because of this problem of bureaucratic delay in obtaining responses to requests for information. Such excessive delays also can frustrate efforts by researchers, scholars, and other types of professional writers who seek information from their government.

Lack of Top-Level Consideration of FOI Problems

One indication of the importance of the FOI Act in terms of agency priorities is the record keeping of the agency. In response to the subcommittee's questionnaire in the summer of 1971 regarding the administration of the FOI Act, the Department of the Army, Navy, the Department of Labor, the Civil Service Commission, and subunits of the Transportation Department all indicated they could not provide certain requested statistics because they had failed to keep any records on these matters.29 Certain agencies frankly stated they had no records.

RECORDKEEPING

The Library of Congress analysis noted these and other problems concerning the quality of agency data, stating: 30

Responses to the subcommittee's questionnaire were generally complete and detailed for most agencies, but in certain cases the agencies seemed to misunderstand the questions or they provided otherwise unusable information. The Department of Defense for example, acknowledged incomplete records to answer some questions. The Civil Aeronautics Board supplied aggregate information for fiscal year 1968 only. The Federal Highway Administration and the Federal Railroad Administration reported they kept no records on Freedom of Information Act requests.

In a number of instances details were omitted from agency responses. The number of requests for public records was not provided, for example, by the Department of the Army, the Department of Health, Education, and Welfare, the Coast Guard, the Federal Maritime Administration, and the Civil Service Commission, though those agencies did provide information on individual denials. Often no initial request dates were supplied for individual cases or no dates on appeals were given, thus making the computation of time intervals impossible or limited to a few cases. In many responses the titles and citations of relevant court cases were garbled or missing. The Department of the Army, the Department of the Navy, the Department of State, and the Securities and Exchange Commission failed to cite appropriate sections of the Freedom of Information Act as a basis for refusing information.

The uneven quality of such data received in response to the questionnaire raises serious questions concerning the interest of some Federal departments and agencies in how the act is administered, since they do not even maintain sufficient records to evaluate their performance under the statute.

Even details on court actions under the FOI Act were sorely lacking. The Library of Congress analysis commented: 31

29 The text of the subcommittee questionnaire is on pp. 1334-1335 of the hearings, pt. 4.

30 Ibid., p. 1336.

1 Ibid., p. 1336.

Frequently, the responding agencies cited court cases which resulted from their refusals to provide materials but they failed to provide details on the administrative procedure which preceded judicial action. ***

The problems of administration and inadequate recordkeeping become compounded when it is realized that the agencies do not always keep their personnel responsible for administering the FOI Act abreast of recent precedent-making court decisions. The Agriculture Department's Assistant General Counsel, for example, told the subcommittee: 83

32

*** In the court cases the Department was involved in, where they gave information as a result of the court cases, a press release was then issued by the agencies informing them of the information that was being made available and it would be made available upon request to anyone else and this press release is then summarized by the information office of Mr. Gifford's office and that is circulated to all of the agencies, so through that they get advice as to the type of action under court cases where the Department is a party to the case.

Thus, personnel of the USDA handling FOI requests receive only a summary of a press release regarding a court case involving released documents under the FOI Act within their agency. They do not normally have an opportunity to read the decision in the case; they may not even see the full press release about the case; and they are given summaries involving only those cases in which their own Department was a litigant.

This problem of disseminating decisions of the courts involving FOI Act cases among all executive branch personnel who deal with Government information requests was discussed during the hearings with then Assistant Attorney General Ralph E. Erickson, Office of Legal Counsel, whose office is responsible for the operations of the Freedom of Information Committee: 33

Mr. MOORHEAD. Would it not be advisable to rewrite and bring up to date the Attorney General's memorandum and establish a procedure for ongoing distribution of advisory opinions as new case law is developed?

Mr. ERICKSON. When I first became involved in freedom of information matter(s) I looked at that book and I said, "My God, this thing should be brought up to date."

Since that time I have come to recognize that it may not be quite that easy to bring it up to date, because we do have a number of, I think, rather important questions to be answered, and maybe answered in the foreseeable future. I think it is something that should be brought up to date at some point in time. I am not sure that this is the exact time. I would certainly prefer to have some pronouncement by the Supreme Court before we do this. But, I do think it is-it would be helpful, and it is something that should be done in due course.

"Hearings, pt. 5, p. 1594. "Hearings, pt. 4, p. 1190.

Chairman Moorhead went on to ask Mr. Erickson if thought had been given to some other method of keeping agencies up to date on legal developments under the FOI Act, such as seminars for public information officers and lawyers having such duties.

Erickson responded:

34

It is one of the questions. I feel something should be, something should be done. I have not formulated, really, any plan as to how it might be done. I mentioned the increase in our consultations, and it seems to me that that, in and of itself, serves to inform and keep other agencies advised.

But, I certainly would not be adverse to some more concentrated effort, more expansive effort to keep other agencies advised, because I think the law is evolving, is developing, and certainly it would be a help.

Chairman Moorhead asked if general counsels of Federal agencies were advised when a significant court decision under the FOI Act is rendered. Erickson said that "we have developed no automatic procedures for doing so, but that certainly would be one of the alternatives to be considered.”

Summary

It is obvious to the committee from its study of the problems of effective administration of the FOI Act that clearcut, easily understood regulations that adhere closely to the philosophy of the public's right to know the business of its Government, as expressed in the law enacted by Congress and the guidelines issued in 1967 by the Attorney General can go a long way toward making the act truly meaningful under our representative system of government. Yet, we have learned that the regulations, themselves, regardless of how positive or how precise, do not necessarily guarantee effective operation of the FOI Act in any agency. A constructive attitude toward the act by the top leadership of the agency and a genuine desire to make more information available to the public are essential ingredients.

