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proving the records are exempt, or may wish to intervene in the suit. The court may inspect the withheld material "in camera" (in chambers). The court may award the plaintiff attorney's fees, and may order the Merit Systems Protection Board to investigate and require the punishment of agency officials responsible for an arbitrary and capricious" withholding, but such disciplinary proceedings are very rare. IV. What will happen if the agency is hesitant or unwilling

to protect business information which it obtained from a business firm that wants the information withheld?

If the agency thinks that the business firm might object to the agency's granting a FOIA request for access to the information, but the agency thinks it may grant the request anyway, the agency usually will contact the firm to see if it objects, and if so may solicit facts that the agency needs to help show why the information is competitively sensitive and legally withholdable.

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If the agency finally determines to release the information

the business firm's objections, the actual transmission of the records to the requester will usually be delayed for 5 or 10 days after the agency has notified both the requester and the business firm of its determination to release.

This delay gives the business firm a chance to file a "reverse FOIA" suit in federal court to restrain and then prohibit the disclosure. When such suits are filed, the government almost always consents to a temporary restraining order, giving both sides time to prepare their

on the merits. The business firm can usually expect to win if it can show either that the information is covered by the Trade Secrets Act, whose meaning is in great dispute, or by Exemption 4 of FOIA unless the agency can justify a discretionary FOIA release. Sometimes, the business firm can delay release by a "reverse" suit until the information is no longer sensitive.

cases

The current law governing the rights of business firms to block agency releases of their business information is subject to many uncertainties; the federal courts have divided on some of the legal issues, and the Supreme Court has expressly left some legal issues undecided, but Congress may well change this situation.

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(For additional copies of this article and current information, contact the author at Lerch, Early Roseman, Chartered, 7101 Wisconsin Avenue, Suite 1313, Bethesda, Maryland 20814-4892, (301) 986-1300.)

Mr. RADER. With Senator Hatch due to return soon from the floor of the Senate where he has other important business, we would like to call our next witness, William Taft, General Counsel for the Department of Defense.

Mr. Taft has worked in the Government for 7 years in addition to 4 years in private practice. He has served as General Counsel for the Department of Health, Education, and Welfare, as Principal Assistant to the Director of the Office of Management and Budget, and as Executive Assistant to the Secretary of Health, Education, and Welfare.

Inasmuch as the Department of Defense has a reputation as one of the most efficient administrators of FOIA, we appreciate your participation today, Mr. Taft.

STATEMENT OF WILLIAM TAFT, GENERAL COUNSEL,

DEPARTMENT OF DEFENSE Mr. TAFT. Thank you.

I appreciate this opportunity to appear before you today and to present the Department of Defense's views concerning our experience with the Freedom of Information Act, to which I will also refer as FOIA from time to time.

At the outset of my statement, I think it is important to stress that the Department of Defense is strongly committed to the effective implementation of the act. Our record demonstrates our commitment to honor all requests for information by members of the public consistent with the national security and the protection of Government interests defined in the various exemptions to the act.

The Department of Defense has given a high priority to development of an internal system for complying with a large volume of FOIA requests within the permitted time limits for response. The DOD handles all but a small percentage of the FOIA requests it receives annually within the statutory time period.

Further, this processing of requests has been accomplished without disclosing classified national security information, which is of course contained within many of the requested documents but excised pursuant to an exemption of the act.

It has been our experience that the principal burden of the act is the cost imposed on the taxpayer in order to comply with the act and protect our national security interests. This cost is imposed in terms of actual expenditures and diversion of manpower resources not directly dedicated to administration of the act.

While of course we do not expect that the many substantial benefits of the act can be realized without incurring some costs, we believe that the act, in certain aspects, unnecessarily detracts from the efficiency of the DOD's decisionmaking and poses small but avoidable risks to national security.

Accordingly, I am here today to describe for you the magnitude of such costs and to discuss other problems that the DOD has encountered in complying with the act.

COMPLIANCE COSTS

In calendar year 1980, 57,053 public requests were received under the FOIA by the Department. This caseload represents a 15-percent increase over the number of requests received in 1975 when the 1974 amendments to the act first became effective, but it represents a 5.5-percent increase over the number of requests received in 1979.

Our experience, however, indicates that the number of documented requests is somewhat misleading in that, since 1975, the press and research and scientific journal authors and others have largely abandoned the use of the FOIA since they are encouraged to elicit information through informal channels and have found those channels to be satisfactory without resorting to use of the formal request. Only 2,829 of the 57,000 requests submitted in 1980 were denied, either in whole or in part, and those denials were of course based on the FOIA statutory exemptions.

In calendar year 1980, the documented cost of handling these requests was $6.8 million in DOD. In 1979, the documented cost was $6 million. The 1980 expenditure represents almost a 45-percent increase from the $4.7 million expended in calendar year 1976 for the same purpose. This 45-percent increase, of course, does not include the cost of processing informal requests, which as I have just noted, have increased in addition to the formal requests.

The largest single component of the documented expenditures is the manpower cost, including time spent in searching, review and deletion, coordination, approval, and correspondence concerning the items requested. Our experience indicates that in addition to passing through the freedom of information offices, a typical FOIA request will be reviewed by at least one middle-management level official having substantive expertise, and often will also require consultation with the Office of General Counsel. In some instances I have been familiar with, it has required consultation with more than one or two members of that office.

