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66328745
label
Freedom of Information Act (2)
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doc
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document
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66328745
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document
title
Freedom of Information Act (2)
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collections
Records of the Office of the Chief of Staff (Reagan Administration)
James Cicconi's Subject Files
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66328745
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1985-12-31
year
1985
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1981-01-01
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1981
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U.S. Department of Justice
Office of Legal Policy
Office of the
Washington, D. C. 20530
Deputy Assistant Attorney General
BY HAND
September 15, 1981
Francis S.M. Hodsoll, Esquire
Deputy Assistant to the President
The White House
Washington, D.C. 20500
Dear Frank:
Attached is a copy of a draft of possible amendments to
FOIA. OLP would appreciate your comments as soon as you have
had a chance to review the draft. To the extent it is feasible,
we would very much like to have your comments in writing by
the end of this week.
The attached draft does not represent the official or
final position of the Department of Justice, nor is OLP, by
this letter, soliciting the official views of the Defense
Department. Instead, we are merely seeking informal comments
from the various parties who have shown an active interest in
a legislative effort to amend FOIA.
I realize we are not affording you a great deal of time
to review the draft. Should you need more time to make adequate
comments then take the additional time.
Our proposed schedule is as follows: The Department is
scheduled to present its proposed amendments on October 15
before the Subcommittee on the Constitution of the Senate
Judiciary Committee. We hope to forward a bill to OMB for
clearance on September 25. Please feel free to have anyone
in your office contact either Tim Finn (633-4604) or me
(633-4606) with any questions you may have.
- 2 -
Needless to say, all of the attached material is highly
confidential and has only been reviewed by a few people. Thus,
please be careful to keep the material confidential.
Many thanks.
Sincerely,
Stephen J. Brogan
Attachment
DRAFT
September 9, 1981
THE FREEDOM OF INFORMATION ACT
5 U.S.C. 552
(Added words are underlined; deleted words are bracketed.)
$552. Public Information: agency rules, opinions, orders,
records, and proceedings
(a) Each agency shall make available to the public infor-
mation as follows:
(1) Each agency shall separately state and
currently publish in the Federal Register for the
guidance of the public--
(A) descriptions of its central and field
organization and the established places at which,
the employees ( and in the case of a uniformed
service, the members) from whom, and the methods
whereby, the public may obtain information, make
submittals or requests, or obtain decisions;
(B) statements of the general course and method
by which its functions are channeled and determined,
including the nature and requirements of all formal
and informal procedures available;
(C) rules of procedure, descriptions of forms
available or the places at which forms may be obtained,
and instructions as to the scope and contents of
all papers, reports, or examinations;
- 2 -
(D) substantive rules of general applicability
adopted as authorized by law, and statements of general
policy or interpretations of general applicability formu-
lated and adopted by the agency; and
(E) each amendment, revision or repeal of
the foregoing.
Except to the extent that a person has actual and timely
notice of the terms thereof, a person may not in any
manner be required to resort to, or be adversely affected
by, a matter required to be published in the Federal
Register and not so published. 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 reference therein with the
approval of the Director of the Federal Register.
(2) Each agency, in accordance with published rules,
shall make available for public inspection and copying--
(A) final opinions, including concurring and
dissenting opinions, as well as orders, made in
the adjudication of cases[;], if the final
opinions or orders may be relied on, used, or cited
as precedent by the agency;
(B) those statements of policy and interpreta-
tions which have been adopted by the agency and
are not published in the Federal Register; and
- 3 -
(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 an
[clearly] unwarranted 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 deletion 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 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 otherwise)
copies of each index or supplements thereto unless it
determines by 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, state-
ment of policy, interpretation, or staff manual or instruc-
tion 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--
- 4 -
(i) it has been indexed and either made
available or published as provided by this
paragraph; or
(ii) the party has actual and timely notice
of the terms thereof.
(3) (A) Except with respect to the records made available
under paragraphs (1) and (2) of this subsection, each agency,
upon any request by any United States person except a
fugitive from justice for records which [(A) ] (i) reasonably
describes such records and [(B)] (ii) is made in accordance
with published [rules] regulations stating the time, place,
fees (if any), and procedures to be followed, shall make the
records promptly available to [any person] the requester.
(B) A requester may not make or maintain a request for
information under this paragraph relating to the subject
matter of any ongoing judicial or adjudicatory administrative
proceeding (civil or criminal) to which the requester, or
any person upon whose behalf the requester acts in making
the request, is a party. An agency may promulgate regu-
lations to implement this subparagraph.
(C) An agency may require by regulation that each request
for records under this section include an affirmative statement
by the requester that the requester, or any person upon whose
behalf the requester is making the request, is:
- 5 -
(1) a United States person as defined by this section,
(2) not a fugitive from justice, and
(3) not barred by subsection (a) (3) (B) from making
a request.
A requester's refusal to make such a statement is adequate
grounds to deny the request.
(4) (A) In order to carry out the provisions of this section,
each agency shall promulgate regulations, pursuant to
notice and receipt of public comment, specifying a uniform
schedule of fees applicable to all constituent units
of such agency. The schedule shall provide for the payment
of all costs reasonably attributable to responding to
the request, including the costs of searching for,
reviewing, and duplicating requested records. [Such
fees shall be limited to reasonable standard charges
for document search and duplication and provide for recovery of
only the direct costs of such search and duplication.]
If the requested records contain commercially
valuable technological or reference information,
generated or acquired by the government at substantial
cost to the public, fees may be charged which
reflect the fair market value 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
information, its cost to the government, and any
- 6 -
public interest served by its disclosure. Documents
shall be furnished without charge or at a reduced charge
where the agency determines that waiver or reduction
of fee is in the public interest because furnishing
the information can be considered as primarily benefiting
the general public. Notwithstanding any other
provision of law, an agency may retain fees collected
pursuant to this paragraph.
(B) Each agency shall promulgate regulations, pursuant
to notice and receipt of public comment, specifying
procedures by which--
(i) the agency shall forward a notification
to the submitter within a reasonable time prior
to a final decision to release materials
under subsection (a) (6) of this section
that a request for disclosure of records
containing commercial or financial informa-
tion provided by the submitter has been made;
(ii) the submitter may submit to the agency
written objection to such disclosure specifying
all grounds upon which it is contended
that the information should not be disclosed;
and
(iii) the agency shall notify the submitter
of any final decision to release the materials.
