (b)(7)(D): Courts interpret-
ing the second clause of (b)(7)(D) have occasionally stumbled over
the meaning of the word "only" in the context of deciding whether
confidential information furnished by a confidential source in a
criminal investigation or a lawful national security intelligence in-
vestigation may be withheld. Compare, e.g., Radowich v. US. Attor-
ney, District of Maryland, 501 F. Supp. 284 (D. Md. 1980), rev'd, 658
F.2d 957 (4th Cir. 1981) (Winter, C.J., dissenting) with Nix v. United
States, 572 F.2d 998 (4th Cir. 1978). A literal reading of the provi-
sion would appear to indicate that confidential information is
exempt only if it has been "furnished" to the agency "only by the
confidential source;" which is to say, apparently, that the confiden-
tial information would not be exempt if it has also been furnished
to the agency by some other source or means.
By deleting the word "only", the Committee intends to make
clear that, in the case of a record compiled by a criminal law en-
forcement authority in the course of a criminal investigation, or by
an agency conducting a lawful national security intelligence inves-
tigation, confidential information furnished by a confidential
source is exempt, regardless of whether it might also have been ob-
tained from another source.
Delete "investigative" and add 'guidelines" to (b)(7)(E): This
amendment, like the deletion of "investigatory" from the exemp-
tion's threshhold language, is intended to facilitate the protection
of non-investigatory materials under the exemption. In this case, it
is intended to make clear that "techniques and procedures for law
enforcement investigations and prosecutions" can be protected, re-
gardless of whether they are "investigative" or non-investigative.
The Committee, however, reemphasizes the intention of the confer-
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00
ees on the 1974 amendments which first created (b)(7)(E) that the
subparagraph does not authorize withholding of routine techniques
and procedures already well known to the public, such as ballistics
tests, fingerprinting, and other scientific tests or commonly-known
techniques and procedures. See H.R. Rep. No. 93-1380, 93d Cong.,
2d Sess. 12 (1974). The amendment also expands (b)(7)(E) to permit
withholding of "guidelines for law enforcement investigations or
prosecutions if such disclosure could reasonably be expected to risk
circumvention of the law." This is intended to address some confu-
sion created by the D.C. Circuit's en banc holding in Jordan v. U.S.
Dept. of Justice, 591 F.2d 753 (D.C. Cir. 1978), denying protection
for prosecutorial discretion guidelines under the (b)(2) exemption.
The Committee intends that agencies and courts will consider the
danger of creating "secret law" together with the potential for
aiding lawbreakers to avoid detection or prosecution. In so doing,
the Committee was guided by the "circumvention of the law"
standard that the D.C. Circuit established in its en banc decision in
Crooker v. BATF, 670 F.2d 1051 (D.C. Cir. 1981) (en banc) (interpret-
ing Exemption 2).
Informant records exclusion
Section 10 of S. 774 would amend the FOIA by adding a new sub-
section which would make the FOIA inapplicable to "informant
records maintained by a law enforcement agency under an infor-
mant's name or personal identifier, whenever access to such
records is sought by a third party according to the informant's
name or personal identifier."
Although subparagraph (b)(7)(D) of the FOIA permits law en-
forcement agencies to deny public access to records where release
"would disclose the identity of a confidential source," the Commit-
tee finds that the necessity of asserting this exemption to deny dis-
closure may in itself compromise informant confidentiality when
the request is for an informant's records and the requester is a
third party who has requested the records by the informant's name
or personal identifier. Denying access to John Doe's records on the
grounds that release "would disclose the identity of a confidential
source" could be tantamount to confirming that John Doe is a con-
fidential source.
S. 774 would exclude from the requirements of the FOIA inform-
ant records maintained by a law enforcement agency under an in-
formant's name or personal identifier, but only in cases where the
requester is a third party seeking access according to the infor-
mant's name or personal identifier. This provision operates as an
exclusion. In such cases, the agency would have no obligation to ac-
knowledge the existence of such records in response to such re-
quest. Where the requester is the informant himself, or a third
party who describes the responsive records without reference to the
informant's name or personal identifier, the records are subject to
ordinary consideration under the provisions of the FOIA.
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SECTION 11: ADDITIONAL EXEMPTIONS
Technical data
Section 11 of the bill would amend the FOIA by adding a new
Exemption (b)(10) to exempt from mandatory disclosure, technical
data that may not be exported lawfully outside of the United
States except in compliance with the Arms Export Control Act, 22
U.S.0 ? 2751, et. seq., and the Export Administration Act of 1979,
50 U.S.C. App. ? 2404.
Testimony from the Justice Department and the Department of
Defense has made the Committee aware that technical data in the
form of blueprints, manuals, production and logistics information
formulae, designs, drawings, and other similar materials in the pos-
session of agencies may be subject to release under the Freedom of
Information Act. Much of this data was either developed by the
government or more typically submitted to the government in con-
junction with research and development or procurement contracts.
This new exemption would ensure that Congress intent to control
the export of significant technology will not be frustrated by a
Freedom of Information Act request for information regarding
technology that is subject to export control under these statutes. It
would make clear that agencies such as the Department of Defense
have the authority to refuse to disclose such information in re-
sponse to a Freedom of Information Act request when the informa-
tion "may not be exported lawfully outside the United States with-
out an approval, authorization or a license under the Federal
Export laws unless regulations promulgated under such laws au-
thorize the export of such data without restriction to any person
and any destination."
Exemption 10, however, is not intended to restrict the flow in re-
search information from or within the scientific community or soci-
ety in general. Moreover, the proposed exemption has nothing to do
with technical information developed and maintained within the
academic community. On the contrary, this exemption merely gives
the federal government the discretion not to disclose certain tech-
nical information in its possession, usually pursuant to research
and development or procurement contracts, in response to an FOIA
request. The submitter of such technical data is not in any way
precluded from disseminating it to the scientific community or else-
where, under the exemption.
It is the intent of the Committee that Exemption 10 encompass
technical data in the forms above if such data is covered by either
general licenses or specific licenses, inasmuch as a significant
amount of important technical data may be exported under re-
stricted general licenses or exemptions. Even though the term
"general license" is used, such licenses often limit export authority
to specific persons or specific destinations. Thus, a limited general
license for the export of certain data could still subject such data to
unlimited release under the FOIA if Exemption 10 did not cover
general licenses.
It is anomalous to restrict the export of data important to the
United States on one hand, while allowing its public release under
the FOIA on the other. Exemption (b)(10) will redress that anom-
aly.
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Secret Service
Section 11 of S. 774 would amend the FOIA to create a new Ex-
emption (b)(11) for "records or information maintained or originat-
ed by the Secret Service in connection with its protective functions
to the extent that the production of such records or information
could reasonably be expected to adversely affect the Service's abili-
ty to perform its protective functions."
Although the courts have recognized the need to protect certain
Secret Service records from disclosure under the FOIA, Moorefield
v. U.S. Secret Service, 611 F.2d 1021 (5th Cir. 1980) (individual who
was twice convicted for threatening the life of the President was
denied access to his Service file under Exemption (7)(A)), the Com-
mittee believes that a specific exemption which directly focuses on
the specific consequences of disclosure in the context of the protec-
tive responsibilities of the Service is more appropriate than reli-
ance upon the more general law enforcement records exemption.
