SERVICE TO THE PUBLIC

Government agencies reacted variously to the new legal requirement to publish regulations and provide public information services to implement the law. Some agencies wrote regulations in a format designed to make them easy for the average person to understand and use; others printed regulations which tend to confuse and delay rather than to clarify and expedite the flow of information.

The law's requirement that agencies service the public's information requests has met with an equally varied response. The Department of Health, Education, and Welfare, for example, tackled its responsibility with noticeable zeal, establishing a public information center nder the direction of officials who have expressed intent to fulfill the letter and spirit of the law.

The Civil Aeronautics Board is the only agency which published as a part of its regulations a directory which provides an extensive breakdown of the types of information and records available and the office or subunit from which the information can be obtained. This kind of public assistance is noticeably lacking in most agencies.

VARIANCE IN DETAILS

Among those agencies with subunits, there was a difference of opinion on how extensive their package of regulations need be. For example, the Department of Agriculture directed each of its 29 subagencies to publish regulations because each generates different types of information requiring different treatment under the law. However, other major departments, such as Health, Education, and Welfare; Interior; Labor; and Housing and Urban Development, simply wrote omnibus regulations intended to cover the extremely wide variety of information and administration found in their huge subunits. The act has not been in effect long enough to determine whether this effort to satisfy the law will satisfy public needs.

QUESTIONABLE LANGUAGE

A preliminary examination reveals that most regulations, following the guidance of the Attorney General's memorandum, meet the letter and spirit of the law. A few, however, contain language showing that arrogant public-information policies still endure in agencies.

For example, the Departments of the Army, Air Force, Navy and the Department of Defense issued almost identical regulations which exempt from disclosure the records of evaluations that the departments make of contractors' products. While information of this type could, in certain circumstances, be considered as falling within one or more exemptions under the law, the regulations presume to say that records should be exempt if they "could be used improperly to the advantage or to the detriment of private interests." These qualifications for withholding in reference to "private interests," in this case are clearly outside the scope and intent of the act, a fact acknowledged by the Department of the Army, which is in the process of revising the regulation to comply with the law.

The Federal Trade Commission's regulations recognize that the law permits release of information contained in its confidential

records unless specifically exempted pursuant to law. Yet, in a section titled "Release of Confidential Information," the FTC flouts the law by resurrecting from the prior law the phrase "for good cause shown." It directs that the requester state in writing and under oath the nature of his interest and the purpose for which the information will be used if the application is granted. The section concludes: "Upon receipt of such an application the Commission will take action thereon, having due regard to statutory restrictions, its rules, and the public interest." The FTC obviously fails to recognize that the act specifically provides that persons requesting information no longer are required to state why they want it. Any information not falling under any of the law's nine categories of exemptions is deemed public information and is to be released without qualification.

MECHANICS OF ACCESS

If there is a wide variety in the public information attitudes expressed in the regulations, the sections dealing with the mechanics of gaining access request procedure, fees, exemptions, and appeal procedure) display an even greater variety and lack of uniformity.

Knowledge of where and how to request information usually is the key to success in gaining the facts from the Federal bureaucracy. In passing the Freedom of Information Act, it was the clear intent of the Congress that Government agencies spell out the details for requesting information. However, compliance with this requirement ranges from extensive detail (as in the case of the CAB) to merely listing the address of the head office in Washington. A few of the agencies which maintain regional offices, such as the Internal Revenue Service, published the addresses of these offices to serve information requests in other parts of the country.

The law intends that a person must provide a reasonable identification of a document he is seeking in order to minimize the waste of time that would result from office personnel hunting through files armed with only a vague idea of what the requester is seeking. Some agency regulations, however, enforce strict adherence to the identification requirement as a means of turning away requests for information. Given the complexity of Federal bureaucracy and the foundation of file cabinets on which it is built, a petty demand for detailed identification of documents becomes a weapon of secrecy. The general language used by an agency to describe its records should be regarded as sufficient to meet the identification requirements of the law.

FEES

Another aspect of the law which could be used to block, rather than facilitate access, is the reference to fees (to the extent authorized by statute) to recover the costs of clerical handling of information requests. The intent of the law was to make information available to the public, yet some agencies have raised possible financial barriers using the fee device.

For example, a fee ranging from $2 (Department of Commerce) to $3 (Department of Justice) may be charged by some agencies simply for the privilege of asking for information. Furthermore, these application fees are not refundable if a document cannot be found or released.

Most agencies charge an hourly fee for searching for records that are not customarily made available. These search fees range from $2.50 (Veterans Administration) up to $8 per hour (Post Office Department). To illustrate the complete lack of uniformity on fees, the Department of Defense (including its major branches) charges no search fee, nor do several other departments. The Department of the Treasury charges $3.50 per hour but does not collect it if the identified record cannot be found or if the Department chooses to withhold it under one of the law's exemptions. The Department of Transportation charges a flat $3 search fee regardless of the length of time; the Securities and Exchange Commission charges nothing for the first half-hour of a search, $2.50 per hour thereafter; the Civil Service Commission says only that the fee will be based on the actual cost of the search in clerical time. Although the Freedom of Information Act does not address itself to the possibility that requests for information may be considered frivolous by the agencies, the Attorney General's memorandum states: "Charging fees may also discourage frivolous requests ***" In view of the wide range of application and search fees, it appears that there is no agreement on the use of fees to discourage "frivolous" requests, although spokesmen for several agencies concede that this is the reason for some of their charges. Neither in the law nor in the Attorney General's memorandum is there a definition of "frivolous" or a suggestion for the establishment of administrative machinery to determine if a request is "frivolous," thus some agencies have arrogated to themselves more power in the handling of public information than the law intended.