- 7 -
(C) An agency is not required to notify a
submitter pursuant to subparagraph (B) if--
(i) the agency determines, prior to giving
such notice, that the request should be denied;
(ii) the disclosure is required by law (other
than this section); or
(iii) the information lawfully has been pub-
lished or otherwise made available to the public.
(D) The agency may not release records that are exempt
from disclosure under the provisions of subsection (b) (4)
if the submitter has objected to disclosure pursuant
to subparagraph (B) (ii) unless the failure to disclose
the records would injure an overriding public interest.
[(B)] (E) On complaint filed by a requester within 90
days from the date of final agency action or by a
submitter prior to the release of the requested infor-
mation, 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 improperly withheld
from [the complainant.] the requester; or
- 8 -
(ii) to enjoin the agency from any disclosure
of records which was objected to by a submitter
under subparagraph (B) (ii) or which would have
been objected to had notice been given as required
by subparagraph (B) (i).
(F) The agency that is the subject of the
complaint shall promptly, upon service of a complaint--
(i) seeking the production of records,
notify each submitter that the complaint was
filed; and
(ii) seeking the withholding of records, notify
each requester of the records that the complaint
was filed.
(G) In an action based on a complaint--
(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
such 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 such action.
(H) In a case in which a record is withheld under
exemption (b) (1), the court shall not enjoin the
- 9 -
agency from withholding such records unless the use
of such exemption is arbitrary or capricious.
In [such a case] all other cases, the court shall
determine the matter de novo. [and] [t] The court may
examine the contents of [such] requested 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. The court shall maintain under seal any
affidavit or record submitted in camera to the
court in support of the applicability of any exemption.
In addition, any order requiring the release of records
shall be stayed automatically by the district court
pending final judicial resolution.
[(C)] (I) Notwithstanding any other provision of
law, the defendant shall serve an answer or other-
wise plead to any complaint made under this subsection
within thirty days after service upon the defendant
of the pleading in which such complaint is made,
unless the court otherwise directs for good cause
shown.
[(D)] (J) 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
- 10 -
cases and shall be assigned for hearing and trial
or for argument at the earliest practicable date
and expedited in every way.
[(E)] (K) The court may assess against the United
States, or any complainant or intervenor, reasonable
attorney fees and other litigation costs reasonably
incurred in any case under this section [in which
the complainant], in favor of any party which
has substantially prevailed.
[(F)] (L) 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 withholding
raise questions whether the agency personnel acted
arbitrarily or capriciously with respect to the with-
holding, the Special Counsel shall promptly initiate a
proceeding to determine whether disciplinary action
is warranted 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
recommendations to the administrative authority of
the agency concerned and shall send copies of the
findings and recommendations to the officer or employee
- 11 -
or his representative. The administrative authority
shall take the corrective action that the Special
Counsel recommends.
[ (G) ] (M) In the event of noncompliance with the order of
the court, the district court may punish for contempt
the responsible employee, and in the case of a uniformed
service, the responsible member.
(5) Each agency having more than one member shall maintain
and make available for public inspection a record of the final
votes of each member in every agency proceeding.
(6) (A) Each agency, upon any request [for records]
made under paragraph (1), (2), or (3) of this subsection[,]
for records which are sufficiently identified and limited
that no more than eight working hours of agency search
and review time is required to respond to the request
and which do not contain commercial or financial
information provided by a submitter, shall--
(i) determine within ten working days [ (except-
ing 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
- 12 -
(ii) make a determination with respect to any
appeal within twenty working 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
subparagraph, 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 expected 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 appro-
priately examine a voluminous amount of separate
- 13 -
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 substantial
subject matter interest therein.]
(B) Except as provided in subparagraph (A), each
agency, upon any request for records made under para-
graph (1), (2) or (3) of this subsection, shall--
(i) within thirty working days after the
receipt of the request--
(a) determine whether to comply with
such request, in whole or in part, and
immediately notify the requester of such
determination and the reasons therefor, and of
the requester's right to appeal to the head of
the agency any adverse determination; or
(b) notify the requester of the estimated
time period required for such determination,
and the reasons therefor, such time period to
be established in accordance with agency regula-
tions promulgated hereunder but not to exceed
one year; and
(ii) within thirty working days after the receipt
of an appeal--
- 14 -
(a) make a determination of the appeal; or
(b) notify the requester of the estimated
time period required for such determination,
and the reasons therefor, such time period to be
established in accordance with agency regulations
promulgated hereunder but not to exceed six
months.
If on appeal the denial of the request for records is in
whole or in part upheld, the agency shall notify the
requester of the provisions for judicial review of that
determination under paragraph (4) of this subsection.
(C) Each agency shall promulgate regulations, pursuant
to notice and receipt of public comment, specifying the
time periods under subparagraph (B). Such regula-
tions shall provide for the shortest practicable
time periods and shall take into account all relevant
factors, including but not limited to--
(i) the volume of requests and appeals
received by the agency;
(ii) the resources available to the agency
for the processing of such requests and appeals;
(iii) the volume of records required to be
searched to locate all records responsive to the
request or appeal;
(iv) the volume of responsive records
required to be reviewed for release pursuant
to the request or appeal;
- 15 - -
(v) the need to search for or review records
maintained in field facilities or other
establishments that are separate from the agency
office processing the request or appeal;
(vi) the character of the records requested;
(vii) the need for consultation, which shall be
conducted with all practicable speed, with another
agency or among two or more components of the
agency having substantial subject matter interest
therein.
(viii) the need for notification of submitters
of information concerning the potential disclosure
of records containing commercial or financial infor-
mation, and for consideration of any objections
to disclosure made by such submitters.
(D) Each agency shall promulgate regulations by
which a requester who demonstrates a compelling need for
expedited access to records and whose request for
information will primarily benefit the general public
may, as a matter of the agency's sole administrative
discretion, be given processing priority over other
requesters.
