The legislative history indicates that this exemption does not apply to routine techniques or procedures which are generally known outside the Government. (See, e.g., Conf. Rept. p. 12.) For example, the exemption does not protect the disclosure of such procedures as ballistics tests and fingerprinting, though it would shield new developments or refinements in those procedures. (Of course, the results of such generally known procedures may be exempt on another ground.) Administrative staff manuals and instructions, covered by 5 U.S.C. 552(a) (2), are not generally protected by this clause (Conf. Rept. p. 13), although the exempt status of material otherwise covered by clause (E) is not affected by its inclusion in such a manual or instruction.

(F) ENDANGERING LAW ENFORCEMENT PERSONNEL

Clause (F), which was added by the Conference Committee, exempts material whose disclosure would "endanger the life or physical safety of law enforcement personnel." (See, e.g., 120 Cong. Rec. H 10003-04 (Oct. 7, 1974) (letter of chairmen of conferees).) The legislative record contains little discussion of this provision.

Clause (F) might apply, for example, to information which would reveal the identity of undercover agents, State or Federal, working on such matters as narcotics, organized crime, terrorism, or espionage. It is unclear whether the phrase "law enforcement personnel" means that the endangered individual must be technically an “employee” of a law enforcement organization; arguably it does not. It is clear, however, that the language of clause (F) cannot be stretched to protect the safety of the families of law enforcement personnel or the safety of other persons. Nonetheless, it is safe to proceed on the assumption that Congress did not intend to require the release of any investigatory records which would pose a threat to the life or physical safety of any person; perhaps clause (A) (interference with law enforcement) would be liberally construed to cover a request which involves such a threat.

IMPLEMENTATION OF EXEMPTION 7

The prior discussion deals with the grounds for nondisclosure that are specified in amended section 552(b) (7). Application of these grounds by agency personnel within the available time limits will often present great difficulty, especially when the request pertains to a large file. One means by which the agency might seek to assist its personnel— and the public—is the development of guidelines regarding the manner of applying the exemption 7 clauses to standard categories of investigatory records in its files.

The general policy underlying the seventh exemption is maximum public access to requested records, consistent with the legitimate in

terests of law enforcement agencies and affected persons. (See, e.g., 120 Cong. Rec. S 9330 (May 30, 1974) (Senator Hart).) A central issue which must be faced in every case is the type of showing needed to establish that disclosure "would" lead to one of the consequences enumerated in clauses (A) through (F). The President and some opponents of the bill voiced concern that "would" connoted a degree of certainty which in most cases it would be impossible to establish. (See Weekly Compilation of Presidential Documents 1318 (1974); 120 Cong. Rec. S 19814 (Nov. 21, 1974) (Senator Hruska); 120 Cong. Rec. S 19818 (Nov. 21, 1974) (Senator Thurmond).) The bill's proponents, including the sponsor of the amendment, did not accept the interpretation that would result in such a strict standard. (See, e.g., 120 Cong. Rec. H 10865 (Nov. 20, 1974) (Congressman Moorhead); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) This legislative history suggests that denial can be based upon a reasonable possibility, in view of the circumstances, that one of the six enumerated consequences would result from disclosure.

A practical problem which can be predicted is that agency personnel will sometimes be uncertain whether they have sufficient information to make the necessary determination as to the likelihood of one of the six consequences justifying nondisclosure. This raises the question whether it is necessary to go beyond the records themselves and in effect to conduct an independent investigation to determine, for example, what privacy or confidentiality interests are involved. This question cannot be answered in the abstract, for its resolution will depend substantially upon the particular circumstances. Since the six clauses in the exemption are to be interpreted in a flexible manner, see p. 8 above, it should usually be sufficient to rely upon conclusions which-taking due account of such factors as the age of the records and the character of law violation involved-can reasonably be drawn from the records themselves.

It is clear that implementation of the amended exemption 7 will frequently involve a substantial administrative burden. It was not, however, the intent or the expectation of the Congress that this burden would be excessive. (See, e.g., 120 Cong. Rec. S 19808 (Nov. 21, 1974) (Senator Kennedy); 120 Cong. Rec. S 19812 (Nov. 21, 1974) (Senator Hart).) If, therefore, a law enforcement agency (the category of agencies principally affected) regularly finds that its application of these provisions involves an effort so substantial as to interferc with its necessary law enforcement functions, it should carefully re-examine the manner in which it is interpreting or applying them. Needless to say, burden is no excuse for intentionally disregarding or slighting the requirements of the law, and, where necessary, additional resources. should be sought or provided to achieve full compliance.

I-C. THE PROVISION ON THE AVAILABILITY OF “REASONABLY SEGREGABLE" PORTIONS OF A RECORD CONTAINING EXEMPT MATTER

The 1974 Amendments added at the end of section 552(b) the following:

"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 [i.e., exempt under one of the nine exemptions listed in subsection (b)]." This new sentence should be read in conjunction with the new in camera review provision of section 552(a)(4)(B) which states:

"In such a case [i.e., where a requester under the Act sues to enjoin an agency from withholding agency records] the court shall determine the matter de novo, and may examine the contents of such 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." (Emphasis supplied.)