Senator HATCH. May I interrupt you for one second?
Mr. TAFT. Sure.

Senator Hatch. When you indicate the manpower costs, would they be in addition to the $6.8 million?

Mr. TaFt. What we have calculated, Mr. Chairman, are the direct costs of manpower dedicated to the FOIA requests and to the handling of them. The $6.8 includes those manpower costs and also copying costs that they incur and so forth.

Senator HATCH. Those who are actually assigned to find the documents, go through them, et cetera?

Mr. TAFT. That is correct. That is a considerable number of people in our case.

In processing FOIA requests, the act provides only standard document search and duplication fees may be charged the requester. In 1980, the DOD collected fees in the sum of almost $250,000. This figure approximates the annual average of DOD receipts since 1975.

By contrast, the actual cost to the DOD in 1980 for direct search and copying was approximately $800,000. The remaining $550,000 was waived because the release of the requested information was judged to be in the public interest.

FOIA "USER" PROBLEMS Given the costs imposed by the FOIA and the minimal recoupment available, it is important to examine who is receiving the benefits of the act. As the act authorizes “any person” to seek access to agency records, any United States or foreign citizen, corporation,

and so forth, is entitled to use the FOIA. Since 1975, only 20 percent, or one out of five of all FOIA requests received by the Office of the Secretary of Defense (OSD) were received from private individuals; 14 percent of the requests were received from special interest lobbying groups. By contrast, 55 percent of the requests received by OSD in that 5-year period have come from business firms, especially law firms, typically representing commercial enterprises.

These statistics illustrate what may be described as a "user" problem with the act. Significant costs to the taxpayer are being imposed by those who, in our judgment, were not intended to be financial beneficiaries of the act. Several categories of such users may be readily identified.

First, as indicated above, law firms representing commercial enterprises use FOIA rather than discovery or to supplement discovery in connection with litigation either to decrease fees incurred in the litigation process or to obtain records not available through that process.

For example, a large District of Columbia law firm submitted a request for essentially all documents which had been generated with the Trident submarine contract. It was estimated that compliance with this request would have required searching 12,000 linear feet of files—that is approximately 24 million pages-just to locate the requested documents.

Senator HATCH. Just a simple little request.
Mr. Taft. The request was very short.

Senator HATCH. The request was very short, but the linear feet were very long.

Mr. TaFt. The effort to locate and review specific requested documents for releasability was estimated to involve a minimum of 350,000 man-hours. Obviously, compliance with a request of this nature would have a serious adverse impact upon our ability to perform the functions for which we are responsible.

A second problem with the use of the act is that the DOD is required to expend substantial public resources in responding to requests for voluminous records from persons who are not citizens of the United States at all. There have been cases in which foreign nationals have requested and received sensitive information that although not classified, does relate to national security matters.

Foreign businesses have also used the act to obtain commercial information such as industrial designs submitted by American firms during the contract award process.

In still other cases, citizens of foreign governments have used the act to gain access to DOD documents for the purpose of opposing the plans of their own governments for cooperative security arrangements with the United States. These are documents that they could not have obtained from their own governments.

A related problem arises since the term "records” is left undefined by the act. As a result, we receive requests for information that surely were never intended to be made available to the public. One category of these requests is for computer programs, maps, and charts developed at Government expense, which are of considerable commercial value. Under prevailing interpretations of the act, the Department may be required to make such items available to a few requesters who, thereby, realize a windfall from research and other scholarly

activity funded out of tax dollars. Similarly, the DOD receives requests for personnel lists or rostors which are capable of being produced through DOD computers. These lists are utilized in connection with commercial solicitations by private firms and often result in unwarrented intrusions upon the privacy of our employees and retired personnels.

This use of military computer capability for these purposes is, in our judgment, simply incompatible with the military mission. We have also experienced problems with repeated requests for the same information from the same parties. Under the act, with each request, we must provide the requester with the entire volume of the material, not just updated information.

I would like now briefly to review some specific concerns we have had in DOD with the implementation of the act. These concerns are among those being considered by the administration in preparing legislation to amend the act. The administration, as you know, is preparing to submit legislation, but we have not yet concluded our review. We will work with the committee and these are some of the areas we are looking at.

ADVERSE IMPACT ON AGENCY DECISIONMAKING Perhaps no more onerous provision of the act exists for us than the administration of the B(5) exemption which covers those records which are “interagency or intraagency memorandums or letters which would not be available by law to a party other than agency in litigation with the agency.

The necessity of determining whether the interagency memorandum or letter would be available to another party in the discovery proceeding has been interpreted by the courts to require the agency to review on a line-by-line basis staff papers and other advisory records.

This line-by-line analysis is necessary in order to make available to the requester factual information that is severable from privileged advisory portions of the record and not otherwise exempt from disclosure. Since such factual information would be available in a litigation proceeding it is required to be released under the act.

This application of the so-called “reasonable segregation” requirement obliges the agency to engage in the frequently difficult task of distinguishing between facts and evaluations and of determining whether the selection of facts in an advisory memorandum is not itself the product of an evaluative determination which requires protection from public disclosure if the decisionmaker is to receive the type of candid advice essential to the sound management of the agency.

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