(E) Each agency may prepare and furnish a standard-
ized written response to any person making a request
for records under this section, to be used if--
- 16 -
(i) the agency does not maintain requested
records; or
(ii) the records requested are exempt from
disclosure and disclosure of even the existence
of records would reveal (1) that a criminal
investigation or national security intelligence
investigation is in progress, or (2) that a
specified person has provided information to the
agency on a confidential basis.
However, such a response shall not be given to a request
for existing records unless the head of the agency
certifies in writing to the head of the agency's record
processing unit that disclosure of the existence of
records would reasonably be expected to interfere with the
investigation or result in the identification of a con-
fidential source.
[ (C) ] (F) Any [person making a request to any agency
for records under paragraph (1), (2), or (3) of
this subsection] requester shall be deemed to have
exhausted his administrative remedies with
respect to such request if the agency fails
to comply with the applicable time limit provisions
of this paragraph. If a requester files a
complaint under paragraph (4) (B), the administrative
remedies of a submitter of information contained
in the records which are the subject of the
- 17 -
request shall be deemed to have been exhausted.
If the Government can show exceptional circumstances
exist and that the agency is exercising due diligence
in responding to the request, the court may retain
jurisdiction and allow the agency additional time
to complete its review of the records. Upon any
determination by an agency to comply with a request
for records, the records shall be made promptly
available to [such person making such request.] the
requester, except that if the disclosure of records
is objected to by a submitter pursuant to paragraph
(4) (B) (ii), the agency shall not disclose the
records for fifteen working days after notice of the
final decision to release the requested information
has been forwarded to the submitter. 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.
(7) An agency is not required to produce any material
requested under this subsection which consists entirely
of newspaper clippings, magazine articles, court records,
or any similar items which are in the public record or otherwise
publicly available.
(8) An agency is not required to produce requested infor-
mation received from another agency, if it notifies the
- 18 -
requester that such information may be requested from the
originating agency, unless the originating agency no longer
possesses the information.
(b) This section does 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 defense or foreign policy and (B) are in
fact properly classified pursuant to such Executive
order;
(2) related solely to the internal personnel rules
and practices of an agency[;], including such materials as
(A) manuals and instructions to investigators, inspectors,
auditors, and negotiators, and (B) examination material
used solely to determine individual qualifications for
employment, promotion, and licensing;
(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) establishes particular criteria for withholding
or refers to particular types of matters to be withheld;
(4) trade secrets and commercial or financial information,
or other commercially valuable information, obtained from [a] any
person and privileged or confidential if release may impair the
legitimate private competitive, financial or business interests
- 19 -
of any person or if release may inhibit the government's ability
to obtain such information in the future;
(5) inter-agency or intra-agency memorandums or
letters, including factual analyses prepared directly in
aid of a decision-making process of an agency, which would
not be available by law to a party other than an agency
in litigation with the agency;
(6) [personnel and medical files and similar files the
disclosure] information concerning individuals the release of
which would constitute an [clearly] unwarranted invasion of
personal privacy;
(7) [investigatory records] information [compiled]
collected, maintained, or used for law enforcement purposes,
but only to the extent that the production of such records
would (A) interfere in any way with enforcement proceedings,
or the conduct of any investigation or prosecution thereof,
(B) deprive a person of a right to a fair trial or an
impartial adjudication, (C) constitute an unwarranted
invasion of personal privacy, (D) tend to disclose the
identity of a confidential source, including any foreign,
state or other public agency or authority, or any private
institution, which furnished information on a confidential
basis, and, in the case of [a record] information [compiled,]
collected, maintained, or used by a criminal law enforcement
authority in the course of a criminal investigation, or by
- 20 --
an agency conducting a lawful national security intelligence
investigation, [confidential] information furnished [only]
by a confidential source, (E) disclose [investigative]
techniques, [and] procedures, guidelines, or priorities for
law enforcement investigations or prosecutions, [or]
(F) endanger the life or physical safety of [law enforcement
personnel] any natural person, or (G) disclose information
relating to such investigations of terrorism, organized
crime or foreign counterintelligence as are specified by
the Attorney General by regulation or order;
(8) contained in or related to examination, operating,
or condition reports prepared by, on behalf of, or for the
use of an agency responsible for the regulation or supervision
of financial institutions; [or]
(9) geological and geophysical information and data,
including maps, concerning wells[.]
(10) records generated by any party to a legal action
with the United States in connection with the settlement of
that action; or
(11) technical data that may not be exported lawfully
outside the United States without an approval, authorization, or
a license from an agency, unless the requester has obtained
the appropriate approval, authorization, or license.
- 21 -
Any reasonably 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.
(c) This section does not authorize withholding of information
or limit the availability of records to the public, except as
specifically stated in this section. This section is not authority
to withhold information from Congress.
(d) On or before March 1 of each calendar year, each agency
shall submit a report covering the preceding fiscal [calendar]
year to the Speaker of the House of Representatives and President
of the Senate for referral to the appropriate committees of the
Congress. This 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 determination;
(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
responsible for the denial of records requested under this
section, and the number of instances of participation for
each;
- 22 -
(4) the results of each proceeding conducted pursuant
to subsection (a) (4)[(F)](L), including a report of the
disciplinary action taken against the officer or employee
who was primarily responsible for improperly withholding
records or an explanation 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 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) (K), (F) (L), and [ (G) ] (M).
Such report shall also include a description of the efforts
undertaken by the Department of Justice to encourage agency
compliance with this section[;].
- 23 -
(e) For purposes of this section [, the term]:
(1) "agency" as defined in section 551 (1) of this
title includes any executive department, military
department, independent regulatory agency, 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]
but excludes the President, the immediate Office
of the President, and any member of the cabinet
(or subordinate official acting on such cabinet
member's behalf) when advising the President;
(2) "submitter" means any person who voluntarily submits,
or is required by law to submit, trade secrets, commercial
or financial information, or other commercially valuable
information to an agency;
(3) "requester" means any person who makes or causes to be
made, or on whose behalf is made, a proper request for disclosure
of records under subsection (a);
(4) "United States person" means a citizen of the United
States or alien lawfully admitted for permanent residence (as
defined in section 101 (a) (20) of the Immigration and Nationality
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 admitted for permanent residence, or a
- 24 -
corporation which is incorporated in the United States, but does
not include a corporation or an association which is a foreign
power, as defined in section 101 (a) of the Foreign Intelligence
Surveillance Act of 1978 (50 U.S.C. 1801 (a) )
(5) "working days" means every day excluding Saturdays,
Sundays, and holidays;
(6) "record" means the documentation of information in any
form, including computer tapes and discs, if the documentation
is:
(A) required to be maintained by statute or regu-
lation; or
(B) integrally related to or reflective of an agency
or government function;
and is under the physical custody and complete control of
the agency and was not created for the personal convenience
of any government employee or official.
