Ms. EMSELLEM. You are hopeful about the future. Mr. LYNCH. Yes. But, of course, the Justice Department and the Civil Division is in a position to only take care of the most extreme problems, where a citizen has gone to court and the Civil Division have to make the decision whether they are going to represent the agency or not. Only a few people have the resources or the time or the inclination to pursue litigation. Somehow, the Carter administration has got to figure out how to implement Bell policy all the way down the line and not just where the threat of litigation is hanging over an agency's head. There was a terrible example at the Department of State of the discrimination that comes between people who are just ordinary requesters and people who can litigate. One of my clients is a man named Allan Fitzgibbon.' He had requested documents on a matter about which he is writing a book. This is a matter of considerable historical interest. The CIA had charged a substantial search fee. We felt that it was appropriate for the fees to be waived under section 552 (a) (4) (A) of the FOIA. The CIA refused. We went to court. Judge Robinson decided that the information that Mr. Fitzgibbon sought was in the public interest and that the fee should be waived. Mr. Fitzgibbon had also had a freedom of information request pending for the same documents relating to the same affairs, the same events, at the State Department. We informed the State Department that Judge Robinson had decided that the CIA documents on this particular matter are in the public interest. The State Department wrote back and said, "We reject your request for fee waiver. We think that this is different than the situation you faced at CIA." The only thing that was different was that it was the State Department instead of the CIA. The documents related to precisely the same matter of public interest. I then wrote a letter to the State Department appealing this decision. I pointed out I had litigated this issue once before and won, and I was confident we would win it again if we had to litigate it again. They wrote back and said, "We still don't think that it is in the public interest; but, rather than go through litigation, we will waive the fees." Well, what that amounts to is, if you have got legal muscle, they will follow the precedent; if you don't, you are out of luck. That is just a terrible way to administer the act. It is the worst kind of bureaucratic arrogance to refuse to follow court precedents that are precisely applicable. Ms. EMSELLEM. Do you feel then that there would be an advantage to having a single agency, like OMB, which administers the Privacy Act, also administer the Freedom of Information Act? Mr. LYNCH. I think there might be some merit to that proposition. The Justice Department has always been the lead agency on freedom of information. In fact, when amendments being considered in 1973, there was some consideration to making OMB the lead agency. Those of us who are interested in disclosure recoiled from that suggestion. At the time, a lot of that had to do with the personnel who were then at OMB. 1 See p. 799 of the appendix. 2 See p. 823 of the appendix. But then, much to my surprise, OMB has done quite a good job of administering the Privacy Act. I would not want to commit myself today, but I think the idea of having OMB be the lead agency ought to be rethought. Even under the Republican administration, they did quite a good job in administering the Privacy Act. They do have the clout. As I say, the Justice Department does not have any clout except in deciding whether or not to represent an agency in litigation. It has persuasion; they are very persuasive people. I do not want to take anything away from them. But, in terms of sheer bureaucratic muscle, they don't have it. Ms. EMSELLEM. From your own experience litigating against various agencies, do the procedures vary considerably among the different departments in the way they handle a (b) (1) exemption request, for example? Mr. LYNCH. Well, it is hard for me to say what the procedures are. But the results are radically different from agency to agency. I would recommend that the committee have the Defense Department testify. The Defense Department operates very well. They are generally able to respond within the 10-day time limit. When there are delays, they explain the situation to people-often by telephone. Both Mr. Blake and Mr. Feldman raised the question of very large voluminous requests. Well, people are not unreasonable. If you will call them up and tell them that their request encompasses 100,000 documents, they will understand that obviously you are not going to be able to respond in 10 days. I think that is one of the most important things about the Defense Department; there is an element of civility in the way they deal with the public. From what I understand, they have very little trouble in people voluntarily consenting to extensions. When you get a