The Committee received comments from several press groups ex-
pressing concern that the proposed Secret Service exemption could
permit the Service to refuse to disclose the basis for denying White
House press credentials to a bona fide journalist. The Committee
recognizes that important First Amendment rights are implicated
by any refusal to grant White House press passes to bona fide jour-
nalists, and that journalists may not be denied such passes without
due process of law, including notice of the factual basis for denial
with an opportunity to rebut them. Sherrill v. Knight, 569 F.2d
124, 130-131 (D.C. Cir. 1977).
The Committee intends the proposed exemption to be interpreted
in a manner consistent with this right.
SECTION 12: REASONABLY SEGREGABLE
This amendment is simply intended to take notice of the princi-
ple that, in the case of the 1st and 7th exemptions in subsection
552(b), in deciding whether the release of particular information
would be harmful, the agency may take account of other informa-
tion which it knows or reasonably believes to be available to the
requester. This principle is established in case law. For example, in
Halperin v. Central Intelligence Agency, 629 F.2d 144 (D.C. Cir.
1980), the court states:
The Agency's general rationale for refusing to disclose
rates and total fees paid to attorneys is that such informa-
tion could give leads to information about covert activities
that constitute intelligence methods. For example, if a
large legal bill is incurred in a covert operation, a trained
intelligence analyst could reason from the size of the legal
bill to the size and nature of the operation. This scenario
raises a reasonable possibility of harm to the covert activi-
ty following from disclosure of the size of legal fees. We
note that the CIA's showing of potential harm here is not
so great as its showing concerning attorney names. We
must take into account, however, that each individual
piece of intelligence information, much like a piece of
jigsaw puzzle, may aid in piecing together other bits of in-
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o
formation even when the individual piece is not of obvious
importance in itself When combined with other small
leads, the amount of a legal fee could well prove useful for
identifying a covert transaction. Viewed in this light, the
Agency's statements offer sufficient plausible detail for a
court to accord substantial weight to the statements and
accept the Agency's expert judgment on the potential ef-
fects of disclosing legal fees.
Id. at 150, footnotes omitted and emphasis added.
SECTION 13: PROPER REQUESTS
Section 13 of S. 774 would amend 552 (a)(3) to prohibit FOIA re-
quests by foreign nationals; authorize the Attorney General to pre-
scribe limitations or conditions on use of the FOIA by incarcerated
felons; and toll time requirements for agency response to requests
from parties to adjudicatory proceedings in which the Government
is also a party and may be requested to produce the records sought.
Under current FOIA law, an agency is required to comply with
any request for records covered by the statute made by "any
person". This absence of exclusion permits foreign nationals and
governments, including those who are hostile to the interests of the
United States, to freely utilize a statutory right-of-access scheme
that was created primarily to inform the American public about
government activities. At the same time, it permits incarcerated
felons to file extensive FOIA requests for the purpose of harassing
government officials or determining the identities of confidential
law enforcement sources and prying into investigatory records. It
also permits parties opposing the Government in judicial or admin-
istrative adjudicatory proceedings to duplicate existing discovery
rights, to circumvent discovery requirements and to conduct exten-
sive documentary "fishing-expeditions" that harass government at-
torneys and avoid triggering reciprocal discovery requirements.
The Committee views each of these uses of the FOIA to be out-
side the purview of Congress primary intent in enacting the stat-
ute. Although some salutary considerations may justify current
practice in particular circumstances, the Committee finds that its
essential concern for facilitating the use of FOIA in ways that con-
tribute to an informed public and an accountable Government war-
rants certain limitations on requesters in the types of situations
identified above.
Requests limited to "United States persons".?This would amend
the FOIA to require agencies to make information available only to
a requester who is a "United States person" as that term would be
defined in Section 17 of the bill. This definition, would limit the
use of the FOIA to United States citizens, permanent resident
aliens, and certain corporations and unincorporated associations, as
defined by section 17 of the bill. It would prohibit use of FOIA by
any other person or entity. The Committee intends that any re-
quester denied access pursuant to this limitation shall be given an
opportunity to present proof that such requester is a "United
States person" within the meaning of the provision.
FOIA limited as a discovery device.?The Supreme Court has rec-
ognized that the "FOIA was not intended to function as a private
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discovery tool." NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,
242 (1978). According to the Court's interpretation of the act and its
legislative history, a requester's rights "are neither increased nor
decreased" because of the requester's status as a litigant. NLRB v.
Sears, Roebuck & Co., 421 U.S. 132, 143, n. 10 (1975).
In civil cases, parties often openly use the FOIA to bypass discov-
ery procedures or to circumvent discovery requirements that they
show a need for the requested information, the relevance of the in-
formation to the case, and that compliance with the request would
not be unreasonably harassing, oppressive or burdensome. See Fed.
R. Civ. P.26. Similarly in criminal cases, a defendant seeking dis-
covery must demonstrate not only the relevance of the information
sought, but also that the request is "reasonable" and within the
scope of criminal discovery. See Fed. R. Crim. P. 16(a). In addition,
a criminal defendant's request may trigger a government right to
reciprocal discovery. See Fed. R. Crim. P. 16(b). In practice, some
criminal defendants make frequent use of the FOIA close to sched-
uled trial dates to disrupt the prosecutor's case preparation or
delay the trial while disputes over the FOIA request are resolved
by the courts.
This provision remedies these concerns, not by declaring that a
person's right to use the FOIA is eliminated because of his party
status, but by requiring the tolling of time limits for government
response "whenever the requester (or any person on whose behalf
the request is made) is a party to any ongoing judicial proceeding
or administrative adjudication in which the Government is also a
party and may be requested to produce the records sought."
The Committee intends that the agency's obligation to respond to
the request within the statutory time requirements is simply post-
poned until the proceeding itself is no longer pending. The amend-
ment does not bar a request for records which are not related to
the subject matter of the pending proceeding, nor would it bar a
request for records which have been denied during the course of a
judicial or administrative proceeding that is no longer pending.
Authority for the Attorney General to Limit Requests by Felons.?
Testimony by various federal law enforcement agencies, complain-
ing of the tremendous administrative burden and risk of harm to
law enforcement interests that flows from the extensive number of
FOIA requests made by incarcerated felons, has convinced the
Committee to approve authority for the Attorney General to pro-
mulgate regulations prescribing "limitations or conditions on the
extent to which and on the circumstances or manner in which" re-
quested records would be made available to "requesters who are
persons imprisoned under sentence for a felony under Federal or
State law or who are reasonably believed to be requesting records
on behalf of such persons."
The proposed amendment directs the Attorney General to pre-
scribe such limitations or conditions "as he finds to be (i) appropri-
ate in the interests of law enforcement, or foreign relations and na-
tional defense, or of the efficient administration of" the FOIA,
"and (ii) not in derogation of the public information purposes of'
the FOIA. The Committee intends this guidance to assure the At-
torney General of his authority to propose that requests from in-
carcerated felons, or from anyone reasonably believed to be acting
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on their behalf, be treated differently from those of other request-
ers. For example these limitations can be fashioned to limit the
number or extent of FOIA requests, to discourage duplicative or
harassing requests, or to give the responding agencies greater flexi-
bility in the mode and timing of their replies. Such limitations or
conditions shall be prescribed through rulemaking.
