Finally, I'd be the first to admit that like any other function of Government, resources (e.g., people and tax dollars) applied to public affairs are subject to abuse or misuse. The best safeguard against that happening is to give the function sufficient authority and the resources to develop the professionalism that transcends political expediency. To the extent that it happens, the public will be better served and what the people have a need and right to know about their Government will no longer be an issue. While the committee does not concede that the provision contained in section 3107 represents any serious conflict with the responsibility of Federal agencies to adhere fully to the provisions of the Freedom of Information Act, it does recognize the psychological effect it has on many Government public information officials that contributes to an overall downgrading of status and professionalism of this vital function of modern government. Despite the fact that this restrictive language of section 3107 is already included in title 5 of the U.S. Code, the similar language continues to be added to the "general provisions" section of several appropriations bills each year as a limitation on the appropriations made for these departments and agencies. 52 VI. THE HIGH COST OF INFORMATION One of the related perplexing problems of individual citizens in obtaining information from Federal agencies has been the matter of fees charged for search and copying of material to be made available under the Freedom of Information Act. Section 552 (a) (3) provides, in part: Except with respect to the records made available under paragraphs (1) and (2) of this subsection, each agency, or request for identifiable records made in accordance with published rules stating the time, place, fees to the extent authorized by statute, and procedure to be followed, shall make the records promptly available to any person This language and references in the legislative history make it clear that Congress intended that "search and copying fees" authorized under existing statutes could be charged for records made available under the act.153 Guidelines set forth in the Attorney General's Memorandum further emphasize this point: 154 The provision authorizing agencies to require payment of a fee with each request for records under subsection (c) makes it clear that the services performed by all agencies under the act are to be self-sustaining in accordance with the Government's policy on user charges *** The law (5 U.S.C. [1964 Ed.] 140) referred to in the House Report as directing Federal agencies to charge a fee for any direct or indirect services such as providing reports and documents provides the statutory foundation of the user charges program *** The statute further authorizes the head of each agency to establish any fee, price, or charge which he determines to be "fair and equitable" taking into consideration direct and indirect cost to the Government, value to the recipient, public policy or interest served, and other pertinent facts User Charges User charges policy for Federal agencies is contained in Office of Management and Budget Circular No. A-25 "User Charges." 155 The circular provides that "where a service (or privilege) provides special benefits to an identifiable recipient above and beyond those which accrue to the public at large, a charge should be imposed to recover the full cost to the Federal Government of rendering that service." 153 H. Rept. No. 1497, 89th Cong., 2d sess., p. 9. 18 Pp. 25-27. Reference to subsec. (c) are to the precodification version as contained in Public Law 89-487; present reference is subsec. (3) of Public Law 90-23 (5 U.S.C. 552(a) (3)). The reference to the user charges statute (cited above) (5 U.S.C. 140) has been codified as 5 U.S.C. 483(a). 166 Issued Sept. 23, 1959 (revised October 22, 1963). (53) The circular provides some broad guidelines to be used in (1) determining the costs to be recovered, (2) establishing appropriate fees, and (3) providing for the disposition of receipts from the collection of fees and charges. The Attorney General's memorandum further observes: 156 It is evident from the provisions of the user charges statute, the Bureau of the Budget circular, and the legislative history of the act that the enactment does not contemplate that agencies shall spend time searching records and producing for examination everything a member of the public requests under subsection (c) (now subsection (a)(3)) and then charge him only for reproducing the copies he decides to buy. Instead, an appropriate fee should be required for searching as distinguished from a fee for copying. Such fees should include indirect costs, such as the cost to the agency of the services of the Government employee who searches for, reproduces, certifies, or authenticates in some manner copies of requested documents. Extensive searches should not be undertaken until the applicant has paid (or has provided sufficient assurance that he will pay) whatever fee is determined to be appropriate. ***Charging fees may also discourage frivolous request, especially for large quantities of records the production of which would uselessly occupy agency personnel to the detriment of the performance of other agency functions as well as its service in filling legitimate requests for records. This committee's 1968 committee print containing a staff compilation and analysis noted that after 1 year of operation the problem of fees was already apparent: 157 Another aspect of the law which could be used to block, rather than facilitate access, is the reference to fees (to the extent authorized by statute) to recover the costs of clerical handling of information requests. The intent of the law was to make information available to the public, yet some agencies have raised possible financial barriers using the fee device. The analysis went on to cite the wide disparity of fees provided for in various agency regulations and the lack of any uniform standards. It stated further: Although the Freedom of Information Act does not address itself to the possibility that request for information may be considered frivolous