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the causes and handling of customer complaints received by the airlines industry. This important study, made at substantial public expense, demonstrated that citizen discontent with the airlines industry has hit a critical level, and it cited specific airlines for their apparent complete lack of interest in the problems of inconvenienced air travellers. Nevertheless, the CAB has suppressed this report from the public, which has every right to know which airlines are concerned with resolving legitimate complaints and which ones are not. The report was denied on the specious reasoning that it "mentions names of airlines," gives numbers of complaints received by some of the airlines and was compiled from the records of the airlines regulated by the CAB. In addition, both because “secrecy was necessary to protect complainants from harrassment and retaliation by the airlines, and because the CAB feared that the findings might be competitively detrimental to the deficient airlines, the CAB officials concludedapparently without the benefit of legal advice from the CAB legal staffthat release of the survey to us was precluded by a statutory section 36 prohibiting the Board from divulging certain classes of confidential finan. cial and commercial data obtained in CAB audits of the airlines' books. This argument, however, utterly ignores the fact that much of the information requested had already been released to several of the airlines as well as to their trade association. The legitimacy of the CAB's rationale is further shattered by the fact that detailed information on the number and types of complaints is readily exchanged among the airlines themselves, a practice which destroys the shibboleth of pretended confidentiality.
The remedies that exist to compel enforcement of this Act have been largely unsuccessful. The Freedom of Information Act is not being used by the public to secure relief in the courts. Since the effective date of the FOIA on July 4, 1967, court records reveal that forty cases were brought under the FOIA through March, 1969. Thirty-seven of these cases involved actions by corporations or private parties seeking information relating to personal claims or benefits. In only three cases did the suits involve a clear challenge by or for the right of the public at large to information. Even more significant is the fact that no records have come to my attention of any court actions initiated by the news media, who should be the prime public guardians and litigators under the FOIA. Patently, the effect of the FOIA cannot be measured solely by court cases. But just as patently, a
35 N.Y. Times, Nov. 26, 1969, at 59, col. 4. This CAB denial has become the basis of an FOIA suit brought in the United States District Court in the District of Columbia by the law student and attorney who sought the withheld information. Id. at col. 5,
36 18 U.S.C. 1995 (1948).
mere forty cases in the first twenty months of the Act's history are shocking. There need to be institutions, be they universities, law seviews, public interest law firms, citizen groups, newspapers, magazines, or the electronic media, who systematically follow through to the courts on denials of agency information. The individual citizen simply lacks the resources.
1. The FOIA.will remain putty in the hands of government personnel unless its provisions are given authoritative and concrete interpretation by the courts. Such litigation then feeds back a deterrence that radiates throughout an agency. Many general counsels of agencies are straining the Act to its utmost and beyond because of the improbability of judicial review. Until recently the Federal Highway Administration (FHWA) prevented disclosure of manufacturers' violations of automotive safety standards to the public. 37 Yet these violations have been relayed promptly by FHWA to the manufacturer involved. The auto companies have had the right to receive the information but not the motorist who may become a casualty due to his ignorance of the safety violations in his car or tires.
2. Congress is not exercising adequate oversight over the extent of agency compliance with the FOIA. There have been no Congressional hearings since the Act was passed, although there is abundant material for worthwhile hearings. * Two reports, one from the House and one from the Senate, have been published compiling the agency regulations resulting from the FOIA and containing responses to some inquiries from the respective committees.39 Comprehensive Congressional hearings are a prereq. uisite to effective enforcement.
3. A Presidential review group should be constituted to eliminate the inconsistencies which now exist, and are increasing among the FOIA compliance regulations of the various federal agencies. This group should also
37 See Morris, Auto Components Failed 10% of U.S. Safety Tests, N.Y. Times, Nov. 11, 1969, at 1, col. 6.
38 Jack Matteson of House Committee on Government Operations on November 18, 1969 indicated that Congressman Moss has not yet decided whether to have hearings on the enforcement of FOIA.
Tom Susman of the Senate Subcommittee on Administrative Practice and Procedure of the Senate Judiciary Committee indicated on November 18, 1969, that no hearings were planned. However, Senator Edward Kennedy, chairman of this subcommittee, has indicated that his staff will be compiling information relating to the operation of the FOIA for future publication and as a basis for possible legislative revisions of the Act. Letter from Senator Edward Kennedy to Ralph Nader, Dec. 15, 1969.
39 House Committee on Government Operations-Reports on the Freedom of Information Act (compilation and analysis of Departmental Regulations Implementing 5 U.S.C. 552) 90th Cong., 2nd Sess. (1968).