SECTION 14: ORGANIZED CRIME RECORDS EXCLUSION
Section 14 of S. 774 would amend the FOIA by adding a new sub-
section (c) that would make the FOIA inapplicable to documents
which were generated or acquired by a criminal law enforcement
authority in the course of a lawful organized crime investigation
within five years of the date of request.
Current law, as established by the 1974 amendments to the
FOIA, permits agency withholding of law enforcement records
under one or more of the subparagraphs of Exemption 7. It does
not provide for any categorical treatment of records compiled in in-
vestigations of organized crime.
Testimony presented before the Constitution Subcommittee by
FBI Director William Webster depicted a credible concern that the
FOIA in its current form is systematically exploited by organized
crime figures attempting to learn whether they are targets of in-
vestigative law enforcement activities. Both in public hearings and
an executive session before the Subcommittee, Judge Webster pre-
sented examples of the use of the FOIA by organized crime figures
in concerted efforts to identify informants and discover the scope
and progress of particular investigations.
The Committee understands the skepticism of the press and
other critics of the case presented by the FBI, for the Bureau's
claims of abuse are not convincingly substantiated on the public
record. The Committee, however, has viewed more substantial evi-
dence in special executive presentations supporting the FBI's argu-
ments, and understands the FBI's concern that the details of this
evidence would have to be highly diluted or eliminated altogether
to avoid aggravating the problem in any public presentation.
The Committee believes that special treatment of records com-
piled in current and recent organized crime investigations is essen-
tial. The FBI's showing of systematic exploitation of the FOIA by
organized crime, together with the threat that such exploitation
will increase in the future, carries sufficient weight to urge an ad-
justment in the FOIA when combined with reasonable assumptions
concerning the motivations and resources of organized crime.
S. 774 proposes to exclude from the provisions of the FOIA,
under specified circumstances, any record which was generated or
acquired within five years of the date of the FOIA request by a
criminal law enforcement agency conducting a lawful organized
crime investigation. Under the amendment, the FBI would have no
obligation to acknowledge the existence of organized crime records
if: (1) the requested records were compiled in any lawful investiga-
tion of "organized crime" as defined in section 18 of S. 774; (2) such
investigation is or was conducted by a criminal law enforcement
authority for law enforcement purposes; (3) such investigation was
designated by the Attorney General for the purposes of this subsec-
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tion; and, (4) the requested records were first generated or acquired
by the law enforcement agency within five years of the date of the
request. Exceptions to the basic exclusion timeframe would be ap-
propriate when the agency determines, pursuant to regulations
promulgated by the Attorney General, that there is an overriding
public interest in earlier disclosure or in longer exclusion not to
exceed three years.
The proposed amendment also provides that no document subject
to this exclusion provision may be destroyed or otherwise disposed
of until the document is available for disclosure, subject only to the
ordinary FOIA exemptions, for a period of not less than ten years.
This means that, unless an extension of no more than three years
is ordered, organized crime investigation documents would ordinar-
ily be subject to exclusion from FOIA only for a period of five years
after generation or acquisition by the agency. Documents subject to
exclusion may not be destroyed or disposed of during the exclusion
period, or for a period of not less than ten years after the end of
the exclusion period. When the exclusion period is completed, the
documents would become subject to the requirements of the FOIA
and may be withheld from a requester only pursuant to a proper
assertion of one or more of the nine FOIA exemptions.
SECTION 15: REPORTING UNIFORMITY
Under current 5 U.S.C. ? 552(d), each agency is required to
submit to the Congress by March 1 of each year a report on its
Freedom of Information Act activities during the preceding calen-
dar year. Section 15 of the bill would amend the reporting require-
ment to provide for a report to be filed on December 1 of each year
covering the preceding fiscal, rather than calendar year. Most
agencies maintain their records on a fiscal year basis and must
convert them to an annual year basis in order to comply with exist-
ing law. The amendment would remedy this problem by conform-
ing the reporting requirement to data collection practices.
SECTION 16: TECHNICAL DATA PROCEDURES
The Committee wishes to stress that nothing in Exemption (b)(10)
is intended to limit the Government's ability or duty to provide
access to information necessary to U.S. companies interested in in-
vestigating or bidding on procurement contracts with the Govern-
ment. The Committee recognizes that prospective contractors, espe-
cially small businesses, need access to what is referred to as "pro-
duction engineering and logistics information". Such availability
may serve to increase competition, particularly by small business-
es, and thereby reduce prices.
The Committee intends this section to apply to technical data
owned by the Federal Government. Since this information is out-
side the protections of (b)(4), the combination of (b)(10) for protec-
tion and section 560 for qualified access should apply.
Section 560 is not to be construed as part of the Freedom of In-
formation Act and none of the special administrative or judicial
provisions Of the FOIA apply to requests under Section 560. Re-
leases under Section 560 may be conditioned on reasonable restric-
tions on redissemination, e.g., requiring subsequent parties receiv-
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ing the information to be properly registered or in appropriate
cases, precluding redissemination. Agencies operating under Sec-
tion 560 can investigate and enforce these agreements and failure
by companies to comply with non-disclosure agreements may be
grounds for appropriate civil, criminal or administrative sanctions.
Section 560 authorizes agencies to establish reasonable proce-
dures to provide access to technical data to qualified concerns. The
"production engineering and logistics data" referred to above in-
cludes such formulae, designs, drawings and research data as may
be associated therewith, which are developed for or generated by
the Government and which the Government has an unrestricted
right to use and disclose.
It is expected that agency heads shall promulgate regulations
setting forth procedures, standards and criteria for the certification
and registration of United States citizens and business concerns as
authorized recipients of such technical data. The Committee ex-
pects that in certifying data recipients, the agency will consider
good faith intent to compete and ability of a concern and its sub-
contractors and suppliers to perform U.S. contracts.
It is also intended that an agency head may promulgate regula-
tions which shall charge any person receiving information under
Section 560 the actual cost of searching for and duplicating such
information. In addition, if recoupment of research and develop-
ment costs is required by law or regulations, recoupment shall be
paid by the requester in accordance therewith.
It is further the intent of the Committee that nothing in Section
560 shall require the disclosure of material classified pursuant to
executive order. Moreover, nothing in Section 560 requires the dis-
closure of material protected from disclosure under subsection (b)(4)
of the Act.
SECTION 17: DEFINITIONS
"Submitter"
The term "submitter" is intended to include those persons who
have a commercial or proprietary interest in information which is
within the commercial, research, financial or trade secret catego-
ries discussed in the Committee's analysis of section 4 of the bill,
supra. The person is a submitter even if the agency obtained access
without a direct submission, e.g., by inspection or audit or recorda-
tion or photographing the private person's information. Two exclu-
sions exist. Personal financial information is covered by the terms
of Exemption (b)(6), see Rural Housing Alliance v. U.S. Department
of Agriculture, 498 F.2d 73 (D.C. Cir., 1974). Intelligence informa-
tion is protected under specific exempting statutes, recognized by
exemption (b)(3), or by terms of exemption (b)(1). This latter excep-
tion is intended to shift protection to another exemption and is not
intended to exclude exempt status for such information in the rare
and exceptional instances in which commercial data would be
given to an intelligence agency.