********
- 25 -
97th Congress
1st Session
A BILL
To amend the National Security Act of 1947
Be it enacted by the Senate and House of Representatives
of the United States in Congress assembled,
That title I of the National Security Act of 1947 (50 U.S.C.
401 et seq.) is amended by adding the following new section:
"Sec. 104. The Central Intelligence Agency, the National Security
Agency and the Defense Intelligence Agency are exempt from
the provisions of any law, except properly applicable rules of
administrative and judicial discovery, which require the
publication or disclosure, or search or review in connection
therewith, of records they create or maintain, except that
a request for information by United States citizens or by
aliens lawfully admitted for permanent residence in the United
States for information concerning themselves made pursuant
to any provision of law shall be processed in accordance with
such provision. The provisions of this section shall not be
superseded except by a provision of law which is enacted after
the date of enactment of this section and which specifically
repeals or modifies the provisions of this section."
SEC. 2. The amendment made by this Act shall apply with
respect to any requests for records, whether or not such request
was made prior to the effective date of this Act, and shall apply
to all cases and proceedings pending before a court of the
United States on the effective date of the Act.
U.S. Department of Justice
within
Office of Legal Policy
File FCIA
Washington, D.C. 20530
July 21, 1981
Mr. Frank Hodsoll
Deputy Assistant to
the President
The White House
Washington, D.C. 20500
Dear Frank:
Attached is a copy of Jonathan Rose's testimony which he
gave last week before the relevant House and Senate subcommittees.
I apologize for not having sent you a copy earlier, but even at
this point I wanted to make sure you are abreast of where we
stand on FOIA.
You will see that the testimony sets forth the problem
areas. It does not comment on specific proposals to amend the
Act. We hope to have a draft set of proposed amendments ready
for your review at the beginning of next month.
If you wish to discuss any of the foregoing, please call.
Sincerely,
Stephen J. Brogan
Deputy Assistant Attorney General
Department of Justice
STATEMENT
OF
JONATHAN C. ROSE
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGAL POLICY
BEFORE
THE
SUBCOMMITTEE ON THE CONSTITUTION
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
AND
SUBCOMMITTEE ON GOVERNMENT INFORMATION
AND INDIVIDUAL RIGHTS
COMMITTEE ON GOVERNMENT OPERATIONS
HOUSE OF REPRESENTATIVES
CONCERNING
FREEDOM OF INFORMATION ACT
JULY 15, 1981
Mr. Chairman and Members of the Committee:
I am pleased to appear before you today to explain the views
of the Department of Justice concerning the need for amendment
of the Freedom of Information Act (FOIA).
I.
The Administration and the Department of Justice believe that
there are significant problems with implementation of some of
the provisions of the current FOIA which urgently require legis-
lative solutions. We strongly support the basic purpose and
philosophy of the Act: to inform the public as fully as possible
of the conduct of its government in order to protect the integrity
and effectiveness of the government itself. Unfortunately, the
Act has, in practice, often proven ineffective as a means of pro-
viding the public with information in a timely fashion. Only a
small fraction of FOIA requests are from the press or other
researchers who actually communicate information to the public
(only about 7% of the 30,000 annual requests received by the
Department of Justice are from such requesters). The Act has,
however, been widely used by various private interests in
ways which tend to harm rather than promote the public's interests
in good and open government.
- 2 -
There has been a consensus for some time now that the Act
needs revision so as to limit its adverse effects and eliminate,
where possible, its abuse. Possible ways of revising the Act have
been under study by the Department of Justice for several years.
Judge Charles B. Renfrew, who served as Deputy Attorney General
in the prior administration and is here today, can comment more
specifically on the review of the Act and the proposals developed
by the Justice Department during the Carter Administration.
Pursuant to a request by Attorney General Smith, the
Department of Justice recently solicited comments from all govern-
ment agencies on the operation of FOIA and requested suggestions
on how the Act could be improved. The Department is in the process
of analyzing the comments as they are received and drafting
possible amendments based on these comments, on past and current
legislative initiatives, and on various proposals developed by the
Department of Justice during the previous administration. The
Department is seeking to develop approaches which will ameliorate
the problems which have been identified, while, at the same time,
preserving FOIA as an effective tool for keeping the electorate
as informed as possible without unduly inferfering with effective
government.
The Department of Justice does not, at this time, have any
specific amendments to propose, nor does it wish to comment speci-
fically on any of the FOIA amendments which are currently before
Congress and this committee. The Department intends to present to
Congress a comprehensive package of Administration amendments to
- 3 -
the Act within the next two months. We would at this time,
however, like to share with this committee our perception of
the most important problems presented by the current provisions
of FOIA, which should be addressed by legislation.
I should say before I continue further that the Administration
comes to this task of reviewing the operation of the Act fully
conscious of the many hours devoted to this subject by this sub-
committee, its predecessors, the other House of Congress and many
prior administrations. We have come a long way from the period
prior to those efforts when the public seemed to have the right
to know nothing about the operations of its government. We are
also fully aware of the maxim that the best is often the enemy of
the good in government. Thus, the Reagan Administration is not
seeking perfection in the operations of the FOIA. However, it
does believe that the success of the Act to date must be tested
against two standards: (1) the standard of an open government; and
(2) the standard of an effective government. In our view the
imposition of these two standards of judgment does not always lead
to the same conclusions.
II.
The Department of Justice believes that there are several
pressing problems arising from the current structure and imple-
mentation of the Act.