by the agencies, the Attorney General's memorandum states: 'Charging fees may also discourage frivolous requests. . .' In view of the wide range of application and search fees, it appears that there is no agreement on the use of fees to discourage 'frivolous requests,' although spokesmen for several agencies concede that this is the reason for some of their charges. Neither in the law nor in the Attorney General's memorandum is there a definition of 'frivolous' or a suggestion for the establishment of adminis trative machinery to determine if a request is 'frivolous,' During the subcommittee hearings, considerable attention was devoted to a discussion of fee schedules of various Federal agencies and the extent to which such search and copying fees were being used to deny information that Congress intended to be made available to the public upon request under the act. Executive branch witnesses were also requested to supply information on the amount of fees collected under the act during the previous fiscal year.' 158 Administrative Conference-Recommendation No. 24 Valuable insights into the scope of this problem of administrative problems and fees were furnished by Mr. Roger C. Cramton, Chairman of the Administrative Conference of the United States, during his testimony on March 14, 1972.159 The Conference had undertaken some 2 years ago a detailed study of the implementation of the Freedom of Information Act and in May 1971 had adopted Conference Recommendation No. 24, entitled "Principles and Guidelines for Implementation of the Freedom of Information Act." The recommendations have been transmitted to all Federal departments and agencies and, while not binding upon them, should receive most serious consideration because of the prestigious makeup of the Conference. Among the important recommendations of the Conference were those set forth in "Part A, General Principles": 160 (1) A restrictive interpretation of the exemptions authorizing non-disclosure; (2) Full assistance and timely action on public request for information; (3) Disclosure to the fullest extent possible of all but exempt parts of documents; (4) Specification of reasons when requests for information are denied, together with a statement as to how the denial may be appealed and to whom; and, finally, (5) Minimum fees for providing information, which should be waived when it is in the public interest to do so. Part B of Recommendation No. 24 provides that each agency should adopt procedural rules to effectuate the above principles and details guidelines as a model for the kinds of procedures that are appropriate for such purpose. Part C of the recommendation calls upon each agency to establish a fair and equitable fee schedule relating to the provision of information. It also proposes that a committee of representatives from the Office of Management and Budget (OMB), the Justice Department, 158 For examples of response, see hearings, pt. 5, pp. 1595, 1625, 1679, 1713, 1763. See hearings, pt. 6, appendix for a listing by agency; see also p. 58 of this report. 159 Hearings, pt. 4, pp. 1219-1251. The Administrative Conference of the United States, a permanent, independent Federal agency, is engaged in the improvement of the procedures of Federal departments and agencies. The objective of the Conference is to assist agencies in the more effective performance of their functions while providing greater fairness and expedition to participants and lower costs to taxpayers. 160 Ibid., p. 1221 and the General Services Administration (GSA) should establish criteria for determining what are "fair and equitable fees." Conference Chairman Cramton told the subcommittee: 161 Recommendation 24 was communicated to all Federal agencies. They were asked to consider it seriously. They were also asked to respond to us by a given date as to the extent to which they had taken action pursuant to it and what further plans they had for such action. We have now received comments from all but a handful of Federal agencies. Looking first to the five general principles of the recommendation, the record of compliance revealed by these agency responses is good. This assumes, of course, that compliance means a statement of intention to adhere to these principles in practice as distinguished from merely having them publicly stated in regulations. On this basis, we have rated about 25 agencies as in substantial compliance with the policies of the recommendation, and 11 agencies in partial agreement, with further study underway. Mr. Cramton went on to point out, however, that with respect to "compliance with the major specific proposals of the guidelines, the record becomes more checkered." The Office of Legal Counsel, Department of Justice, took the initiative in calling a meeting of the interagency committee recommended in part C. The OMB and the GSA joined Justice in the interagency committee study of fee schedules and the following conclusions were reached: 162 (1) Fee schedules for routine reproduction or photocopying (2) Charges for time spent in routine search or in monitoring (3) Considerable flexibility is necessary with respect to fees OMB Director George P. Shultz stated in a letter to Chairman Moorhead dated March 6, 1972: 163 OMB joined with Justice and GSA to establish a committee as recommended in part C of the Conference's Recommendation No. 24. The committee concluded that fees charged by agencies were lacking in uniformity and in some cases appeared to be excessive, and recommended that these matters be brought to agency attention. Action to give 161 Ibid., p. 1222; see pp. 1232-1235 for text of Recommendation No. 24; the staff work was done by Prof. Donald A. Giannella, Professor of Law, Villanova Law School; see p. 55 of this report for additional discussion of Recommendation No. 24. The new head of the Office of Legal Counsel is Mr. Roger C. Cramton who, as Chairman of the Administrative Conference of the United States, testified before the subcommittee on Recommendation No. 24 to improve the administration of the FOI Act. 162 Ibid., p. 1223. 163 The text of OMB Director Shultz, memorandum appears at pp. 1231-1232 of pt. 4 of the hearings. |