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"Requester"
Section 17 of the bill defines the term "requester" as "a person
who makes or causes to be made, or on whose behalf is made, a
proper request for disclosure of records under subsection (a)."
In part, this definition is intended as a mere drafting change in
substitution for cumbersome phrases in the present Act, such as
"Any person making a request to any agency for records under
paragraph (1), (2), or (3) of this subsection" and "such person
making such request" (subsection (a)(4)(C)). However, this definition
includes not only the person who makes the request but also any
person who causes a request to be made or on whose behalf a re-
quester is made.
"United States person"
Section 17 of the bill defines the term "United States person,"
which is discussed in connection with the analysis of section 13 of
the bill.
"Working days"
Section 17 of the bill defines the term "working days" to mean
"every day excluding Saturdays, Sundays, and federal legal holi-
days." This definition is essentially the same as the language of the
present Act, and is intended to place conveniently in one provision
of the Act the standard rule for calculating time periods under the
Act. This defintion is not intended to be a substantive change.
"Organized crime"
Section 17 of the bill defines the term "organized crime," which
is discussed in connection with the analysis of section 14 of the bill.
SECTION 18: PUBLICATION OF EXEMPTION 3 STATUTES
Exemption (b)(3) excludes from the mandatory disclosure require-
ment information "specifically exempted from disclosure by stat-
ute." There has never been a compilation of such statutory non-dis-
closure provisions. Thus, neither the Congress nor the American
people know for sure how many (b)(3) exemptions exist or what
their scope is. The absence of information creates a dilemma: If the
aims of the FOIA are being weakened, Congress has little guide to
how to shape a consistent policy that can cure the excesses, if they
exist.
The chief commodity for a cure is complete information, and so
the Committee's approach to solving this problem is based on dis-
closure. Within 270 days of enactment, agencies that want to rely
on specific statutory exemptions will have to publish a list of them
in the Federal Register. The Department of Justice is specifically
included as an agency required to so publish. No legal rights are
affected by the section, except those of the agency failing the effect
the required publication. That agency will lose the right to rely on
the undisclosed statutory exemption.
As a result of this provision, for the first time the Congress and
the public will have a comprehensive guide to what is on the stat-
ute books within the ambit of section (b)(3). The public and the
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Congress, thus, will be able to evaluate the effect of the (b)(3) ex-
emption on the FOIA.
REGULATORY IMPACT
In compliance with subsection 11(b) of rule XXVI of the Standing
Rules of the Senate, the Committee finds that the business confi-
dentiality procedures of S. 1730 will substantially improve the pro-
tection of trade secrets and other valuable commercial information
submitted to the Government by regulated businesses. This should
enhance the economic position of businesses and individuals who
have in the past or might have possibly in the future lost such
trade secrets or proprietary information to a competitor or some
other requester pursuant to an FOIA request. The Committee also
finds that S. 1730 will improve personal privacy protections for
every individual about whom the Government maintains informa-
tion. Finally, the Committee finds that no additional paperwork
will be required of regulated businesses or individuals, but that the
bill improves protections for personal privacy and commercial in-
formation.
COST ESTIMATE
In accordance with paragraph 11(a), rule XXVI of the Standing
Rules of the Senate, the committee offers the following report of
the Congressional Budget Office:
U.S. CONGRESS,
CONGRESSIONAL BUDGET OFFICE,
Washington, D.C., July II, MI
Hon. STROM THURMOND,
Chairman, Committee on the Judiciary,
US. Senate, Washington, D.C.
DEAR MR. CHAIRMAN: Pursuant to Section 403 of the Congres-
sional Budget Act of 1974, the Congressional Budget Office has re-
viewed S. 774, the Freedom of Information Reform Act, as ordered
reported by the Senate Committee on the Judiciary, June 16, 1983.
The bill requires the Office of Management and Budget (OMB) to
establish a uniform fee structure to cover certain costs to the feder-
al government resulting from the Freedom of Information Act
(FOIA). Federal agencies are to use the OMB fee guidelines in con-
structing regulations governing the processing of requests for infor-
mation. The fees collected under the bill are to be adequate to
cover the costs of processing the requests. In addition, the bill re-
quires federal agencies to provide documents free of charge when
the cost of collecting a fee exceeds the amount that would be col-
lected. Federal agencies are also allowed to reduce or waive the fee
in cases where releasing the information will primarily benefit the
public rather than the private or commercial interests of the party
making the request. The bill also allows agencies to collect fees cov-
ering many of the costs of processing an application. Confidential
information provided to the government by business concerns is af-
forded increased protection under the bill. The bill also increases
the federal government's right to withhold certain information
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from the public, including certain technical data and many Secret
Service records.
The cost of administering the Freedom of Information Act are
highly uncertain, and no comprehensive data are available. Based
on information provided by the Justice Department, it appears that
the direct cost of administering the act is at lest $60 million a year.
Assuming this level of costs, the bill is expected to save the federal
government at least $10 million a year?through the establishment
of a uniform fee schedule, recovery of a portion of the cost of proc-
essing an application, various applicant exclusions, and an antici-
pated decline in the use of FOIA resulting from higher fees. How-
ever, in view of the uncertain costs of FOIA and the lack of infor-
mation on the fee guidelines OMB will eventually propose, the sav-
ings resulting from this bill could be significantly greater.
Enactment of this bill would not affect the budgets of state and
local governments.
Should the Committee so desire, we would be pleased to provide
further details on this estimate.
Sincerely,
NANCY M. GORDON
(For Alice M. Rivlin, Director).
CHANGES IN EXISTING LAW
In compliance with subsection (12) of rule XXVI of the Standing
Rules of the Senate, changes in existing law made by S. 774 are as
follows: Existing law proposed to be omitted is enclosed in black
brackets, new material is printed in italic, existing law in which no
change is proposed is shown in roman.
TITLE 5-GOVERNMENT ORGANIZATION
AND EMPLOYEES
SUBCHAPTER II?ADMINISTRATIVE PROCEDURE
551. Definitions.
552. Public information; agency rules, opinions, orders, records, and proceedings.
552a. Records about individuals.
552b. Open meetings.
553. Rule making.
554. Adjudications.
555. Ancillary matters.
556. Hearings; presiding employees; powers and duties; burden of proof; evidence;
record as basis of decision.
557. Initial decisions; conclusiveness; review by agency; submissions by parties; con-
tents of decisions record.
558. Imposition of sanctions; determination of applications for licenses; suspension,
revocation, and expiration of licenses.
559. Effect on other laws; effect of subsequent statute.
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?552. Public information; agency rules, opinions, orders, records,
and proceedings
(a) Each agency shall make available to the public information as
follows:
(1) Each agency shall separately state and currently publish
in the Federal Register for the guidance of the public?
(A) descriptions of its central and field organization and
the established places at which, the employees (and in the
case of a uniformed service, the members) from whom, and
the methods whereby, the public may obtain information,
make submittals or requests, or obtain decisions;
(B) statements of the general course and method by
which its functions are channeled and determined, includ-
ing the nature and requirements of all formal and infor-
mal procedures available;
(C) rules of procedure, descriptions of forms available or
the places at which forms may be obtained, and instruc-
tions as to the scope and contents of all papers, reports, or
examinations;
(D) substantive rules of general applicability adopted as
authorized by law, and statements of general policy or in-
terpretations of general applicability formulated and
adopted by the agency; and
(E) each amendment, revision, or repeal of the foregoing.