- 4 -
First, the current application of the Act to criminal law
enforcement agencies has significantly impaired the investigatory
abilities of those agencies. It has also imposed very substantial
administrative burdens and does not appear, on balance, to be
serving the public's interests in its current impact on those
agencies.
Second, the current application of the Act to national
security intelligence agencies, such as the Central Intelligence
Agency (CIA) and the National Security Agency (NSA), appears to
have substantially impaired the ability of those agencies to gather
confidential information. Compliance with the Act appears, in addi-
tion, to have diverted valuable intelligence-gathering resources,
while providing little countervailing benefit to the public.
Third, the use of the Act by commercial interests to obtain
information submitted by other businesses to the government appears
to have impaired the government's ability to collect needed information
from businesses and may result in the unfair disclosure of confidential
business information submitted to the government.
Fourth, the misuse of FOIA as a discovery device by private
litigants results in the circumvention of judicial and administra-
tive rules which should control such discovery. In addition, such
misuse of FOIA creates substantial and unjustified administrative
burdens on the government, and can result in the delay and disrup-
tion of an agency's primary functions.
Fifth, the government's present inability under the Act to
collect the full costs of FOIA requests, even from requesters
- 5 -
using FOIA for private commercial or financial purposes, results
in excessive and sometimes frivolous use of FOIA for private
purposes at substantial cost to the taxpayer.
While this is by no means a comprehensive list of the
problems inherent in the administration of FOIA which deserve
legislative consideration, these appear from our own study to be
the areas of greatest government-wide concern.
A.
The Effect of FOIA on Criminal
Law Enforcement Agencies.
The Department of Justice has extensive experience with the
problems caused by the application of FOIA to criminal law enforce-
ment agencies. In 1980, the Department received about 30,000 FOIA
requests. The majority of these were directed specifically to the
Department's criminal investigatory agencies, the Federal Bureau of
Investigation (FBI) (which received over 15,000 requests) and the
Drug Enforcement Administration (DEA) (which received about 2,000
requests). Significantly, a large number of these requests were
from convicted felons or from individuals whom the FBI and DEA
believe to be connected with criminal activities. Such requesters
have made extensive use of FOIA to obtain investigatory records
about themselves or to seek information concerning on-going inves-
tigations, government informants, or government law enforcement
techniques.
- 6 -
To comply with requests for investigatory information, inves-
tigatory files must be reviewed line-by-line to segregate exempt
from non-exempt information. The principle exemption under FOIA
which may be applied to law enforcement records is 5 U.S.C.
§ 552 (b) (7), which authorizes the withholding of law enforcement
investigatory records only to the extent the government can
demonstrate that one or more of six specific categories of harm
will be caused by the release. While this exemption is intended
to protect the government's important law enforcement interests,
it is, in practice, inadequate, because the exemption is too
narrowly written and the government is obliged to segregate non-
exempt information from information which falls within the terms
of the specific categories of harm stated in exemption (b) (7).
The present requirements result in a very complicated and
time-consuming review of law enforcement records. Moreover, it
is often very difficult for an analyst to determine whether the
release of even segregable information may have an adverse effect
on important law enforcement interests. The release of what
appears on the surface to be innocuous information may prove
damaging when viewed within a broader context of information
known by criminal requesters. Such requesters may be able to piece
together segregated bits of information in ways unknown to the FBI
employee responding to the request and use the information to iden-
tify the existence of a government investigation or an informant.
- 7 -
It has been our experience that some criminals, especially those
involved in organized crime, have both the incentive and the
resources to use FOIA to obtain bits of information which can be
pieced together. Some have shown great persistence in using the
Act. The FBI, for instance, received 137 requests from one
imprisoned felon who is reported to be an organized crime "hit
man." This relentless user of the Act, and there are many others
(some of whom have made more requests), is presently pressing
a 35 count suit against the FBI under FOIA.
We have no way of knowing the exact extent to which criminals
have been successful in using FOIA to uncover on-going investi-
gations or government informants. But whether or not damaging
information has been inadvertently released through FOIA, or
informants have been uncovered through FOIA requests, it is very
clear from the experiences of the FBI and DEA that gathering
law enforcement information has become more difficult as a result
of the Act. The perception is widespread that federal investigators
cannot fully guarantee the confidentiality of information because
of FOIA. This perception exists not only among individual "street"
informants, who have become increasingly aware of the existence
of FOIA, but also among institutional information sources,
including local law enforcement agencies.
Even where confidential information or a confidential source
can clearly be protected under existing law, this perception is
difficult to dispel. It is no easy task for an FBI or DEA agent
- 8 -
to explain to an informant exactly what information must be dis-
closed and what information may be withheld, or to adequately
assure a confidential source that sensitive information will be
properly segregated from the non-exempt information. As a result,
it has quite clearly become much more difficult for our federal law
enforcement agencies to gather needed information from sources who
demand confidentiality. The FBI and the DEA have reported a large
number of incidents in which potential informants have cited FOIA
as their reason for declining to cooperate with the government.
It should be noted, finally, that the administration of
FOIA entails a significant commitment of the limited resources of
our criminal law investigatory agencies. The processing of inves-
tigatory files is extremely time-consuming, since they must be
reviewed line-by-line to segregate exempt from non-exempt infor-
mation. In 1980, the FBI alone received over 15,000 requests,
which were processed by a unit of approximately 300 full-time
employees. The direct cost of processing these requests was about
$11.5 million. The DEA expended approximately $2 million in 1980
in processing FOIA requests.
In a time of tight budgetary constraints, the value of such
expenditures can certainly be questioned, particularly when viewed
in light of the substantial use of the Act which is made by prison-
ers or individuals connected with criminal activity. The DEA has
estimated that 40 percent of its requests are from prisoners and
- 9 -
another 20 percent are from individuals who are not in prison but
are known to the DEA to be connected with criminal drug activities.
Eleven percent of the FBI's total requests are from prisoners (over
1,600 last year). These requests consume far more than 11 percent
of the FBI's processing expenses, because they are not generally
requests which result in "no records" responses, but, rather,
require substantial file review. By contrast, only about 5 percent
of all the requests to the FBI and DEA are from the media,
scholars, or public interest research groups.