EXEMPTIONS

The implementing regulations of the departments and agencies exhibit widely varying treatment of the nine categories of public records which may be exempt from disclosure under the law. Some of the regulations merely copy the exemptions verbatim from the law, while others analyze each category in relation to the different types of information a particular agency generates. Some regulations cite illustrations of exempt records, but none gives an exhaustive listing of documents that might be withheld under each category.

ADMINISTRATIVE APPEAL

The legislative history of the act indicates that the Congress intended administrative appeal procedures be utilized before a judicial review of a denial of a request for information is invoked. House Report 1497 (89th Cong., second sess.), which accompanied the Freedom of Information bill when it was submitted to the House by the Committee on Government Operations, states: "If a request for information is denied by an agency subordinate, the person making the request is entitled to prompt review by the head of the agency." The Attorney General's memorandum advised the agencies that their regulations were to spell out "the opportunities for administrative appeal." Most of the regulations comply with this instruction, usually directing any appeal to the secretary of the department or head of the agency involved. However, one gross exception to this pattern is found in the Department of State regulations, which simply state that there can be no appeal beyond a determination of the

Deputy Legal Adviser for Administration: "A determination by the Deputy Legal Adviser for Administration to deny a request to make a record available is final, and no appeal will be received by the Department of State from such a determination."

Not only does this section of the Department's regulations reject the Attorney General's direction that regulations include a provision for an appeal to the agency head, but also the Department's authority for final denial is given not to the "head of the agency" but to an obviously lower office.

A number of administrative appeal sections still reflect a longexisting attitude which incorrectly puts the burden on the requester to convince the bureaucracy that he is entitled to the information he is seeking. For example, the Defense Department's Defense Contract Audit Agency, which has an otherwise model appeal section, says in part: "The appeal shall indicate when and to whom the request was made, the date and stated basis of the denial, and the reasons why the record should be made available." The law makes it clear that persons seeking information no longer have to state a reason. The burden is on the agency to justify its denial of a request, and the only justifications allowed under the law are those covered by the nine categories of exemptions.

Part III.-The Law in Action: A Review After One Year

When the Freedom of Information Act went into effect in July 1967, some agencies voiced apprehension that they would be buried under an avalanche of demands for records, including those that contained sensitive national security information or those that dealt with highly personalized data about private citizens which, if disclosed, would constitute a clear invasion of privacy. There were those outside Government circles who expressed fear the law would be of little help in stimulating a flow of official information because the authorized exemptions from public disclosure offered too great an opportunity for practitioners of secrecy to find excuses for withholding.

However, a preliminary review of operations under the first year of the act reveals that requests for records and documents have not materially increased and that neither the fear of too much disclosure nor apprehension over excessive secrecy was valid.

Journalists, considered among the chief beneficiaries of the law, report bureaucratic barriers to information are noticeably being lifted. Lawyers, working in behalf of corporate clients, are discovering that access is becoming a legal right. The frustrations that formerly blocked many attempts to get access now can be soothed by the requester's having his day in court where the legality of withholding can be determined. In short, the law appears to be working reasonably well.

During the first several months under the act, both the public and the Government were feeling their way in the strange new relationship forged by the law. Neither side was entirely sure of the law's application. It will take time before it becomes a completely effective tool of democracy. During the first year of operation, as numerous questions of application and interpretation arose, the Foreign Operations and Government Information Subcommittee was thrust into the unofficial role of an "ombudsman"-or referee. Many disputes over requests for information, which technically could have ended up in the courts, were settled through consultation with appropriate officials.

IGNORANCE OF THE LAW

There is a widespread information gap-affecting the public, including news media and Government about the law's provisions. There have been numerous instances of low-level officials denying the release of information, the withholding of which cannot be legally justified. To compound this error, the person to whom the information is denied frequently is not aware of administrative appeal procedure available to him; thus he turns to the subcommittee or to the courts, or gives up. Often the Washington headquarters of agencies have been aware of the letter of the law and its specific application in their circumstances; while their field offices around the country have "never gotten the word." The subcommittee has maintained a continuing dialog with the executive branch which appears to have helped the law become more functional.

EXAMPLES OF PROBLEMS

Three cases, selected from a large number coming to the attention of the subcommittee, illustrate the types of basic problems that have arisen in the wake of the law.

(A) A newspaper in Southern California asked the Los Angeles regional office of the Internal Revenue Service for a local list of gun dealers who pay a special IRS tax. The regional office rejected the request.

The newspaper complained to the subcommittee which, in turn, contacted IRS Washington headquarters. It was determined that the newspaper not only was legally entitled to the requested information but that the IRS's own implementing regulations specifically provided for disclosure.

The case illustrates the problem of field offices not knowing the law and implementing regulations; it also shows a defect in administrative procedure, as there was no requirement for consulting with higher authority for guidance in settling a protested denial of a Government record. In addition, the case shows that an information seeker in this instance a newspaper should know the proper procedure to appeal a local denial, and that every effort should be made by the requester to review applicable implementing regulations to weigh justification for the denial.

The public, as well as the Government, has an obligation to know the law.

(B) A labor-relations consultant in California challenged the right of the regional office of the National Labor Relations Board to withhold from public examination the daily docket of pending cases. He complained to the subcommittee, which initiated negotiations with the Washington headquarters of NLRB to resolve the problem. Concurrently, the consultant filed suit in a Federal district court against the NLRB regional directors, claiming that their withholding was in violation of the Freedom of Information Act. Although the Washington headquarters never addressed itself to the consultant's charges, it did order that a daily docket be prepared for public view. The Government then moved to dismiss the court case on technical