Except to the extent that a person has actual and timely notice
of the terms thereof, a person may not in any manner be re-
quired to resort to or be adversely affected by, a matter re-
quired to be published in the Federal Register and not so pub-
lished. For the purpose of this paragraph, matter reasonably
available to the class of persons affected thereby is deemed
published in the Federal Register when incorporated by refer-
ence therein with the approval of the Director of the Federal
Register.
(2) Each agency, in accordance with published rules, shall
make available for public inspection and copying?
(A) final opinions, including concurring and dissenting
opinions, as well as orders, made in the adjudication of
cases;
(B) those statements of policy and interpretations which
have been adopted by the agency and are not published in
the Federal Register; and
(C) administrative staff manuals and instructions to staff
that affect a member of the public;
unless the materials are promptly published and copies offered
for sale. To the extent required to prevent a clearly unwar-
ranted invasion of personal privacy, an agency may delete
identifying details when it makes available or publishes an
opinion, statement of policy, interpretation, or staff manual or
instruction. However, in each case the justification for the de-
lection shall be explained fully in writing. Each agency shall
also maintain and make available for public inspection and
copying current indexes providing identifying information for
the public as to any matter issued, adopted, or promulgated
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after July 4, 1967, and required by this paragraph to be made
available or published. Each agency shall promptly publish,
quarterly or more frequently, and distribute (by sale or other-
wise) copies of each index or supplements thereto unless it de-
termines by a order published in the Federal Register that the
publication would be unnecessary and impracticable in which
case the agency shall nonetheless provide copies of such index
on request at a cost not to exceed the direct cost of duplication.
A final order, opinion, statement of policy interpretation or
staff manual or instruction that affects a member of the public
may be relied on, used, or cited as precedent by an agency
against a party other than an agency only if?
(i) it has been indexed and either made available or pub-
lished as provided by this paragraph; or
(ii) the party has actual and timely notice of the terms
thereof. ,
[(3) Except with respect to the records made available under
paragraphs (1) and (2) of this subsection, each agency, upon
any request for records which (A) reasonable describes such
records and (B) is made in accordance with published rules
stating the time, place, fees (if any), and procedures to be fol-
lowed, shall make the records promptly available to any
person.]
(3)(A) Except with respect to the records made available under
paragraphs (I) and (2) of this subsection, each agency, upon any
request by a requester who is a United States person for records
which (i) reasonably describes such records and (ii) is made in
accordance with published rules stating the time, place, fees (if
any), and procedures to be followed, shall make the records
promptly available to the requester.
(B) The time limits prescribed in subparagraph (A) of para-
graph (6) shall be tolled whenever the requester (or any person
on whose behalf the request is made) is a party to any ongoing
judicial proceeding or administrative adjudication in which the
Government is also a party and may be requested to produce the
records sought. Nothing in this subparagraph shall be con-
strued to bar (i) a request for any records which are not related
to the subject matter of such pending proceeding, or (ii) a re-
quest for any records which have been denied to a party in the
course of a judicial proceeding or administrative adjudication
that is no longer pending.
(C) The Attorney General, in accordance with public rulemak-
ing procedures set forth in section 553 of this title, may by regu-
lation prescribe such limitations or conditions on the extent to
which and on the circumstances or manner in which records re-
quested under this paragraph or under section 552a of this title
shall be made available to requesters who are persons impris-
oned under sentence for a felony under Federal or State law or
who are reasonably believed to be requesting records on behalf
of such persons, as he finds to be (i) appropriate in the interests
of law enforcement, or foreign relations or national defense, or
of the efficient administration of this section, and (ii) not in
derogation of the public information purposes of this section.
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[(4)(A) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice
and receipt of public comments, specifying a uniform schedule
of fees applicable to all constituent units of such agency. Such
fees shall be limited to reasonable standard charges for docu-
ment search and duplication and provide for recovery of only
the direct costs of such search and duplication. Documents
shall be furnished without charge or at a reduced charge
where the agency determines that waiver or reduction of the
fee is in the public interest because furnishing the information
can be considered as primarily benefiting the general public.]
(4)(A)(i) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to notice
and receipt of public comment, specifying the schedule of fees
applicable to the processing of requests under this section and
establishing procedures and guidelines for determining when
such fees should be waived or reduced. Such schedules shall
conform to the guidelines which shall be promulgated, pursu-
ant to notice and receipt of public comment, by the Office of
Management and Budget and which shall provide for a uni-
form schedule of fees for all agencies. Such regulations?
(a) shall provide for the payment of all costs reasonably
and directly attributable to responding to the request,
which shall include reasonable standard charges for the
costs of services by agency personnel in search, duplication,
and other processing of the request. The term "processing"
does not include services of agency personnel in resolving
issues of law and policy of general applicability which may
be raised by a request, but does include services involved in
examining records for possible withholding or deletions to
carry out determinations of law or policy. Such regulations
may also provide for standardized charges for categories of
requests having similar processing costs,
(b) shall provide that no fee is to be charged by any
agency with respect to any request or series of related re-
quests whenever the costs of routine collection and process-
ing of the fee are likely to equal or exceed the amount of
the fee, and
(c) in the case of any request or series of related requests
for records containing commercially valuable technological
information which was generated or procured by the Gov-
ernment at substantial cost to the public, is likely to be
used for a commercial purpose, and will deprive the Gov-
ernment of its commercial value, may provide for the charg-
ing of a fair value fee or royalties, or both, in addition to or
in lieu of any processing fees otherwise chargeable, taking
into account such factors as the estimated commercial
value of the technological information, its costs to the Gov-
ernment, and any public interest in encouraging its utiliza-
tion.
Nothing in this subparagraph shall supersede fees chargeable
under a statute specifically providing for setting the level of fees
for particular types of records.
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(ii) With respect to search and duplication charges, docu-
ments shall be furnished without charge or at a reduced charge
where the agency determines that waiver or reduction of the fee
1 is in the public interest because furnishing the information can
be considered as primarily benefiting the general public and not
the commercial or other private interests of the requester. With
respect to all other charges, documents shall be furnished with-
out such charges where the agency determines that the informa-
tion is not requested for a commercial use and the request is
1 being made by or on behalf of (a) an individual, or educational,
or noncommercial scientific institution, whose purpose is schol-
arly or scientific research; (b) a representative of the news
media; or (c) a nonprofit group that intends to make the infor-
mation available to the general public.
(iii) One-half of the fees collected under this section shall be
retained by the collecting agency to offset the costs of complying
with this section. The remaining fees collected under this sec-
tion shall be remitted to the Treasury's general fund as miscel-
laneous receipts, except that any agency determined upon an in-
vestigation and report by the General Accounting Office or the
Office of Management and Budget not to have been in substan-
tial compliance with the applicable time limits of paragraph (6)
of this subsection shall not thereafter retain any such fees until
determined by the agency making such finding to be in substan-
tial compliance.
[(B) On complaint, the district court of the United States in
the district in which the complainant resides, or has his princi-
pal place of business, or in which the agency records are situ-
ated, or in the District of Columbia, has jurisdiction to enjoin
the agency from withholding agency records improperly with-
held from the complainant. In such a case the court shall de-
termine the matter de novo, and may examine the contents of
such agency records in camera to determine whether such
records or any part thereof shall be withheld under any of the
exemptions set forth in subsection (b) of this section, and the
burden is on the agency to sustain its action.]