B. The Impact of FOIA on
National Security Agencies.
FOIA also presents very serious problems to those govern-
ment agencies concerned with national security intelligence-
gathering functions. Confidentiality is obviously of paramount
importance to intelligence information sources, whether they
are individual sources or foreign governments. But the agency
processing and judicial review requirements of FOIA, along with
the mandate to release "reasonably segregable" material which is
not properly classified, make it impossible for a national secur-
ity intelligence agency to offer the clear and certain guarantees
of confidentiality which national security intelligence often
requires. Our intelligence agencies can demonstrate that there
is a belief among some important foreign sources that FOIA makes
it impossible for our government to adequately protect sensitive
- 10 -
information from disclosure. That belief significantly impedes
our intelligence activities abroad.
Moreover, the FOIA imposes upon the intelligence agencies
administrative burdens which interfere substantially with their
ability to carry out their primary functions. Because of the
nature of their missions and the indisputable need for secrecy
and security, intelligence agencies, particularly CIA and NSA, are
extremely decentralized organizations. Information is provided
to personnel on a "need to know" basis only. As a result, the
processing of an FOIA request by CIA or NSA intrudes more directly
on the performance of the their primary operations and functions
than in other government agencies. Compliance with FOIA requests
within national security agencies is not a routine administrative
task which can be delegated to individuals designated expressly to
handle FOIA requests. Within an agency such as the CIA, no single
individual or even any single unit has access to a comprehensive
crosssection of files which would permit a complete and timely
response to broad FOIA requests. Line personnel are forced to
respond to FOIA requests while continuing to attempt to fulfill
their regular duties. Our intelligence agencies have no excess
- 11 -
of trained intelligence agents, and their time is of great
value to the United States. The line-by-line review of
documents requested under FOIA seems a very poor use of their
time, particularly in light of the fact that, even though
a great deal of material must be reviewed, very little can ulti-
mately be released by intelligence agencies.
In addition, the problem of determining by review what infor-
mation may be deemed harmless and reasonably segregable from pro-
perly classified material presents analytic difficulties similar
to those experienced in processing criminal law enforcement
files. Information which appears innocuous on its face, in
fact may be damaging when viewed in context with information
known by a foreign intelligence agency. It is often difficult
for even the most experienced analyst to know with certainty
what use might be made of a piece of information, and this problem
is greater still for a reviewing court.
There is, of course, nothing in the Act to prevent its use
by those whose interests are directly contrary to the national
security. Mr. Phillip Agee, for example, has made extensive
use of FOIA in his personal crusade to undermine the CIA abroad.
The response to one request from Mr. Agee for all CIA records con-
taining mention of him cost the American taxpayer over $300,000.
That is a government expense which many citizens and members of
Congress might justifiably question, particularly in a time of
severe budgetary constraints. However, under existing law, CIA
had no choice but to expend the money.
- 12 -
We recognize that, in the view of some, FOIA may appear to
provide some protection against any improper use of intelligence
agencies. We believe, however, that Congressional oversight of
the intelligence agencies, established in its present form after
the 1974 amendments to the Act, is more than adequate to protect
against any possibility of future intelligence agency misconduct.
Such oversight has proven a far more effective protection of the
public's interests in this area than FOIA could conceivably be,
and it has not resulted in comparable administrative burdens,
questionable expenditures of resources, or the creation of a
serious perception problem among sources of needed intelligence.
C. Use of FOIA as a Litigation
Discovery Device.
There are, of course, no limits under existing law on who may
utilize FOIA or on the circumstances or purposes for which it may
be used. As a result, it is common practice for parties in liti-
gation with the United States to request information under the
Act, even where they have compulsory process available under the
rules of civil or criminal procedure or under agency regulations.
It is likewise common for parties involved in private litigation
to use FOIA rather than available discovery procedures to obtain
government information concerning their case. Such requests
are often nothing more than attempts to circumvent applicable
discovery rules or, in some cases, to harass the government.
Discovery rules attempt to draw a careful and fair balance
between the needs of the requester and the burdens imposed on the
discovery target. They generally require a showing that the
- 13 -
requested matter is relevant and material to the proceeding; that
there is a need on the part of the requester, and that the burden
on the respondent is not excessive. A requester under FOIA is not
required to make any such showing. Thus a requester/litigant can,
through FOIA, freely pursue, at taxpayer expense, "fishing expedi-
tions" and impose excessively burdensome document production
requirements which are, for good reason, impermissible under the
applicable discovery rules.
Discovery rules also contain response time schedules which
are far more tolerant than those in FOIA and which can be adjusted
by a court to respond to the needs of a particular situation. By
contrast, FOIA's short, mandatory and inflexible time limits force
agencies to give FOIA requests the highest priority. Responding
to requests can often interfere substantially with an agency's
ability to pursue an enforcement action. It is often necessary
for the government attorneys responsible for a government litiga-
tion to themselves take time from their case preparation to review
documents in response to a FOIA request from an opposing litigant.
There is considerable evidence that many in the private bar are
aware of the potential for disruption and delay of litigation
afforded by FOIA and deliberately use the Act to harass a
prosecuting agency.
The use of FOIA as a litigation discovery device has become
an increasingly common problem for a number of departments and
agencies, including the Department of Health and Human Services,
- 14 -
the Environmental Protection Agency, the Equal Employment Oppor-
tunity Commission, the Securities and Exchange Commission and the
Antitrust Division of the Department of Justice. The Antitrust
Division, for example, estimates that more than half of the FOIA
requests it receives are made by actual or potential litigants in
antitrust suits. These are often extremely burdensome requests,
seeking Division information covering whole industries.
We do not believe that Congress intended FOIA to be so used
as a means of disrupting law enforcement or avoiding the rules of
discovery in judicial or administrative proceedings, and we believe
Congressional action to prevent such misuse of the Act should be
seriously considered.
D. Disclosure of Confidential
Business Records Through FOIA.
