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the concept that that act's protection should apply to “any item of information about an individual maintained by an agency, including, but not limited to, his education, financial, medical, criminal, or employment history that contains his name or other identifying particulars."

Since the practical effect of that language depends in large part on FOIA, with which the Privacy Act interrelates, the recent judicial changes in the meaning of FOIA exemption 6 also curtail the objectives sought by Congress in the Privacy Act.

The rejection of the District of Columbia Circuit's recent assault on FOIA's privacy exemption is especially important because personal privacy, although an interest of great importance with constitutional aspects, does not have effective support by strong organizations as do other major protectable interests. In addition, it is often impracticable for agencies to give notice to individuals before releasing information about them, like the notice usually given to business submitters, so that they may have an opportunity to object and to defend their interests.


Five: FOIA procedures as to time limits. Let us be clear on what is right and what is wrong about the present time limits. These limits, as you know, are 10 working days or 2 weeks to act on FOIA requests, and 20 days or 4 weeks for appeals.

In normal circumstances, and for requests presenting no great difficulty, these are reasonable limits to protect requesters from excessive bureaucratic delays. Nevertheless, the present time limits merit legislative attention for two reasons: One, because they tend to indicate that FOIA work should always take precedence over other agency responsibilities, and, two, because they put Government agencies in an apparent position in the eyes of the public of violating the law even when large backlogs or large or difficult requests take more time.

An adequate extension of time to fit a really large and complex request cannot be granted under the present law, except by a court, and, catch 22, there is no way the agency can ask a court for such an extension unless the requester chooses to file a suit for the records.

Two changes are needed. First, there should be a more realistic list of circumstances that warrant a time extension, including, for example, the need to obtain input from a private submitter of information. Second, an agency should be able, by notice to the requester, to extend the limits to a definite date because of circumstances listed in the statute, subject of course to the requester's right to file a suit challenging the time extension as unwarranted or excessive.


Six: FOIA procedures on fees. Total fees paid by FOIA requesters cover only a tiny fraction, perhaps only 2 percent or less, of the costs to taxpayers of handling their requests. However, the matter is not that simple. Fees naturally tend to discourage requests. If higher fees are charged, some information which would benefit the public or would benefit a private citizen at little cost would not be furnished.

The study, which we completed in 1979, contained detailed recommendations on fees to achieve three general effects, which I still favor: First, that requests which are costly to process and are made for private rather than public benefit should be charged more nearly compensatory fees to reimburse the taxpayer for a large part of the cost; 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 in-between treatments for both of the types of in-between situations; namely, the costly but public benefit kind of request and the inexpensive but private benefit kind.


Seven: FOIA procedures as to 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 nonexempt parts of a record is reasonable and when it is not. The study completed in August 1979 contains such standards, and I believe they would represent a worthwhile improvement in the statute.

In conclusion, I hope I have shed some light on most of the main areas for legislative concern, although there are others mentioned in my prepared statement.

Thank you.

Mr. RADER. Thank you, Mr. Saloschin. The subcommittee deeply appreciates the expertise and experience which you bring to this subject.

Senator Hatch has informed me he will return from the floor just as soon as he possibly can. In the meantime, he has requested me to ask a couple of questions.

First, in your work at the Justice Department, you had a unique opportunity to see the actual costs involved in administering the Freedom of Information Act. You have discussed in your testimony the costs to Americans in general and the costs to the Government in a cost-benefit analysis context. In your opinion, what is the actual dollar cost to the American taxpayer of administering the Freedom of Information Act?

Mr. SALOSCHIN. That is an extremely difficult and comprehensive question. If I had to give you a three-word answer, after having made vigorous efforts to determine the cost, that three word answer would be I don't know. I could also say that I do not think anybody knows.

I was instructed to try to determine this as part of the study. We began at the beginning of January in 1979 to interrogate all the agencies and give them a uniform basis for constructing estimates of their costs for the year just completed, calendar 1978.

There was a great deal of objection by some agencies to any type of estimate structure or form that might perhaps suit other agencies, and particular objections to estimate forms which sought to search out costs of the type that are more difficult to find, for example the work done on FOIA by people who work on it parttime but whose regular job is in some other part or function of the agency

We had to get on with the job and settle for a very simplified form which resulted in estimates of approximately $48 million for the calendar year 1978. We had this reviewed by an economist in the Justice Department. Of course, after having worked with all the agencies for about 10 or 12 years and having worked in the Government a long time, I had my own degree of skepticism about what information we actually extracted through these estimates.

His opinion and mine, and I think the opinion of most people who have been deeply involved in the freedom of information field, is that the costs are considerably greater if you were to determine them by a rigorous and thorough collection of data such as you might do if you had available cost accountants and similarly qualified personnel. However, how many times greater it would be, I would rather not venture a guess today.