(B) On complaint filed by a requester within one hundred
and eighty days from the date of final agency action or by a
submitter after a final decision to disclose submitted informa-
tion but prior to its release, the district court of the United
States in the district in which the complainant resides, or has
his principal place of business, or in which the agency records
are situated, or in the District of Columbia, has jurisdiction?
(i) to enjoin the agency from withholding agency records
and to order the production of any agency records improper-
ly withheld from the requester;
(ii) to enjoin the agency from any disclosure, of records
which was objected to by a submitter under paragraph
(7)(A)(ii) or which would have been objected to had notice
been given as required by paragraph (7)(A)(I); or
(iii) to enjoin the agency from failing to perform its
duties under sections (a) (1) and (2).
(C) In an action based on a complaint-
0 0
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(i) by a requester, the court shall have jurisdiction over
any submitter of information contained in the requested
records, and any such submitter may intervene as of right
in the action; and
(ii) by a submitter, the court shall have jurisdiction over
any requester of records containing information which the
submitter seeks to have withheld, and any such requester
may intervene as of right in the action.
(D) The agency that is the subject of the complaint shall
promptly, upon service of a complaint?
(i) seeking the production of records, notify each submit-
ter of information contained in the requested records that
the complaint was filed; and
(ii) seeking the withholding of records, notify each re-
quester of the records that the complaint was filed.
(E) In any case to enjoin the withholding or the disclosure of
records, or the failure to comply with subsection (a) (1) or (2),
the court shall determine the matter de novo. The court may ex-
amine the contents of requested agency records in camera to de-
termine whether such records or any part thereof shall be with-
held under any of the exemptions set forth in subsection (b) of
this section. The burden is on the agency to sustain its action to
withhold information and the burden is on any submitter seek-
ing the withholding of information.
[(C)] (F) Notwithstanding any other provision of law, the
defendant shall serve an answer or otherwise plead to any
complaint made under this subsection within thirty days after
service upon the defendant of the pleading in which such com-
plaint's made, unless the court otherwise directs for good cause
shown.
[(D)] (G) Except as to cases the court considers of greater
importance, proceedings before the district court, as authorized
by this subsection, and appeals therefrom, take precedence on
the docket over all cases and shall be assigned for hearing and
trial or for argument at the earliest practicable date and expe-
dited in every way.
[(E)] (H) The court may assess against the United States or
any submitter who is a party to the litigation reasonable attor-
ney fees and other litigation costs reasonably incurred in any
case under this section in which the [complainant] requester
has substantially prevailed.
[(F)] (I) Whenever the court orders the production of any
agency records improperly withheld from the complainant and
assesses against the United States reasonable attorney fees
and other litigation costs, and the court additionally issues a
written finding that the circumstances surrounding the with-
holding raise questions whether agency personnel acting arbi-
trarily or capriciously with respect to the withholding, the Spe-
cial Counsel shall promptly initiate a proceeding to determine
whether disciplinary action is warrented against the officer or
employee who was primarily responsible for the withholding.
The Special Counsel, after investigation and consideration of
the evidence submitted, shall submit his findings and recom-
mendations to the administrative authority of the agency con-
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cerned and shall send copies of the findings and recommenda-
tions to the officer or employee or his representative. The ad-
ministrative authority shall take the corrective action that the
Special Counsel recommends.
[(G)] (J) In the event of noncompliance with the order of
the court, the district court may punish for contempt the re-
sponsible employee, and in the case of a uniformed service, the
responsible member.
(5) Each agency having more than one member shall main-
tain and make available for public inspection a record of the
final votes of each member in every agency proceeding.
[(6)(A) Each agency, upon any request for records made
under paragraph (1), (2), or (3) of this subsection, shall?
[(i) determine within ten days (excepting Saturdays,
Sundays, and legal public holidays) after the receipt of any
such request whether to comply with such request and
shall immediately notify the person making such request
of such determination and the reasons therefor, and of the
right of such person to appeal to the head of the agency
any adverse determination; and
[(ii) make a determination with respect to any appeal
within twenty days (excepting Saturdays, Sundays, and
legal public holidays) after the receipt of such appeal. If on
appeal the denial of the request for records is in whole or
in part upheld, the agency shall notify the person making
such request of the provisions for judicial review of that
determination under paragraph (4) of this subsection.
[(B) in unusual circumstances as specified in this subpara-
graph, the time limits prescribed in either clause (i) or clause
(ii) of subparagraph (A) may be extended by written notice to
the person making such request setting forth the reasons for
such extension and the date on which a determination is ex-
pected to be dispatched. No such notice shall specify a date
that would result in an extension for more than ten working
days. As used in this subparagraph, "unusual circumstances"
means, but only to the extent reasonably necessary to the
proper processing of the particular request?
[(i) the need to search for and collect the requested
records from field facilities or other establishments that
are separate from the office processing the request;
[(ii) the need to search for, collect, and appropriately ex-
amine a voluminous amount of separate and distinct
records which are demanded in a single request; or
[(iii) the need for consultation, which shall be conducted
with all practicable speed, with another agency having a
substantial interest in the determination of the request or
among two or more components of the agency having sub-
stantial subject-matter interest therein.
[(C) Any person making a request to any agency for records
under paragraph (1), (2), or (3) of this subsection shall be
deemed to have exhausted his administrative remedies with re-
spect to such request if the agency fails to comply with the ap-
plicable time limit provisions of this paragraph. If the Govern-
ment can show exceptional circumstances exist and that the
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agency is exercising due diligence in responding to the request,
the court may retain jurisdiction and allow the agency addi-
tional time to complete its review of the records. Upon any de-
termination by an agency to comply with a request for records,
the records shall be made promptly available to such person
making such request. Any notification of denial of any request
for records under this subsection shall set forth the names and
titles or positions of each person responsible for the denial of
such request.]
(6)(A) Except as otherwise provided in this paragraph, each
agency, upon any request for records made under paragraph (1),
(2), or (3) of this subsection, shall?
(i) determine within ten working days after the receipt of
any such request whether to comply with such request and
shall immediately notify the requester of such determina-
tion and the reasons therefor, and of the right of such
person to appeal to the head of the agency any adverse de-
termination; and
(ii) make a determination with respect to any appeal
within twenty working days after the receipt of such
appeal. If on appeal the denial of the request for records is
in whole or in part upheld, the agency shall notify the re-
quester of the provisions for judicial review of that determi-
nation under paragraph (4) of this subsection.
(B) In unusual circumstances as defined in this subpara-
graph, the time limits prescribed in either clause (i) or clause
(ii) of subparagraph (A) may be extended by written notice to
the requester setting forth the reasons for such extension and
the date on which a determination is expected to be dispatched.
No such notice shall specify a date that would result in exten-
sions of more than an aggregate of thirty working days. As used
in this subparagraph, "unusual circumstances" means, but only
to the extent reasonably necessary to the proper processing of the
particular request?