Effective government requires a constant flow of reliable
business information from private enterprises. This flow will
clearly be impeded if the government cannot maintain the con-
fidentiality of valuable proprietary and competitively sensi-
tive information submitted to it. It is clear that Congress
intended to fully protect the legitimate interests of business
submitters through the (b) (4) exemption, which permits agencies
to withhold "trade secrets and commercial or financial informa-
tion" which is obtained from an outside party and is "privileged
and confidential." However, this exemption has been given a nar-
rowing construction by the courts, which have required a showing
that the release would either (1) result in a substantial risk of
- 15 -
competitive injury to the submitter or (2) impair the agency's
ability to collect similar information in the future. Unfortun-
ately, this test has not proven as adequate as it might first
appear. This is principally so because agencies frequently lack
an adequate awareness of all factors in a particular business
setting necessary to predict accurately the competitive harm
caused by disclosure.
The extent to which FOIA has in fact resulted in financially
damaging releases of information submitted by a third party is
unclear. However, it is apparent that commercial interests have
made great use of FOIA in many agencies to obtain information
submitted by competitors. For instance, over 85% of the FOIA
requests to the Food and Drug Administration, which received
over 33,000 FOIA requests last year, are from the regulated
industry, their attorneys, or FOIA request firms who are believed
to be operating on behalf of the regulated industry. The requests
most often are for information submitted to the FDA by competitors.
While it is unclear what damage may have been done to busi-
ness submitters by FOIA releases, the persistent use of FOIA by
businesses to obtain information submitted by competitors itself
suggests strongly that FOIA releases have some competitive value
and are not altogether harmless to the submitter. But, whether
or not this is so, there is at least a perception in parts of the
business community that commercially valuable information sub-
mitted to the government is vulnerable to FOIA requests. As a
- 16 -
result, there is evidence that businessmen are more reluctant to
make such information available to the government, and the quality
of information received from the business community has deter-
iorated. This is clearly an unforseen and undesirable result
of the Act's operation.
This increasing reluctance of the business community to trust
the government with confidential information is very evident from
the experience of the Antitrust Division of the Justice Department.
The Division relies heavily upon voluntary submissions of business
information. It is therefore vital that nothing in FOIA jeopar-
dize its ability to withhold genuinely confidential business infor-
mation and to offer promises of confidentiality to submitters of
sensitive business information. Because of the fears within the
business community regarding the potential disclosure of submitted
information, investigation targets and third parties have become
increasingly more reluctant to comply with voluntary production
requests. This has forced the Division to rely more heavily upon
the use of compulsory process which is not only more time consum-
ing and expensive, but also results in less forthright cooperation
from the submitting party. In fiscal year 1976, the Division
issued only 66 Civil Investigative Demands (CID's). In fiscal
1978 this figure rose to 359 and in fiscal 1980 to 910. Knowledge-
able persons within the Division attribute this rise in the need
to invoke CID's to the uncertain protection afforded submitters of
confidential business information under FOIA and the complete exemp-
tion from FOIA allowed for information submitted pursuant to a CID.
- 17 -
Separate from the issue of whether the substantive scope of
(b) (4) should be expanded or clarified, is the issue of whether
a submitter of business information should be afforded some pro-
cedural protection by the Act's own terms. The current terms of
the FOIA do not provide the business submitter with an adequate
procedural means to assert and protect his interests either before
the agency or in court. There is currently no statutory require-
ment that agencies give notice to submitters of information before
releasing information they have provided. Nor does FOIA give
submitters the right to prevent the discretionary release of busi-
ness information which is exempted from mandatory disclosure under
(b) (4). The Supreme Court's decision in Chrysler V. Brown, 441
U.S. 281 (1979), allows submitters only a right to challenge a
discretionary release as an abuse of discretion if the release is
prohibited by the Trade Secrets Act, 18 U.S.C. § 1905. However,
the scope of the protection afforded by the Trade Secrets Act is
quite unclear. Moreover, the rights afforded by the Chrysler decision
are of little use unless a submitter is notified in advance of an
agency's intention to release its documents.
It would seem to be in the clear interests of the government
as well as of the business submitters that such submitters be
afforded greater assurance than they have now that their confiden-
tial information will not be disclosed through FOIA.
E. Financial Cost of Compliance
With FOIA and Fee Collections.
Congress clearly did not contemplate that FOIA implementation
would be as expensive as it has become. Little attention was paid
- 18 -
to cost when the Act was passed in 1966. During the deliberations
over 1974 amendments, Congress estimated annual government-wide
costs of these amendments between $40,000 and $100,000. S. Rep.
No. 93-854, 93d Cong. 2d Sess. (1974); H.R. Rep. No. 93-876, 93d Cong.
2d Sess. (1974).
A Justice Department survey estimated the direct cost of FOIA
compliance in 1979 at $47.8 million. A more recent survey by the
Department's Office of Information Law and Policy indicated that
1980 direct costs to the government were approximately $57 million.
Both of these surveys were limited to direct costs, and did not
attempt to quantify the indirect lost "opportunity costs" or the
costs of the disruption of agency business caused by FOIA. We
believe that the direct cost figures, though substantial, greatly
understate the real costs of FOIA to the taxpayer.
Separate from the question of total cost is the question of
who is paying for FOIA. At present, it appears that agencies
collect, through fees charged to the requester, only about 4 per-
cent of the direct cost of responding to FOIA requests. The Act
presently allows agencies only to charge for time spent searching
for records and for duplication expenses, and it requires waiver
or reduction of fees for requests which can be considered in the
public interest. By far the most significant agency cost, how-
ever, is the time which must be devoted by agency personnel to
reviewing the requested material to determine whether an exemption
should be asserted and to segregate exempt from non-exempt infor-
mation. Under the present law, this expense is non-chargeable.
- 19 -
It should be noted, in addition, that the Act contains no pro-
vision to allow an agency to charge the market value for infor-
mation which may have a substantial commercial value, such as
technological information or reference materials, which may have
been compiled by the government at substantial expense to the
taxpayer.
It is important to re-examine the fee collection authority
under FOIA in light of the considerable cost of FOIA compliance
and the extensive use which has been made of the Act by private,
commercial interests. There is no reason why those who are using
the Act to serve private commercial and financial interests should
not be required to pay the full costs of FOIA processing and, when
appropriate, the fair market price for commercially valuable infor-
mation. The failure to do so not only results in the unnecessary
expenditure of considerable taxpayer money to serve the narrow
interests of private requesters, but also tends to encourage frivo-
lous or unnecessarily broad requests. So long as FOIA requests
are virtually free, we can expect sophisticated commercial users
to make extensive and unnecessary use of the system.