Subcommittee on Administrative Practice and Procedures to the Senate Judiciary - The Freedom of Information Act (Ten Months Review) May, 1968, 90th Cong., 2nd Sess. (1968).
establish uniform ground rules which will make it exceedingly difficult to achieve devious and illegal circumventions of the FOIA. For example, there should be a clearcut injunction against the commingling tactic, and agencies should be required to segregate public information from information which may be legitimately withheld. For another example, there should be a one-stop appeal in the agency before judicial review. Stacking up layers of appeals within the agency is a strategy of attrition and facilitates divergent policies within the department or agency.
4. Each agency should be specifically required: (a) to respond in some maiiner to all information requests within seven days of the receipt of such request 40 or give a specific reason to justify further delay; (b) to have available in the Washington office, and elsewhere as needed, a public information reading room with access to copying machines; (c) to prepare in advance and have available in the public reading room that data most typically requested of the agency and all relevant data showing workload, productivity, law enforcement activities and similar agency evaluation information, as well as agency Congress and agency-public records. There should also be files available to the public containing all denials of information and eventual grants after initial denials, effected by the agency to date. Such systems will not only encourage added citizen interest-which should be a frontline policy of all agencies-but also will improve the efficiency of response to citizen requests.
5. Specific procedures should be developed for taking corrective actions when federal officials resort to harrassment, delay, or other techniques contrary to the FOIA. The establishment of a Director of Communications earlier this year offers the opportunity to develop effective sanctions on agency leaders who generate or condone illegal secrecy. Without such review and sanctions from the White House, agencies will continue to thwart or violate the Act with impunity. The most important distinction between agency responses toward information requests stemmed from differences in the quality of the agencys' leadership. Clearly then, the most important factor in the Executive Branch for freedom of information is the appointive power of the President himself.
40 See 5 U.S.C. 552 (a) (3) (1964), as amended 81 Stat. 55 (1967): “[E]ach agency, on request for identifiable records ... shall make the records promptly available to any person.” (emphasis added).
Freedom of Information Regulations of the Department of Justice* (below).
JUSTICE DEPARTMENT FOI REGULATIONS
[Title 28-Judicial Administration)
CHAPTER 1-DEPARTMENT OF JUSTICE-PART 16–PRODUCTION OR DISCLOSURE
OF MATERIAL OR INFORMATION
SUBPART A—PRODUCTION OR DISCLOSURE UNDER 5 U.S.C. 552 (A) This order revises the regulations of the Department of Justice which prescribe the procedures for making and acting upon requests from members of the public for access to Justice Department records under the Freedom of Information Act (5 U.S.C. 552).
By virtue of the authority vested in me by 28 U.S.C. 509, 510, 5 U.S.C. 301, 552, and 31 U.S.C. 483a, Subpart A of Part 16 of Chapter I of Title 28, Code of Federal Regulations, is revised, and its provisions renumbered, to read ar follows: Sec. 16.1 Purpose and scope. 16.2 Public reference facilities. 16.3 Requests for identifiable records and copies. 16.4 Requests referred to division primarily concerned. 16.5 Prompt response by responsible division. 16.6 Responses by division : Form and content. 16.7 Appeals to the Attorney General from initial denials. 16.8 Maintenance of files. 16.9 Fees for provision of records. 16.10 Exemptions.
AUTHORITY : 28 U.S.C. 509, 510; 5 U.S.C. 301, 552; 31 U.S.C. 483a. f 16.1 Purposes and scope.
(a) This subpart contains the regulations of the Department of Justice implementing 5 Ū.S.C. 552. The regulations of this subpart provide information concerning the procedures by which records may be obtained from all divisions within the Department of Justice. Oficial records of the Department of Justice made available pursuant to the requirements of 5 U.S.C. 552 shall be furnished to members of the public as prescribed by this subpart. Officers and employees of the Department may continue to furnish to the public, informally and without compliance with the procedures prescribed herein, information and records which prior to enactment of 5 U.S.C. 552 were furnished customarily in the regular performance of their duties. Persons seeking information or records of the Department of Justice may find it useful to consult with the Department's Office of Public Information before invoking the formal procedures set out below. To the extent permitted by other laws, the Department also will make available records which it is authorized to withhold under 5 U.S.C. 552 whenever it determines that such disclosure is in the public interest.
(b) The Attorney General's Memorandum on the Public Information section of the Administrative Procedure Act, which was published in June 1967 and is available from the Superintendent of Documents, may be consulted in considering questions arising under 5 U.S.C. 552. The Office of Legal Counsel after
*Note: Each agency of government promulgates its own regulations governing the handling of requests under the Freedom of Information Act. In some cases, as with the Departments of Agriculture and Health Education, and Welfare, sub-units of the department promulgate their own FOIA regulations. Copies of these regulations can be found in the Code of Federal Regulations or the Federal Register, or obtained by writing the agency directly.