(i) the need to search for and collect the requested records
from field facilities or other establishments that are sepa-
rate from the office processing the request;
(ii) the need to search for, collect, and appropriately ex-
amine a voluminous amount of separate and distinct
records which are demanded in a single request;
(iii) the need for consultation, which shall be conducted
with all practical speed, with another agency having a sub-
stantial interest in the determination of the request or
among two or more components of the agency having sub-
stantial subject-matter interest therein;
(iv) a request which the head of the agency has specifical-
ly stated in writing cannot be processed within the time
limits stated in paragraph (6)(A) without significantly ob-
structing or impairing the timely performance of a statu-
tory agency function;
(v) the need for notification of submitters of information
and for consideration of any objections to disclosure made
by such submitters; or
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(vi) an unusually large volume of requests or appeals at
( an agency, creating a substantial backlog.
(C) Any requester shall be deemed to have exhausted his ad-
ministration remedies with respect to such request if the agency
fails to comply with the applicable time limit provisions of this
paragraph. If the Government can show exceptional circum-
stances and that the agency is exercising due diligence in re-
sponding to the request, the court may retain jurisdiction and
allow the agency additional time to complete its review of the
records. An agency shall not be considered to have violated the
otherwise applicable time limits until a court rules on the issue.
(D) Upon any determination by an agency to comply with a
request for records, the records shall be made promptly availa-
ble to the requester, subject to the provisions of paragraph (7).
Any notification of denial of any request for records under this
subsection shall set forth the names and titles or positions of
each person responsible for the denial of such request.
(E) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, by which a requester who
demonstrates a compelling need for expedited access to records
shall be given expedited access.
(7)(A) Each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, specifying procedures by
which?
(i) a submitter may be required to designate, at the time
it submits or provides to the agency or thereafter, any infor-
mation consisting of trade secrets, or commercial, research,
financial, or business information d;hich is exempt from
disclosure under subsection (b)(4);
(ii) the agency shall notify the submitter that a request
has been made for? information provided' by the submitter,
within ten working days after the receipt of such request,
and shall describe the nature and scope of the request and
advise the submitter of his right to submit written objec-
tions in response to the request;
(iii) the submitter ?may, within ten 'working days of the
forwarding of such notification, submit to the agency writ-
ten objection to such disclosure, specifying all grounds upon
which it is contended that the information should not be
disclosed; and
(iv) the agency shall notify the submitter of any final de-
cision regarding the release of such information.
(B) An agency is not required to notify a submitter pursuant
to subparagraph (A) if?
(i) the information requested is not designated by the sub-
mitter as exempt from disclosure in accordance with agency
regulations promulgated pursuant to subparagraph (A)(i), if
such designation is required by the agency;
(ii) the agency determines, prior to giving such notice,
that the request should be denied;
? (iii) the disclosure is required by law (other than this sec-
? tion) and the agency notified the submitter of the disclosure
requirement prior to the submission of the information;
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(iv) the information lawfully has been published or other-
wise made available to the public; or
(v) the agency is a criminal law enforcement agency that
acquired the information in the course of a lawful investi-
gation of possible violations of criminal law.
(C) Whenever an agency notifies a submitter of the receipt of a
request pursuant to subparagraph (A), the agency shall notify
the requester that the request is subject to the provisions of this
paragraph and that notice of the request is being given to a sub-
mitter. Whenever an agency notifies a submitter of final deci-
sion pursuant to subparagraph (A), the agency shall at the same
time notify the requester of such final decision.
(D) Whenever a submitter has filed objections to disclosure of
information pursuant to subparagraph (A)(iii), the agency shall
not disclose any such information for ten working days after
notice of the final decision to release the requested information
has been forwarded to the submitter.
(E) The agency's disposition of the request and the submitter's
objections shall be subject to judicial review pursuant to para-
graph (4) of this subsection. If a requester files a complaint
under this section, the administrative remedies of a submitter
of information contained in the requested records shall be
deemed to have been exhausted.
(F) Nothing in this paragraph shall be construed to be in
derogation of any other rights established by law protecting the
confidentiality of private information.
(8) In any instance in which a portion of the records request-
ed under this subsection consists of newspaper clippings, maga-
zine articles, or any other item which is a public record or oth-
erwise available in public records, the agency may offer the re-
quester a choice of (A) furnishing the requester with an index
identifying such clippings, articles, or other items by date and
source, provided that such index is already in existence, or (B)
notwithstanding the waiver requirements contained in this sec-
tion, furnishing the requester with copies of such clippings, arti-
cles, or other items at the reasonable standard charge for dupli-
cation established in the agency's fee schedule.
(9) Nothing in this section shall be deemed applicable in
anyway to the informant records maintained by a law enforce-
ment agency under an informant's name or personal identifier,
whenever access to such records is sought by a third party
according to the informant's name or personal identifier.
[(b) This section does not apply to matters that are?]
(b) The compulsory disclosure requirements of this section do not
apply to matters that are?
(1)(A) specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national de-
fense or foreign policy and (B) are in fact properly classified
pursuant to such Executive order;
(2) related solely to the internal personnel rules and prac-
tices of an agency(;], including such materials as (A) man-
nuals and instructions to investigators, inspectors, auditors, or
negotiators, to the extent that disclosure of such manuals and
instructions could reasonably be expected to jeopardize investi-
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00
gations, inspections, audits, or negotiations, and (B) examina-
tion material used solely to determine individual qualifications
for employment, promotion, or licensing to the extent that dis-
closure could reasonably be expected to compromise the objectiv-
ity or fairness of the examination process;
(3) specifically exempted from disclosure by statute (other
than section 552b of this title), provided that such statute (A)
requires that the matters be withheld from the public in such
a manner as to leave no discretion on the issue, or (B) estab-
lishes particular criteria for withholding or refers to particular
types of matters to be withheld;
(4) trade secrets and commercial or financial information ob-
tained from a person and privileged or confidential;
(5) inter-agency or intra-agency memorandums or letters
which would not be available by law to a party other than an
agency in litigation with the agency;
[(6) personnel and medical files and similar files the disclo-
sure of which would constitute a clearly unwarranted invasion
of personal privacy]
(6) records or information concerning individuals, including
compilations or lists of names and addresses that could be used
for solicitation purposes, the release of which could reasonably
be expected to constitute a clearly unwarranted invasion of per-
sonal privacy;
[(7) investigatory records compiled for law enforcement pur-
poses, but only to the extent that the production of such
records would (A) interfere with enforcement proceedings, (B)
deprive a person of a right to a fair trial or an impartial adju-
dication, (C) constitute an unwarranted invasion of personal
privacy, (D) disclose the identity of a confidential source and,
in the case of a record compiled by a criminal law enforcement
authority in the course of a criminal investigation, or by an
agency conducting a lawful national security intelligence in-
vestigation, confidential information furnished only by the con-
fidential source, (E) disclose investigative techniques and proce-
dures, or (F) endanger the life or physical safety of law enforce-
ment personnel;]
(7) records or information compiled for law enforcement pur-
poses, but only to the extent that the production of such law en-
forcement records or information (A) could reasonably be expect-
ed to interfere with enforcement proceedings, (B) would deprive
a person of a right to a fair trial or an impartial adjudication,
(C) could reasonably be expected to constitute an unwarranted
invasion of personal privacy, (D) could reasonably be expected to
disclose the identity of a confidential source, including a State,
local, or foreign agency or authority or any private institution
which furnished information on a confidential basis, and, in
the case of a record or information compiled by criminal law
enforcement authority in the course of a criminal investigation
or by an agency conducting a lawful national security intelli-
gence investigation, information furnished by a confidential
source, (E) would disclose techniques and procedures for law en-
forcement investigations or prosecutions, or would disclose
guidelines for law enforcement investigations or prosecutions if
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such disclosure could reasonably be expected to risk circumven-
tion of the law, or (F) could reasonably be expected to endanger
the life or physical safety of any natural person;
(8) contained or related to examination, operating, or condi-
tion reports prepared by, on behalf of, or for the use of an
agency responsible for the regulation or supervision of finan-
cial institutions; or
(9) geological and geophysical information and data, includ-
ing maps, concerning wells.
