III. FREEDOM OF INFORMATION REGULATIONS AND ADMINISTRATIVE REQUIREMENTS Hearings on the administration of the Freedom of Information Act were first announced on January 24, 1972; they began on March 6, and extended through April 19. Immediately prior to, or during the course of these hearings, 14 Federal departments and agencies indicated they were revising their regulations regarding FOI Act matters." Two of these departments released their new regulations within the 24-hour period immediately prior to their appearance before the subcommittee.10 In early May, the Food and Drug Administration (FDA) published new regulations to make most of its voluminous files, which have always been kept confidential, available to the public under the provisions of the FOI Act. Earlier in the hearings, FDA had been singled out by HEW's witness, Mr. Robert O. Beatty, Assistant Secretary for Public Affairs, for special criticism: 11 *** I am well aware of the less than salutary performances of the Food and Drug Administration under the act and the interest of this committee in why. A part of the answer, I think, lies in the inherent characteristics of the Food and Drug Administration as a regulatory agency-the only such regulatory agency in the Department. Another I think is simple bureaucracy. FDA has documented for me since March of 1969, they have received a total of 96 inquiries under the act, have given 79 approvals, 11 denials, and three withdrawals, with an average response time, however, of about 2 months. Certainly that is far too long. I think the committee would agree and we all agree within the Department and within the FDA that is too long. I am sure the committee will be happy to know, however, that the entire question of the release of information by the Food and Drug Administration has been under intensive review by this agency during the last 6 months and a major change in the agencies' policy and resulting performance should result from that review. We had hoped to be able to present to the committee today for discussion as it saw fit these new regulations but we were not quite able to make it. It would appear that the subcommittee's hearings on the administration of the FOI Act had some direct influence in prompting the revision of agency regulations during the time period of these hearings. As part of its oversight responsibility, the subcommittee had exercised an early and continuous concern over agency regulations to implement the act.12 They are American Revolution Bicentennial Commission, Department of Commerce, Department of the Army, Environmental Protection Agency, Food and Drug Administration, Department of Health, Education, and Welfare, Department of Housing and Urban Development, Department of Interior, Inter-American Foundation, Department of Labor, Selective Service System, Department of Transportation, Department of State, and Department of the Treasury. 10 Departments of Labor and Transportation. u Hearings, pt. 5, p. 1660. 12 See Committee Print issued by this Committee in November 1968, "Freedom of Information Act (Compilation and Analysis of Departmental Regulations Implementing 5 U.S.C. 552)". (12) Mr. David Maxwell, General Counsel of the Department of Housing and Urban Development, commented during his appearance before the subcommittee that the hearings "had a great deal to do" with HUD's review of its regulations. Speaking of the net effect of the proceedings, he said: 13 I think these [hearings] are very desirable, not only for us, but for all of the other agencies. We are most appreciative of having our attention called to these [FOI Act] matters in this way. Mr. Frank M. Wozencraft, a principal drafter of the June 1967 Attorney General's memorandum on the FOI Act's administration recommended:" I would hope that each chairman when he comes before a committee, be it this committee or his substantive committee, would be asked: "What have you done to see to it that all of the general policies and guidelines in your agency are published?" Wozencraft suggested that agencies be continuously urged to revise their regulations to conform with the FOI Act, amendments to it, landmark court decisions, and be required to make such regulations better known to both the public and to those responsible for administering the act. Legally Questionable Regulations The chief reason the committee urges better regulations is to remove bureaucratic roadblocks to the extent possible, short of actual statutory amendments. Such impediments in administering the FOI Act may result from unclear regulations, undisclosed guidelines, portions of regulations which are not in conformity with statutory or case law, the failure to make regulations known to agency operating personnel involved in the administration of the FOI Act, or the failure to provide adequate training in the act for such persons. Among the legally questionable