Administrative Implementation of Federal The Congress may authorize or direct agencies to carry out This Section, devoted to a study of the administrative implementa- administrative and bureaucratic constraints on information administrative compliance with existing legislation, i.e., the the need for effective compliance machinery, both adminis- Administrative and Bureaucratic Constraints on Data Sharing Federal paperwork activity generates almost seven million cubic feet of paper annually and contributes to an economic burden of more than $40 billion dollars a year. A large portion of this cost is due to duplicative collection and maintenance of information, which could be eliminated if agencies shared existing data or cooperated in the collection of information. Yet, despite the Federal Reports Act, enacted to achieve this end, and the Freedom of Information Act, embodying a policy of broad disclosure of information, Federal agencies continue to resist disclosure, both to the public and to other agencies. Administrative secrecy is, of course, a characteristic of all bureaucracies, both in the private and public sectors. What Mr. Justice Douglas said of the Federal Government2 is true of other large organizations as well: they tend to suppress damaging information Testimony of Sen. Thomas J. McIntyre before the Subcommittee on 2 See dissenting opinions in Environmental Protection Agency v. Mink, 410 51 52 and highlight favorable information. Information is manipulated to serve the purposes of the organization3 and often to serve the interests of particular officials. Other factors also foster bureaucratic secrecy and inhibit interagency data sharing: Prestige: the sharing or exchange of information under the control of an agency could reduce the dependence of others on that agency and thus lessen its influence; Pride: an agency exercising specialized functions considers itself the best if not the sole judge of the kind of information it needs to exercise its functions and therefore is reluctant to use data collected by others; and Costs: both the costs of acceding to another agency's request for information and the extra costs required to search out, acquire, and adapt already existing data rather than collecting it anew may be considered overly burden some. Bureaucratic resistance to data sharing may be exacerbated by other factors as well. Foremost among these is the widespread confusion and sometimes misunderstanding as to the meaning and impact of the numerous laws which regulate Federal information practices. Although there is one comprehensive public disclosure statute the Freedom of Information Act-there still remain about two hundred other laws which conflict with that Act and at times with each other. To what extent some of these other laws may effectively permit agencies to withhold information from the public or from other agencies is far from clear, particularly in light of the recent amendment of exemption (b)(3) of the FOIA. Staff interviews with personnel of ten major agencies5 revealed, however, that most such agencies viewed applicable "confidentiality" laws as the major impediment to interagency transfers of data. The two laws most frequently cited were a criminal provision for unlawful disclosure, 18 U.S.C. §1905, and the Privacy Act. Yet the former has been held by most courts to be inapplicable to a lawfully authorized agency disclosure and the latter, as shown below, has had little perceptible 3 Daniel Rigney, Corporate and Governmental Information Practices, A * Melville Dalton, "Conflicts Between Line and Staff Managerial Offices," 5 Departments of Agriculture, Commerce, Defense, HEW., Interior, Justice, • See also Selected Areas for Paperwork Reform, Attachment 2, Information Management Study, CFP Hearings, April 30, 1976. 7 National Parks and Conservation Ass'n. v. Kleppe, 547 F.2d 673, 686-687 (D.C. Cir., 1976); Charles River Park "A" Inc. v. Department of H.U.D., 519 F.2d 935, 941, n.7 and cases cited therein (D.C. Cir., 1975). effect on interagency disclosures. In the same vein, agencies pointed to administrative pledges of confidentiality as bars to data sharing yet, in the absence of statutory authority, such pledges will not generally justify withholding information even from the public. In view of the diverse statutory limitations on disclosure, it is understandable that agency personnel may not be familiar with all such provisions or may be misinformed or confused as to their significance or meaning. But policies and practices based on misinformation can be just as effective in inhibiting the effective utilization of data as those policies and practices mandated by law. Once established, bureaucratic behavior patterns are slow to change. The mere passage of a new law will not have an instant effect on administrative practices and policies or on agency attitudes. Even where agency policy is modified, the results may not be felt in the lower echelons of the bureaucracy for some time. There are, of course, several time-honored methods available to bring about and hasten change. External pressures, provided