very curt letter from the FBI or from State Department, putting you off and telling you, "don't call us, we'll call you," then that gets people's backs up. In this regard, I think that the Justice Department is beginning to consider changes in the format of the letters that they send out to people. I must say in fairness, when I cite the Defense Department as a good example, they do have a lot of manpower over there which perhaps the CIA and the State Department do not have. They have a lot of people. But, still, I think that there is also an attitude that is very beneficial. The short answer to your question is that the results that people encounter from an agency to agency are wildly different. Ms. EMSELLEM. Thank you. Mr. Lyon? Mr. LYON. I have no further questions. Ms. EMSELLEM. Thank you very much. Again, our apologies. Mr. LYNCH. Thank you. Ms. EMSELLEM. The hearings will recess until October 6, [Whereupon, at 1 p.m., the hearing was recessed.] FREEDOM OF INFORMATION ACT THURSDAY, OCTOBER 6, 1977 U.S. SENATE, SUBCOMMITTEE ON ADMINISTRATIVE PRACTICE AND Washington, D.C. The subcommittee met, pursuant to notice, at 9 a.m., in room 1202, Dirksen Office Building, Hon. James Abourezk (chairman of the subcommittee) presiding. Present: Senator Abourezk. Staff present: Irene R. Emsellem, chief counsel and staff director; Diana Huffman, counsel; and Robert Lyon, counsel to Senator Thurmond. Senator ABOUREZK. The hearings will come to order. OPENING STATEMENT OF SENATOR ABOUREZK Today the Senate Subcommittee on Administrative Practice and Procedure continues its oversight of the implementation of the 1974 amendments to the Freedom of Information Act. The subcommittee will focus primarily on the (b) (7) exemption for investigatory records, the provisions governing delays, fee waivers and attorney fees, and the absence of any Federal office to coordinate implementation of the act. Prior to the 1974 amendments, the (b) (7) exemption permitted the withholding of all investigatory files compiled for law enforcement purposes. Judicial interpretation of this provision varied widely, with many circuits construing the exemption very broadly. Thus under the (b) (7) exemption the entire four-volume report on the MyLai massacre coverup was withheld, as was the spectrographic analysis of the bullet that killed President Kennedy, and HEW's compliance reports on discrimination in northern public schools. The 1974 amendment to (b) (7) was intended to repudiate these cases in particular and to mandate a narrower interpretation of the exemption generally. As amended (b) (7) no longer can be used to exempt entire files, but rather only individual investigatory records. within a file, whose release would cause one of six enumerated harms.2 Last May, Attorney General Bell, in keeping with the philosophy of the Freedom of Information Act, mandated the disclosure of law 1 See Bristol-Myers v. F.T.C., 424 F. 2d 935 (D.C. Cir.) cert. denied, 400 U.S. 824 (1970); Wellford v. Harden, 444 F. 2d 21 (4th Cir. 1971); Weisberg v. Department of Justice, 489 F. 2d 1195 (D.C. Cir. 1973), cert. denied, 416 U.S. 993 (1974); Ditlow v. Brinegan, 494 F. 2d 1073. (D.C. Cir.), cert. denied, 419 U.S. 834 (1974). 2 See p. 215 of the appendix. enforcement records, even if the material was arguably exempt.1 The subcommittee is hopeful that this action by the Attorney General will finally quiet the persistent request of some Justice Department and FBI officials that Congress repeal the 1974 amendment to (b) (7), and reinstitute a per se exemption for all investigatory files. The Department of Justice also has issued several directives intended to discourage the use of the (b) (7) exemption to withhold data on illegal Government activities, information in a requester's file concerning a third party, and administrative markings.2 These new policy statements reflecting the administration's commitment to openness, are most encouraging. The subcommittee will closely monitor the implementation of these directives to determine the degree of compliance within the Justice Department. Agency implementation of the time constraints in the law, which were adopted in 1974, have been criticized as being unrealistic. Agencies are now required to respond to a Freedom of Information Act request within 10 working days and to an appeal under the act within 20 working days. While many agencies immediately set out in 1975 to devote the necessary manpower and resources to meet these deadlines, others-most notably the FBI-did not. At one point the FBI had a 6- to 8-month backlog of requests. While admittedly the FBI experienced an unanticipated volume of requests for records, which in many cases involve voluminous files, this alone does not account for the backlog. The major factor creating the backlog was the internal procedures established by the Bureau for processing requests, coupled with the lack of personnel assigned to its Freedom of Information Unit. It was not until last summer, when 400 special agents were brought to Washington to handle Freedom of Information Act requests, that the backlog began to dissipate. The success of this effort is a matter the subcommittee intends to examine.