The legislative history of these two related provisions indicates that Congress intended to codify a deletion principle, already applied in numerous instances by courts and agencies, so as to prevent the withholding of entire records or files merely because portions of them are exempt, and to require the release of nonexempt portions. (H. Rept. No. 92-1419 on Administration of the Freedom of Information Act, pp. 55, 72 (92d Cong., 2d Sess. 1972); H. Rept. p. 7; S. Rept. pp. 17, 31, 32; 120 Cong. Rec. S. 9313 (May 30, 1974) (Senator Kennedy); and see, e.g., Bristol Myers Co. v. FTC, 424 F. 2d 935, 939 (D.C. Cir. 1970); Grumman Aircraft Engineering Corp. v. Renegotiation Board, 425 F. 2d 578 (D.C. Cir. 1970).)

In order to apply the concept of "reasonably segregable," agency personnel should begin by identifying for deletion all portions of the requested document which are to be withheld in order to protect the interest covered by the exemption or exemptions involved. The remaining material (assuming it constitutes information that is responsive to the request) must be released if it is at all intelligible-unintelligibility indicating, of course, that it is not "reasonably" segregable from the balance. There is language in the legislative history of the "reasonably segregable" provision which indicates that even unintelligible

The concept of “reasonably segregable" should not be confused with the concept of "inextricably intertwined", developed chiefly in connection with the 5th exemption. The latter concept is applied in determining what matter is exempt; the former is applied to compel the release of certain matter already determined to be nonexempt. See, e.g., Montrose Chemical Corp. v. Train, 491 F. 2d 63 (D.C. Cir. 1974). Thus, "inextricably intertwined" material is exempt material, whereas it is only nonexempt material that may or may not be "reasonably segregable."

525

FEE WAIVER OR REDUCTION

15

matter remaining after the deletion process must be released. (See S. Rept. pp. 31-32.) It does not seem that this sentence, contained in a report on the bill in its earlier stages, should outweigh the plain language of the provision. Conjunctions, prepositions, articles and adverbs are almost always technically "segregable" without disclosing material which must be protected. Unless the qualification "reasonably" means that such unintelligible excerpts need not be provided, it seems meaningless. Of course, doubts about the intelligibility or responsiveness of remaining nonexempt material should be resolved in favor of release to the requester.

PART II. AMENDMENTS PERTAINING TO ADMINISTRATION AND OTHER MATTERS

Note: Part II chiefly discusses subjects referred to but not explored in the Attorney General's Dec. 11, 1974 "Preliminary Guidance" Memorandum on the 1974 Amendments. In general, subjects which were there discussed in detail are not further discussed here. The Dec. 11th Memorandum is attached hereto as Appendix III-B.

II-A. FEES-WAIVER OR REDUCTION BY AGENCIES

The amended Act provides, at the end of the subparagraph requiring an agency to promulgate a uniform schedule of search and duplication fees (5 U.S.C. 552 (a) (4) (A)), that:

"Documents shall be furnished without charge or at a re luced charge where the agency determines that waiver or reduction of the fee is in the public interest because furnishing the information can be considered as primarily benefiting the general public." Where an agency perceives a substantial question whether release of requested information can be considered as "primarily benefiting the general public," it should consider exercising its discretion under this provision. What is required is the application of good faith in determining whether public payment should be made for essentially public benefits. In its consideration of the matter, the agency need not employ any particular formalized procedure, and may draw upon both special expertise and general knowledge concerning such matters as the size of the public to be benefited, the significance of the benefit, the private interest of the requester which the release may further, the usefulness of the material to be released, the likelihood that tangible public good will be realized, and other factors which may be pertinent to the appropriateness of public payment. Deliberate, irrational discrimination between one case and the next is of course improper; but neither is it necessary to develop a system of rigid guidelines or inflexible case precedents.

There is no doubt that waiver or reduction of fees is discretionary. The statute provides that it "shall" be done only "where the agency determines that waiver or reduction * * * is in the public interest because furnishing the information can be considered as primarily benefiting the general public." (Emphasis supplied.) The most authoritative expression of legislative history on the point, the Conference Report, refers to the provision as establishing a "discretionary publicinterest waiver authority." (Conf. Rept. p. 8.)

II-B. PUBLICATION OF INDEXES OF “(a)(2)” MATERIALS

THE PUBLICATION REQUIREMENT

Prior to the 1974 Amendments, subsection (a)(2) of the Act required each agency to "make available for public inspection and copying" the agency's so-called (a) (2) materials, that is, certain final opinions and orders, certain statements of policy and interpretation, and certain administrative staff manuals and instructions to staff. Subsection (a) (2) also required each agency to "maintain and make available for public inspection and copying a current index providing identifying information for the public" as to such of the agency's (a) (2) materials as were issued, adopted, or promulgated after July 4, 1967. The 1974 Amendments add to this scheme the following:

"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."

The requirement to "publish" merely means to reproduce a quantity of the indexes. There are several ways in which such reproduction can be achieved. The Conference Report states that publication by commercial firms will suffice, so long as the indexes thus produced "are made readily available for public use." (Conf. Rept. p. 7.) The House Report indicates that an index in "brochure form available for distribution would be an appropriate way to meet this [publication] requirement." (H. Rept. p. 5.) The Senate Report states that "photocopy reproduction" of indexes will constitute adequate publication if there is insufficient interest in an agency's indexes to justify printing. (S. Rept. p. 8.10)

The Senate Report cautions that where agencies rely on such a commercial service, they will be expected "to maintain the commercial service at the agency offices or reading rooms." (S. Rept. p. 9.)

10 The Senate Report continues: "The cost, if any, of such photocopied indexes should, however, reflect not the actual cost of reproduction but the equivalent per-item cost were the indexes printed in quantity." (S. Rept. p. 8.)