(10) technical data that may not be exported lawfully outside
the United States without an approval, authorization, or a li-
cense under Federal export laws, unless regulation promulgated
under such laws authorize the export of such data without re-
striction to any person and any destination; or
(11) records or information maintained or originated by the
Secret Service in connection with its protective functions to the
extent that the production of such records or information could
reasonably be expected to adversely affect the Service's ability to
perform its protective functions.
Any reasonable segregable portion of a record shall be provided to
any person requesting such record after deletion of the portions
which are exempt under this subsection. In determining which por-
tions are reasonably segregable in the case of records containing ma-
terial covered by paragraphs (1) or (7) of this subsection, the agency
may consider whether the disclosure of particular information
would, in the context of other information available to the request-
er, cause the harm specified in such paragraph.
(c) Nothing in this section shall be deemed applicable to docu-
ments compiled in any lawful investigation of organized crime, des-
ignated by the Attorney General for the purposes of this subsection
and conducted by a criminal law enforcement authority for law en-
forcement purposes, if the requested document was first generated or
acquired by such law enforcement authority within five years of the
date of the request, except where the agency determines pursuant to
regulations promulgated by the Attorney General that there is an
overriding public interest in earlier disclosure or in longer exclusion
not to exceed three years. Notwithstanding any other provision of
law, no document described in the preceding sentence may be de-
stroyed or otherwise disposed of until the document is available for
disclosure in accordance with subsections (a) and (b) of this section
for a period of not less than ten years.
[(c)] (d) This section does not authorize withholding of informa-
tion or limit the availability of records to the public, except as spe-
cifically stated in this section. This section is not authority to with-
hold information from Congress.
[(d)] (e) On or before [March] December 1 of each calendar
year, each agency shall submit a report covering the preceding
[calendar] fiscal year to the Speaker of the House of Representa-
tives and President of the Senate for referral to the appropriate
committees of the Congress. The report shall include?
(1) the number of determinations made by such agency not
to comply with requests for records made to such agency under
subsection (a) and the reasons for each such determinations;
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(2) the number of appeals made by persons under subsection
(a)(6), the result of such appeals, and the reason for the action
upon each appeal that results in a denial of information;
(3) the names and titles or positions of each person responsi-
ble for the denial of records requested under this section, and
the number of instances of participation for each;
(4) the results of each proceeding conducted pursuant to sub-
section (a)(4)[(F)](/), including a report of the disciplinary
action taken against the officer or employee who was primarily
responsible for improperly withholding records or an explana-
tion of why disciplinary action was not taken;
(5) a copy of every rule made by such agency regarding this
section;
(6) a copy of the fee schedule and the total amount of fees
collected by the agency for making records available under this
section; and
(7) such other information as indicates efforts to administer
fully this section.
The Attorney General shall submit an annual report on or before
[March] December 1 of each calendar year which shall include for
the prior [calendar] fiscal year a listing of the number of cases
arising under this section, the exemption involved in each case, the
disposition of such case, and the cost, fees, and penalties assessed
under subsections (a)(4) [(E), (F), and (G)] (H), (I), and (J). Such
report shall also include a description of the efforts undertaken by
the Department of Justice to encourage agency compliance with
this section.
[(e) For purposes of this section, the term "agency" as defined in
section 551(1) of this title includes any executive department, mili-
tary department, Government corporation, Government controlled
corporation, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency.]
(f) For purposes of this section?
(1) "agency" means any executive department, military de-
partment, Government corporation, Government controlled cor-
poration, or other establishment in the executive branch of the
Government (including the Executive Office of the President), or
any independent regulatory agency;
(2) "submitter" means any person who has submitted to an
agency (other than an intelligence agency), or provided an
agency access to, trade secrets, or commercial, research, or fi-
nancial information (other than personal financial informa-
tion) in which the person has a commercial or proprietary inter-
est;
(3) "requester" means any person who makes or causes to be
made, or on whose behalf is made, a proper request for disclo-
sure of records under subsection (a);
(4) "United States person" means a citizen of the United
States or an alien lawfully admitted for permanent residence
(as defined in section 101(a)(20) of the Immigration and Nation-
ality Act, 8 U.S.C. 1101(a)(20), an unincorporated association a
substantial number of members of which are citizens of the
United States or aliens lawfully for permanent residence, or a
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\?../ \-..../
corporation which is incorporated in the United States, but does
not include a corporation or an association that is a foreign
power, as defined in section 101(a) of the Foreign Intelligence
Surveillance Act of 1978 (50 US.C. 1801(a));
(5) "working days" means every day excluding Saturdays,
Sundays, and Federal legal holidays; and
(6) "organized crime" means those structures and disciplined
associations of individuals or of groups of individuals who are
associated for the purpose of obtaining monetary or commercial
gains or profits, wholly or in part by illegal means, while gener-
ally seeking to protect and promote their activities through a
pattern of graft or corruption, and whose associations generally
exhibits the following characteristics:
(A) their illegal activities are conspiratorial,
(B) in at least part of their activities, they commit acts of
violence or other acts which are likely to intimidate,
(C) they conduct their activities in a methodical or sys-
tematic and in a secret fashion,
(D) they insulate their leadership from direct involvement
in illegal activities by their organizational structure,
(E) they attempt to gain influence in government, politics,
and commerce through corruption, graft, and illegitimate
means, and
(F) they engage in patently illegal enterprises such as de-
laying in drugs, gambling, loansharking, labor racketeer-
ing, or the investment of illegally obtained funds in legiti-
mate businesses.
(g) Within two hundred and seventy days of the date of the enact-
ment of this subsection, any agency which relies or intends to rely
on any statute which was enacted prior to the date of enactment of
this subsection, or during the thirty-day period after such date to
withhold information under subsection (b)(3) of this section, shall
cause to be published in the Federal Register a list of all such stat-
utes and a description of the scope of the information covered. The
Justice Department shall also publish a final compilation of all
such listings in the Federal Register upon the completion of the two-
hundred-and-seventy-day period described in the preceding sentence.
No agency may rely, after two hundred and seventy days after the
date of enactment of this subsection, on any such statute not listed
in denying a request. Nothing in this subsection shall affect existing
rights of any party other than an agency.
? 560. Technical Data Procedures
Each Federal agency maintaining technical data exempt under
subsection (b)(10) of section 552 of this title shall promulgate regula-
tions establishing registration (including certification) procedures
and criteria under which qualified United States individuals and
business concerns may obtain copies of such Government-owned
technical data for purposes of bidding on Government contracts. No
data under such procedures may be redisseminated or exported
except as provided by law.
0
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