The scope of the publication and indexing requirements im-
posed by subsection (a) (2) of the Act must also be reexamined
in light of the substantial costs of compliance incurred by some
agencies and, in some cases, the minimal resulting public benefits.
Subsection (a) (2) of the Act requires agencies to index and make
available to the public all final decisions and orders of an
agency. Some agencies issue tens of thousands of such decisions
- 20 -
yearly which are of virtually no interest to the public. They
must, nevertheless be indexed and made available to the public
under FOIA. The National Labor Relations Board, for instance,
spent over $110,000 for the preparation of indexes of final deci-
sions last year. The NLRB reports that there has been only one
request in eight years for a document located through one of its
indexes which contains entries for over 50,000 representation
decisions by the Board's Regional Directors. Ninety percent of
another NLRB file containing more than 125,000 documents, which
is indexed and made available under FOIA, is comprised of Regional
Director complaint dismissal letters. In eight years there has
not been a single public request for a copy of any of these
letters. We doubt Congress intended to impose such meaningless
bureaucratic chores, but such results are required by the present
terms of FOIA.
III.
The problems outlined above constitute the primary areas of
concern to the Administration. The Act presents, of course, a
number of other problems which I have not discussed today and
which can be usefully addressed by legislation. We expect that
our legislative proposals will address some of these, including
the difficulties of complying with the current time limits in
the Act. Some Agencies -- and some divisions within the Justice
Department -- have simply been overwhelmed by the volume and the
difficulty of the requests they have received and, consequently,
- 21 -
are experiencing processing backlogs of over a year. This,
obviously, renders the Act virtually useless for requesters who need
a timely response, such as the current events media on whom the
public relies primarily for its information. We are interested in
exploring ways in which this problem can be ameliorated and the Act
made a more useful and timely public information device.
In this regard, I would note also that Congress may wish to
reconsider its own complete exclusion from the Act. Nothing in
our review of the Act to date has convinced us of the wisdom or
necessity for this complete and total Congressional exclusion.
Certainly no body of the federal government has more to do with
how key decisions affecting our citizens are made. Why then,
should the files of Congress be totally exempt? Since the
judiciary operates on a public record, there is no comparable
need to subject the judiciary to the Act. However, we would urge
that the Congress reexamine the rationale which underlies its own
ixemption.
We wish to stress again that the Administration and the
Justice Department are fully committed to the purpose and philo-
sophy of this Act. An informed electorate is the best guarantee
of a good and effective government. But the end which we seek
through this Act is, it must be emphasized, good government in
the public's interest and not the disruption of essential govern-
ment functions or the waste of government resources to serve only
private interests. It is clear from our experience that this is
an Act which can and has been easily exploited by those whose
goals are only to interfere with the government's efforts to
- 22 -
protect public interests, such as law enforcement and national
security, which are vital to this country. We do not believe that
this was the intent of Congress in enacting FOIA. We believe that,
with the benefit of the experience which we have now acquired in
administering this statute, such abuses can be prevented while the
Act is, at the same time, made a more effective and useful vehicle
for public communication. We look forward to working with this
Committee in this common effort.
DOJ-1981-07
THE WHITE HOUSE
WASHINGTON
June 20, 1981
NOTE FOR:
JAB
FROM:
FSMH
A.
SUBJECT:
Freedom of Information/Privacy Act Reforms --
Possible Relation to Crime Package
In follow up to your request to investigate Allan Ryskind's
letter to you on the Levi Guidelines and the Freedom of
Information and Privacy Acts, I met last week with Jon
Rose, Tim Finn and Steve Brogan of Justice. Justice is
exploring the possibility of FOIA/Privacy Act reform in
the following areas:
-- Exemption for CIA/NSA (Casey has bill on Hill)
-- Exemption of investigatory files for a period of
years plus housekeeping improvements
-- Exemption for confidential business records submitted
to government
-- Prevention of using FOIA as a discovery device
Justice believes greater effort at getting evidence of FOIA/
Privacy Act abuse will be needed. Senate and House planning
hearings in mid-July; Hatch is for reform; English (on
House side) will work with you but not for blanket exemption.
Mid-July hearings could be record setting (evidence of abuse)
with introduction of legislation in Fall. If we decide to
move on this issue, we will need to prepare the ground carefully
with the media who are very sensitive on this issue.
Since FOIA/Privacy Act provisions impede criminal investi-
gations, we may wish to consider combining an effort in this
area with the crime package Ed Meese has discussed with the
AG for a Fall initiative. I gather the crime package could
include some or all of the following elements:
-- Federal Criminal Code
-- Death Penalty
-- Reform of the exclusionary rule regarding searches
and seizures
- 2 -
-- Violent crime demonstration program (Violent Crime
Commission reports 8/15)
-- New prison construction
-- FBI/DEA merger
I shall be talking with Rudi Guliani this week about the Levi Guide-
lines.
RECOMMENDATION
That you discuss this with Ed Meese and schedule a special meeting
with Justice to develop a strategy on FOIA/Privacy Act. Mike Uhl-
man believes we should move quickly in the Fall. The Levi Guidelines
are quite separate; I shall provide you with a separate memo on
them.
NOTE: On 5/5/81, the AG released a letter indicating that
Justice would no longer review FOIA/Privacy Act determina-
tions by other agencies.
PAYMENT OF
U.S. Department of Justice
Office of Legal Policy
Washington, D.C. 20530
June 18, 1981
Mr. Frank Hodsoll
Deputy Assistant to
the President
The White House
Washington, D.C. 20500
Dear Frank:
Jon Rose, Tim Finn and I enjoyed meeting with you and Joan
Abrahamson regarding strategies for revising FOIA. It was cer-
tainly a profitable and important starting point from our per-
spective. We look forward to working with you and others at
the White House on this matter, and no doubt other matters as
well in the future.
Sincerely,
Brop
Stephen J. Brogan
Deputy Assistant Attorney General