Page images
PDF
EPUB

More importantly, information dispelling rumors of corruption

also presumably held by the Bureau

-

[ocr errors][merged small]

-

Among the strangest impediments in implementation of the Freedom of Information Act is the "trade secrets" exemption, widely held by industry and some federal courts to mean any information provided by business to government regulators. I was alarmed to discover a permanent injunction issued by a federal District Court in Michigan prevented the Environmental Protection Administration from giving out information about the toxicity of chemicals in wide use. I came across this injunction when I was looking into the possibility that a pesticide one major manufacturer had hailed as a "safe substitute" for a banned substance was actually more dangerous than the chemical it sought to replace. EPA had documents and evidence indicating the dangers, but was prevented from disclosing the information. I prefer the California courts'

construction of a similar exemption in our state act: that any information relating to the health and safety of citizens cannot be construed as a trade secret, and even if it were, the public benefit of disclosure clearly outweighs the private benefit of a supposed trade secret.

But the problem now facing your Subcommittee is what to do about the Freedom of Information Act. I have several

suggestions.

First, I propose more closely monitoring implementation

of the act, and shifting the responsibility for that monitoring

from the Attorney General to a Congressional agency.

Second, I propose establishing fines to be imposed upon governmental employees who willfully and intentionally violate the Freedom of Information Act. This, I believe, will quickly get the message around that FOIA is not a hindrance but rather the logical extension of what our system of government is all about.

Third, I propose stricter standards for disclosure of information in a timely fashion. The 10-day limit is an extremely reasonable one in most cases, but it is routinely ignored.

Fourth, revisions in the law enforcement and trade secrets exemptions are long overdue. Law enforcement exemptions should be limited to active and current cases; trade secrets should be further defined in the act, and a stipulation added that would allow disclosure of such information when it could have a bearing on the health and safety of Americans.

Again, I appreciate having had this opportunity to address my concerns about the Freedom of Information Act to the Subcommittee. I will be keeping a close eye on your

actions to amend the Act and help the American people gain a better understanding of how and why their government behaves as it does.

APPENDIX 2.-MISCELLANEOUS MATERIAL

DEPARTMENT OF JUSTICE GUIDELINES ON FREEDOM OF
INFORMATION ACT

1. LETTER DATED MARCH 2, 1976 FROM ATTORNEY GENERAL GRIFFIN B. BELL TO HEADS OF ALL FEDERAL DEPARTMENTS AND AGENCIES

Following is the text of Attorney General Griffin B. Bell's letter to heads of all Federal departments and agencies concerning Freedom of Information Act litigation: March 2, 1976:

I am writing in a matter of great mutual concern to seek you cooperation. Freedom of Information Act litigation has increased in recent years to the point where there are over 600 cases now pending in federal courts. The actual cases represent only the "tip of the iceberg" and reflect a much larger volume of administrative disputes over access to documents. I am convinced that we should jointly seek to reduce these disputes through concerted action to impress upon all levels of government the requirements, and the spirit, of the Freedom of Information Act. The government should not withhold documents unless it is important to the public interest to do so, even if there is some arguable legal basis for the withholding. Inorder to implement this view, the Justice Department will defend Freedom of Information Act suits only when disclosure is demonstrably harmful, even if the documents technically fall within the exemptions in the Act. Let me assure you that we will certainly consel and consult with your personnel in making the decision whether to defend. To perform our job adequately, however, we need full access to documents that you desire to withhold, as well as the earliest possible response to our information requests. In the past, we have often filed answers in court without having and adequate exchange with the agencies over the reasons and necessity for the withholding. I hope that this will not occur in the future.

In addition to setting these guidelines, I have requested Barbara Allen Babcock, Assistant Attorney General for the Civil Division, to conduct a review of all pending Freedom of Information Act litigation being handled by the Division. One result of that review may be to determing that litigation against your agency should no longer be continued and that information previously withheld should be releases. In that event, I request that you ensure that your personnel work cooperatively with the Civil Division to bring the litigation to an end.

Please refer to 28 CFR 50.9 and accompanying March 9, 1976, memorandum from the Deputy Attorney General. These documents remain in effect, but the following new and additional elements are hereby prescribed:

In determining whether a suit against an agency under the Act challenging its denial of access to requested records merits defense consideration shall be given to four criteria:

(a) Whether the agency's denial seems to have a substantial legal basis.

(b) Whether defense of the agency's denial involves an acceptable risk of adverse impact on other agencies,

(c) Whether there is a sufficient prospect of actual harm to legitimate public or private interests if access to the requested records were to be granted to justify the defense of the suit, and

(d) Whether there is sufficient information about the controversy to support a reasonable judgment that the agency's denial merits defense under the three preceding criteria.

The criteria set forth above shall be considered both by the Freedom of Information Committee and by the litigating divisions. The Committee shall, so far as practical, employ such criteria in its consultations with agencies prior to litigation and in its review of complaints thereafter. The litigating divisions shall promptly and independently consider these factors as to each suit filed.

Together I hope that we can enhance the spirit, appearance and reality of open government.

(912)

2. MEMORANdum Dated MAY 4, 1981, FROM ATTORNEY GENERAL WILLIAM
FRENCH SMITH TO HEADS OF ALL FEDERAL DEPARTMENTS AND AGENCIES
OFFICE OF THE Attorney General,
Washington, D.C., May 4, 1981.

Memorandum for: Heads of all Federal departments and agencies.
From: William French Smith, Attorney General.
Subject: Freedom of Information Act.

The letter of the Attorney General of May 5, 1977 regarding the Freedom of Information Act is superseded by this memorandum. The Department's current policy is to defend all suits challenging an agency's decision to deny a request submitted under the FOIA unless it is determined that: (a) The agency's denial lacks a substantial legal basis; or (b) Defense of the agency's denial presents an unwarranted risk of adverse impact on other agencies' ability to protect important records.

As always, agencies must be guided by the principle that, subject to the specific exemptions provided by Congress, disclosure of agency records is the foremost goal in administering the Act. Accordingly, in responding to individual FOIA request, agencies are urged to consider the public interests which favor disclosure, to weigh the potential costs of FOIA litigation, and to ensure that nondisclosure will not serve to conceal or otherwise facilitate fraud, waste or other wrongdoing by government employees.

Agencies should consult with the Department of Justice, Office of Legal Policy and Freedom of Information Committee, before final denial of an FOIA request, which appears to present significant legal or policy issues. Agencies are further invited to solicit the advice of the Department of Justice on any other appropriate occasion.

The policies and procedures announced in this letter are intended to establish a cooperative relationship between the Department of Justice and other agencies in administering the FOIA.

Since experience in administering the Act has demonstrated various problems, I will be soliciting legislative proposals from your agency in the near future in a collaborative endeavor to reform the FOIA.

Washington, DC. 20540

Congressional Research Service
The Library of Congress

PRESS NOTICES ON DISCLOSURES MADE PURSUANT TO THE FEDERAL FREEDOM OF
INFORMATION ACT, 1972-1980: A COMPILATION

Prepared at the Request of the House Subcommittee on
Government Information and Individual Rights

Harold C. Relyea

Specialist in American National Government

and

Suzanne Cavanagh

Analyst in American National Government

Government Division

February 27, 1981

« PreviousContinue »