situations, such as the thousands of requests that have caused backlogs at the FBI, the Open America decision (Open America v. Watergate Special Prosecution Forces, 547 F. 2d 605 (D. C. Cir. 1976)), or various practical accomodations, usually give agencies the time needed to get the work done. Nevertheless, the present time limits merit legislative attention for two reasons: because they tend to indicate that FOIA work should always take precedence over other agency responsibilities, and because they put government agencies in an apparent position in the eyes of the public of violating the law even when large backlogs or a large ΟΙ difficult request prevents adherence to the statutory limits. While an agency can give itself brief time extensions, of up to ten more working days, in three types of "unusual circumstances," this provision has little practical use. An adequate extension of time to fit a really large request cannot be granted under the present law except by a court, and Catch 22 there is no way the agency 11 can ask a court for an extension unless the requester chooses to file a suit for the records. Two changes are, therefore, needed. First, there circumstances that may should be a more realistic list of warrant a time extension, including for example, the need to obtain input from a private submitter of business information. Second, an agency should be able by notice to the requester to extend the limits to a specified date which it finds necessary because of circumstances listed in the statute, giving its reason for the extension, and subject, of course, to the requester's right to file suit challenging the extension as unwarranted or excessive. FOIA Procedures: Fees Total fees paid by FOIA requesters cover only a tiny fraction, perhaps two percent or less, of the costs to the government and the taxpayers of handling their requests. But the matter is not that simple. Fees naturally tend to discourage requests, and if fees or higher fees are charged, some information which would benefit the public, or benefit a private citizen at little cost, would not be furnished. The background for considering changes in this complex subject of fees includes the objectives and benefits of FOIA, which are hard to quantify; the costs of administering FOIA, which are difficult but not impossible to trace; the methods by which the work is actually done; the specific problems of fee administration; and an analysis of FOIA requests according to two key factors: whether they are more costly or less costly to handle, and whether they are made for and result in public as compared to private benefit. recommendations. The study which my office completed in 1979 contained detailed recommendations on fees. I still support the general thrust of those They included amendments generally designed to produce three effects: that requests which are costly to process and are made for private rather than public benefit will be charged more nearly compensatory fees to reimburse the taxpayer for a large part of the costs; second, to provide minimum fees or none at all where the request will benefit the public and is not costly to handle; and third, to provide inbetween treatments for both of the inbetween situations, namely, the costly-but-public-benefit kind of request and the inexpensive-but-private benefit kind. FOIA Procedures: The "reasonably segregable" clause. In 1974, Congress inserted at the end of FOIA subsection (b) a clause requiring that an entire record not be withheld just because a portion of it is exempt. The principle is sound, but the provision as now worded has often generated problems in practice, causing additional work and uncertainty for agency personnel. A further result is that requesters sometimes receive useless gibberish, or more rarely but more seriously, receive sensitive information, perhaps about an informant, which slipped through without deletion. The problem is in applying the statutory word "reasonably," and the cure is to spell out more definite standards to indicate when the segregation and release of non-exempt parts of a record is reasonable and when it is not. The study completed in August 1979 contained such standards, and I believe they would represent a worthwhile improvement in the statute. Conclusion: The foregoing statement hopefully refers to most of the main areas for legislative concern. But there are other significant problems which I have not mentioned, such as the protection of how-to-catch-crooks manuals under FOIA Exemption 2, and the widespread use of FOIA for pre-trial discovery. also believe it would be desirable to consider what Congress might could do to encourage better administration of FOIA, but that is more than I can cover in today's statement. I SIX POINTS THAT EVERY BUSINESSMAN By Robert L. Saloschin, Esq. Lerch, Early & Roseman, Chartered Former Chairman, Freedom of Information Committee, and Former Director, Office of Information Law and Policy, U.S. Department of Justice 1981 Robert L. Saloschin |