The committee believes that there are many positive actions that can be taken at the administrative level to make the act more workable and more effective. Such actions must, however, be considered in the context of recommended statutory amendments. Administrative recommendations are therefore discussed in chapter X of this report, along with the proposed objectives of amendments to the FOI Act itself.35

* Ibid.

35 See pp. 83-86 of this report.

IV. GOVERNMENT ROADBLOCKS PREVENTING EFFECTIVE USE OF THE FREEDOM OF INFORMATION ACT

During the hearings on bills which became the Freedom of Information law, no witnesses testifying for Government agencies supported the legislation. A few expressed approval of the people's right to know, but each favorable comment on the general principle was hedged by specific objections to the legislative language proposed to enforce the right to know. Since there was general opposition to the legislation throughout the Federal bureaucracy, the agencies would not be expected to administer the law so that public access to public records is a simple process.

And they have not. In the great majority of the agencies, administration of the Freedom of Information Act has been turned over to the lawyers and the administrators, not to the Government information experts whose job is to inform the public.

Nearly all agencies move so slowly and carefully in responding to a request for public records that the long delay often becomes tantamount to denial.

Dozens of agencies have set up complicated procedures for requesting public records.

Many will respond only to repeated demands for information, filed formally and in writing. Others require detailed identification of the records sought, so that only those who have complete knowledge of an agency's filing system can identify properly the records sought.

Some agencies have harassed citizens who had the temerity to press their demands for public records; others, when forced to provide copies of Government documents, have given out illegible copies.3

The "Renting" of the Pentagon

36

Even before the Columbia Broadcasting System produced its controversial exposé of the Defense Department propaganda machinea program titled "The Selling of the Pentagon" the Freedom of Information Act was twisted almost out of shape by Defense Department officials trying to hide the facts about the "renting" of the Pentagon. Repeated delays and insistence on bureaucratic formalities were almost successful in hiding from the public how much money the Department collects in concession payments from private companies which have stores in the Pentagon concourse.

In 1970, Roy McGhee, a reporter for United Press International, asked for the financial details on the leasing of store space in the bowels of the Pentagon where thousands of employees pass daily on their way to the bus stops inside the building. He found, after repeated telephone calls, that the Defense Department collected almost $1 million in proceeds from private companies doing business on the

"As an example, see hearings, pt. 4, p. 1308.

(20)

Pentagon concourse. He said that about half of this income was turned over to the Treasury and the rest was contributed to a Defense Department "Concessions Committee", which used about $250,000 of the fund to finance social clubs, dinner dances and tennis tournaments for Pentagon employees.37

But he said he could not get an exact accounting of the use of such funds, nor could he discover how much each private company was paying the Pentagon to lease space in the concourse and sell wares to thousands of captive customers. He asked the Department's public information office and he asked the Department's general counsel how much each private company was paying to lease space in the public building, but the information was refused. McGhee testified:

That is where the instance stands. I have not pursued it further. I do not have the time. My company did not file a lawsuit to get the information.38

McGhee wrote a news story based on the information he could find, reporting the refusal to disclose the income from the leasing of the Pentagon concourse space, and the University of Missouri Freedom of Information Center took up the battle from there. The Center telephoned to try to get the information and then put a formal request in writing, threatening to go to court under the Freedom of Information Act if the information was refused. The Defense Concessions Committee agreed to make public the contracts entered into with private companies leasing space in the Pentagon, but only if a records search charge of $3.45 an hour was paid for a 4-hour search job.

Since the Defense Concessions Committee was responsible for only 16 contracts, all filed in the committee's office, the FOI Center pointed out that 4 hours for searching the files to find the contracts seemed an unnecessary waste of time. In response, more than 1 year after McGhee first began his investigation of the "renting" of the Pentagon, the Defense Department Concessions Committee finally agreed to make the information on the contracts available to anyone who came into the committee's Pentagon office-if given at least 1 day advance notice.

"Catch-22" at the Agriculture Department

The Freedom of Information Act requires Government agencies to make available "identifiable" public records, but the Attorney General's Memorandum explaining the new law warns that the identification requirement should not be used as a method of withholding records. Yet some agencies make identification requirements so strict that they must be taken to court to force cooperation.39

Harrison Wellford.of the Center for the Study of Responsive Law asked the Department of Agriculture for research reports on the safety of handling certain pesticides. His request was refused because the Government records he sought were not clearly identified.""

37 Hearings, pt. 4, p. 1291; a fact sheet provided by the Department of Defense on the operation of the Concessions Committee, including criteria affecting receipts and disbursements may be found in the appendix of part 6 of the hearings; the fact sheet states that the division of funds by the Concessions Committee among (1) payments to GSA on the basis of rental square footage, (2) payments to the Pentagon Employees Welfare and Recreation Fund, (3) investments in cafeteria property, and (4) other disposition of excess funds is in accordance with Treasury Department, GSA, and DOD rules and regulations for receipts of this type; see also colloquy on this case with DOD General Counsel Buzhardt, pt. 6, p. 2120.

88 Hearings, pt. 4, p. 1289.

Bristol-Myers Co. v. Federal Trade Commission, 283 F Supp. 745; Wellford v. Hardin, 315 F. Supp. 768; hearings, pt. 4, pp. 1344 to 1367. 40 Hearings, pt. 4, p. 1253.