regulations included in the subcommittee's review is a Federal Power Commission (FPC) stipulation that "Records not made part of the public record *** may be disclosed if requested, upon showing it is in the public interest that they be disclosed * 15 Chairman Moorhead questioned this language, noting: 16 * *** the overall philosophy stated in the Attorney General's memorandum is that the burden be on the Government to justify the withholding of the document, not on the person who requested it. It seems to me, in section (d), you try to shift the burden back to the requestor, that the Government must say this is why we are not going to give you this other record * * *. Thus, Congress said everything should be public unlessso that the burden is on the Government to defend its nondisclosure of public business, rather than saying that this person has to show "good cause" and prove his case. 17 The 28 divisions or units of the Department of Agriculture (USDA) all publish separate regulations, exemplifying the fact that there is no centralized administration of the FOI Act at this huge agency.1 There is no USDA regulation which expressly refers to the Attorney General's memorandum as a guideline for information that is being subject to the claim under exemption (b)(5) of the FOI Act (interagency or intra-agency memorandums or letters). The memorandum quotes H. Rept. 1497, 89th Congress, and states: "Accordingly, any internal memorandum which would 'routinely be disclosed to a private party through the discovery process in litigation with the agency' is intended by the clause in exemption (5) to be 'available to the general public,' unless protected by some other exemption."18 No mention is made in the USDA regulations of the discovery test outlined in the memorandum of "routine" availability. It is not surprising, therefore, that USDA has been one of the major "problem" agencies showing a spotty record in administration of the act. As a matter of practice, USDA commonly utilizes multiple exemptions for a requested document. While this practice is not specifically sanctioned by the regulations, it might be prohibited by a requirement that a "specific and pertinent exemption" be cited.19 The Cost of Living Council (CLC) and its two subsidiary unitsthe Pay Board and the Price Commission-issued its regulations under the FOI Act on February 1, 1972.20 The parts of the regulations dealing with "exempt information" were in conflict among the three issuing agencies. In their regulations the CLC restated the provisions of subsection (b) of Section 552-exemptions (1) through (9)-but specifically referred to Section 1905 of Title 18, U.S. Code in the third exemption. This criminal statute imposes a fine and imprisonment on any Government employee who unlawfully discloses specified data or information coming to him in the course of his employment, and is highly questionable in regulations relating to the FOI Act."1 21 Although it is clear that the exemptions set forth in subsection (b) of the Freedom of Information Act are permissive and not mandatory, the CLC originally made no provision for disclosure of "exempt information" if such disclosure is in the public interest. The CLC regulations were subsequently amended on August 15, 1972, to reflect those regulations originally adopted by the Price Commission. The amendment adds a new subsection 102.3(c) which reads as follows: (c) The Chairman of the Council or his delegate is authorized at his descretion to make any record enumerated in sec. 102.4 available for inspection when he deems disclosure to be in the public interest and disclosure is not otherwise prohibited by law. 17 Hearings, pt. 5, pp. 1556-1593. 18 Attorney General's memorandum, op. cit., p. 35, hearings, pt. 4, p. 1119. 19 See "Note, Freedom of Information: The Statute and the Regulations," Georgetown Law Journal, LVI (November 1967), p. 42. 20 37 F.R. 2478; 6 CFR, pt. 102. See Schapiro v. Securities and Exchange Commission (DC, D.C., 1972). The court said in part in the Schapiro case 66 The Securities and Exchange Commission alleges that 18 U.S.C. 1905 prevents the disclosure of this information. That statute, however, does not prevent the disclosure of information that is authorized to be disclosed under other laws. There is nothing in sec. 1905 of title 18 that prevents the operation of the Freedom of Information Act. Moreover, the provision for documents specifically exempted by statute (5 U.S.C. 552(b) (3)) relates to those other laws that restrict public access to specific government records. It does not, as defendants allege, relate to a statute that generally prohibits all disclosures of confidential information." The Pay Board in its regulations has incorporated by reference the provisions of subsection (b) of the FOI Act without any changes.22 It has, however, made provision for the release of "exempt information" to