Mr. RADER. Thank you.
What was the figure you arrived at in that 1979 study?

Mr. SALOSCHIN. That was $48 million which we traced. In our newsletter, “FOIA Update," when we reported in a series of brief stories on the costs and benefits of FOIA, we did indicate that figure, but we also indicated that it could not be regarded as accurate or even approximately accurate.

Mr. RADER. In your statement, you focus the subcommittee's attention on exemption six, the personal privacy exemption. You have explained to us why perhaps it has not received more attention from other groups.

However, what specific recommendations might you make to correct the problems without endangering public interests with regard to the sixth exemption?

Mr. SALOSCHIN. I would not change the law at all with regard to public interest balancing where individual privacy is concerned. I think the phrase "clearly unwarranted invasion of personal privacy" in the law is sound. I think it should be the test.

First, you have to see whether the release of information about a named individual would be any kind of an invasion of privacy. If it is, you protect it only if there is no substantial public interest in disclosure, or if the public interest in disclosure is definitely less than the possible risk to the individual. That is the way it should go.

The change that I would make would be simply to restore the law to what it was understood to be before the decisions in the past year here in the D.C. Circuit, that the phrase "medical files, personnel files, and similar files,” which Congress wrote way back in 1966, was simply, as most people understood it, the best way they could express themselves at that time in giving people a feel for the kinds of records that would be more likely to contain information, the release of which would be a clearly unwarranted invasion of privacy.

Therefore, I would suggest an amendment with appropriate legislative history to eliminate the surprising and radical, gimmicky interpretation of this phrase "similar files," as I indicated in my prepared testimony. There is a more detailed analysis of this in a recent issue of FOIA Update.

Mr. RADER. One of the bills that the subcommittee is currently considering, S. 587, provides a time limit for responding to a request which is prorated to allow 60 days for every 200 pages of documents that are requested, up to a maximum of 1 year for any request. In your opinion, would this adequately address the time limit problem which your testimony discussed?

Mr. SALOSCHIN. I would think that such an approach would not adequately meet the needs of the requesting public, including the people that the act was primarily intended to benefit, the scholars, the news media, and the citizens, in their capacity as citizens. Nor would it, surprisingly enough, alleviate the situation of Federal agencies under the present time limits.

Of course some agencies would receive some benefit from that particular proposal, but the number of pages to be reviewed in many instances is not an adequate measure of the time. You may have a great deal of difficulty in searching to locate the particular records that have to be reviewed. Once you have found them, a review job may be extremely simple. It may be apparent once you have found them that all of them should be released or all of them should be withheld, and it might not take more than a few hours or a few days to do that, but it might take tremendous searches in Federal record centers or other places to find the records. That proposal would not respond to that.

In addition, sometimes the question of whether you legally can and as a matter of policy should withhold records is not proportionate in its difficulty to the number of pages. I happen to know of an instance where a 13-page record required intensive discussions by high-level and low-level legal and policy people in a whole series of Government agencies before a decision was finally made after 6 or 7 months of intensive disputes to release the record.

Let me put it this way: I think you can come up with more practical amendments in the time limit area than that particular one.

Mr. RADER. Your testimony mentioned that perhaps less than 2 percent of the actual cost of the Freedom of Information Act is collected in fees assessed against the requester. Would you recommend any changes to alter that current situation?

Mr. SALOSCHIN. As I indicated in my testimony, yes, I think that there should be some changes in fees. When a requester, let us say for the purpose of fighting a criminal tax fraud prosecution against himself, in addition to the usual methods of defense, files a freedom of information request that takes literally thousands of man hours to process and to defend the Government in court, producing, for example, as one part of that, a Vaughn index of—if I recall correctly-13,000 pages, which had to be submitted to the court merely to list and describe the records being withheld, or, for example, when a request is filed for records of the Navy which measured from one end of one file cabinet to the end of the remaining file cabinets at 11,000 linear feet, a pile of records considerably higher than several Washington monuments, which the Navy estimated would require 100 or 200 people working full time for a year just to examine, if that kind of a request is being done as a part of dispute over payments under a contract, for example, I am not sure that the taxpayer should foot all or 98 percent of the bill.

Mr. RADER. Thank you, Mr. Saloschin. You have been an excellent first witness and have provided us with a comprehensive overview of a complex subject and some specific recommendations for legislation as well. We appreciate your efforts.

Mr. SALOSCHIN. For those who like to look at graphics instead of lengthy written records, perhaps I could leave for the record this one-page summary captioned "The Freedom of Information Act: A Major Intersection of Conflict on the Federal Legal Roadmap." It shows five main roads of access to Government-held information and five areas of protectable interests. I would leave it with you for possible inclusion in the hearing records.

Mr. RADER. Thank you. It will be included in the record.

[The prepared statement of Mr. Saloschin and additional material follows:)

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