* A logjam has also developed within the Department of Justice in its Freedom of Information Appeals Unit. As of last June, a backlog of approximately 600 cases existed. While the Attorney General mandated a review of each case to determine if it should continue to be litigated, it is unclear how many of these now have been dropped. At today's hearing the subcommittee will try to determine the effect, if any, of that review of cases by the Civil Division." 7 Another 1974 amendment provides for the discretionary waiver of search and copying fees when release of the information would "primarily benefit the general public." A number of instances of abuse of this provision have come to the subcommittee's attention. Congress did not intend this provision to be used to discourage requests. Yet some agencies' refusal to waive fees have had exactly that effect. For some public interest groups and media representatives a fee waiver denial is a refusal to disclose the information. In an attempt to establish the dimensions of this issue, the subcommittee conducted a survey of the fee waiver regulations and practices 1 See p. 217 of the appendix. See exhibits 76, 77. 78. pp. 663–665. 5 U.S.C. 552(a) (6) (A). • See pp. 783, 784 of the appendix and p. 126 of the hearing text. 5 See exhibit 84. p. 757 of the appendix. For updated figure on backlog see p. 134 of the hearing text. 75 U.S.C. 552(a) (4) (A). See pp. 801-817 of the appendix. in 32 Federal agencies. However, because agencies are not required under the act to maintain data on fee waiver requests many recipients of the questionnaire did not respond adequately to the survey. In fact, only 17 of the 32 agencies responded fully. A preliminary analysis of their responses indicates wide variance in standards for waiving fees. Many agencies lack any specific guidelines. Others follow regulations which contravene the statutory language and intent. Some agencies also lack procedures for administrative appeals of fee waiver denials. The subcommittee will question the Justice Department about fee waiver policies in the context of its role as litigator of other agencies' Freedom of Information Act cases. The subcommittee will also concentrate on difficulties experienced during the past 2 years under the provision of the act permitting the award of attorneys fees to a complainant who "substantially prevails." 2 A major problem arises when an agency agrees to settle a case after a requester has sued the agency. Agencies who settle just before a judgment is rendered by the court argue that the requester has not prevailed, and so is not entitled to attorneys fees.3 This interpretation seems violative of the act's intent in providing attorneys fees. If agencies will release information only if taken to court, a requester who must sue should be reimbursed for attorneys fees expended to compel the disclosure. There are indications that the Justice Department at last is retreating from this interpretation. The subcommittee hopes to document this policy change at its hearings.* Finally, the subcommittee is concerned about the lack of any Government-wide oversight by the executive branch of implementation of the Freedom of Information Act. The Office of Management and Budget performs this function for the Privacy Act. A Freedom of Information Act requester confronts different policies and procedures at every agency. To make matters worse, no single compendium of all agency Freedom of Information Act regulations exists. The subcommittee hopes to determine the need and advisability of an executive branch coordinating office for the Freedom of Information Act. The Carter administration, through the Justice Department, has announced its commitment to the goals of the Freedom of Information Act. While this final day of oversight hearings will spotlight some of the problems under the act, I also hope it will confirm the existence and implementation of this new executive branch attitude toward openness in government. Our first witness will be Allen McCreight, inspector, Deputy Assistant Director, for the FBI's Freedom of Information and Privacy Acts Branch. Mr. McCreight, please introduce the colleague with you. Mr. McCREIGHT. Mr. Chairman, I am accompanied by Special Agent Michael Hanigan, who is also assigned to the Freedom of Information and Privacy Acts Branch. 1 See pp. 785-787 of the appendix. 25 U.S.C. 552 (a) (4) (E). 3 See Cuneo v. Runsfeld, 553 F. 2d 1360 (D.C. Cir. 1977); Goldstein_v. Levi, 415 F. Supp. 303 (D.D.C 1976). and Vermont Low Income Advocacy Council v. Usery, 546 F. 2d 509 (2d Cir. 1976). 4 See p. 157 of the hearing text. 5 See p. 217 of the appendix. See pp. 968-986 of the appendix for articles discussing problems under the act since 1974. |