a complainant at the discretion of the Chairman of the Pay Board.23 As in the case of the CLC, the Pay Board originally made no provision for disclosure of exempt information in the public interest. However, on Sept. 7, 1972, the Pay Board announced its intention to amend its regulations so as to bring them into conformity with the spirit of the Freedom of Information Act. Paragraph (a) of section 200.20 was revised as follows: (a) In general. All documents and exhibits filed by any party with the Pay Board in the course of its proceedings are part of the records of the Board, available for inspection and copying by members of the public, except to the extent and in the manner specified in this subpart, and except to the extent such information is of the nature specified in 5 U.S.C. 552(b)(1)-(9). However, the Chairman of the Pay Board or his delegate, is authorized at his discretion to make any record enumerated in 5 U.S.C. 552(b)(1)-(9) available for inspection if he deems disclosure to be in the public interest, and disclosure is not otherwise prohibited by law. The Price Commission regulation affecting "exempt information" is similar to the CLC regulations, restating the provisions of subsection (b) of the act with minor procedural changes.24 However, the Commission makes specific provision for the release of "exempt information" at the discretion of the Chairman of the Commission: 25 (b) The Chairman of the Commission, or his delegate, at his discretion may make any record enumerated in paragraph (a) of this section available for inspection when he deems disclosure to be in the public interest, if disclosure is not otherwise prohibited by law. One of the more flagrant abuses of the FOI Act uncovered by the subcommittee involved the Price Commission. In its printed form PC-1, "Request (Report) For Price Increase For Manufacturing, Service Industries and the Professions," the Commission actually solicits confidentiality from the companies who are applying for price increases under the Economic Stabilization Act of 1970. The printed form PC-1 reads in part: 28 26 It is requested that the information submitted herewith be considered as confidential within the meaning of section 205 of the Economic Stabilization Act of 1970 (as amended), Title 5, U.S. Code, 552 and Title 18, U.S. Code, section 1905. Such solicitation of confidentiality by the Price Commission was entirely inconsistent with the FOI Act. This language adopted by the Price Commission in 1971 was ordered removed from subsequent press runs of form PC-1 in August 1972 although current supplies of the old form are still in use. As was stressed over and over during the hearings, the exemptions contained in subsection (b) of the act are permissive and not mandatory and the committee knows of no agency that has specific statutory authority to extend blanket exemption, let alone to solicit the exemption of confidentiality. It is the duty of each agency to determine on an individual basis whether or not specific information fits the test of confidentiality as provided in subsection (b)(4) of the FOI Act. Moreover, it would seem that the degree of public confidence in the integrity of the administrative processes which regulate wages and prices under our economic stabilization program can only be earned by actions which convince the American public that requests for increases are judged in an equitable manner in the cold light of public scrutiny-not hidden behind the closed door of blanket confidentiality that is contrary to the law. Few of the departments and agencies specified in their regulations any limitations on action time for responding to requests brought under the FOI Act. We have noted elsewhere in this report that the problem of "foot-dragging" delays is one of the most common problems encountered.27 In analysing the agency's responses to the subcommittee's questionnaire on their operations under the FOI Act, a study conducted for the subcommittee by the Congressional Research Service (CRS) of the Library of Congress provided a revealing picture of agency behavior on the matter of response delays. Assessing the case load of FOI denials for the 1967-71 period, CRS analysts computed the average number of days required for each agency to respond to both initial requests for information and appealed requests. According to this study: 28 These time spans ranged from an average of 8 days (Small Such delays, even for a few days or a week, can make requested information of little or no value to someone attempting to meet a deadline on any research project or news story where the requested information is needed on a timely basis. We have noted elsewhere in this report that working journalists have made little use of the FOI Act See pp. 19-42 of this report. "The full text of the study is in the hearings, pt. 4, pp. 1333-1343; the quotation appears on p. 1837. |