by judicial or Congressional oversight, can provide the stimulus to agency compliance, particularly if adequate sanctions for noncompliance are provided. Within an agency, several steps may be required to effectuate change. The promulgation of a clearly enunciated agency policy must be accompanied by procedures to make this policy known to all employees and the adoption of disciplinary procedures for those employees failing or refusing to follow such policies. An assessment of agency compliance with the Freedom of Information and Privacy Acts is illustrative of some of these general principles. In addition to the typical administrative resistance to disclosure of agency information, several other factors specifically related to the FOIA and the Privacy Act have served to discourage agency compliance with these laws. Both are complicated statutes attempting to regulate an area — information policy - which lies outside the scope of most agencies' expertise. Both Acts impose demands which can be costly to implement. In the absence of any funds appropriated to administer these laws, agencies have resented the additional burdens imposed on them and the diversion of agency resources from program activities which even minimal compliance has required. Even with the appropriation of funds designated to administer these laws, it is unlikely that agency compliance would greatly improve. There would still remain the need for expertise and guidance from outside the agencies and the need for some outside stimulus to foster compliance with programs which, to most administrators, seem to have little, if any, relevance to the accomplishment of agency missions. In one area of compliance, however, there are signs that agency attitudes may be beginning to improve. Both the FOIA and the Privacy Act contain some requirements that are responsive to outside requests and others that must be agency-initiated. Although a bureaucratic routine (once established) becomes extremely resistant to change." Francis E. Rourke, "Bureaucratic Secrecy and Its Constituents," Public Policy Forum, 1972, p.118. 53 54 judicial review is available to enforce both kinds of requirements, the bulk of litigation has arisen from agency denials of citizens' requests for disclosure under the FOIA and for access under the Privacy Act. With respect to FOIA requests, the long and consistent history of court decisions strongly supporting the public disclosure policy of that Act may be modifying agency policies and practices. The more open policies recently adopted by some of the regulatory agencies such as the Federal Power Commission and the Federal Trade Commission are signs of a new trend. Similarly, Attorney General Bell, in a "Letter to Heads of all Federal Departments and Agencies" dated May 5, 1977, announced that, in the future, the Department of Justice "would defend Freedom of Information Act suits only when disclosure is demonstrably harmful, even if the documents technically fall within the exemptions in the Act." This policy may well herald a new era of enhancing "the spirit, appearance and reality of open government." In other areas, however, where self-initiated actions are required and there has been minimal judicial oversight, there has been little, if any, change in agency attitudes. Agency Administration of the Amended FOIA The amended Freedom of Information Act sets forth three main categories of information and provides three methods of disclosing such information. The first category-referred to as "(a)(1)" data because of its placement in the statute covers information on the organization, functions, and procedures of an agency and those substantive rules, policies and interpretations of general applicability. This kind of information guides the public in determining where and by whom decisions are made and where it may secure information and make submittals and requests. This material must be published in the Federal Register. The second class of disclosable information-referred to as "(a)(2)”—includes final opinions and orders made in the adjudication of cases, statements of policy and interpretations adopted by an agency and not published in the Federal Register, and administrative staff manuals and instructions to staff that affect a member of the public. This information enables the public to become aware of agency law and policy, the bases for agency policy, and the opinions and interpretations which explain agency decisions. Of somewhat less general applicability than the information encompassed in (a)(1), this need not be published, but must be made available for public inspection and copying. Indexes to this material must also be made available to identify, for the public, the type of information available. Except when an agency determines that this would be "unnecessary and impracticable," such indexes must also be published, at least quarterly, and copies distributed, by sale or otherwise. 9 Thus, the Attorney General ended the Letter with the following statement: "Together I hope that we can enhance the spirit, appearance and reality of open government." |